Research On Judicial Application Of Illegality Cognition

With the emergence of a large number of statutory crimes in modern criminal law,the principle of "not exempt from liability without knowing the law" is gradually shaken.However,the problem of wrong understanding of illegality is called a difficult problem because it embodies the tension between the retributivism based responsibility and the prevention based criminal policy.Therefore,in the conflict between value pursuit and practical needs,China’s criminal law has not responded effectively to the problem of wrong understanding of illegality,and the principle of "no exemption without ignorance of law" has always been adhered to in judicial practice.However,in recent years,with the frequent occurrence of typical cases,such as "Wang Lijun’s illegal business case","Tianjin Old lady’s gun case" and "Shenzhen Parrot case",which have aroused strong concern from all walks of life,the academic circle and practical departments have begun to rethink and demonstrate the principle of "ignorance of the law without exemption" and the system positioning of illegality awareness.Through sorting out the practice cases of illegality cognition,this paper finds out the obstacles that hinder the application of illegality cognition theory in practice,defines the system orientation of illegality cognition,and explores the answer to the judicial application of illegality cognition based on the actual needs of responsibility doctrine and criminal policy.This paper consists of three parts:The first part is the proposal of the status quo and problems,which mainly retrievals cases related to illegality awareness from 2013 to 2021 through the website of judgment documents,and reflects the current status of illegality awareness in China from the perspectives of year distribution,charge distribution,lawyers’ adequate defense,and court’s response.It is concluded that there are two problems in the judicial application of illegality cognition: first,the positioning of illegality cognition in the system of crime theory is not clear.One thinks that illegality should not be placed in the system of crime theory,which can be further divided into the view that it does not affect the establishment of a crime and does not affect the establishment of a crime but affects the sentencing;The other thinks that illegality should be placed in the system of crime theory,but there are specific differences on whether to place it in the responsible class or in the intentional.Second,the standards of the understanding of the application of illegality are not unified,which is mainly reflected in the selection of the scope of application and the scale of application.It is generally believed that the recognition of illegality is only applicable to legal offense,not to natural offense,but how to accurately identify legal offense is still difficult.The choice of applicable scale is mainly made between individuals and ordinary people.The second part is the systematic orientation of the understanding of illegality.Through combing the historical development of the principle of "not knowing the law,not being exempt from liability",it analyzes the reasons for the evolution of not saying to saying necessary.Taking the theory of liability as a clue,this paper introduces the systematic changes of the theory of illegality cognition in the civil law system,sort out and comment on the relevant theories of illegality cognition in the criminal law system of the civil law system about the theory of intention and the theory of liability as the main line,and comes to the proposition of advocating the theory of limited liability.The third part is mainly the applicable standards of illegality recognition,mainly through the scope of application,applicable scale and applicable standards to expand the narrative.First,the avoidability of cognitive error of illegality can only be used in the case of legal offense,and the legal offense can be defined accurately from two aspects of formal standard and substantive standard.Secondly,the avoidability of cognitive error of illegality should be based on the applicable criterion of the actor,supplemented by the average person of the society.In the general field of social life,the criterion of selecting the individualization of the actor;However,when it comes to industries and fields specially regulated by legal norms,the actor knows or should know that the legal norms have special provisions for him,so it is necessary to adopt the social ordinary person standard.Thirdly,on the basis of selecting the reference scale,the author makes a specific judgment from two aspects: whether the actor has the opportunity to recognize the legal norms and whether he has made full use of the opportunity.In industries with special laws and regulations,the standards of ordinary people are used,so the specific judgment is more strict.