The Typification and Functions of"Knowing"in the Specific Provisions of Criminal Law
In the Specific Provisions of Criminal Law of China,the term"Knowing"is used in both intentional and negligent offenses.However,this is not sufficient to establish a substantive distinction between the Knowing in the Specific Provisions and that in the General Principles.The Knowing in the Specific Provisions encompasses four types:Knowing the object of the act,Knowing the state of affairs,Knowing of accomplices,and Knowing in negligent offenses.Regarding its functions,previous theories such as the doctrine of notice-based provision,doctrine of the preliminary elements and the doctrine of element surpassing subjectivity all have their shortcomings.The Knowing in the Specific Provisions is a superficial element of the constituent requirements,and its function is merely to indicate the special elements within the constituent requirements of specific offenses,without bearing the function of establishing guilt.The latter two types,namely Knowing of accomplices and Knowing in negligent offenses,are not in harmony with,and may even conflict with,the provisions of Article 14 of the General Principles of Criminal Law of China,and should be considered for removal to enhance the conciseness and applicability of the text.
KnowingSpecific Provisions of Criminal LawIndicative FunctionSuperficial Element of Constituent Requirements
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