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Misunderstanding of the law in criminal law

编辑: 毕业论文 Release time: 2016-08-19 Editor: Graduation Thesis

Abstract: With the development of society and the advancement of the times, traditional views on the relationship between misunderstanding of law and criminal responsibility have begun to be questioned. The author believes that we should base ourselves on the real society, respect the spirit of history, adhere to an objective and comprehensive viewpoint, and re-examine the relationship between legal understanding errors and criminal responsibility from the perspective of combining theory with practice.

Keywords: recognition of mistakes, legal recognition, criminal responsibility

I. The concept of wrong legal understanding

The superior concept of legal cognition error is the cognition error in criminal law, so defining the cognition error in criminal law is the prerequisite for further research on legal cognition error. The general theory of China's criminal law theory believes that the misunderstanding in criminal law refers to the actor's incorrect understanding of the nature, consequences and relevant facts of the criminal law of his or her behavior, that is, the legal meaning or factual situation of the actor's own behavior A misunderstanding occurred. According to this understanding, the legal misunderstanding in criminal jurisprudence refers to the incorrect understanding of the legal nature and legal significance of the acts performed by the perpetrators. It is also known as the legal misunderstanding, which is referred to as legal error.

In western criminal law theory, legal error is a concept corresponding to factual error, and illegal error or forbidden error is a concept corresponding to component error. However, scholars generally believe that legal errors have the same meaning as illegal errors and prohibited errors, so the three are often replaced by each other [1]. But in a strict sense, the three are still different, and the differences are mainly in the extension. Legal error is a misunderstanding of legal norms, that is, there is an incorrect concept of what kind of evaluation should be done on the legal norms of one's behavior. The criminal law norms include not only the conditions of the crime, but also how to punish the crime. Therefore, the legal error may be that the perpetrator misunderstood whether his or her behavior was legally considered to be a crime, or it may have an incorrect perception of the punishment that he or she should receive. Illegal mistakes are misunderstandings of the illegality of their actions by the perpetrators, that is, mistaken behaviors that are originally illegal and criminal are not illegal or non-criminal; or mistakes that are not illegal and illegal are considered illegal. , But does not include misconceptions about the convictions or punishments for their actions. Prohibition errors refer to an actor's incorrect understanding of whether his behavior is prohibited by criminal law, that is, he mistakes behavior prohibited by criminal law as not prohibited, and mistakes behavior prohibited by criminal law as prohibited. The meaning is roughly the same as an illegal error. In short, illegal errors or prohibited errors are the wrong understanding of whether the perpetrator's behavior is illegal or prohibited by the law. Legal errors include knowledge of such "violations" or "prohibitions". After the law is forbidden, there is a corresponding misunderstanding of punishment. Therefore, legal errors are broader and more extensive than illegal errors and prohibited errors.

Types of legal misunderstanding

Regarding the classification of legal errors, there are disputes among Chinese and foreign scholars. We believe that the traditional dichotomy of legal errors accurately includes various cases of legal errors, excluding the cases that should be regarded as factual errors, and is more complete in the system. And therefore more desirable. Legal errors in terms of popular textbooks include the following three types:

1. The perpetrator misunderstood the non-criminal conduct he committed as a criminal act out of ignorance or misunderstanding of the law.

This situation is usually called "imaginary crime" or "illusion crime" in theory of criminal law, and some scholars call it positive error of law. This kind of legal error generally includes two situations: one is to mistake a legitimate legal act that is not socially harmful as a criminal act, such as a situation where a legitimate defense act is considered a crime; Criminal behavior is mistaken for criminal behavior, such as the case of theft of property valued at less than 500 yuan as a crime of theft.

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