打击错误之处理的考察——以中日刑法理论为视角

A Study of the Solution to the Deviation of the Stroke——On the basis of Chinese and Japanese Criminal Law Theory

对于打击错误的处理,刑法理论中有法定符合说与具体符合说的争论。司法实务中,在打击错误的处理上不应采取法定符合说,而应采取具体符合说。具体符合说不会导致处罚的漏洞,也能够给出合理区分对象错误与打击错误的判别基准,且其对同一构成要件内的对象错误与打击错误予以区别对待的做法具有合理性,再者具体符合说也不会导致罪刑不相适应。

There exist two methods of the statutory compliance and the specific compliance to deal with the deviation of the stroke. However,the specific compliance is fit for the judicial practice,rather than the statutory compliance. The reasons are as follow： the specific compliance is able to manage all situations without exceptions that need punishment; the specific compliance is able to distinguish the error about the person from the deviation of the stroke; the specific compliance is reasonable to deal with the error about the person and the deviation of the stroke in the same offense; the specific compliance guarantees that the sentence accords with the offense.