被害人同意错误之效力刍议——新“本质错误说”的构建与提倡

A Humble Analysis of the Validity of Victim's Consent by Mistake——the Establishment and Advocation of the New Theory of Error in Essence

关于被害人同意错误的效力,大陆法系刑法学界一直存在着"全面无效说"和"法益错误说"的对立,而阿梅隆教授于20世纪末提出的将同意效力与归责问题进行分离思考的新方案更是加剧了该领域的学说之争。但实际上,这三种学说在当前刑法理论体系内并没能做到尽如人意,都还存在一些问题。为此,只有重新审视被害人同意的决意机制,重回同意有效的逻辑原点,建立"错误是否导致同意在本质上背离了同意人的主观价值标准"和"错误是否严重影响同意人的自主决定权"的双重判断标准,才能摆脱现有的理论困境。以此建立的相对较为合理的新方案,就是新"本质错误说"。

With reference to the validity of victim＇s consent by mistake,there have long been two opposing theories in continental penal code system. One holds that a victim＇s consent is invalid as long as there is any mistake;while the other holds that the victim＇s consent shall be valid unless there are mistakes related to legal interests. And such controversy in this field was intensified when Professor Amelung proposed his new theory that the validity of consent and the issue of responsibility should be considered separately at the end of last century. In fact,those three theories mentioned above are inadequately satisfactory in the present criminal theoretical system,and there are still some problems to be solved. Thus,we will get out of the present theoretical predicament unless the mechanism of the validity of victim＇s consent can be reviewed and its logic origin can be regained,and the double standard based on whether mistakes will essentially cause the consent to deviate from the victim＇s subjective value and whether mistakes will severely impact the victim＇s rights of self-decision can be built. And the appropriate new theory established for that purpose is the new theory of ＂ error in essence＂.