刑事违法性认识体系性定位的思考

Thinking of the Systemic Positioning of the Recognition of Illegality

摘要: 关于违法性认识的体系地位的争论一直延续到今天，故意说和责任说在中国刑法学界依然呈现分庭抗礼的局势。因此有必要对这一问题予以分析，故意说将故意和违法性认识相糅合的做法既违背我国刑法条文，又在犯罪论体系架构上与整体相冲突。该理论核心观点是将违法性认识融入犯罪故意中，此一过分超前的判断方法不仅会模糊事实判断与价值判断的界限，而且在我国司法实务案件中会导致案件的结论走向一律无罪或者有罪的两个极端。责任说将违法性认识视为独立的责任要素，总体而言更适合我国的司法实务。尽管故意说针对责任说存在一系列批评意见，但不可否认的是责任说清晰地分离了对事实的认识与对法律规范的认识，契合公民对刑法的认识能力水平，其将认识对象限定为一般法律规范的做法亦能够解决刑法与其他部门法的违法性关联问题。因此，责任说在刑法理论体系中较之故意说具有更多的优势，应当予以坚持。

Abstract: The debate over the systemic status of the awareness of illegality has continued to this day, with the intentionality theory and the responsibility theory still dividing the Chinese criminal law community. Therefore, it is necessary to analyze this issue. The intentionality theory combines intentionality and awareness of illegality, which is not only contrary to the provisions of China’s criminal law, but also conflicts with the overall structure of the crime theory system. The core view of this theory is to integrate the awareness of illegality into criminal intent, this overly advanced judgment method will not only blur the boundaries between factual judgment and value judgment, but also in China’s judicial practice cases will lead to the conclusion of the case towards the two extremes of innocence or guilt. The responsibility theory regards the awareness of illegality as an independent element of responsibility, which is generally more suitable for the judicial practice in China. Although intentionally against the responsibility theory there are a series of criticisms, but undeniably is the responsibility theory clearly separated the knowledge of the facts and the knowledge of the legal norms, fit the level of citizens on the criminal law of the ability to understand, the knowledge of the object is limited to the general legal norms of the practice can also solve the criminal law and other sectors of the law of the illegality of the correlation of the problem. Therefore, the theory of responsibility has more advantages than the theory of willfulness in the system of criminal law, and should be maintained.