The determination of intent and responsibility in the case of two types of errors of understanding.
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2021.08.04
1. Problem leads
Criminal intention, which contains the subjective malignancy of the perpetrator, is one of the essential materials for judging the risk of behavior. To determine whether the perpetrator constitutes a crime, in the constitutive element stage, in addition to the satisfaction of the objective act, the subjective content required by the crime must also be satisfied, so as to further distinguish between negligent crime, intentional crime or accident. Responsibility, in the last order of the three-class law of crime composition, is the final check of crime composition, which means that even if the elements of crime are met and the elements of responsibility are not met, the crime can still be committed. In practice, not all actors have a clear understanding of their own behavior. Quite a lot of cases are that the perpetrator does not think that his behavior is a crime in criminal law or that it is not socially harmful at all. Awareness. In the case of a situation involving a lack of knowledge of illegality or an erroneous knowledge of illegality, most defense views directly hold that the perpetrator of the crime does not subjectively have criminal intent, and therefore conclude that it does not constitute a crime. The reason why such a simple and direct derivation is obviously not reasonable is that there are different types of cognitive errors within the cognitive error, which may be a wrong understanding of the illegality of the behavior, or a wrong understanding of the content of the constituent elements. Therefore, it is very necessary to summarize the attributes of the two types of cognitive errors, so as to better clarify the relationship with the subjective intention of the perpetrator, and thus be more conducive to clarifying the boundaries between crime and non-crime, this crime and the other crime. In other words, when there are two types of cognitive errors, which cognitive errors can directly block but intentionally, and which cognitive errors can block responsibility, should be further clarified.
[Case of Illegal Possession of Guns by Zhao Chunhua] The judgment holds that: regarding Zhao Chunhua's appeal reason that he did not know what guns he possessed and his defender's suggestion that Zhao Chunhua believed that he possessed toy guns instead of real guns, his understanding of the behavior object was wrong, and he did not have the subjective and intentional defense opinion of illegal possession of guns. The court holds that the appearance of the guns involved was highly similar to standard guns, with compressed gas as the power, can be launched normally, has a certain degree of injury and danger, and cannot be purchased through normal channels, the appellant Zhao Chunhua knows this, and under such circumstances, he holds it without authorization, that is, he has criminal intent. As for the specific degree of injury caused by the gun, it does not affect the establishment of subjective intent. (1)
[Nie Moujun's crime of illegal business operation] The judgment held that: Nie Moujun illegally operated tobacco monopoly products without the permission of the tobacco monopoly administrative department and without a tobacco monopoly retail license, and the illegal sale of cigarettes was worth more than 500,000 yuan. The circumstances were particularly serious. The defendant argued that he "lacked a serious understanding of his illegal behavior" and did not affect his conviction and sentencing according to law. (2)
[Wang Lijun's purchase of corn] The judgment held that the fact that Wang Lijun did not apply for a grain purchase license and an industrial and commercial business license to buy and sell corn is clear, and his behavior violated the relevant provisions of the state's grain circulation management at that time, but it has not yet reached the level of harm that seriously disrupted the market order. It does not have the social harm and necessity of criminal punishment equivalent to the crime of illegal business operation stipulated in Article 225 of the Criminal Law, and does not constitute the crime. (3)
Through the observation and comparison of the above three classic cases, it is not difficult to find that when the defendant said in the same defense that "I didn't realize that I broke the law" or "I didn't know that my behavior was actually required by a crime", the consequences of the judgment were different. Leaving aside the appropriateness of the reasoning part of the judgment for the time being, this phenomenon will inevitably cause people to think about it. It is also used as a reason for possible crime. What is the difference between the influence of intention and responsibility under the wrong situation?
2. Clarifying the Premise: Illegality and Intentional Understanding Object Clear
(I) The "illegality" of the knowledge of illegality cannot be confused with the "illegality" in the constitutive elements of illegality.
