Research On The Crime Of Harboring Criminals

The crime of harboring criminals is one of the common crimes that happen in judicial practice. A controversy is often aroused on the homologation of and the penalty for it in theory and practice so that a series of problems are awaiting solution. The paper tries to illustrate from the following four perspectives and makes a thorough, deep and systematic study on the crime of harboring criminals. Chapter I. An Overview on the Crime of Harboring Criminals The chapter makes a clear definition of the crime of harboring criminals from the angle of the etymology. It reviews and discusses the process of appearance, development and evolution from the perspective of practice. 1.1. The Definition of the Crime of Harboring Criminals The concept of the crime of harboring criminals can be understood in different ways in theory. Item 310 in The Criminal Law regulates that the crime of harboring criminals refers to the act to make false certificate in order to harbor the criminal in the circumstance that the witness has been clear of the crime fact of the criminal. Besides, Item 362 in The Criminal Law rules out such a special crime in a special situation as an exception. It extends the manner of act of the crime of harboring the criminals from the simple means to make false certificate to the act of the personnel in some specific profession to divulge secret information to those who commit prostitution and meretricious crimes. 1.2. The Legislative Evolution of the Crime of Harboring Criminals Reviewing the history of the criminal legislation in our country, we can find that the crime of harboring the criminals in the criminal law in our country was born out of the crime to give shelter to a criminal in the form; but in the content, it experiences the process from simple repetition of the crime to give shelter to a criminal to the phase that it is given the independent meaning. We hold the opinion that we should accord with the principle of charges and punishments sentenced by law when understanding the crime of harboring criminals in the criminal law. Therefore, the definition should be limited to the first understanding, that is, the act to make false certificate in order to harbor the criminal in the circumstance that the witness has been clear of the crime fact of the criminal. Considering the regulations concerning the crime to hinder the proceeding of the judiciary in the criminal law at home and abroad, there are several ways to regulate the crime of harboring criminals as follows: some regulate the accusation of the independent crime of harboring criminals; some differentiate specifically the harboring acts in the broad sense or in the sense of the etymology, and then make the specific and independent accusations; some regulate the accusation of the crime to give shelter to a criminal, but its description contains some acts which are obviously of the characteristics of harborage, including the sheltering acts. Chapter II. The Component Features of the Crime of Harboring Criminals (1) 2.1. The Object Features of the Crime of Harboring Criminals The crime of harboring criminals is a kind of crime to hinder the proceeding of the judiciary. The objects of crime not only include those who commit crimes, but those who commit prostitution and meretricious crimes; the crime of harboring criminals can not only happen within the period of the criminal lawsuit, but can happen before the start of the criminal procedure; as crime objects of the crime of harboring criminals, the criminals refers to the one that actually commits crimes. It overlaps with the denotation of the criminal suspect and the accused, so there is no inclusive relationship between them. The objects of the crime of harboring criminals should refer to the penal prosecution and punishment execution activities of the judicial organ toward the criminals, and the normal activities of the public security organ to forbid the prostitution and meretricious crimes. 2.2 The Objective Features of the Crime of Harboring Criminals From the objective perspective, the crime of harboring criminals refers to the act of the person who make false certificate to harbor the criminal, and the serious act of the staff in the hotel industry, the restaurant service industry, the culture entertainment industry, the taxi industry and so on to divulge the secret information to the criminals when the police security organ checks and prohibits the prostitution and meretricious activities. The harboring acts by making false certificate are carried out by means of deed; the false certificate is not limited to that for the judicial organ. As for the content of the false certificate, it is usually thought that the harborage doer makes false certificate about the fact of the case which may exert actual effect on the criminal responsibility of the criminal and the execution of punishment. The harborage act in the sense of the criminal law only refers to the post harborage. Chapter III. The Component Features of the Crime of Harboring Criminals (2) 3.1. The Subject Features of the Crime of Harboring Criminals The subjects in the "subject features of the crime of harboring criminals"refer to general subjects. According to the regulations concerning the crime of harboring criminals in the current Criminal Law, even if the harborage doer and the harbored object are relatives, it has no influence on the establishment of the crime of harboring criminals and does not belong to the scope of lenient punishment. Therefore, the discussion on the issue that the person who covers up his or her relatives should not be sentenced to penalty in the theory field of criminal law is often deduced to the discussion correspondingly on the issue that principle of "relatives harboring relatives"("tolerable harborage") should not be regulated in the criminal law in our country. In our opinion, rather than regarding the principle of "tolerable harborage"as a kind of free adjudication circumstance when the judge precedes the adjudication of punishment, it's better make it clear regulated in legislation. In this way, on the one hand, it can show the concern f of the criminal legislation or humanity in our country; on the other hand, it can prevent the judicial arbitrariness caused by the judge's excess employment of free adjudication in such cases effectively. 3.2. The Subjective Features of the Crime of Harboring Criminals As for the subjective aspect, it refers to the doer's recognition on his act of make false certificate in order to harbor the criminal and on its consequences. The doer's "clear knowledge"that the object of harborage is a criminal only needs to know the possibility that the harbored is a criminal, that is, the concept of knowing one is a criminal includes both the definite recognition and the possible recognition. In the form of crime, the crime of harboring criminals can be presented as either direct deliberation and indirect deliberation. Chapter IV. The Judicial Homologation of and the Penalty for the Crime of Harboring Criminals 4.1. The judicial homologation of the crime of harboring criminals When making a division between the crime and non-crime of harboring criminals, we should pay attention to the division between the harborage act to make false certificate and the act to conceal the real information. Seen from the manner of deed, the crime of harboring criminals belongs to active deed; whereas the act to conceal the real information belongs to the passive deed. The objects of the crime of harboring criminals should be the person who commits crimes. Here the word "person"should be interpreted as natural person. Therefore , in judicial theory and practice, it is completely possible to harbor the "criminal unit", and it is feasible to be sentenced to penalty as the crime of harboring criminals. Those who substitute the criminal in his name should be sentenced to penalty as the crime of harboring criminals. The crime of harboring criminals belongs to behavioral offense. Therefore, its established based on the completion of the harborage act to make false certificate rather than on the basis of the consequence that the harbored object actually escapes the penal prosecution or the execution of punishment. If the doer and the criminal conspire before the event and plan to carry out the harborage acts after the criminal commits crimes, then the joint offense comes into existence. 4.2 The Penalty for the Crime of Harboring Criminals According to the regulations of Item 310 in The Criminal Law, those who commit the crime of harboring criminals should be sentenced to three years'imprisonment, taken into custody or put under surveillance; those who are of the gravity of the circumstances should be sentenced to the limited imprisonment between three years and ten years. The paper maintains that the penalty for the crime of harboring criminals should be under that for the harbored crime.