| The ancient Roman law," Ignorance of the law does not excuse ",was once regarded as an iron rule.It has always been in a general status in China.But with the advent of the statutory era and the demands of responsibility,it is completely under the leadership of state authority.The principle of " Ignorance of the law does not excuse " has gradually faltered.Although " Ignorance of the law does not a crime" shows great advantages in dealing with this shortcoming,but too loose is easy to lead people to ignore the law,neglecting the purpose of the general prevention of national criminal law creation,and the lack of feasibility of practical operation,it should also discard it.Under the background that the traditional principles of dealing with illegal knowledge have great limitations,how to achieve the balance between the national criminal law system and the protection of citizens’ legitimate rights and interests has become the core of theoretical research.It should be acknowledged that modern criminal law has strong professionalism and complexity.It is inevitable that citizens have a certain degree of difficulty in knowing the law.It is obviously against the responsibility of the law to completely ignore the influence of illegal understanding on the establishment of crime in the era of statutory crimes.Under this premise,it is necessary to recognize the possibility of illegal understanding.Applying this theory to solve the problem of illegal understanding is not only conducive to the balance between public welfare and private rights,but also can alleviate the problem of proof to a certain extent.The possibility of illegal understanding should be classified as a special responsibility element rather than an intentional element.On the one hand,the possibility of intentional and illegal understanding is due to the difference in nature,and should be attributed to different levels;and the inclusion of the possibility of illegal understanding is deliberately inconsistent with the current Article 14 of China’s criminal law;Misunderstandings and so on all indicate that it is unreasonable to include the possibility of illegal understanding into intentionality.On the other hand,although it is difficult to seek the responsibility elements of the possibility of illegal understanding in the four elements,it is necessary to amend the existing criminal law system in the context of the high correction of the criminal theory system.Incorporating the possibility of illegal understanding into the elements of responsibility will not only lead to the indulgence of crimes,but will also contribute to the realization of crime prevention functions.The judgment premise of the possibility of illegal understanding should be followed in principle.The perpetrator should take care of the average person in general,and the special field should be based on the average person in the professional field.When specifically examining the possibility of illegal understanding,we should first examine whether the perpetrator has an objective opportunity to have illegal doubts,and then decide whether to examine whether subjectively understand the law.In addition,as a negative responsibility factor,in principle,it is necessary to presume that the perpetrator has the possibility of illegal understanding based on facts.A specific review of the possibility of illegal understanding will only be initiated when the perpetrator asserts the possibility of illegal understanding.Finally,according to the existence of the possibility of illegality,the legal consequences of the mitigator’s mitigation or exemption are respectively given. |