Since Behring, the constituent elements have been regarded as the type image of crime, but at that time, the content of the constituent elements was also regarded as a purely narrative invaluable judgment, which excluded all subjective and internal psychological processes from the composition of behavior and assigned these concepts under the framework of guilt. Therefore, under Behring's concept of behavior composition, even if a person's behavior has met the so-called constituent elements, it will not subject it to any negative evaluation. With the discovery of subjective constituent elements, scholars began to change the concept of Behring's behavior composition, and further pointed out that the relationship between the constituent elements and illegality is "smoke" and "fire", that is, the constituent elements are the indicators of illegality. However, with further heated discussions, people found that the existence of normative quantities far exceeded people's imagination. They thought that they were descriptive and descriptive words. They found that they might need value judgments with illegality orientation before they could be identified, for example, the concept of "natural person" and "goods. Then came Metzger, who pointed out that "the conformity of the act of behavior is by no means a mere basis of knowledge, but a basis for the real existence of (special) illegality. It makes the act illegal, but not only for itself, but only in connection with the shortcomings of the special basis for excluding illegality......". At this point, the constituent elements are considered to be "the actual basis of the violation". Since then, the interpretation of the concept has been influential to this day. It can be seen that the judgment of the constituent elements cannot be a priceless judgment.
In addition to the confirmation of the historical development process of the concept, the class system of criminal judgment also confirms this logical process. The order of the three classes of crime composition is "the constitutive elements should be"-"illegality"-"responsibility". It can be seen that before the judgment of illegality, the constitutive elements should be judged, and this judgment is not only the induction of factual materials, but also includes value judgment. To put it simply, when judging whether a person's behavior belongs to the behavior that should be punished by the criminal law, the behavior with "harmfulness" is often selected from many facts, and the redundant behavior is excluded. In the process of this logical transformation, value judgment is added. It can be seen that before the judgment of the illegality stage, the premise it is aimed at cannot be a worthless pure fact. Therefore, the constituent elements should be divided into two parts: "the basic facts of the constituent elements" and "the elements of the constituent elements of illegality", and the "illegality" of the understanding of illegality is in the second order of the composition of the crime.
(II) The object of illegality awareness is not social harm, but criminal law prohibition.
After clarifying the premise that the "illegality" of illegality is carried out under the discussion framework of the second class of the criminal class, it is necessary to further explain the meaning of "illegality. At present, scholars have not formed a unified opinion on the definition of this concept. Professor Chen Xingliang believes that "in China's criminal law, we should adhere to the view that the awareness of social harmfulness is consistent with the awareness of illegality. Social harmfulness is only a specific term used in China's criminal law, and its legal meaning should refer to the awareness of illegality.", (4) Professor Zhang Mingkai believes that the understanding of illegality refers to the understanding of the form of criminal illegality. (5) This paper thinks that the object of illegality cognition should refer to the prohibition of criminal law, and the social harmfulness is the value judgment in the first class, which is not the same between the two. The main reasons are as follows:
First, since criminal law is the last resort to regulate behavior, it means that criminal law is in a high position. The degree of danger of acts included in the evaluation of criminal law is necessarily higher than that of other departmental laws. Furthermore, when an act enters the vision of criminal law, the act must have "social harmfulness", otherwise, it is impossible to use criminal law to control it. However, only having the elements of social harm may be regulated by administrative law, therefore, the premise of using criminal law regulation must be that the criminal law has made prohibitive provisions on the act, and the behavior of the perpetrator breaks the prohibition (in violation of the prohibition of criminal law). Therefore, the level of illegal cognition, since it is in the second stage of crime constitution, is the judgment of illegal cognition under the premise of satisfying the social harmfulness, that is, the judgment of the prohibition of criminal law.
Second, the prohibition of criminal law, as a regulatory evaluation, is intended to instruct citizens to have a reference standard when choosing their own behavior, while social harmfulness does not have this function. This is because the concept of social harmfulness is inherently ambiguous and uncertain and does not satisfy the stereotypical function of the constituent elements. Especially on the occasion of "killing relatives with righteousness", A kills his son B, who does not feel that his behavior is harmful to society, but that it is a positive move to eliminate harm for the people. Therefore, it can be said that if social harmfulness is equated with illegality, then A's behavior does not even satisfy the constituent elements of intentional homicide. Such an inference is undoubtedly inappropriate. The correct derivation process is that although A does not realize that his behavior is socially harmful, he recognizes that the behavior is prohibited by the criminal law, and he can reverse that he recognizes that his behavior is socially harmful. As for its subjective understanding (not recognized), it belongs to its own subjective value evaluation and cannot compete with the value evaluation of legal norms. Therefore, the criminal law can certainly pursue A. (6)
Thirdly, why do you think that it is enough to recognize the formal element of "prohibitive nature of criminal law" in the second stage? The reason is that in the stage of constituent elements, the behavior has already met the essential element of having social harmfulness. The function of protecting legal interests to be undertaken by criminal law is essentially the unity of formal and substantive elements. In short, social harmfulness + criminal law prohibition = legal interest infringement, which is also required by the illegal class. Because the prohibition of criminal law is in the second order, it can be inferred that the prohibition of criminal law must have the infringement of legal interests.
