On The Knowledge In Criminal Law

Knowledge is an important issue in the Chinese criminal law. In criminal rules, as the expression of people’s subjective attitudes, knowledge has been stipulated by a number of provisions; in criminal law theory, as a cognition factor of criminal intention, knowledge has been repeatedly discussed. From the current research situation, the Chinese criminal jurisprudence explored knowledge generally considering it as subtopic issues such as mistakes, illegal consciousness, or the identification of specific offenses under specific provisions, however, knowledge-specific researches are still rare; from research methods, these researches also focused on the analysis of specific issues, and lacked the construction of the system. In the foreign criminal law theory, knowledge has been discussed as a separate topic, in criminal law theory of continental legal system, for example, some issues, such as phylogeny status of knowledge, the functions of specifications, the scope of objects, had been independently put forward and deeply examined, and the results of these researches are valuable to knowledge-related researches of the Chinese criminal jurisprudence.In the history of the Chinese criminal system, the provisions related to knowledge have a long history, it was originally used to describe the nature of criminal intention. After law revising in the Late Qing Dynasty, the typological thinking methods reflected by expression of knowledge had been replaced with concept law thinking methods, and knowledge became normative concept of cognition factors of criminal intention. And to date, this provision approach still has its impact. In our current criminal legislation, knowledge has been defined as an element of the criminal intention in general provisions of criminal law; in specific provisions of criminal law and judicial interpretation, knowledge-related provisions are very numerous and complex, but the vast majority are still recognized and used as a cognition factor of criminal intention. The knowledge-related clauses in specific provisions are tips for those in general provisions which can be directly applied when recognizing a specific crime, but the former still has guidance and supplement effect to the latter. (Chapter Ⅰ)Behind the knowledge, there is a deep philosophical foundation. According to materialist monism, knowledge in criminal law expresses the psychological process of knowing real existence, but reality does not mean it is real that knowledge acts as the physiological processes of the brain, it just reflects that the semantic meaning of knowledge is real, and knowledge is inseparable from the analysis of language. This also determined that in the criminal law, carrying out knowledge analysis must be combined with the "context" of criminal rules. In the context of liability doctrine, knowledge is the starting point of psychological causality, its contents depend on the scope decided by behavior causality; in the context of Subjective Wrongdoing theory, knowledge is a judging element of Subjective Wrongdoing; in the context of normative Criminal Law trend, knowledge is a cognitive requirement of legal norms. (Chapter Ⅱ)Phylogeny status of knowledge determines the normative functions of knowledge. In order to explain phylogeny status of knowledge, criminal law theory put forward many theories, which advocated that knowledge is an independent wrongdoing element. These theories comply with the system requirements as per Anti-value acts Dualism, and are commendable because they have many advantages on dealing with some issues, such as difference between intention and negligence, cognitive mistakes about components of elimination of misfeasance, and the relationship of responsibility and intention. Based on the wrongdoing elements of knowledge, knowledge provides wrongdoing judgement materials in the sense of regulatory anti-value acts, and will supplement the will factors in order to meet the requirements of intention. Also, the wrongdoing element theories of knowledge determined that the term "constructive knowledge" in the Chinese criminal law should be interpreted as a lower degree of understanding, rather than a presumption of intention. (Chapter Ⅲ)The structure of knowledge is about actually knowing what contents should be targeted in order to meet the requirements consistent with its system status and normative functions. For the elements of constitution of crime, whether it can become the object of knowledge needs to analyze individually every single element. Both executive acts and causal relationships decide whether wrongdoing exist in the sense of the anti-value acts, therefore they should act as the objects of knowledge, but their contents should be restricted. In principle, executive act should be capped at the nature of normative facts, otherwise it will be confused with illegal consciousness; causality should be abstracted and understood as "Risk by intention", otherwise it is not conducive to deal with the problems of causal flow deviation. The harmful consequences are wrongdoing elements in the context of anti-value consequences, so they should be considered as an object of will, not of knowledge. Whether components of elimination of misfeasance belong to knowledge decides whether a behavioral wrongdoing exists, so components of elimination of misfeasance should be considered as an object of knowledge. In the Chinese criminal law, the meaning of illegality have been mostly included in the acts and causal relationships, so it is unnecessary to be independently considered as an object of knowledge itself. (Chapter IV)...