“不知法律不免罪,事实错误可辩护”——事实错误与法律错误的区分及认定处理

"He Can Be Exempted from Punishment If He Doesn't Know the Law and Fact Mistakes Can Be Pleaded"--How to Distinguish,Identify and Handle Fact Mistake and Law Mistake

“不知法不赦”已经成为一种过时的原则。事实错误是对构成要件的客观要素上的主观认识与现实的不一致;法律错误是在对事实没有发生认识错误的情况下,对自己行为的法律评价发生错误认识。对刑法中规定的时间、地点、年龄的认识错误,以及“淫秽性”、公务行为的合法性、财物的他人性等的错误认识,均属于事实错误,事实错误可以阻却犯罪故意。国家推定公民都是知法的,除非被告人能够证明其法律错误具有不可避免性,否则,法律错误不能阻却故意。

The theory that he who doesn＇t know the law can not be exempted from punishment is out of date. The fact mistake is caused by the misunderstanding of constitutive requirements and facts. The law mistake is misunderstanding of own behaviors without misunderstanding the facts. The misunderstanding of time, place, age and so on in the criminal law is regarded as fact mistake. The country believes everybody knows the law. Unless the defence can prove that his law mistake can not be avoided, his intention of crime shouldn＇t be prevented.