(III) obstruction is deliberately the constituent elements of the factual understanding of the error, does not include the illegal understanding of the error.
Article 14 of my country's "Criminal Law" clearly stipulates the characterization of intentional crimes, that is, "those who know that their actions will result in harm to society, and hope or allow such results to occur, thus constituting a crime, are intentional crimes." It can be seen that intention includes not only the factor of cognition, that is, "knowing...", but also the factor of intention, that is, "hoping or letting go...". When the perpetrator creates the danger of intentional behavior, the causal flow generated by the behavior should be controlled in the hands of the perpetrator, which leads to the occurrence of the harmful result, so that the harmful result can be attributed. In other words, in an intentional crime, the perpetrator is aware of both the harmful act he has committed and the harmful result he is expected to achieve. Moreover, the article points out that "the behavior will have the result of harming the society". It can be seen that the requirement of "knowing" refers to "social harmfulness". If the social harmfulness is equated with the understanding of illegality, it will appear that when the perpetrator has the wrong understanding of illegality, it will block the subjective intention of the perpetrator. In this way, as long as the perpetrator defends his own understanding of illegality, it may appear that he cannot even satisfy the basic composition of the crime, which is obviously unreasonable.
Therefore, what is blocked intentionally should be a mistake in understanding the constituent elements. When there is a factual mistake in the constituent elements, it means that the perpetrator cannot even understand the social harmfulness of the first stage. Of course, it is blocked intentionally. However, the wrong understanding of illegality does not prevent intentional, nor does it prevent the elements of responsibility.
(IV) It is the possibility of illegality, not the error of illegality, that is to block the responsibility.
What should be done when the behavior meets the requirements of social harmfulness, but only when there is an illegal cognitive error? As mentioned earlier, the illegal cognitive error does not directly prevent responsibility, the reason is that citizens in the general environment of society, the obligation to understand and learn the existing laws and regulations, can not be "I do not know that the law is so" or "I do not learn the law, I do not know" such arguments to justify. While the state respects the freedom of value choice of individual citizens, it also requires that citizens need to be consistent with the state in terms of legal norms. Therefore, while nationals have the obligation to learn and understand the provisions of the legal norms, the State is also obliged to provide conditions to help nationals learn or understand the legal provisions. Here extends the question of the possibility of recognizing illegality. When the perpetrator has an illegal cognitive error, he should continue to judge whether the perpetrator's illegal cognitive error can be avoided. When the perpetrator's living environment is impossible to know the legal provisions, if a perpetrator lives in an isolated mountain forest or in an area with extremely backward conditions, if he does not understand that the legal provisions cannot be avoided, the application of the criminal law cannot be forced. Therefore, the responsibility should be prevented from committing the crime.
To sum up, the relationship between social harmfulness and the prohibition of criminal law can be summarized as follows: first, the understanding of social harmfulness does not necessarily have the understanding of the prohibition of criminal law; second, the understanding of the prohibition of criminal law must have the understanding of the social harmfulness of behavior. Therefore, the two belong to the rank relationship. When there is a mistake in the understanding of the constituent elements, it is not necessary to further analyze the mistake in the understanding of illegality. If it is assumed that it is an error in the understanding of illegality, it should be considered whether it constitutes an error in the understanding of the constituent elements. If it does not, it should be further judged whether it constitutes an error in the understanding of illegality.
