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传统划分法律错误的标准总受到诸如规范错误、作为义务错误以及教唆错误等处理的质疑,以至于学界产生了否定法律错误独立性的思想。为了精确反映责任,法律错误存在着独立的必要,而罪刑法定原则要求刑法秉承形式主义,又为其独立提供了规范根据。法律的存在形式是文字符号,但记述的却是社会事实,法律错误实质是法条语意具体化或者事实化的过程中发生的推理错误。当法律记述的对象含有价值事实时,法条语意判断需要价值判断作补充。民法错误不具有独立性,可以将其视为是规范的要素错误,应根据外行人平行评价标准确定其性质。法律错误的边界并非静止不动,随着法律条文的变动,事实错误通常会不断地向法律错误转化。被告人对法律所选择的事实负有更高的注意义务,故法律错误的可责性一般大于事实错误。不过,最后的手段原则使被犯罪化的行为具有碎片性的特征,作为从禁止规范的未遂禁止又不能脱离主禁止规范独立适用,这导致入罪型的法律错误不会像事实错误那样,因未遂禁止而可能受到处罚,即责任主义原则时常会受到限制。
The traditional criteria for dividing legal errors are always challenged by norms such as norms, mistakes as volunteers and abetting errors, so that the academic circles have the idea of negating the error and independence of laws. In order to accurately reflect the responsibility, there is an independent legal mistakes necessary, and the principle of legality of crime requires the criminal law upholds formalism, but also provides a normative basis for its independence. Law exists in the form of writing symbols, but it describes the social facts. The essence of law is the wrong reasoning that occurs in the process of substantive or de facto law. When the object of law contains the fact of value, the law semantic judgment needs to be complemented by value judgment. The error of civil law is not independent, it can be regarded as the norm error, it should be based on the parallel evaluation of laymen to determine its nature. The wrong boundaries of law are not static. As the legal provisions change, the factual errors usually go wrong with the law. The defendant has a higher duty of care on the facts chosen by law, so the liability of legal errors is generally greater than factual errors. However, the principle of last resort renders the criminalized act a fragmentary character that can not be applied independently of the prohibition of normative attempts and can not be applied independently of the prohibition of the master prohibition, Misconduct and may be punished, that is, the principle of responsibility is often limited.