China's criminal law "knowingly" elements

   In the subjective elements of crime, the element of "knowledge" is a very important subjective elements. "Knowing", is to know.1In the "PRC Criminal Law" in the context of the highest judicial organ, judicial interpretation of "knowing" is interpreted as "knows or ought to know," said the. Such as the 1998 8 May promulgated the "Supreme People's court, the Supreme People's Procuratorate, the Ministry of public security, the State Administration for Industry and Commerce in accordance with the law, motor vehicle theft robbery cases regulations" seventeenth article: "the term 'knowing', refers to know or should know" etc.. "Know", is already know, know.2"Should know" is presumed already know, know.

   For "knowingly" in nature, in the mainland criminal law textbooks in general think, belonging to one of the subjective characteristics of the intentional crime, is an understanding of the factors. Ma Kechang think, understanding of the factors is the premise of crime intentionally, and clearly will "knowingly" as a crime of intentional understanding factor.3Chen Xingliang, Zhang Mingkai also believed that "knowingly" is the understanding of the factors of criminal intent.4Gao Mingxuan, Ma Kechang is more clear, this kind of "knowingly" psychological factors belong to the knowledge about psychology.5

   "Knowing" is the understanding of the factors of criminal intent, but also in the constitution of crime subjective elements. As long as we carefully read the "will of the people's Republic of China criminal law provisions" discovery, "knowing" the modern Chinese words appeared in criminal law, and further in-depth analysis is not difficult to find, in fact, the general "knowing" and "knowing" in accordance with the specific provisions of the German philosopher G Frege's argument can be that is the same significance (sense) and mean (Reference) of different.6

   We first analyze the general knowing about the "". "PRC Criminal Law" the fourteenth paragraph first: "knowing that their actions will cause socially dangerous consequences, and wishes or allows such consequences to occur, thus constituting a crime, is an intentional crime." Obviously, this "knowingly" refers to the act of "own actions", the level of awareness is "will entail harmful consequences to society", which is characteristic of all intentional crime must have the subjective aspects. This understanding should be understanding of the two aspects, the first is to understand the nature of the. That behavior to the provisions of the criminal law against the social behavior of nature, nature is the behavior of people must be aware of their implementation or are implementing the behavior is harmful to society, objective connection to realize his behavior and harmful consequences to society. The second is to understand the behavior of the. The behavior of people to their own behavior "will entail harmful consequences to society" has the understanding. This "socially dangerous consequences" does not necessarily mean the results made that specific crime results, such as intentional injury causing serious injury, but harm to the criminal object of the protection or statement of interests, such as a crime, as long as the implementation of criminal behavior over a specific, will constitute a crime, the crime is not must have detailed criminal results. In fact, because of its specific crime in the result is the direct object of damage, so the clear understanding of the harm result, also includes the understanding of the direct object of crime. Therefore, any intentional crime in subjective elements of behavior of people must have the nature of behavior and cognition of behavior results, namely in the "PRC Criminal Law" in the general provisions of "knowing", means the behavior person knows or should know their behavior and properties are a danger to society harm society results. Therefore, it is necessary to Chu Huaizhi "PRC Criminal Law" fourteenth article first paragraph is amended as "knowing that their actions would be legally defined as criminal results or knowing that their behavior is legal provisions for criminal behavior, and wishes or allows such results or to implement this behavior, thus constituting a crime., is an intentional crime."7According to the above analysis, in the general principle of "knowing" is such as Chen Xingliang said general "knowingly".8

