论刑法中的涵摄错误

On the Subsumtion Mistake in Criminal Law

刑法意义上的涵摄是将生活事实涵盖于法律所描述的构成要件的过程,也是三段论中大前提与小前提互动的过程。刑法上的涵摄错误则是指行为人对自己所故意实施的行为事实并未发生认识错误,也知道可能有禁止自己行为的刑法法规存在,但对该法规之解释存在误解,认为其行为并非刑法所涵摄的行为。涵摄错误不是事实错误,不能阻却故意,但可能构成违法性认识错误,阻却行为人的责任。根据我国刑法规定,涵摄错误主要包括对行为主体、对象、方式及性质的错误。

Subsumtion is a very important step of syllogism und is the process between legal norms and the fact.Subsumtion mistake refers to the misunderstanding of the actor to the constituents regulated in the criminal law.The actor already knows of the fact of his behaviors und guesses his behaviors are harmful to the society,but he believes that they are not included in the criminal law.In fact,he reduces the range of cabstand improperly.From the legal effect,the subsumtion mistake is not a mistake of fact and can＇t hinder on purpose,but will be a mistake of violating the law in certain conditions and can prevent from taking on criminal responsibility.The subsumtion mistake mainly contain four types,such as the mistakes of behavior subject,the mistakes of behavior object,the mistakes of behavior way and the mistakes of behavioral nature.