위법성인식의 내용에 대한 한중 비교 연구

Illegality cognition is a premise of establishment of responsibility and the core element of accountability of responsibility. In general, illegality cognition means that a person recognizes that his or her conduct is illegal or prohibited by law. However, the question is what the specific content of the illegality cognition is. The has been a controversy in Korean academia and Chinese academia has also been discussing this issue for years. In addition, through comparing the discussions between Korea and China, it is found that the main points of the debate in the two countries are also different. There are four theories about the subjects of illegality cognition, namely, theory of pre-law norms violation, theory of laws violation, theory of criminal law violation, and theory of punitive criminal law violation. While Korean academia focuses mainly on the debate on theory of laws violation and theory of criminal law violation, Chinese academics have discussed a lot on theory of laws violation and theory of social detriment. This article criticizes the other three theories and argues the rationality of theory of criminal law violation, viewing that the object of illegality cognition should be the cognition of violation of criminal law. In terms of the relationship between illegality cognition and social detriment cognition which are specially discussed in China, this article criticizes theory of social detriment and theory of social detriment cognition and holds the view that it is possible to accept the illegality cognition without applying the social detriment cognition anymore in China.