违法性认识出罪功能之探析

The Exploration of the Impunity Function of Cognition of Illegality

违法性认识理论中责任说与故意说的相关讨论,具有重要的现实意义。法定犯时代的到来,使责任说的出罪功能遭到限制,而使故意说又有了新的意义。从法条而言,在刑法第14条解释论的支撑下,违法性认识是社会危害性认识的必要前提,因而也是故意的组成部分。从法理来说,责任说对假想防卫的处理存在许多疑问,同时也导致了故意概念的形式化。故意说则通过引入未必不法认识的概念,合理控制了出罪的范围。刑法理论需要重新思考故意说之合理性,建构违法性认识的出罪机制。

The discussion between the theory of responsibility and the theory of intention in cognition of illegality is of great practical significance.With the coming of the era of statutory crimes,the impunity function of the theory of responsibility is limited,and the theory of intention has gained a new meaning.From the perspective of law,under the support of the interpretation of Article 14 of the criminal law,cognition of illegality is the premise of the understanding of social harmfulness,and therefore it is also a part of intention.From the perspective of legal theory,there are many questions as to how to deal with the hypothetical defense in the theory of responsibility,which also leads to the formalization of the concept of intention.By introducing the concept of not necessarily illegal cognition,the theory of intention reasonably controls the scope of crime.The theory of criminal law needs to rethink the rationality of the theory of intention and construct the mechanism of cognition of illegality.