3. Case Analysis and Application
At the end of the crime determination, it may be labeled as "innocent", but its source, that is, where is the innocence determined, must be clarified. Is it innocence that does not meet the constituent elements? Or is it because the elements of responsibility are not met? After the above analysis, at least the following aspects can be clarified: First, social harmfulness plays the evaluation function of the first class, which is the judgment standard for screening "good behavior" or "bad behavior", and the prohibition of criminal law is in Further formal judgment on the basis of social harmfulness. Second, in the relationship between the two, the prohibition of criminal law contains social harm, no social harm awareness does not mean that does not have the understanding of the prohibition of criminal law. That is, when they have an awareness of illegality but do not have an awareness of social harmfulness, they should be presumed to recognize the social harmfulness of their behavior. Third, in terms of the cause of the crime, the wrong understanding of the basic facts of social harm in the constituent elements, blocking the intention, and then not constituting a crime, which is the cause of the crime at the stage of the constituent elements. Having an illegality is not a condition that prevents but is intentional, nor is it an element that directly excludes responsibility. When there is an illegal cognitive error (prohibited error in criminal law), it should be judged whether there is the possibility of illegal cognitive, and if there is the possibility of illegal cognitive, the crime cannot be committed. If the possibility of illegal cognitive is not yet available, the responsibility will be blocked and then the crime will be committed. For the case at the beginning of this article, the following analysis can be carried out:
(I) [Zhao Chunhua's Illegal Possession of Guns]-Errors in Understanding the Constitutive Elements
In this case, is Zhao Chunhua's cognitive error an illegal cognitive error or a cognitive error that constitutes an element? Professor Jiang Su believes that "to determine that Zhao Chunhua has the intention to illegally possess guns, it is necessary to prove that he has knowledge of violating the regulations on gun control. If there is no such knowledge, it may constitute an error of constituent elements. Of course, if Zhao Chunhua has a wrong understanding of the law prohibiting him from holding guns, it may constitute a prohibition error (illegal understanding error)." (7) Professor Wang Gang pointed out that "the concept of firearms in illegal possession of firearms should be purposefully restricted, and only those with significant lethality and high danger should be identified as firearms in the sense of the crime. Correspondingly, Zhao Chunhua's behavior does not conform to the constitutive elements of the crime of illegal possession of firearms in the objective aspect, and it is difficult to determine that he has the intention of this crime in the subjective aspect. To take a step back, even from the current gun standards of the Ministry of Public Security, it should be determined that Zhao Chunhua has fallen into an unavoidable mistake of illegal understanding and does not constitute a crime." (8) Some scholars believe that Zhao Chunhua's misunderstanding is a constitutive error. Only when the facts of the case are revised to "Zhao Chunhua recognizes that the gun he holds is a restricted gun, but he believes that it does not constitute a crime for setting up stalls. (9) It can be seen that the academic community does not have a unified view of the wrong type of understanding of the Zhao Chunhua case.
According to the conclusion of this paper, Zhao Chunhua's case is a constituent error. The reason is that, first, Zhao Chunhua did not realize that his behavior violated the country's gun control regulations, and did not realize that he needed to obtain an administrative license and it was a violation of the criminal law to hold guns without a license. In other words, he did not realize that the gun he was holding was a real gun as recognized by administrative regulations. Therefore, this kind of misunderstanding of illegality in administrative law does not belong to the "misunderstanding of illegality" in the sense of criminal law, but belongs to the misunderstanding of constituent elements. Second, Article 128 of my country's Criminal Law stipulates that illegal possession of guns in violation of gun control regulations constitutes the crime of illegal possession of guns. It can be seen that "gun" belongs to the constituent elements of this crime, and the wrong understanding of "gun" should belong to the constituent element error. Zhao Chunhua believes that the gun he holds is not a gun stipulated in this crime (he thinks it is only a toy gun), so he does not even realize the basic social harmfulness and should be blocked but constitutes an essential intention.
(II) [Crime of Illegal Business Operation of Nie's Army] -- The Understanding Error of "Serious Circumstances"
The case of Nie Moujun raises the unavoidable question of whether the mistake in the understanding of the "seriousness of the circumstances" is a mistake in the understanding of the illegality or a mistake in the constituent elements, or neither? Scholars who hold the constituent element error believe that "the seriousness of the circumstances" is a normative constituent element, requiring the perpetrator to have an understanding of the circumstances and whether they are "serious", but not requiring an accurate understanding. (10) Scholars who hold the wrong understanding of illegality will stand on the overall evaluation elements of illegality. The reason is that "serious" is the evaluation of whether the behavior is worthy of punishment. If they think that their behavior is not "serious" The degree of "severity" is a wrong understanding of illegality.
It is not difficult to see that scholars try to judge "serious circumstances" as a whole. According to the above-mentioned in this paper, the constituent elements should be divided into two parts: the basic facts of the constituent elements and the elements of the illegal constituent elements. As the real basis of illegality, the source of the constituent elements is precisely because the illegal constituent elements provide the basis of illegality. The "plot" in the "serious plot" is actually a general description of the wrongful fact, which is placed inside the constituent elements and belongs to the real constituent elements. The "serious" is a negative evaluation of the degree on the basis of illegal facts. Although it affects the illegality of the act, it is a logic of backward extrapolation. It is an artificial negation of the illegality of the act from the conclusion. Therefore, in the case of "serious circumstances", "plot" belongs to the content of intentional understanding, which can be blocked by the wrong understanding of the elements of intent, and the wrong understanding of "serious" cannot be blocked by the elements of intent.
