论具体事实的打击错误——对具体符合说的反思和批评

On the Combat Error of Specific Facts——Reflection and Criticism with Issue of Concrete Accordance

在打击错误中具体符合说存在对刑法基本理论的误解和误用,具体符合说极力区分对象错误和打击错误也缺乏统一的标准,对司法实践并无裨益。故意犯罪由认识因素和意志因素两部分组成,而认识因素中"明知"的内容又有总则和分则之别,明知是故意犯罪的必要非充分条件,过失犯罪中亦有明知的立足之地。域外刑法典从不同侧面规定了错误类型和适用条件,理应就事论事,不能一概而论。打击错误在知、欲层面均没有发生错误,以对行为性质的必然性认识为前提,同时行为性质对主观罪过有限制和推定的作用,被误杀的人只是行为人的犯罪目的没有实现,但并不能由此阻却行为人的主观故意,危害行为在主观罪过支配下所导致的危害结果是一个不可逆的过程。

There is misunderstanding and misuse of the specific theory in combat error against the basic： theory of criminal law, meanwhile the specific theory cannot distinguish object error from combat error lack of unified standards, and it is useless for the judicial practice. Criminal Intent consists of two parts, known factor and willful factor, and known factor has the difference between the general principle and specifics in criminal law. Knowing is not a sufficient necessary condition of cr/minal intent, negligent crime also including knowing. In extraterritorial criminal laws the types of error and applicable condition are different, and they should be practical, cannot treat them as the same. To combat error, there is no error in both known and willful sides, on the premise of the inevitability of understanding with the behavior nature, it has the function to presume and restrict the subjective and the purpose of crime does not come true, but it is not the reason to reject the subjective,harmful behavior under the subjective fault control results to what it has been is an irreversible process.