The Research On The Mistake Of Subsumption In Criminal Law

Mistake of subsumption is an effective way to solve the problems in the cases that attract public and academic attention,such as "case of Wang Peng illegally sold protected parrots".However,the judicial practice seldom talks about mistake of subsumption in such cases.The phenomenon enlightens the author’s mind.It is true that the lack of theoretical understanding is the important reason why it cannot be taken seriously.Therefore,the core is to clarify theoretical disputes.Since environmental resources crime is a current criminal strike’s target,and the contradiction in the cases of rare animals and plants is prominent,the author takes them as the analytical samples.The thesis is divided into the following four parts.In the first part,scholars mainly put forward four solutions for the specific cases,namely,purposeful limited interpretation,social harmfulness judgment,mistake of illegality cognition,and mistake of normative constituent element’s cognition.The solutions all aim to strive for lighter punishment.The path of interpretation requires judges to increase their discretion or even deviate from the judicial interpretations,which is not practical.Social harmfulness is difficult to be applied because of its fuzzy concept and subjective criteria.In a highly informationized society,most of the offenders have a understanding of the illegality of the behavior.The last path has some shortcomings.The solutions fail to solve the problems,but mistake of subsumption is effective.The lack of theories is a major problem,so the second part discusses theories.Based on the derivation of the subsumption process,it is concluded that the mistake of subsumption refers to the situation where the offender knows his behavior,but mistakenly interprets the normative constitutive element.Mistake of subsumption can be divided into two types:separation and crossover.Separation between cognition and interpretation for mistake of subsumption belongs to mistake of illegality cognition.Crossover between cognition and interpretation for mistake of subsumption belongs to mistake of punishability.In the third part,mistake of illegality cognition experiences the change from the intentional theory to the culpability theory.In view of the intention in criminal law in China,cognition of illegality is the element of intention.In addition,the practice adopts the four requirements or three levels of crime theory system.So its effect is to deter the crime by obstructing intention.The nature of crossover between cognition and interpretation for mistake of subsumption is the degree of the essential illegality.The judge decides the degree.The low degree of mistake of punishability is regarded as " significantly slight harm" and the offender is innocent.The high degree of mistake of punishability is regarded as "minor offence" and the offender is impunity.The fourth part analyzes the judicial status via specific cases of rare animals and plants.The judgments have the characteristics of insufficient understanding,negative and conservative attitude,lack of subjective argumentation,inconsistent judicial standards and disordered distribution of burden of proof.In terms of judicial standard,the author holds that the standard of ordinary people should be adopted in principle and that of human beings in exception.In terms of distribution of burden of proof,the author holds that the burden lies with public prosecutors,and offenders,defenders and the judges can remind prosecutors of the existence of mistake of subsumption.