   In the "PRC Criminal Law", in addition to the nature of behavior, behavior of human behavior we analyzed above provisions of article 14 of the provisions of the first paragraph of "knowing", "knowing" factors also exist in the specific provisions, such as Chen Xingliang said, "in addition to that, the criminal law of our country see also provides specific knowledge", and "general knowledge" corresponding "specific knowledge". 9These "knowingly" includes: one is the object behavior person "knowingly" behavior is the object of crime, such as the 138th "education facilities, the serious safety accident crime" in the provisions of the "knowing the school or educational and teaching facilities are in danger," 144th "selling poisonous, harmful food sin" in the provisions of the "knowingly mixed with toxic, harmful non food raw materials, food" 145th "sales do not meet the standard of medical equipment crime" in the provisions of the "knowing is not consistent with the protection of human health and national standards, industry standards of medical equipment, medical hygiene materials", 146th "sales do not meet safety standards product crime" the provisions of the "knowing is not in conformity with the personal and property safety, national standards, industry standard electrical, pressure vessel, flammable and explosive products or other not in conformity with the personal and property safety, national standards, industry standard products," 147th "selling fake pesticide, veterinary drugs, fertilizers, seeds of crime" the provisions of the "knew to be false or ineffective pesticides, veterinary drugs, fertilizers, seeds," 148th "sales do not meet the health standards of cosmetics sin" in the provisions "Knowing that it is not meet hygienic standards for cosmetics," the 171st "transport of counterfeit currency crimes" in the provisions of the "knowing is counterfeit currency", 172nd "hold, use of counterfeit currency crimes" in the provisions of the "knowing is counterfeit currency", one of 177th (1) of the "hindrance credit card management" the crime stipulated in the "knowledge is the forge credit card" or "knowingly forged blank credit card", 191st "money laundering" in the provisions of the "known to be drug-related crimes, underworld of organized crime, terrorism crime, smuggling crime, the crime of corruption and bribery, the destruction of financial management order, crime of financial the crime of fraud of the income and the profit", article 194th (1), (2) "the bills defraud crime" in the provisions of the "use forged, altered drafts, promissory note, check" or "knowingly voided drafts, promissory notes, cheques," 214th "selling commodities bearing counterfeit registered trademarks crime" in the provisions of the "knowing is the registered trademark", 259th "the crime of destruction of military marriage" in the provisions of the "knowing is the spouse of an active serviceman," the provisions of the 265th special "theft" specified in the "Knowing is stolen, copied telecom equipment, facilities," 310th "harboring, shielding crime" in the provisions of the "knew perfectly well that is the crime", 312nd "to conceal, conceal the proceeds of crime, the proceeds of crime" in the provisions of the "knew perfectly well that is the crime income and its benefits", 345th the provisions of the third paragraph of the "illegal purchase, transportation, trees felled crime" in the provisions of the "knowing is logging, deforestation forest", 370th "intentionally provide substandard weapons and equipment, military facilities crime" in the provisions of the "knowing is not qualified weapons and equipment, military facilities," 373rd "hire fleeing troops crime" in the provisions of the "knowing is escaped military personnel," 379th "wartime harboring fleeing troops crime" in the provisions of the "knowing is escaped military personnel," 399th "crime" in Clause first "knowing is the innocent man" or "knowing is guilty people", 415th "to secretly cross the national boundary (edge) access to documents exit personnel crime release to secretly cross the national boundary (edge) specified exit people in" sin "is clearly trying to steal the country (border) exit personnel" or "knowing is running Country (edge) exit personnel". The "major safety accident of educational facilities crime of" criminal law theorists, practitioners are considered negligent crime, this is in the criminal negligence only to "knowingly" elements of the subjective elements of crime. Two is the nature of behavior and a situation that the provisions of others, such as the 219th "in the second paragraph of crime of infringing on business secrets" in the provisions of the "knows or should know the acts mentioned in the preceding paragraph," 258th "bigamy" in the provisions of the "knowingly spouse", 285th "in the third paragraph of the trespass on computer information system" the crime stipulated in the "knowingly invading, illegal control of computer information system" of the illegal and criminal acts, 311st "refused to provide evidence of crime of espionage" in the provisions of the "knowingly committed the crime of espionage," the 350th provisions of the second paragraph of the "crime of manufacturing narcotics" knowingly "in drug manufacturing", 360th the first "the crime of spreading venereal diseases" in the provisions of the "knowing that they are suffering from syphilis, gonorrhea and other serious sexually transmitted diseases," 363rd second "production, copying, publishing, selling, the crime of spreading obscene articles for profit" in the provisions of the "knowingly for publishing pornographic books," 429th "refused to rescue the neighborhood crime" in the provisions of the "knowing that friendly forces emergency request rescue". In addition, in some judicial interpretations, will also act as a crime accomplice, nature of behavior also requires that the perpetrator "knowingly" principal. As part of the court trial of drug crime cases on the Supreme People's Court on December 1, 2008 issued "Regulations" of "knowingly drug crimes, and the implementation of its intermediate purchases or sells, whether or not for profit, should be related to the drug crimes were committed crime."Interpretation of the Supreme People's court, the Supreme People's Procuratorate "on several issues of specific application of law in handling criminal cases of infringement of intellectual property rights"The provisions of article sixteenth"Knowing others to commit crimes of infringing intellectual property rights, and provides loans, funds, accounts, invoices, certificates, licenses for the production, management, or places or transportation, storage, import and export agents convenience, help, the crime of infringement of intellectual property rights is committed crime."The Supreme People's court, the Supreme People's Procuratorate "on Several Issues concerning the specific application of law for criminal fraud cases to explain" seventh rules "knowingly to bilk, offering credit cards, mobile phone card, communication tools, communication channels, network technology support, such as the cost of clearing help for it, to be punished as a joint crime" and so on. This "knowingly" criminal behavior with the nature of the crime, becomes the subjective elements of an accomplice.

