明知与刑事推定

对于明知,通常应在行为人具有这种认识的情况下,司法上去认定该明知是否存在,而不是在行为人缺乏认识时,司法上推定其存在明知。主观上的认识因素,存在"确知"(肯定知道)和"确实不知"两极。在这两者之间,根据认识程度的由强到弱,还分别存在"实知"(事实上知道)、"或知"(可能知道)、"应知"(应当知道)3种类型。这些认识因素,绝大多数与推定无关。在司法解释中,大量使用"应当知道"一词,但其中多数属于行为人"实知"的范畴,基本不涉及刑事推定问题。今后,在进行司法解释时,可以把"明知"解释为确知或者实知。只有在个别明显属于推定的场合,保留"应当知道"的表述。对明知进行分级,将其内涵进一步细化,充分考虑了刑事证明责任的负担问题,也有助于司法解释的精确化,其意义不可低估。

Knowledge and Criminal Presumption

Usually,judicial presumption of "knowledge" is preconditioned by the fact that the actor is competent of having such knowledge rather than his having no competence.As for subjective cognition,it is polarized into "definite knowledge"(surely know)and "definitely not know," and in between one can further find "actually know," "would-know" and "should-know," most of which,however,have nothing to do with presumption.In the judicial interpretation,the term "should know" is frequently used,but in most cases it really means "actually know" that nearly does not fall within the ambit of criminal presumption.Thus,it is necessary to use "definite knowledge" or "actually know" to address knowledge in judicial interpretation.Only in cases where presumption is clearly needed,should we use "should know." Division of "knowledge" and specification of its connotation is of great significance for its contribution to full consideration of burden of proof in criminal cases and conduciveness to accurate judicial interpretation.