以实质故意论破解事实错误与法律错误的区分难题:以环境犯罪为例

Distinguishing Mistake of Fact from Mistake of Law by Substantive Intention:Taking Environmental Crimes as an Example

国外通常不在刑法典中对犯罪故意下定义,而我国刑法第14条第1款规定"明知自己的行为会发生危害社会的结果,并且希望或者放任这种结果发生,因而构成犯罪的,是故意犯罪",采一种实质的故意概念。无论采平面式还是阶层式的犯罪构成体系,事实错误与法律错误的区分的实质均在于能否肯定故意犯罪的成立。就猎捕、杀害珍贵和濒危野生动物而言,可根据行为人的职业、知能水平、行为的地点、时间、次数等因素,判断是否可能认识到所捕杀对象的野生性、稀少性、要保护性等特征,即有无实质的违法性意识,是否达到了值得以故意犯罪予以非难的程度。

Criminal intention, seldom clearly defined in foreign laws, is described in Clause 1 of Article 14 in the Criminal Law of People＇s Republic of China as follows： an intentional crime refers to a crime committed by a person who clearly knows that his act will produce socially dangerous consequences but who wishes or allows such consequences to occur. This is actually a concept of substantive intention. Whether it is a fiat or hierarchical system of crime, the distinction between the mistake of fact and the mistake of criminal law lies in the possibility of identifying an intentional crime. As for catching or killing rare and endangered wild animals, we can determine whether it is possible for the party involved to recognize such features of the animal he or she is hunting as whether it is a wild animal, scarce in number and in need of protection according to such factors as his or her occupation, knowledge level as well as the location, time and frequency of the hunting. That is, the criteria should be whether the suspect has a criminal intention and whether his or her intention is legally wrong enough to be condemned.