   For the "PRC Criminal Law" provisions of the general provisions and the specific provisions are "knowingly" relationship, Chen Xingliang points out, the general rules of the criminal law on the crime of intentional concept has been clearly defined that the constitutions, some specific provisions of criminal law is to stipulate that, neither a tautology, nor again emphasized, but because knowing that with specific provisions in the general provisions of the interrelated and different: the former is the "your behavior will cause the result of harm society" knowing, the latter is that in certain situations on the object. In general, there is no specific knowledge of the object, does not affect that behavior will cause socially dangerous consequences for their actions. However, in certain circumstances, if there is no specific knowledge of the object, is also not exist that can cause socially dangerous consequences of behavior, intentional and thus does not exist in a crime.10This view clearly in the general provisions of "knowing" elements and sub elements of "knowing" the difference and connection. So we in the judicial practice should be how to accurately grasp the "PRC Criminal Law" the general provisions and the specific provisions of "knowing" the difference and connection? The author thinks, should be strict with the law principle, namely the law regulations have "knowledge" as the basis. Any intentional crime, we must act on "your behavior will cause the result of harm society" understanding. For example,The Supreme People's court, the Supreme People's Procuratorate, the Ministry of public security in November 8, 2007 published "on the handling of the law applicable to a number of drug crime opinions" (hereinafter referred to as "" opinion "") in second "on drug crime suspect, the defendant subjective knowing that problem" that "smuggling, trafficking, transporting, illegal possession of drugs in the subjective intention of 'knowing', refers to the behavior person knows or should know that the implementation of the act is smuggling, trafficking, transporting, illegal possession of drugs act." Clearly points out that the behavior of people is the understanding of their own behavior, at the same time, the second paragraph of this article also pointed out that "in any of the following cases, criminal suspects, defendants and can not make a reasonable explanation, can be identified by their 'know', but there is evidence to prove that it is to be taken in by: (1) except for law enforcement officers in the port, the airport, railway stations, ports and other checkpoints to check, act to declare for the others to carry goods and other suspected drug substance, and inform them of their legal liability, but the actor did not truthfully declare, seized drugs in their belongings in; (2) to MIS Invoicing, concealment, camouflage by means of escaping customs, frontier inspection, seized drugs in its carrying, transportation, postal items; (3) the inspection of law enforcement officers, escape, discarded belongings or evade, resist inspection behavior, and seized drugs in its carrying or discarded items; (4) the body hiding drugs (5;) for unusual high or not equivalent compensation to carry, transport drugs; (6) using highly covert way to carry, transport drugs; (7) using highly covert methods The drug, a clear violation of legitimate goods used to transfer mode; (8) other evidence enough to prove that the actor should know." The column from the "opinions" of the situation, is the behavior of people to know the nature of their actions, that is to say in the intentional crime in general, as long as the understanding of behavior factors on their own behavior to achieve the "knowing that their actions would entail harmful consequences to society", deliberately can cognize there is a crime.For example, theft, if people know that their behavior is take secret means to steal others handbag behavior, stolen property to a larger amount of degree, will constitute the crime of theft, not knowing that bag of belongings behavior is gold or cash or other property.While the specific knowledge in time of need, behavior person to know the object of behavior or a situation first, then on this basisAlso on knowing the nature and consequences of his acts, namely, "knowing that their actions will cause harm to society." the only two "knowingly" together, constitute a particular talent intentional crime. For example, "selling poisonous, harmful food sin", is the first act "that mixed with toxic, harmful non food raw materials, food", then on this basis, people will still be "mixed with toxic, harmful non food raw materials, food" to be sold, and only in this way will constitute "selling poisonous harmful food sin". Behavior person "that mixed with toxic, harmful non food raw materials, food", but not to sell, or even sold "mixed with toxic, harmful non food raw materials for food" but not knowing is the "mixed with toxic, harmful non food raw materials, food" does not constitute crime. "So is the crime of spreading venereal diseases", act not only to "knowing that they are suffering from syphilis, gonorrhea and other serious sexually transmitted diseases," this kind of situation, prostitution, whoring behaviour but also requires that the perpetrator knows his own act, only the combination of the two, is a "crime of spreading venereal diseases".

