Change search
ReferencesLink to record
Permanent link

Direct link
Om straffrättsvillfarelse
Stockholm University, Faculty of Law, Department of Law.
2016 (Swedish)Doctoral thesis, monograph (Other academic)Alternative title
Mistake of Law (English)
Abstract [en]

This doctoral thesis examines mistake of law from a Swedish criminal law perspective. The research has two main objectives: (1) to analyse the Swedish provision on mistake of law, and (2) to explore and analyse how to distinguish between mistakes that are relevant for the application of the intent requirement and mistakes that are relevant for the application of the provision on mistake of law. 

Mistake of law is, in Swedish criminal law, considered as an exculpatory circumstance, which means that the actor is excused, even though he or she committed an unlawful deed. The provision on mistake of law is regulated in the Swedish Penal Code chapter 24 section 9. In order for the defendant to be excused, the provision states two preconditions: (i) it must be a case of a misapprehension, and (2) this misapprehension must be manifestly excusable. In this thesis, I scrutinise both of these preconditions. I argue that it is important to differ between whether it is a case of misapprehension and whether the misapprehension is manifestly excusable. When determining if the misapprehension is manifestly excusable or not, the defendant has traditionally been excused when the mistake typically is deemed to be exculpatory. However, due to the wordings of the provision on mistake of law, I argue that it is possible to excuse the defendant also in other situations than the traditional ones. Furthermore, when determining whether the misapprehension is manifestly excusable, the legal sources suggest that this is a form of a culpability requirement which basically means that the defendant is excused when he or she conducted some kind of investigation of whether a certain deed was lawful or not. According to the findings in this thesis, this can explain most – but not all – cases where the defendant is excused. This idea must, however, be supplemented with other reasons as to why the defendant is excused. Therefore, I suggest that there are situations where the defendant can be excused although he or she did not investigate the lawfulness of a certain deed. 

When exploring the difference between mistakes that are relevant for the application of the intent requirement and mistakes that are relevant for the application of the provision on mistake of law, it is important to note that such an analysis can only be fruitful if it focuses on certain preconditions in certain offences. Thus, this thesis discusses this matter by a range of selected offences where this distinction becomes more interesting than in relation to other offences. In this part, I stress that the design of the scope of the intent requirement will determine whether a mistake in relation to a certain precondition in a certain offence, will be treated as a mistake which is relevant to the application of the intent requirement or a mistake of law. Furthermore, I underpin that the intent requirement can be designed as more or less qualified, which means that the intent requirement sometimes is deigned in such a way that it is enough if the defendant’s intent covers the factual basis of the necessary precondition and sometimes is designed in such a way that the defendant’s intent must cover the correct (or nearly correct) conclusion that a certain deed, in legal terms, was unlawful. However, the scope of the intent requirement can only be determined by analysing each and every precondition in each and every offence. Thus, this cannot be determined by an overarching method.

Place, publisher, year, edition, pages
Stockholm: Wolters Kluwer, 2016.
Keyword [en]
criminal law, mistake of law, manifestly excusable, excuses, exculpatory circumstances, intent relevant mistake, ignorance of law, doubt, uncertainty, knowledge
Keyword [sv]
straffrätt, straffrättsvillfarelse, uppenbart ursäktlig, ansvarsfrihetsgrund, ursäktande omständighet, uppsåtsrelevant villfarelse, okunnighet, tveksamhet, kännedom
National Category
Law (excluding Law and Society)
Research subject
Criminal Law
Identifiers
URN: urn:nbn:se:su:diva-128778ISBN: 978-91-39-01968-8​OAI: oai:DiVA.org:su-128778DiVA: diva2:939872
Public defence
2016-09-09, Ahlmannsalen, Geovetenskapens hus, Svante Arrhenius väg 12, Stockholm, 10:00 (Swedish)
Opponent
Supervisors
Available from: 2016-08-17 Created: 2016-04-04 Last updated: 2016-08-16Bibliographically approved

Open Access in DiVA

No full text

Search in DiVA

By author/editor
Martinsson, Dennis
By organisation
Department of Law
Law (excluding Law and Society)

Search outside of DiVA

GoogleGoogle Scholar
The number of downloads is the sum of all downloads of full texts. It may include eg previous versions that are now no longer available

Total: 612 hits
ReferencesLink to record
Permanent link

Direct link