论可避免的构成要件错误

On Avoidable Mistakes of Constitutive Elements

刑法学界普遍认为,构成要件错误无条件阻却故意,而违法性认识错误是否阻却责任,取决于该错误是否可以避免。这一处理差异从存在论进路和机能论进路都不能得到圆满解说。故意和违法性认识指向的均是行为人对法规范及规范所保护的法益的态度。当违法性认识错误产生于一种对法规范漠不关心的态度,那么对行为人就必须给予和具备违法性认识者相同的评价,即不减轻其责任。这一思路应当同样被适用于构成要件错误之中。当构成要件错误的产生是行为人漠不关心态度的产物和意志支配的结果时,该错误并不能无条件地阻却故意。漠不关心的无认识应该被规范性地评价为一种特殊的故意形态。我国《刑法》和司法解释中关于“应当知道”的规定为这一理解提供了有力支撑。

It is widely acknowledged that mistake of constitutive elements can unconditionally preclude intent,while whether mistake of law precludes liability depends on its avoidability.Both ontological and teleological way cannot fully explain the discrepancy between these two solutions.Intent and consciousness of unlawfulness are both ultimately directed towards the attitude of offender towards legal norms and the legal goods they protect.The offender who falls into mistakes of law resulting from his indifference to obedience to legal norms should be equally treated as the offender who is aware of the unlawfulness of his wrongdoings.This applies to cases of mistakes of constitutive elements as well.Therefore,when the mistake of constitutive elements stems from the indifference of the offender and is dominated by his will,it cannot unconditionally preclude intent.The unconsciousness of fact resulting from indifference should be normatively regarded as a special form of intent.The provisions about“ought to know”in Chinese Criminal Law and judicial interpretation correspond to this point of view.