   "Knowing" as the subjective elements of crime, in judicial practice is needed on whether the actor has the constitute elements of proof, must through the objective behavior of people on whether the actor has "subjective elements of knowledge". So how are we to accurately identify that human behavior? What is the standard of proof is that knowing? In this regard, the highest judicial organ in some judicial interpretations for the trial practice correctly identified "pointed out the direction that". The part of the court trial of drug crime cases on the Supreme People's Court on December 1, 2008 issued the "of" Tenth "(in a drug crime) as" subjective knowing again pointed out that "the drugs crime, the defendant is not that of judging involved drugs, not only by the defendant's confession, evidence should be the implementation of the crime of drugs on the basis of the defendant's process, methods, drugs seized when the situation with the defendant's age, experience, intelligence, make comprehensive analysis and judgment." "With one of the following circumstances, the defendant can not make a reasonable explanation, can be identified by their 'knowing' is a drug, but there is evidence to prove that it is to be taken in by: (1) except for law enforcement officers in the port, airport, station, port and other inspection site inspection, act to declare for the others to carry goods and other suspected drug substance, and inform them of their legal liability, but the actor did not truthfully declare, and seized drugs in their belongings in; (2) to MIS Invoicing, concealment, camouflage blind means, evasion of customs, frontier inspection, seized drugs in its carrying, transportation, postal articles in (; 3) the inspection of law enforcement officers, escape, discarded belongings or evade, resist inspection behavior, and seized drugs in its carrying or discarded items; (4) the body or personal secret stash of drugs; (5) to obtain the unusual high, non equivalence paid for others carry, transport goods, the seized drugs; (6) using highly covert way to carry, transport goods, from which the seized drugs; (7) using a highly covert means transfer of goods, clearly a breach of dorsal closure Method used to transfer goods, from which the seized drugs; (8) routes deliberately bypass check the site, and seized drugs in its carrying, transportation goods; (9) used a false identity or address check, and seized drugs in their consignment of goods; (10) other evidence to identify people should know." However, the author thinks that the provisions of the "summary" beyond the law and "opinions", "opinions" required by the law and the proof is that the perpetrator of the crime of drugs in nature, rather than against drug crime object -- drugs that. In fact, as long as to prove that the actor has the above behavior, and seized drugs, constitute of drug crime. The Supreme People's court, the Supreme People's Procuratorate "on several issues of specific application of law in handling criminal cases of infringing intellectual property rights of the interpretation of the provisions of the second paragraph of" Ninth "has one of the following circumstances, should be identified as belonging to the criminal law 214th stipulation 'knowing': (1) know its own registered trademark on goods sales by alter, change or covered; (2) from the sale of counterfeit trademark goods received administrative punishment or to bear civil liability, and selling the same goods bearing counterfeit registered trademarks; (3) forged, altered the owner of a registered trademark license file or know the documents were forged, altered; (4) the other is aware or ought to be know goods bearing counterfeit registered trademarks." As long as the behavior of the four kinds of behavior, can identify the behavior person "that registered trademark", at this time still for sale, it constitutes a "crime of selling commodities bearing counterfeit registered trademarks". The Supreme People's court "on hearing the destruction of forest resources of criminal case concrete application law interpretation of several issues" the provisions of article tenth"The criminal law345th the provisions of 'illegal knowingly purchasing logging, deforestation forest' in the 'knowing', refers to know or should know. Any of the following circumstances, can be regarded as should know, but there is evidence that it is to be taken in by: (1) except in the illegal timber trade places or sales units to buy timber; (2) is lower than the market price to buy the wood; (3) acquisition of violation of the provisions of the sale of timber." Here is the provisions of knowing the cognizance of criminal target. The Supreme People's Court on the trial of criminal cases "money laundering the specific application of the law interpretation of several issues" first regulations "article 191st of the criminal law, the provisions of article 312nd of 'knowing', should be combined with the cognitive ability of the defendant, contact others crime income and income situation, the crime income and income category, amount, conversion, crime income and income transfer mode and the defendant's confession of the subjective and objective factors, identification." "One of the following circumstances, can be found the defendant knowingly crime income and income, but there is evidence that does not know except: (1) know others engaged in criminal activities, assist the conversion or transfer of property; (2) no justifiable reason, through illegal ways to assist the conversion or transfer of property; (3) without a justifiable reason, obviously lower than the market price of the acquisition of property; (4) without justification, to assist the conversion or transfer of property, charge is higher than the market" fees "; (5) no justifiable reason, help others to huge cash scattered in various bank accounts or transferring between different bank accounts frequently; (6) to assist the near relatives or converting other close or transfer their occupation or property clearly inconsistent property; (7) other acts that people knew." "The defendant to the criminal law 191st stipulation of an upstream crime income and income mistaken for other crimes of criminal law 191st stipulation of upstream crime within the scope of income and profit, does not affect the criminal law 191st stipulation 'knowing' identification."Here is the provisions of knowing the cognizance of criminal target. These Provisions to the judicial practice to determine the behavior of human "knowingly" pointed out the direction that should be combined with cognitive ability, the defendant and the defendant's confession of the subjective and objective factors, identification.

