On The Principle Of Mistake Of Fact

The so-called factual misunderstanding,generally refers to the case that the subjective cognition of the actor in the intentional crime is not consistent with the objective fact,aiming to discuss the problem of whether or not the person who constitutes the fact of the crime can be set up on purpose.How has this situation been evaluated and dealt with in criminal law has been an issue that causes endless debates.The reason is that,in addition to the explicit provisions of the criminal law in China,it is also related to the different understandings of the criminal theory behind it,such as the system of crime,the nature of illegality and the positioning of the intentional system.Though it is only a relatively specific topic in the basic theory of criminal law,it involves in a great deal of aspects,such as the basic position,the intentional identification,the criminal form,the criminal responsibility and the number of crimes.Moreover,it is also listed as the most difficult problem in judicial theory for its essential position in the cognition of judicial practice.Based on the theory of "statutory compliance".The first thing to do in the study is to clarify the relevant concepts and system problems.The former is the supplement of the latter.The current criminal code of our country has no definite stipulation on the problem of fact error,and its connotation can be extended from the intentional definition to the error of intentional understanding or to the intentional will.The application of factual errors should exclude the subjective lack of criminal intent,which should be discussed by the theory of intentional ontology,the theory of negligence,the form of attempted crime and the inability to commit crimes.There are many differences and disputes in dealing with the wrong understanding of facts.There are always arguments between "equivalence theory" and "concrete theory" in German criminal law.Japanese criminal jurisprudence follows the Germany theoretical thought,which "specific coincidence","abstract coincidence" is opposite to "statutory compliance".In addition,there are differentopinions within the doctrine of "conformity".The fundamental defects of the theory of concrete conformation are the lack of insisting on the consistent meaning of its theory and the conclusion that the different errors in the same constituent elements are contradictory to each other,and that the conclusion is also the malpractice of the imbalanced crime and the loophole of opportunism.On the contrary,the abstract conforms to the other extremes.There is a neglect of the degree of the coincidence of the quality of the crime,which pursues for the balance of crime and punishment at the expense of the legality and the doctrine of responsibility.Instead,it broadened the scope of the penalty.In contrast,statutory compliance has the advantage of legality and legal coherence.But the statutory compliance also needs to be improved in detail.The article tries to make the legal coincidence as a punishable bridge between the intentional and the purposely intentional of the constitutive requirements by the intentional double orientation,first of all,to clarify the intentional elements of the intentional knowledge of the Constitution for the presupposed object,and secondly to clarify the legal conforms that the intentional abstract should be closely attached to the statutory requirements.But the degree of abstraction differs in different errors.