The Necessity And Judging Rules Of Illegal Consciousness

The criminal law arises out of the realistic demands of the protection of interests and order.However,despite that,the state still hopes to prevent and reduce the occurrence of crimes as far as possible,because the occurrence of crimes will infringe upon the existing interests and order,which means extra resource needs to be invested to compensate the damaged interests and repair the broken order,and it is unbeneficial for the state to maximize the allocation of limited resources.For this reason,criminal law always tries to prevent and reduce the occurrence of crimes fundamentally,and set up a progressive function mechanism to actively influence and guide the behavior to adapt to law.Once such function mechanism fails,the criminal law has to passively respond to and judge the criminal behavior.The two side of such function mechanism are fixed: one side is the explicit criminal law,and the other side is the certain or possible criminal behavior.And in between is the doer,who perceives the criminal law and perform the behavior.The main reason that human is distinguished from other things is that it has freedom to decided its will,and it may be affected by the doer’s qualities,and the objective circumstances.Beyond the above-mentioned influence factors,the doer himself may form a kind of independent,creative,and initiative intention decision.As a reflection of the real environment,when facing the real impact of the objective environment onthe doer,the criminal law has no choice but to accept and admit its realistic rationality.When the doer makes an intention decision which is based on the underlying drive of the natural laws that surrounded him,the criminal law shall give due attention to such intention decision’s immanent rationality.But the core characteristics of ethical life is that one should examine and adjust its desires in accordance with the normative reasons.It is the basis for written criminal law,as an objective existence,to comprehensively intervene in the objective world and social life.Therefore,the criminal law shall be act as a special element of real environment,influence the doer to decided its will in an active manner together with the environment,and compete with the effect brought by the real environment to the doer by way of forming a strong influence and win eventually,so as to adjust the doer’s will,prevent the doer from committing crimes,and eventually make the purpose of crime prevention becomes realistic.That is the significance of the doer to understand the relationship between behavior and criminal law,and the meaning of existence of illegal consciousness.However,if the doer cannot resist the temptation from natural law,which is opposite to the criminal law,and persists in committing criminal acts during the process of free choices and free activities,even though the criminal law has help the doer to form the knowledge of restraining crime,the written criminal law,an element of objective environmental,will require the doer to pay a reasonable price for his free choice in a fair manner,and consequently it will intensify the criminal law’s influence on the intention decision of the later doer when facing the same situation.This thesis,revolving around the operation mechanism of illegal consciousness,aims at discussing the legitimate foundation of illegal consciousness’ s existence and its function in the realization of the goal of criminal law and the different processing mode under different circumstances of illegal consciousness,thereby figuring out the role of illegal consciousness in criminal law,and realizing the function and goal of criminal law.This thesis consists of three Chapter:Chapter 1: Judgement on the necessity of illegal consciousness.Firstly,it introduces the concept of illegal consciousness,and three relevant concepts: the mistake of illegal consciousness,the probability of illegal consciousness,and theprobability of avoiding the mistake of illegal consciousness,so as to clear about the connotation between different concepts,and clarify the illegal consciousness’ s relation with other relevant concepts.On this basis,it explores the content of illegal consciousness,specifies that the law in illegal consciousness refers to Criminal Law,which means that the doer knows that the law it has violated is Criminal Law.Secondly,based on the illegal consciousness’ s subjective characteristic,it explores the significance of subjectivity in determining whether an act constitute a crime and applying the criminal law correctly,and then,consequently,and then leads to the concept of the principle of culpability.Then,from the perspective of the principle of culpability,it discusses the relationship between the illegal consciousness and the principle of culpability,and draws a conclusion that the illegal consciousness is an element of culpability.Finally,Chinese criminal law has chronically ignored the role of illegal consciousness: on the one hand,traditional four elements crime constitution theory is worshiped in china from early on,and the role of illegal consciousness in the constitutive elements of crime is not clear,on the other hand,the criminal code has no relevant provisions regarding illegal consciousness,and the relevant judicial explanation has directly excluded it from conviction and sentencing.As a result,under the guidance of criminal policy and for the purpose of guarding the society,China’s criminal judicature insists that ignorance of law excuses no man.However,such kind of biased judicial rule has deficiency in legitimacy,and such deficiency will be intensified and magnified in specific case.Chapter 2: The role of illegal consciousness in criminal law.Firstly,from the perspective of three-class crime theory system and the traditional four elements crime constitution theory,it analyses the role,rationality and deficiency of illegal consciousness in these two theories respectively.On the basis of the above analysis,the author holds that it is necessary to correctly identify the relationship between illegal consciousness and the constitute of the crime.Under the circumstances that the traditional four elements crime constitution theory has play an important role in Chinese criminal law,due attention shall be paid to the material effect brought by illegal consciousness on conviction and sentencing.And the relationship between thetraditional four elements crime constitution theory and the criminal liability shall be adjusted,that is to say,removing the illegal consciousness from four elements crime constitution to the criminal liability system.Secondly,the author tries to figure out the role of illegal consciousness in criminal code,and analysis and clarify the provisions regarding illegal consciousness in different countries’ criminal codes.Considering the fact that Chinese criminal code has no relevant provisions on illegal consciousness,the author thinks that the mistake of illegal consciousness shall be taken as a defense to mitigate responsibility regulating in Chinese criminal code.Chapter 3: The specific judicial way leads to the role of illegal consciousness.Since the role of illegal consciousness in criminal law is considered as a defense to diminish liability,the illegal consciousness theory’s internal logic should be obeyed when exploring its application path in criminal judicature.Firstly,it is necessary to clarify that the focus of criminal judicature in illegal consciousness is the mistake of illegal consciousness.Secondly,determine the reference system of the probability of avoiding the mistake of illegal consciousness.When it comes to determine whether the doer can avoid the mistake of illegal consciousness or not,it should judge mainly from the doer’s perspective and complementally from the general rational man’s perspective.Thirdly,judge the objective possibility of avoiding the mistake of illegal consciousness from the aspects of whether the law is clear and precise,whether the government has implemented management actions,whether the doer has cognitive obstacles,and whether the doer has the chance to eliminate such illegal consciousness.If the objective possibility lacks,a mitigated punishment shall be given;if the objective possibility exists,a lighter punishment shall be given.Finally,under the circumstance that the doer has the objective possibility to avoid the mistake of illegal consciousness,it specifically discuss the three common behavioral patterns:(1)consulting with individuals or institutions,(2)searching relevant cases,and(3)learning law by himself,judge the doer’s subjective activity during the process of avoiding the mistake of illegal consciousness,and distinguish different behavioral patterns’ influence in correctly recognizing the illegality of acts,thereby distinguishing the doer’s subjective malign,and investigating different criminalresponsibility in accordance with different behavioral patterns.