The Exploration of Mistake of Constitutive Elements of Crime－Including Transferred Intent Principle of American Criminal Law
Date Issued
2010
Date
2010
Author(s)
Wang, Chun-Chieh
Abstract
When it comes to the “error of the object”, in theories and judicial practice, it no longer seems to be controversial that the criteria of intention should be the element (Tatbestand).If the error is within the same element, the intention to the harmed one cannot be excluded; otherwise, if the error is not within the same element, the intention to the harmed one is excluded. Take murder as an example, if a wrongdoer mistakes one person (A) for another (B) then kills A, the wrongdoer still commits murder. Conversely, if a wrongdoer mistates a wild boar for a person then kills the wild boar, the wrongdoer’s intention to damage (to kill wild boar) is excluded and the wrongdoer only establishes a crime of attempted murder and negligent damage.
This paper put forward different views on the above theory. “Equivalence or not” should not be the only criterion. Due to various types of the elements, we still realized the wrongful object belongs to the same element in some cases of error of the object. For instance, we still know that we killed a “person” even if we mistake one (A) for another (B). In other cases of error of the object, we can not definitely realize the wrongful object belongs to the same element. For example, if we mistake one (A) for grandfather (B) then kill A, we could not definitely realize we kill “elder lineal relative by blood” in coincidence of A being our fathers.
This paper tries to discuss the “object of intention” at the first beginning, to further explore the basis of the "error theory”, and to extend three types of elements - which are (1) the error of the object, (2) the error of act, and (3) the error of causal process.
In addition to the German and Japanese theories of error of elements, this paper tries to introduce the “transferred intent principle of the American criminal law” which deals with the error of act. I adapted the part with comparative advantages to of our “error of elements” from the discussion between the practice and scholars in the United States, e.g. role of “danger” in error, and range of “intent.”
At last, this paper tries to propose my own views and to answer seven questions mentioned in the beginning of this paper on the basis of aforementioned theories.
Subjects
error of act (wrong shot)
error of the object
error of causal process
error as to the legal elements of the offence (mistake of constutive elements of crim)
transferred intent
intent
SDGs
Type
thesis
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