In the criminal law theory,it is debated whether the mistake of law negates the criminal intent or the criminal liability.At the level of application,however,the critical question is whether the mistake of law is avoidable or not.In other words,avoidability of the mistake of law is the key in doctri-nal analysis to determine criminal liability.However,this has given rise to the theoretical problem on"avoidability".While this issue has not yet been clearly stipulated in the criminal law,it can be reasona-bly dealt with in the following two dimensions:the nature of avoidability and the determination of avoid-ability.On the dimension of the nature of avoidability,the basis for the punishability of the mistake of law is not the breach of duty or responsibility(Zuständigkeit),but the unused ability to observe the un-lawfulness(ungenutzte Einsichtsfähigkeit).On the dimension of the determination of avoidability,the openness and clarity of the relevant criminal law should be considered as a normative precondition to de-termine avoidability,while incorporated into the doctrinal framework of normative judgement together with the individual review of avoidability.
Mistake of LawAvoidabilityNorm TheoryAbility to Observe the UnlawfulnessResponsibility
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