違法性認識錯誤的不可避免性及其認定

On The Inevitability of the Mistake of Law and Its Examination

基於現代刑法的責任主義原則，域外刑法理論和刑事立法逐漸肯定違法性認識錯誤對罪責的影響，承認在違法性認識錯誤不可避免的場合，不知法律可以成為罪責的阻卻事由。違法性認識錯誤的不可避免性成為理論研究的核心。受“不知法律不免罪”的傳統原則影響，無論是刑法規定還是刑事司法，各國對違法性認識不可避免性的把握仍十分嚴苛，幾成一種罕見的例外。應當承認，現代刑法規範越來越複雜，公民對法規範的認識也越來越困難。因此，行為人只要在通常的法規範意識支配下，履行了法規範注意義務，但仍難以避免地陷入了違法性認識錯誤而實施了刑法禁止行為，就應認定為具備違法性認識錯誤不可避免性而阻卻罪責。

According to the principle of culpability, which is the basement of the modern criminal law, the mistake of law is gradually recognized as a limitation of criminal culpability. A mistake of law defense is relevant, when it is inevitable. Therefore, the criminal law theories focus on the standard, under which a mistake of law can be regarded as inevitable. Based on the principle of Ignorantia juris non excusat (the ignorance of law is no excuse), however, a mistake of law is only considered as inevitable in some rare exceptions, which are seldom seen in the theory and practice. It is to be recognized that, it is getting more difficult for the citizen to have the knowledge of law along with the increasing complication of the specific prohibition in the modern criminal law. This article argues that the criminal liability of the defendant is to be excluded based on the mistake of law, when he takes all the reasonable measures to recognize the content of specific prohibition of law under a general consciousness of law, but the mistake is still inevitable.