Position of knowledge of unlawfulness in the general theory of crime

Abstract

Mistakes of law are regulated in Article 30/4 of the Turkish Penal Code. According to this provision, "Any person who makes an unavoidable mistake about whether his act was lawful or not shall not be subject to penalty". Thus, the effect of the mistake of law on criminal liability has been revealed. However, the issues regarding why and how this effect will occur need a theoretical explanation. At this point, the concept of "knowledge of unlawfulness" plays a key role. The mistake of law consists of the fact that the perpetrator does not know unlawfulness when he commits the act. Therefore, theoretically revealing the knowledge of unlawfulness will clarify the effect of the mistake of law on criminal liability. In this study, first of all, it is revealed what is the meaning of knowledge of unlawfulness. Then, the opinions on the position of knowledge of unlawfulness in the general theory of crime in German criminal law are discussed within a development process extending to the present day. The distinction between error facti and error iuris has been considered as the first opinion on this subject. Then, the Vorsatztheorie and Schuldtheorie are discussed. It was concluded that Schuldtheorie is the most logical view.