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Chen Xuan: The Principle for Responsibility, the Policy for Prevention, and the Cognition of Illegality

Abstract: Under the premise of abrogating the doctrine of “ignorance of law is no excuse”, cognition of illegality shall be an element of crime intent. The reasons are as follows: First of all, on the basis of Article 14 of the Criminal Law and the legitimated concept of intent, the cognitive objects of intent shall not be separate from the illegality of acts. In addition, the condemnation of cognition errors of illegality is not prior to that of cognition errors of facts from the very beginning. What’s more, the culpability theory softens the principle for responsibility, which is probably unconstitutional. The specific methods of judging the cognition of illegality are: Firstly, according to “double-level theory”, under the premise of determining laws and regulations as the cognitive objects of illegality, the least standard to judge that the actor has the cognition of illegality is that he knows the anti-values of acts which are also the reasons why the legislators have made prohibitive rules. Secondly, we shall not narrowly understand the realistic forms of the cognition of illegality because we can possess the cognition of illegality through thinking without linguistic medium.

Keywords: cognition of illegality; the principle for responsibility; the policy for prevention; general prevention; intent

(Editor: XU JING)

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