破坏植物资源犯罪中违法性认识问题案例探析

Analysis of Illegality Cognition in the Crime of Destroying Plant Resources

破坏植物资源犯罪属于法定犯的范畴,基于“知法推定”立场的违法性认识不要说观点已难以适用。对于违法性认识定位问题,我国学界和大陆法系国家都存在“故意说”与“责任说”的分歧。由于故意说存在逻辑和体系上的缺陷,将违法性认识作为责任要素更为合理。在破坏植物资源犯罪的司法实践中,建议将违法性认识作为责任阻却事由进行考察。考虑到违法性认识在证明中的困难,实践中建议采用违法性认识可能性,即违法性认识错误的可避免性作为判断标准。对于违法性认识错误不可避免性的认定须具备两点,即行为人对破坏植物资源行为的违法性存在认识困难以及为避免错误,行为人曾努力查明法律。

The crime of destroying plant resources belongs to the category of statutory crime.The traditional view of not saying the illegality cognition is not applicable based on“presumption of knowing the law”.There are differences between the theory of intent and the theory of liability for the orientation of illegality cognition in academic circles and civil law countries.Due to the defects of logic and system in intent theory,it is more reasonable to regard illegality cognition as the element of liability.The knowledge of illegality should be considered as the cause of non-imputability in the judicial practice of the crime of destroying plant resources.Considering the difficulties of illegality cognition in proof,the possibility of illegality cognition was recommended in practice,that is,the avoidability of illegality cognition error as the judgment standard.The determination of the unavoidability of illegal cognition error must have two points that the actor has difficulty in understanding the illegality of destroying plant resources and has tried to find out the law in order to avoid mistakes.