Returning to the judgment of this case, the judgment pointed out that "the defendant Nie Moujun argued that the lack of understanding of the seriousness of his illegal acts was a subjective understanding error, which did not affect his conviction and sentencing according to law.", It is not difficult to see that the judgment is based on the "seriousness of the violation. As explained above, "serious" is not a real element of wrongfulness, so it does not require the perpetrator to be aware of it, and it does not give rise to the problem of unlawful error. Only when Nie Moujun disagrees with the content of the plot, it may be considered as an error in the constituent elements, which in turn affects the determination of criminal intent.
(III) [Wang Lijun's Purchase of Corn]-Errors in Illegal Understanding
When purchasing corn, Wang Lijun clearly knew that he did not have a grain purchase license and an industrial and commercial business license, and he also knew that his lack of a license did not comply with the provisions of the administrative law. Therefore, if he realizes that his behavior violates the administrative law, he can be presumed to realize that his behavior has the basic social harmfulness, and he has no wrong understanding of the basic facts of the constituent elements. However, he believes that although his behavior violates the provisions of administrative law, it is impossible to violate the criminal law. In other words, he believes that "how can the criminal law provide for such behavior and convict and punish it?" Therefore, he has a wrong understanding of the prohibitive nature of the criminal law, which belongs to the wrong understanding of illegality. It should be noted that even if there is a wrong understanding of illegality, it does not necessarily prevent responsibility. When it causes itself to carry out the act due to unforeseen illegality, it can prevent responsibility and then commit a crime.
4. Epilogue
Effective defense for criminal suspects and defendants requires not only rich practical experience, but also accurate theoretical support for defense reasoning. The same is the hope to achieve the effect of the defense of innocence, the path to innocence is not the same. When it comes to the criminal suspect's defense of "I don't know this is illegal", it should be carefully analyzed. The source of the unknown law is caused by the wrong understanding of the illegality or the wrong understanding of the constituent elements. The conclusion that "a certain criminal suspect does not know the law and therefore does not have the intention to commit a certain crime" is difficult to convince prosecutors or judges. Once it is possible to lock in the cognitive error that is the constituent element, then the source of its ignorance is caused by the cognitive error of the constituent element, and the cognitive error of the basic facts in the constituent element can prevent criminal intent, so it is not necessary to rise to the second stage, that is, the judgment of illegality. In the event of a misconception of illegality, it is not an element of responsibility and therefore does not block responsibility. The possibility of recognizing illegality should be further analyzed, and then the crime should be punished from responsibility.
References:
(1) See Tianjin No.1 Intermediate People's Court (2017) Jin 01 Criminal Judgment No.41.
(2) See Hunan Yueyang County People's Court (2021) Hunan 0621 Criminal Judgment No. 24.
(3) See the Inner Mongolia Autonomous Region Bayannaoer City (League) Intermediate People's Court (2017) No. 08 Criminal Judgment No. 1.
(4) See Chen Xingliang: "Research on Illegal Cognition", Chinese Law, No. 4, 2005.
(5) See Zhang Mingkai: Criminal Law (5th Edition), Law Press, 2016, p. 318.
(6) See Bai Langtao, "The Dispute over the Attributes of Illegal Cognition: Premises, Logic and Legal Basis", Legal Science (Journal of Northwestern University of Political Science and Law), No. 6, 2020.
(7) See Jiang Su: "Intentional and Errors in the Elements of Normative Constitutive Elements-Taking Zhao Chunhua's Illegal Possession of Guns as an Example", Journal of East China University of Political Science and Law, No. 6, 2017.
(8) See Wang Gang: "Judicial Determination of the Crime of Illegal Possession of Firearms", China Law No. 4, 2017.
(9) See Bai Langtao, "Analysis of Error Types of Normative Constitutive Elements", in Legal Business Studies, No. 1, 2019.
(10) See Wang Ying: "The Crime System Orientation of the Plot of the Plot", in Legal Research, No. 2, 2012。
Introduction to the author:
