The Importance Of Subjective Element In Unlawful Conduct

Illegality,as one of the two pillars determining crime,plays an important role in the correctness of behavior and whether the perpetrator assumes criminal responsibility.In the study of illegality theory,objective illegality theory,especially pure objective illegality theory,dominates the academic field.The claim is that the nature of illegality lies in the infringement and threat to legal interests,and the judgment of illegality is purely objective,and the subjective intent of the perpetrator does not affect the judgment of whether legal interests are infringed.However,objective illegality theory has significant flaws,and subjective elements can affect the determination of behavior illegality and have a certain basis in positive law.The main shortcomings of objective illegality theory are mainly reflected in the influence of subjective elements on the determination of attempted offenses and special cognitive problems.The proposal of special cognitive problems not only poses a crisis to objective culpability theory but also becomes an important support point for subjective illegality to pry into objective illegality theory.This article consists of four chapters,including the following contents:In the first chapter of this article,by sorting out the basic viewpoints of(pure)objective illegality theory,we refute objective illegality theory from the negative aspect and point out its main shortcomings,including neglecting the ability to attribute the results of illegal behavior,failure to distinguish the concept of danger,and ignoring the unavoidable shortcomings of subjective elements in solving some specific problems.On this basis,we conclude that the evaluation object of illegality should be the unified behavior of subjectivity and objectivity.In the second chapter of this article,we explain the importance of subjective elements in determining behavior illegality from a positive perspective.Firstly,this article clarifies that the judgment of behavior illegality is a combination of factual judgment and normative judgment.Secondly,subjective elements can affect the existence,type,and degree of behavior illegality.Thirdly,this article combs through the positive law basis of China’s criminal law that takes subjective elements as the element of illegality.Finally,regarding the order of reviewing subjective elements,this article constructs a methodology of coexistence of objectivity and subjective priority theory.In the third chapter of this article,we further clarify the problems in objective illegality theory’s judgment of behavior danger in attempted offenses by determining the illegality of behavior.By sorting out the standard of danger judgment,it can be found that the pure objective danger theory and its modified theory are insufficient to support the evaluation of danger creation.The specific standard of danger judgment cannot ensure the objectivity of danger judgment.The standard of "generalized forecast based on all objective facts at the time of behavior" is basically the same as the modified objective danger theory,and the standard of "reasoning the danger before the event with post-event reasons" is actually the subjective responsibility theory of the fact.Before establishing the standard of danger judgment,three prerequisites need to be clarified: first,the danger in behavior danger judgment is normative danger rather than factual danger;second,the obligation assigned by norms to intentional and negligent offenders is not the same;third,there is no unified standard for judging the danger of intentional behavior and negligent behavior.On this basis,we propose a classification of standards for danger judgment based on normative danger.In the fourth chapter of this article,we further criticize the problems of objective illegality theory by the special cognitive problems facing objective culpability theory in the rule of danger creation.Special cognitive problems are ubiquitous in the danger creation rules of objective culpability theory.The traditional solution to special cognitive problems ignores the structural differences between intentional offenders and negligent offenders.Intentional offenders are responsible for their will and focus on subjective illegality,while negligent offenders are responsible for norms and focus on objective illegality.Special cognition can affect not only the determination of responsibility but also the danger of behavior,which further illustrates the significance of special cognition as a special subjective element in determining behavior illegality.