犯罪故意是在构成要件风险认知和法律风险认知基础上形成的侵害法益及背反法秩序的意志决定。故意中的认识因素与意志因素是类型学关系，可相互补强，即高度认知匹配低度意志可以成立故意，低度认知匹配高度意志亦然。就对构成要件事实的“明知”而言，“必然性认知+行为决意”径直成立直接故意而无成立间接故意的余地。“高风险认知+行为决意”至少成立间接故意而无成立过失的余地。“高风险”是规范概念而非事实概念，不完全等同于结果发生的高度盖然性，而是按照普遍的法益尊重的感觉达到应当停止行为的程度的、具有“决断重要性”的风险。“低风险认知+希望意志”可以成立直接故意，所以（直接）故意中的“明知”可以是低风险认知，进而“明知”与“已经预见”就未必是认知程度高低的关系。有权解释中的“应当知道”意为“必然知道可能”（“知道可能”不等同于“可能知道”）而非“理应知道（却不知道）”，故其并未突破故意与过失的界限，也未改变“明知”的待证事实。“应当知道”是刑事政策导向的提示规定，为了加强对特定法益的保护，其在一定程度上扩张了“放任”与间接故意的范围。就对违法性的“明知”而言，在违法性认识方面“充足”的场合（违法性确信或违法性高度怀疑），匹配行为决意即可成立违法性故意。在违法性认识方面“不足”的场合（违法性低度怀疑），匹配违法性意志亦可成立违法性故意。行为人“有意性”地陷于法律无知、“象征性”地咨询法律意见或可期待暂缓行为却没有暂缓时，其违法性意志得以彰显。就个罪中的“明知”认定而言，对伤害结果具有高风险认知时可认定为具有伤害故意。对死亡结果具有高风险认知时可认定为具有杀人故意。在强奸罪的被害人“肉袒面缚”、“言不由衷”或“未置可否”的场合，需要通过行为人对违背妇女意志的可能性的主观认知来评价其是否“明知违背妇女意志”。“占有”是规范构成要件要素，只要认识到规范评价的前提事实，即应认定为“明知是他人占有物”。“明知他人利用信息网络实施犯罪”是指认识到他人必然或可能利用信息网络实施犯罪，帮助信息网络犯罪活动罪明文规定“明知”是为了将不值得处罚的中立业务（帮助）行为从该罪的规制范围中剔除，所以应结合对“中立性”的否定来认定该罪的“明知”。
Criminal intent is the decision which formed on cognition of constituent elements and illegality to infringe legal interests and violate legal order. The relation between cognition and will of criminal intent is typological, which can complement each other, that is, high degree of cognition matched with low degree of will can meet the establishment requirement of criminal intent, low degree of cognition matched with high degree of will can meet the establishment requirement of criminal intent as well.In terms of "knowledge" of constituent elements, "cognition of inevitability + decision of taking action" establishes direct intent rather than indirect intent. "Cognition of High-risk + decision of taking action" at least establishes indirect intent rather than negligence. "High-risk" is a normative concept rather than a factual concept, which is the risk with "decisive importance" from the general sense of respect for legal interests that the behavior should be stopped. "Cognition of Low-risk + desire" can establish direct intent, therefore, "knowledge" of (direct) intent can be cognition of Low-risk. "Should know" in judicial interpretation is the reminder with criminal policy orientation. On the one hand, "should know" means "must have known" rather than "should have known", therefore, it does not break the boundary between criminal intent and negligence; "Should know" mainly refers to "know it may be". "knowledge" originally includes "know it may be" ("know it may be" is not equivalent to "maybe know"). Therefore, "should know" does not change the fact to be proved. On the other hand, in order to strengthen the protection of specific legal interests, "should know" expands the scope of "indulgence" and indirect intent.In terms of "knowledge" of illegality, in the case of cognition of illegality being sufficient (firmly believe or high suspicion), intent can be established when cognition is paired with decision of taking action. In the case of cognition of illegality being insufficient (low suspicion), intent can only be established when cognition is paired with desire to be illegal. On occasions where people "intentionally" trapped in legal ignorance, "symbolically" consulted legal advice, or could have stopped his(her) action, his(her) desire to be illegal can be revealed.As far as the confirmation of "knowledge" is concerned, intention of injury can be established when there is a cognition of High-risk of injury. Intention of homicide can be established when there is a cognition of High-risk of death. In cases where the rape victim "obediently", "insincerely" or "uncommitted", whether perpetrator knows having sex violates the woman's will can be confirmed by evaluating perpetrator's cognition of the possibility of violating woman's will. "possession" is normative constituent elements. As long as premise facts are recognized, it should be regarded as "knowing that it has been possessed by others". "Knowing that others use information networks to commit crimes" refers to recognizing that others must or may use information networks to commit crimes. The purpose of emphasizing "knowing that others use information networks to commit crimes" is to exclude neutral business (help) behaviors that should not be punished from punishment, therefore, it's better to confirm "knowing that others use information networks to commit crimes" by taking the exclusion of "neutrality" into consideration.
