违法性认识不要说的观点一直深刻地影响着我国的刑法理论和司法实践。随着法定犯时代的到来，“不知法不免责”的原则逐渐发生动摇，涉及违法性认识案件所折射的问题日益凸显，成为我国学界和司法实务界较为关注的命题。违法性认识必要说已成为学界的共识，但司法实践中的主流做法仍固守不要说的主张，刑法理论和司法实践在该问题上存在脱节现象。近些年的一些热点案件引发民众对司法的质疑，折射出违法性认识理论在实践中的困境。本文梳理了近年来法院审理和检察机关做不起诉处理的涉及违法性认识问题的案例，分析了违法性认识理论在司法实践应用中存在的问题。该理论在实践中遇冷的很大的原因是理论立场选择不明确和具体审查判断的标准不统一。本文拟通过调查分析，发现理论和实践的差异，并在此基础上选择适合我国法治现状的合适的理论，为违法性认识理论更好应用于我国司法实践提供合理建议。在法定犯时代，违法性认识不要说和必要说在理论本身和实践应用上都各自存在问题，导致违法性认识问题在实践中难以落地适用。为了避免两者的缺陷，应采用相对折中的违法性认识可能性说。该说有利于贯彻责任主义、化解证明的难题，是一种兼顾刑事政策与责任主义要求的理想技术方案。违法性认识可能性的在犯罪构成中的体系定位并非无关紧要，其事关出罪能力的大小。在阶层犯罪论体系下，违法性认识可能性并不能纳入故意之中，两者并非包容关系，而是存在本质的不同，将违法性认识可能性纳入到犯罪故意中与我国刑法规定并不相符，认识可能性是成立犯罪不可或缺的独立的责任要素。违法性认识可能性的考察，在一般生活领域应以社会中普通人的认识能力为基础，在同等条件之下，根据“平行评价”，看社会一般人能否避免，同时兼顾考虑行为人个人的具体情况；在特殊领域适用该领域一般人标准。在进行违法性认识可能性的有无的判断时，首先要考察行为人在客观上是否有知晓自身行为违法的契机，然后判断行为人主观上是否为认识法律做了最大努力。对于不可避免的认识错误，应当减轻或者免除处罚；对于可以避免的违法性认识错误，可以从轻处罚。

The understanding of illegality has always had a profound impact on China‘s criminal law theory and judicial practice. With the advent of the era of statutory offenses, the principle of "not knowing the law is not exempt from responsibility" has gradually wavered, and the problems reflected in cases involving illegal cognition have become increasingly prominent, becoming a topic of concern in the academic and judicial practice circles of our country. The necessity of understanding illegality has become a consensus in the academic community, but the mainstream approach in judicial practice still adheres to the principle of not saying, and there is a disconnect between criminal law theory and judicial practice on this issue. In recent years, some hot cases have reflected the dilemma of the theory of illegal cognition in practice. This article reviews recent cases of court trials and prosecutorial agencies dealing with non prosecution related to the understanding of illegality, and analyzes the problems that exist in the application of the theory of illegality in judicial practice. The main reason why this theory has fallen short in practice is due to the unclear choice of theoretical stance and the inconsistent standards for specific examination and judgment.Through investigation and analysis, the differences between theory and practice are discovered, and on this basis, suitable theories suitable for the current situation of the rule of law in China are selected to provide reasonable suggestions for the better application of the theory of illegality in judicial practice in China. In the era of statutory offenses, there are problems with the understanding of illegality, whether it is necessary or not, both in theory and practical application, which makes it difficult to apply the issue of illegality in practice. In order to avoid the shortcomings of the two, a relatively compromise theory of the possibility of understanding illegality should be adopted. By examining the possibility of understanding the perpetrator, this theory is conducive to implementing accountability and resolving the problem of proof. It is an ideal technical solution that balances criminal policy and accountability requirements. The systematic positioning of the possibility of recognizing illegality is not insignificant, it is related to the size of the ability to commit a crime. Under the system of class crime theory, the possibility of illegal cognition cannot be included in the intentional category. The two are not inclusive relationships, but there are essential differences. Moreover, including the possibility of illegal cognition in the intentional category is not in line with the provisions of China‘s criminal law. The possibility of cognition is an indispensable independent element of responsibility in establishing a crime. The judgment of the possibility of illegal cognition should be based on the cognitive ability of ordinary people in society in the general field of life, and under the same conditions, based on "parallel evaluation", to see whether ordinary people in society can avoid it, while taking into account the specific situation of the perpetrator; Applicable to general standards in specific fields. When determining the possibility of recognizing illegality, the first step is to examine whether the perpetrator objectively has the opportunity to know that their behavior is illegal, and then to determine whether the perpetrator subjectively made the greatest effort to understand the law. For inevitable cognitive errors, punishment should be reduced or exempted. For avoidable errors in understanding illegality, a lighter punishment can be imposed.