一、认识错误的概念

二、法律错误

Mistake of law:It is especially hard forD to prevail with a defense based on “mistake of law.”[27]

a. Generally nodefense: As a generalrule, “mistake of law is no defense.” More precisely, this meansthat the fact that D mistakenly believes that no statute makes hisconduct a crime does not furnish a defense. [27]

Reasonablemistake: In this core “Dmistakenly believes that no statute makes his conduct a crime” situation, evena reasonable mistake about the meaning of the statute willusually not protect D. In other words, so long as the crime isnot itself defined in a way that makes D’s guilty knowledge a prerequisite,there is usually no “reasonable mistake” exception to the core “mistake of lawis no defense” rule.

Mistake of lawas to collateral fact: Itis important to remember that the oft-stated “rule,” “ignorance of the law isno excuse,” really only means “ignorance that a statute makes one’sconduct a crime is no excuse.” A mistake of law as to some collateralfact may negative the required mental state, just as a mistake of factmay do so.

三、事实错误

“Lesser crime”theory: D’s mistake willalmost never help him if, had the facts been as D mistakenly supposed them tobe, his acts would still have been a crime, though a lesser one. This is the “lessercrime” theory. [29]

Example: D steals a necklace from a costume jewelrystore. The necklace is made of diamonds, and is worth $10,000, but D mistakenlybelieves it to be costume jewelry worth less than $500. In the jurisdiction,theft of something worth less than $500 is a misdemeanor, and theft of somethingworth more than that is a felony. D is guilty of a crime — a felony in moststates — because even had the facts been as he supposed them to be, he stillwould have been guilty of some crime. (But some states, and the Model PenalCode, would scale his crime back to the crime that he would have committed hadthe facts been as he supposed, in this case, a misdemeanor

行为人在实施危害行为时，主观认识与行为的客观情况不相符合的情况。一般将事实错误作如下分类：

（一）对行为的认识错误

（二）对行为对象的认识错误

（三）对因果关系的认识错误

思考题：（1）为什么说犯罪主观方面是犯罪成立的主观基础？（2）如何认定间接故意中的“任意”？（3）如何把握犯罪过失中的应当预见？

小结直接故意和间接故意犯罪过失

参考书。1．马克昌主编：《犯罪通论》中有关客观方面的章节，武汉大学出

反思认识错误在司法认定中的作用