The Judicial Application And Judgment Rules Of Illegality Cognition

With the development of society,our country’s criminal legislation is expanding.The difficulty of knowing the law is also gradually increasing.The issue of illegality cognition has received more and more attention,and the principle of "those who do not know the law are not exempted" has begun to face severe challenges.Current demand calls for the study of illegality cognition.How to apply and judge illegality cognition in judicial practice is a problem that has to be faced and solved at present.Through the retrieval and sorting of cases related to illegality cognition,it can be found that cases involving illegality cognition have increased significantly since the emergence of relevant hot cases in 2017,and mainly occurred in the field of statutory offenses.Defense lawyers often use illegality cognition as a defense reason for innocence or a lighter sentence.However,they often lack reasoning and the elements of proof are different.Most of the courts do not respond to the question of illegality cognition.Even if they do,they will not adopt the defense opinion of illegality cognition,because they think that illegality cognition does not affect the establishment of the crime.And perceptions of the consequences of the error of illegality cognition also vary.It can be seen from the judicial status that the illegality cognition has not played its due role in judicial practice,because the positioning and judgment criteria are not clear.In order to introduce illegality cognition into the judicial practice of China and make it play its due role in judicial practice,it is necessary to analyze the necessity of illegality cognition and its proper position in criminal law.The arrival of the era of statutory offenses has made it more difficult for people to understand the law,and it has also shaken the principle of "those who do not know the law are not exempted".The presumption of knowledge of the law has an obvious color of national authoritarianism,which is not conducive to the protection of human freedom and rights.Illegality cognition is not only a requirement that implies the principle of statutory crime and punishment,but also an inherent requirement of responsibility,and its application is also conducive to the realization of crime prevention.It is obviously unreasonable to deny the application of illegality cognition in judicial practice on the grounds that it may indulge crime.Therefore,illegality cognition should have a place in Chinese criminal law.There are no relevant provisions on illegality cognition in Chinese criminal law.Some people think that illegality cognition should be interpreted as intentional,which is unnecessary and unreasonable.Illegality cognition should be considered as a factor for criminal imputation,which is a more appropriate conclusion based on the difference between the traditional four-element crime composition theory in China and the three-class crime composition theory in Germany and Japan,which is conducive to realizing the connection of "crime-responsibility-punishment".In addition,there is sometimes confusion between the error of illegality cognition and the misunderstanding of facts,especially in the two cases of misunderstanding of the elements of the norm and misunderstanding of pre-administrative laws.The distinction between the two is of great significance for determining the responsibility of the actor.Based on the necessity and the proper positioning of illegality cognition,the specific issues of judicial judgment of illegality cognition should also be refined.Taking the possibility of illegality cognition as the judgment object of illegality cognition is more reasonable and more feasible.As for the standard of judgment,it is not reasonable to simply adopt the standard of the actor or the standard of ordinary people.Based on the principle of responsibility and the needs of criminal law regulation,the standards of actors should be given priority,and the standards of ordinary people in a specific field should be supplemented.Specifically,the judgment of the possibility of illegality cognition can be transformed into a review of the avoidance of illegality cognition errors.The first thing that needs to be examined is whether the perpetrator has an objective opportunity to correctly understand the law.At this time,it is necessary to check whether the law is clear,whether there is an obstacle to the perpetrator’s cognition,and whether the perpetrator has the opportunity to have illegal suspicion.These three aspects are examined in order to judge whether the perpetrator has the opportunity to correctly understand the law.If the answer is no,it is considered that the perpetrator’s illegality cognition is inevitable.Otherwise,it will go to the next step of review,that is,whether the perpetrator has made an effort to find out the law.Generally speaking,perpetrators find out the law mainly by inquiring about the judicial organs or other state organs and seeking legal opinions from professionals or institutions.The perpetrators understand the law in different ways,and their subjective malignant degrees are different,which also have different influences on the judgment of the avoidance of illegality cognition errors.When the perpetrator has the possibility of illegality cognition,he is liable to a certain extent,but can be given a lighter punishment according to the specific circumstances;if the perpetrator does not have the possibility of illegality cognition,then his responsibility is reduced,and the judge can reduce or even exempt him from criminal punishment according to the specific circumstances of the case.