违法性认识与刑法认同

Cognizance of Illegality and Recognition of Criminal Law

刑法规范具有行为规范和裁判规范一体两面的双重功能——既是行为人指导行为的基本准则,又是司法者依法进行裁判的规则体系。生活中由于行为人总是受制于种种“前见”而选择自身行为,其对行为规范的理解往往同反映法共同体当下要求的裁判规范并不一致,于是便产生行为人在刑法上的违法性认识错误问题。由于刑法上的双重规范意义同属于对同一行为的社区价值评价范畴,两者在社会主流文化价值观念上应当尽可能求取一致。因此,解决违法性认识错误问题,应以社会主流价值观念作为司法最终的裁判标准,同时注意发挥刑法裁判规范对应然价值及未然秩序的导向作用。

Criminal law, the norm for both behavior and judgment, has the character of double functions the basic standard to guide people how to behave, as well as the fundamental criteria judges must comply with when reaching decisions. However, in actual life, because a man always behaviors according to his own ＂pre - experiences＂ of right and wrong, his understanding of a behavior norm dose not always conform with the judgment norm reflecting the general requirement of legal community, which gives birth to the problem of cognizance of illegality. Since the double functions of criminal legal norm are the same in the sense of evaluating one conduct according to the main culture and value of the community, they should try to be consistent with each other. Therefore, to solve the problem of cognizance of illegality, we should take the main value of the community as the ultimate norm for judgment, meanwhile trying to exert the guiding effect of criminal legal norms to future life.