德国关于被害人同意之错误理论的新进展

New Development in the Theory of Victim's Consent by Mistake in Germany

关于被害人同意中的错误理论,以德国为代表的大陆法系刑法学界一直存在着"全面无效说"与"法益错误说"的对立。前者占据传统通说的地位,但日益受到后者的冲击。晚近由一些德国学者提出的将同意效力与归责问题进行分离思考的新方案,是在传统的"全面无效说"基础上进行重大修正的最新尝试,是一种亮点和问题同样突出的新的"全面无效说"。

In German criminal law academia there are two opposing theories on the validity of the victim＇ s consent by mistake. One holds that a consent is inevitably void as long as there are mistakes; the other claims that only mistakes related to legal interests can make a consent invalid. In recent years some scholars have reformed the former theory and developed a new theory on the basis of the former. The core of the new theory is separation of the consent＇ s validity from the responsibility. In fact, the new difficulties created by the reformation are no smaller than those solved by it.