走向现代刑法:违法性认识的规范展开

在"刑民不分"的前现代法律中,"不知法不免责"之"法",主要是伦理法、民商法,"责"则主要是采客观归责的侵权责任。而在"刑民有别"的现代法律中,由"前置法定性与刑事法定量相统一"的法益保护和不法制裁的部门法层级结构和比例分配所决定,客观构成要件中的规范要素以前置法的规范评价为核心,相应地,行为之前置法不法性认识乃主观构成要件的必备要素。是故,违法性认识错误实有狭义和广义两个层面。狭义的违法性认识错误,仅指前置法不法性认识错误,系事实错误范畴;广义的违法性认识错误,则指传统的刑事违法性认识错误,系法律错误范畴。前者决定故意的有无,后者影响责任的轻重。实践中,两者均得或者依据裁判规则进行推论,或者运用刑事推定进行认定。

The Road Leading to the Modernization of Criminal Law:A Normative Unfoldment of Cognition of Illegality

In pre-modern legal system of"integration between criminal law and civil law",the term of"law",mentioned in the law proverb"those who does not know the law shall take responsibility for his wrong-doings",referred to ethical laws,civil laws and business laws,and the word"responsibility"indicates the liability for tort in the sense of objective imputation.However,in the modern legal system where"criminal law is strictly separated with civil law",decided by the allocation proportion and the hierarchical structure of legal-interest protection and legal sanction by different law departments where"the prepositioning laws determining essence and the criminal law determining degree are unified",normative elements in objective constitutive requirements shall take the normative evaluation according to prepositioning laws as the core,and,accordingly,the cognition of violating prepositioning laws for a conduct shall be one of an essential element of the subjective constitutive requirements.Consequently,a mistake in illegality cognition contains two layers in a broad sense and a narrow sense.A narrow mistake in illegality cognition refers to a false cognition of violating prepositioning laws,also could be categorized in cognitive mistakes in facts;and a broad mistake of illegality cognition refers to a traditional false cognition of criminal illegality,categorized into cognitive mistakes in legislations.The former one determines whether a perpetrator has a guilty intent,while the latter one determines the amount of liability.In judicial practice,both layers of a mistake in illegality cognition shall be inferred in accordance with judicial rules or be affirmed through a criminal presumption.