《犯罪故意论文：犯罪故意 明知含义 违法性认识 明知推定》由会员分享，可在线阅读，更多相关《犯罪故意论文：犯罪故意 明知含义 违法性认识 明知推定（6页珍藏版）》请在金锄头文库上搜索。
1、 犯罪故意论文：犯罪故意论文：犯罪故意 明知含义 违法性认识 明知推定【中文摘要】故意犯罪中的明知问题向来是犯罪构成理论的重要问题之一,明知的判断直接关系着犯罪与否和此罪与彼罪的认定,对于刑法理论和刑事司法实践都有着重要的意义,历来为刑法理论界和司法实务界所关注。但是刑法理论上对于明知的研究仍然存在着诸多的争议,在刑事立法和司法解释中,也出现了许多与明知意思相近的用语,导致了歧义并直接影响了明知的司法适用。鉴于明知的重要性,有必要对其进行更为深入的研究,以期有助于刑法主观罪过理论的完善和刑事司法实践。本文将从实践中明知及其相关用语引起歧义的几种现象入手,引出明知理论中存在的问题,并从明知的含义
2、、内容和认定等方面,对明知进行系统的探讨和研究。传统的刑法理论将明知的含义解释为仅仅包括明确知道这一情形,然而随着社会的发展,这一僵化的理解显然已经不能适应打击犯罪和保护社会秩序的需要。此外刑事立法和司法解释中,出现了诸如可能知道、应当知道等与明知相近的用法,这在一定程度上实际是扩大了明知的含义,并引起了不少歧义。本文总结了明知引起歧义现象,评析了明知含义争议观点,以哲学的认识本质原理和风险社会理论为指导来探讨明知含义,并运用刑法解释原理讨论明知与相关用语区别,从而得出明知包括明确知道和可能知道的结论。对于明知的内容,通说认为应当包括客观事实要素和规范性评价认识两方面的内容,争议在于这两方面中
3、具体要素的取舍,尤其是对于违法性认识是否是故意犯罪认识因素的内容,一直在刑法理论界争议巨大。本文立足于明知的含义,并结合故意犯罪的立法和罪过原理,探讨了明知的客观事实要素的具体内容,并认为明知的内容既要包含社会危害性认识,也要包括违法性认识。认定故意犯罪的主观方面历来是刑法理论和实践中的一个难题,鉴于本文将明知的含义进行了扩充,并赞成明知的内容包含违法性认识,这无疑对明知的认定提出了更高的要求,因此需要运用特殊的辅助方式来认定明知。本文在总结了实践中明知推定的现状后,探讨了明知推定的概念和适用价值,倡导运用推定的方式来认定明知。但考虑到推定方式固有的两面性,本文着重从明知推定的创设和适用两个方
4、面来加以规范,从而最大程度保证明知推定的合法、准确和有效。【英文摘要】In the theory ofsubjective fault,the knowledge issue of criminal intention has always been one of the most important questions, knew perfectly well the judgment direct relation crime or not and this crime and other crimes recognizing, has the vital significance reg
5、arding the criminal law theory and the criminal justice practice, always pays attention for the criminal law theorists and the judicial practical realm. But the criminal law regarding knew perfectly well theoretically the research still has many disputes, in criminal legislation and judicial interpr
6、etation, also appeared many with had known perfectly well that the meaning close terminology, has caused the different meanings and the immediate influence the judicature which knew perfectly well has been suitable. In view of the fact that knew perfectly well importance, it is necessary to conduct
7、more thorough research to it, is helpful by the time to the criminal law subjective crime theory perfect criminal justice practice. This article will know perfectly well and the related terminology from the practice causes different meanings several kind of phenomena to obtain, to draw out knew perf
8、ectly well in the theory exists the question, and from the meaning which, the content knew perfectly well and recognizes and so on aspects, to knew perfectly well that carries on systems discussion and the research.The traditional criminal law theory will know perfectly well the meaning explained th
9、at to include merely knows this situation explicitly, however along with societys development, this ossifications understanding already could not adapt the attack crime and the protection social order need obviously. In addition in the criminal legislation and the judicial interpretation, appeared s
10、uch as had possibly known that must know and so on and knew perfectly well the close usage, this expanded the meaning which actually to a certain extent knew perfectly well, and has caused many different meanings. This article summarized had known perfectly well that caused the different meanings ph
11、enomenon, evaluated had known perfectly well that the meaning dispute viewpoint, discussed take the philosophy understanding essence principle and the risk society theory as the instruction knows perfectly well the meaning, and using the criminal law explained that the principle discussion knew perf
12、ectly well with the related terminology difference, thus obtained knew perfectly well that including knew explicitly with conclusion which possibly knew.Regarding the content which knew perfectly well, the logically coherent argument thought that must include the fact essential factor and the regula
13、ted appraisal knew two aspects the contents, disputed lies in these two aspects the concrete essential factor choices, particularly regarding illegal knew whether is the intentional offense understanding factor content, has been huge in the criminal law theorists dispute. This article bases on the m
14、eaning which knowing perfectly well, and unifies the intentional offense legislation and the crime principle, has discussed the fact essential factor actual content which knew perfectly well, and thought knew perfectly well the content must contain the social hazardous nature to know, must include t
15、he illegal understanding.Recognized that the intentional offense subjective aspect is always in the criminal law theory and a practice difficult problem, in view of the fact that this article will know perfectly well the meaning has carried on the expansion, and approved knew perfectly well the cont
16、ent contains illegal to know, this to knows perfectly well without doubt recognized set a higher request, therefore needs to utilize the special auxiliary way to recognize knew perfectly well. This article after summarizing in the practice to know perfectly well estimation present situation, discussed had known perfectly well that the estimation the concept and was suitable the value, initiated to recognize using the estimation way