   From the above analysis, we should be able to distinguish the "PRC Criminal Law" the general provisions and the specific provisions of "means" the same "knowingly" has different "refers to". But there are still confuse the two. In the theory circle and the judicial circle. For example, Gao Mingxuan, Ma Kechang in the "theft of firearms" as an example, consider the "theft of firearms," object act knowingly stolen guns.11However, we look at the "PRC Criminal Law" provisions of article 127th, it can be seen, this provision does not require people to theft object must know clearly is that there is no such provisions for guns, "knowing is the guns and ammunition, explosives and theft, robbery". Therefore, the author believes that, as long as the behavior of knowing that their behavior is theft, but eventually the theft to the guns, it should be identified as the crime of stealing firearms objects without the behavior of stealing the guns. In judicial practice, we often meet some judicial personnel in the subjective elements of review of human behavior, will not act "knowingly" object and actor. Such as shield, connive, judicial personnel often present, workers of state organs who committed the crime is behavior person, object request "knowingly" he of the shield is the underworld nature organization, indulge crime is the underworld property organization to conduct illegal and criminal activities. This strict standard for restriction is actually beyond the "PRC Criminal Law" normative elements, although in favor of the defendant, but not conducive to the fight against crime. Therefore,The Supreme People's court, the Supreme People's Procuratorate, the Ministry of public security in "for the crime of the underworld organization case summary of the Symposium on" clearly stipulates that "the cognizance of shield, connive the subjective elements of the crime syndicate. The subjective aspects of this crime must be intentional, not negligence. The conference thinks, if people knew or should have known that is engaged in illegal and criminal activities of the organization, the organization and its members to cover up, or indulging in the implementation of the illegal and criminal activities, to the crime. As for whether the actor knows the Organization Department of the underworld property organization, does not affect the establishment of this crime." Also, so, also the crime of rape and prostitution young girl of having sexual intercourse with a minor crime in the author's opinion, as long as the act of adultery motivation and implementation of rape behavior, it can be identified as "knowing that their actions will cause harm to the society, but the actual consequences" rape of objects is the young girl, should be on the rape in order to rape the statutory circumstances, does not require the perpetrator knows it is the object of statutory rape. So that can put between the young men and women because of love, sex, isolated but the woman under the age of fourteen cases from the crime of rape, and no criminal liability for young men. So given a young girl, as long as the behavior of knowing that their actions are acts of prostitution (apparently, this behavior is a kind of harm the social behavior, from the proof understanding human behavior is also proven), and object is actually given a young girl, should be on the Piao Su statutory crime. The author thinks, the Supreme People's Procuratorate "a young young girl crime subjective go up to whether need to have that elements of the interpretation of" Regulations "behavior people know the victim is or may be fourteen years old young girl with prostitution, provisions of article 360th of the criminal law second, the young young girl shall be investigated for criminal responsibility" is not appropriate, although there are in favor of the defendant, but is not conducive to the protection of young girl's physical and mental health, but also is not conducive to social management.

   Therefore, the author believes that, in the subjective elements that human behavior on the element of "knowledge", should adhere to the "PRC Criminal Law" normative elements,The combination of cognitive ability of the defendant and the defendant's confession of the subjective and objective factors,To the law basis instead of on a theory or understanding as the basis, where the "PRC Criminal Law" would not act must be aware of the content, there is no need to request and to prove whether the actor knowingly.