Research On The Cognition Of Illegality Of Administrative Crime

The cognition of illegality will have a certain impact on the identification of administrative crime.Therefore,it is the basic position of this paper to correctly understand the ’ illegality cognition ’,clarify its meaning and nature,correctly identify the illegality cognition of suspects and defendants in the case by the judicial subject,give full play to the function of illegality cognition in the conviction and sentencing of administrative crimes and accurate decriminalization,so as to correctly apply the criminal law and criminal procedure law,accurately punish crimes and protect innocent people from criminal investigation.Based on the four elements system of traditional crime constitution in China,this paper studies the theoretical concept,system status and specific application of administrative crime illegality cognition.In administrative crimes,it is very common that the perpetrator does not and cannot recognize the illegality of his own behavior.However,based on the position of ’ ignorance of the law can not be exempted from responsibility ’,China has convicted a large number of administrative offenders for a long time,which leads to the phenomenon that ordinary people question the rationality and even legitimacy of the judgment results.The court of second instance in such cases may be under the pressure of public opinion,and did not make a major change in the facts of the first instance,nor did it explain the special reasons,to change the sentence,either innocent,or greatly reduce the penalty.The reason for this situation is that there is no clear function of conviction,sentencing and decriminalization of illegal cognition in administrative crimes.In this paper,640 criminal judgments are taken as samples to study the judicial cases involving the understanding of illegality of administrative offenders.The author ’s important findings are as follows : First,the defendant ’s lack of illegality in administrative crimes has become a common defense,and the court often directly ignores or does not recognize it.Secondly,even if the judge admits that the illegality cognition has an impact on the trial of the case,he only regards it as the discretionary sentencing circumstances,and uses vague terms such as ’ minor circumstances ’ to give the defendant a lighter sentence;third,it is basically impossible for defense lawyers to influence conviction or use it as a cause of decriminalization by proposing that they do not have illegal knowledge,and there is no supporting case in this regard.Through the analysis of these cases,the author finds that the main reasons for this common phenomenon are as follows : first,the traditional presumption of judicial personnel ’s’(people)absolute knowledge of law ’ is deeply rooted,the mechanical understanding and application of criminal law provisions,ignoring the reason in specific cases,ignoring the rationality of the application of law,and lacking the real rule of law thinking of ’ the unity of rules and reason ’;second,the emphasis on objective imputation,mainly or even over-reliance on and rigidly adhere to the determination of the nature of the act by the administrative organ,lack of independent and neutral cognition and judgment position and responsibility as the judge should have evidence review,fact determination and legal application;thirdly,different judges have different understanding,grasp and application of the judgment standards and methods of illegality cognition,so similar cases often occur but the judgment results are very different.The author believes that it is necessary to fundamentally change the position of judicial practice on the understanding of illegality.First of all,it should be clear that the understanding of illegality has a basic position in the crime constitution of administrative crime,and give full play to the function of conviction,sentencing and decriminalization of illegality in administrative crime.This paper defines the understanding of the illegality of administrative crime as the actor ’s unclear or incorrect understanding and judgment of the prepositional administrative regulations in the criminal law.The lack of legal interests of administrative criminals and the dependence on administrative regulations and administrative identification make administrative criminals investigate criminal responsibility without illegal understanding,which should not be allowed in criminal law theory.Therefore,for administrative offenders,it is necessary to reposition and redistribute the obligation of administrative offenders to know the law(and therefore should abide by the law or not violate the law),replace the general judgment standard of social harmfulness cognition with more identifiable and operable illegal cognition,and take illegal cognition as the basis for the identification of administrative offenders,so that administrative offenders and the investigation of administrative offenders can be better recognized,understood and accepted by the public.Secondly,the ’ responsibility theory ’ of the criminal law circle on the understanding of illegality holds that the administrative crime without the understanding of illegality ’constitutes a crime but is exempted from liability ’,while the ’ intentional theory ’ holds that such administrative crime does not have the subjective constitutive elements of crime and does not constitute a crime.Compared with the responsibility theory,the ’ intentional theory ’is more targeted to respond to the public ’s doubt that the law still constitutes a crime and is more recognized by the defendant and the public.Thirdly,the author believes that ’ illegality cognition ’ should adhere to the principles and methods of individualized and rational judgment and identification,that is,judicial personnel should judge and identify the existence of illegality cognition of the perpetrator according to the cognitive ability and level of different criminal suspects and defendants,according to the evidence and objective facts in the case,and can be supplemented by the parties themselves to prove or reasonably explain that they have made reasonable(maximum possible)efforts to exclude the illegality cognition that they have or should have,determine the existence of illegality cognition in the case,and the influence on conviction and sentencing or conviction.Finally,it is suggested that the legislative and judicial organs clearly stipulate in the relevant interpretation of administrative crime that for administrative crime,the actor ’s subjective knowledge should include illegality cognition,and the actor does not constitute the crime when he does not have illegality cognition.When the actor ’s illegality cognition is affected,the penalty can be reduced or exempted;judicially,it is also possible to issue guidance cases to clarify typical situations such as illegality awareness,non-existence or errors,and to make case guidance.