How to correctly determine subjective knowledge is the meaning of subjective knowledge in law

Generally speaking, the degree of awareness of "knowingly" is greater at night than during the day. In the middle of the night, even if the perpetrator flatly denies that he does not know that it is stolen goods, it can also be presumed that his subjective determination of the nature of the stolen goods is relatively high. For example, a practitioner who has been engaged in the scrap business for a long time buys someone else's second-hand TV at 2 a.m., regardless of the identity of the seller and the origin of the item, and directly acquires it can reflect the degree of subjective knowledge.

Judging from the place of the transaction. If it is ascertained that the place of harboring, transferring, purchasing, or selling on behalf of the person is in a secret or remote location, or the place of the transaction is abnormal and concealed, it may be found that it is clearly known to be stolen goods. For example, according to the trading habits, it is often the car owner who drives to the gas station to refuel, but the perpetrator buys simple plastic barrels of gasoline on the roadside, which is contrary to normal trading habits.

Judging from the ** of the transaction.

After stealing or robbing other people's property, in order to get rid of it as soon as possible, they often sell the stolen goods at a market level lower than that of similar items. If the perpetrator receives goods that are significantly lower than the market without justifiable reasons, it can be used as an important factor in judging that the perpetrator is aware of the stolen goods.

Judging from the items traded.

Under the normal commodity transaction situation, the seller will often provide formal invoices, supporting instructions, etc., and the goods are well kept. By checking whether the stolen goods have been stolen with pry marks or alteration marks, and whether there are formal invoice transaction procedures, etc., it can be used as a factor to consider whether the perpetrator is aware of it.

Judging from the experience of the stolen goods seller.

Formal and lawful sellers have lawful business qualifications, such as practitioners without qualifications, who sell a large amount of tobacco and alcohol and other items that are administratively licensed, may be used as a factor in judging that the perpetrator is aware of the stolen goods. Where the seller clearly knows that the seller has been subject to administrative punishment or criminal punishment for theft, but still acquires its items, it may be presumed that the seller has subjective knowledge in combination with other evidence in the case.

Judging by the use of stolen goods.

In formal commodity transactions, buyers tend to use them openly and legally, and will not hide them; For the later use of stolen goods, the buyer will not use them publicly due to his weak heart, and often chooses to use them in remote areas or at night when they are not easy to be discovered. If, after the perpetrator acquires a motorcycle, he promptly transfers the vehicle to a remote mountainous area in a different place for use by relatives and friends, it can be inferred that the perpetrator has subjective knowledge.

It should also be noted that, on the one hand, the presumption of knowledge can only be used if there is no direct evidence to prove that it was knowledge, and it is not appropriate to expand the application indefinitely, let alone replace the investigation and collection of evidence with the presumption method. On the other hand, in the process of applying the presumption of knowledge, it is necessary to pay attention to the actor's rebuttal and justification, and when examining that his counter-evidence is established or the justification is reasonable, his subjective knowledge should not be presumed.

It refers to the ability of the parties to judge the behavior, cause and effect, and related relationship.

Summary. Dear, good owner. In law, subjective knowledge means "knowingly" is a constitutive factor stipulated in China's Criminal Law for intentional crimes.

In the expression of the type of "knowingly" in China's criminal law, "knew or should have known" has long been used. Although the judicial interpretation uses the utilitarian value consideration of "should have known" in order to solve the problem of the judicial organ proving the defendant's "knowing" mentality, it will also confuse the basic types of crimes and endanger the basic theory of criminal law, so it is necessary to conduct in-depth analysis at the theoretical and legislative technical levels.

Dear, good owner. In law, the meaning of subjective knowledge is "knowing" is a constitutive factor stipulated in China's Criminal Law for intentional crimes. In the expression of the "knowing" type of ant Zheng type in China's criminal law, "knew or should have known" has long been used.

Although the judicial interpretation uses the utilitarian value consideration of "should have known" in order to solve the problem of the judicial organ proving the defendant's "knowing" mentality, it will also confuse the basic types of crimes and endanger the basic theory of criminal law, so it is necessary to conduct in-depth analysis at the theoretical and legislative technical levels.

Legal basis: Article 219 of the Criminal Law of the People's Republic of China stipulates that the second paragraph of the Criminal Law of the People's Republic of China clearly repents and repents that "a person who obtains, uses or discloses the trade secrets of others knowing or should have known the acts listed in the preceding paragraph shall be regarded as the crime of infringing on trade secrets." This interpretation can be regarded as the most effective and authoritative interpretation of the connotation of "knowingly".

From China's laws to legislative interpretations and judicial interpretations, Yibi Nianguan's position has clearly defined the connotation of "knowing" as "knowing" or "should know".

With regard to the determination of "knowingly" in the crime of stolen goods, in China's criminal law circles, there is a definite and possible argument about the meaning of "knowingly". According to the certainty doctrine, "knowledge" is limited to certainty, i.e., the perpetrator has a definite knowledge of the nature of the stolen goods. It may be held that the perpetrator's knowledge of the nature of the stolen goods includes both a definite knowledge of the nature of the stolen goods and an awareness of the possibility of the stolen goods, that is, as long as the actor infers from the facts that it may be stolen goods, it is knowledgeable.

With regard to the criteria for judging whether the perpetrator was aware, there is a theoretical debate between subjective, objective and compromise. The subjective theory emphasizes the difference in the actor's own cognitive ability, and holds that the judgment of whether the actor is aware of the stolen goods should be based on the actor's own age, knowledge level, social experience, and other circumstances. It can only be considered to be knowing, if the nature of the stolen goods should or can be recognized according to its own circumstances.

The objective theory emphasizes the objective environment at the time of the act, and holds that under the conditions at that time, based on general experience and common sense, ordinary people can know that it should or may be stolen goods, and it can be presumed that the perpetrator has knowledge. The compromise theory advocates that knowledge should be determined based on the principle of unity of subjectivity and objectivity, and that it is necessary to consider both the perpetrator's own cognitive ability, the specific circumstances of the case at the time, and whether the general public could know it at the time, and so on, to make a comprehensive analysis and make a judgment. At present, the compromise theory occupies a dominant position in China's criminal law academic circles.

In the author's opinion, knowledge is a subjective element in the composition of a crime, and there is a subjective distinction between intent and negligence. Obviously, knowing falls into the category of intentionality. Whereas, there is a distinction between direct intention and indirect intentionality.

In judicial practice, it is generally believed that the perpetrator has direct intent to determine knowledge. However, according to the "Provisions of the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, and the State Administration for Industry and Commerce on the Investigation and Handling of Cases of Theft and Robbery of Motor Vehicles in Accordance with Law", it is clearly pointed out that the term "knowingly" in these Provisions refers to knowing or should have known. In any of the following circumstances, it may be deemed that one should have known, except where there is evidence to prove that he was clearly deceived:

Purchased in illegal motor vehicle trading venues and sales units; Incomplete formalities for motor vehicle documents or obvious violations of regulations; There are traces of alteration of the engine number or frame number of the motor vehicle, and there is no legal proof; to be significantly below the market**. It can be seen that what should be known here is presumed to know. It is the judicial organ that determines the knowledge of the parties based on the actual circumstances at the time.

In this way, the subjective determination of the crime of using stolen goods in China's criminal law should also include the need to know, that is, indirect intent. Therefore, the author believes that in judicial practice, as long as there is credible and sufficient evidence to prove that the perpetrator knew or should have known that it was stolen goods and carried out the purchase, transportation, sale, etc., it should be cracked down on as the crime of stolen goods. Xia Siyang.