禁止錯誤之法律效果——為故意理論辯護

The Legal Effect of Prohibition Mistake: Vindication of Intention Theory

在二○○五年的刑法總則修正中，立法者依據罪責理論的原理，將不可避免禁止錯誤的法律效果修改為阻卻罪責。不過，本文將指出，罪責理論並非貫徹罪責原則的最佳方案，其將不法意識視為故意以外的獨立罪責要素，使禁止錯誤的行為人受到比構成要件錯誤的行為人更不利的待遇，是迄今仍找不出合理根據的作法。相對之下，故意理論將不法意識視為故意的組成部分，平等對待構成要件錯誤與禁止錯誤的行為人，才是合理的出發點，至於罪責理論批評其造成難以忍受的可罰性漏洞，以及不當地優惠習慣犯與確信犯，都是言過其實的指摘。依此立場，故意固然仍是主觀不法要素，其內涵卻產生大幅的變化，難以和現行法相符合，有待立法者修法採納。

In the 2005 amendment of the General Provisions of the Criminal Code, legislators modified the legal effect of the inevitable prohibition mistake to negate guilt. This amendment is considered to be the fulfill-ment of the guilt principle, and is to be universally endorsed. However, this study points out that the theory is not the best solution to implement the guilt principle. It regards “illegality cognition” as an element inde-pendent of subjective intent, which exposes the perpetrators of prohibi-tion mistake to more unfavorable treatment compared to those perpe-trating mistakes of essential factors. This practice has yet to form a rea-sonable basis. In contrast, the intention theory, which was not adopted by legislators, regards “illegality cognition” as an element of subjective intent, and gives the above-mentioned perpetrators equal treatment. That is the proper starting point. As supporters of the theory of guilt criticize it, it has caused excruciating vulnerability of punishment, and improperly given concessions to both habitual criminals and crimes of conscience. In fact, the accusations are exaggerated. Therefore, this study supports intention theory. Whether it is based on mistakes of fact or law, prohibition mistake both negates the effectiveness of intention, and the act is considered to have been committed negligently. By this position, although intention is still an element of subjective iniquity, the connotation has changed so substantially that it is hard to be consistent with the current law. It still awaits amendment by legislators.