違法性認識錯誤的司法困境與判斷方法——以936份裁判文書為樣本

近年來，刑法中「不知法者不免責」的傳統觀念與責任主義的矛盾日益引發關注，以趙春華非法持有槍支案為代表的一系列司法裁判引發輿論質疑。通過對936份裁判文書的整理分析，發現在司法實踐中存在著對違法性認識錯誤的認定標準不一、涵攝範圍模糊、責任影響分歧等問題，其根源在於刑法理論體系語境的發展和刑事司法裁判偏差的迭加。在論證違法性認識作為責任要素的功能的基礎上，構建分別阻卻故意和責任的違法性認識錯誤「二階四步」責任體系。此外，結合司法樣本及現實困境，需要明確違法性認識錯誤判斷中「違法性」的含義、「認識」的證明和「錯誤」的範圍。

In recent years, the contradiction between the traditional concept of “ignorance of the law excuses no man'' and the responsibility doctrine in criminal law has attracted increasing attention. A series of judicial adjudication, represented by the case of Zhao Chunhua in which the suspected was convicted of illegally holding guns, spurred public criticism. Through analyzing 936 relevant judicial documents, it is found that there are some problems in the judicial process of errors in cognition of illegality, such as ambiguous scope of coverage, different identification standards and disparity in the impact of responsibility. The reason lies in the development of the context of the criminal law theoretical system and the superposition of the deviation of criminal judicial judgment. On the basis of demonstrating the function for cognition of illegality as element of responsibility, in order to standardize the identification and responsibility of errors in cognition of illegality, on the one hand, based on the sorting out of the relationship between cognition of illegality and fact, and the division of cognition of illegality between substantial and formal, possibility and reality, it is necessary to build a u second-level, four-step'' responsibility sys- tem for hindering intention and responsibility separately under the framework of existing relevant laws and regulations. On the other hand, combined with judicial samples and practical difficulties, we should clarify the meaning of “illegality'', the proving of “cognition.'' and the scope of “errors”.