Renmin Chinese Law Review
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Renmin Chinese Law Review

Selected Papers of The Jurist (法学家), Volume 5

Edited by Jichun Shi

Renmin Chinese Law Review, Volume 5 is the fifth work in a series of annual volumes on contemporary Chinese law which bring together the work of recognized scholars from China, offering a window on current legal research in China.
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Chapter 5: Between “public interest” and “private right”: rethinking criminal illegality cognition theory

Selected Papers of The Jurist (法学家), Volume 5

Wang Zhiyuan


The sticking point of the argument on criminal illegality cognition question is the game between “Public Interest” and “Private Right”. Specifically, the related “Public Interest” here is the group’s security interest; the “Private right” is the individual’s right of “no punishment if one did not know the rule”. Concerning the limited capability to authenticate whether a defendant knew the rule, and according to the “maximizing private right” principle on balancing “Public Interest” and “Private Right”, the resolution of the criminal illegality cognition question should be a trade-off decision on the basis of an equilibrium state placing emphasis on the community security interests. Its specific formulation is plausibly to select whether “not knowing the rule” is avoidable as a key point, and to divide the “not knowing the rule” into punishable and unpunishable conditions. Keywords: Public interest; private right; equilibrium state

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