Research On Qualitative Punishment Of Steal Belonging For Relatives

As one phenomenon of crimes of encroachment upon property, steal belonging for relatives exists extensively in the real society. Compared with common thefts, it involves not just law evaluation, but is more about family ethics. Stipulation on steal belonging for relatives is not only a cardinal part of humanization improvement of criminal laws, but also the essential legal regulation that family harmony spreading to social harmony ,a subject matter studied by criminal law scholars for a long period of time and with certain results. However, there are no enough concern given by criminal laws and relating judicial interpretation to this issue and some flaws and deficiencies exist. From the perspective of humanization, the paper focuses on the historical origin of stipulation on steal belonging for relatives, domestic relations, punishment ranges and legislative suggestions for investigating reasonable and scientific legislative channel and judicial channel of steal belonging for relatives in order to contribute some efforts to the perfection of criminal laws by the way of making historically horizontal comparison and vertical comparison in home and abroad.In addition to the foreword, the paper is divided into 6 chapters:The first chapter which is divided into two sections is the humanization development of criminal laws. Section 1 is the understanding and thinking of humanization in criminal laws. It is considered that humanization is always the starting and landing points of thinking exploration of law theory. Only on the basis of scientific hypothesis of humanization, can the existence and application of any criminal rule have the reasonability in essence. The understanding of humanization is from the perspective of Chinese ethnical philosophy and based on the fight between the good and evil of human nature. In accordance with rules and characteristics of human's morality, humanization of criminal law achieves goals of scientific legislature of criminal laws and powerful functions in the process of giving prominence to the harmonious development of human nature. Section 2 discusses the inevitable trend of humanization of criminal laws. The value of criminal laws changes continuously with the degree and form of concern on human nature. With the progress from the antediluvian society and feudal society to the democratic society, the degree of respect of value of criminal laws to human nature is that: the cruelty is reduced continuously until equality and harmony. The first and foremost in the harmony of country is the harmony and stability of family unit. Either from the origin to today's development trend or from its evolvement in the aspect of ethical philosophy, criminal laws coincides with human ethics and harmonious living together in essence. The humanization of criminal laws represents social progress, thus it is the prerequisite evidence of qualitative punishment of steal belonging for relatives discussed in the paper.Chapter 2 is the observation and study on the historical origin of steal belonging for relatives in ancient China, which is composed of three sections. The first section briefs on the concept and classification of relatives in China. Section 2 is that we can not expect most people to place the interests of country and society above interests of family ties,we can not expect most people to take a more reasonable and legal action than to conceal relatives'crimes when their lives, freedom, property and reputation are threatened urgently; it is actually an indirect way to protect people's own interest by hiding their relatives. Section 3 is on the punishment principles and provisions in ancient China. The principles are: on the basis of ethics like live-in people share their property relatives share their property, it was stipulated that the crime of encroachment upon property among relatives was not severe as the common crime of encroachment upon property, which is usually with reduced criminal punishment. As to steal among live-in relatives, it was not convicted of theft crime. The reason for such stipulations in feudal laws might be the consideration of the existence of normal human relationship among relatives in the Chinese ethical tradition and must have some reflection. Relatives and families formed by blood and marriage are the most concentrated representation of relative's relationship. The rulers deeply understood that family is the miniature of the state while the state is the enlargement of the family, thus, the family relationship must be dealt finely when maintaining the ruling order of the state. From the principle of ceremony and follow the system of concealment, the punishment for steal belonging for relatives commonly represented in ancient China are commonly as follows: it was stipulated in criminal laws that crimes of encroachment upon property among relatives was executed with lesser punishment than punishment on common people and the principle of criminal punishment was to adopt lesser punishment or remit punishment. In feudal criminal laws, the closer the blood relationship, the lesser the punishment is and even to the extent of ignorance and no punishment, and vice versa.Chapter 3 which is divided into three sections is stipulations on steal belonging for relatives in foreign countries. The first section is the definition of the range of relatives in foreign countries and the constrictive conditions of the establishment of steal belonging for relatives. The range of relatives is: the first is spouses only; the second is relatives and spouses. Relatives in the second point refer to direct relatives and indirect ones; the third are relatives and family members, here relatives include direct relatives and indirect ones; the forth is family dependents, guardians watchers and live-in relatives. The constrictive conditions of the establishment of steal belonging for relatives are: first is the material condition. For example, the condition of convicting the act of stealing the spouse's property of theft crime stipulated by French criminal law is that the married couple is separated or lives separately. As to the Canadian criminal law, the material restriction of this is the husband or wife is intent to abandon or have abandon his or her spouse, or they are living separately, and the spouse's legal property is obtained or transferred by the other by fraudulent means. The second is procedural condition, which is the premise for the steal belonging for relatives to be constituted crime must be prosecution by the victim. If the victim does not prosecute, then the act can not be taken as theft crime. There are such stipulations in some countries as Germany, Switzerland and so on.Section 2 is the stipulations on the conviction and punishment of steal belonging for relatives in foreign countries. The principles are mainly the following situations: first, the principle of equal punishment. This principle refers only to those countries which has not yet made clear definition on steal belonging for relatives; second, the principle of double standard punishment, that is the adoption double standard for punishment of remitting punishment and handling only when are informed. For example, in the criminal law of Japan, on one hand, theft crime of relatives who are spouses, direct relatives or live-in relatives is convicted without punishment; on the other hand, as to relatives beyond spouses, direct relatives and live-in relatives, only informed by the victim, can public prosecution be instituted; third, the principle of handling the case only when informed. As for steal among relatives, only the court is informed can it be handled. This punishment principle is adopted by Germany, Switzerland and other countries; fourth, the principle of restrictive punishment. Only the behavior of steal belonging for relatives that conforms to certain conditions can be convicted of theft crime, otherwise, it can not be taken as crime. This principle is adopted by Canada and other countries.Section 3 is the analysis on the features of stipulations on steal belonging for relatives in foreign criminal laws. The features are: first, the range of relatives is generally defined concretely. Criminal laws in most countries limit the range of relatives to spouses, relatives (direct and indirect relatives), guardians and live-in relatives. Second, because of the influence of marriage, affinity, family, guardianship and others on the steal belonging for relatives, it is impossible for laws to take into consideration moral issues in aspects of ethics, virtue, marriage family when make conviction and punishment on steal belonging for relatives in order to keep one eye on the morality and modesty of criminal laws while embody its justice. Third, due to the special relationship of interest among the parties of steal belonging for relatives, there are conspicuous differences between steal belonging for relatives and common theft crime, thus it is clearly in line with times to make the stipulation of only handling when informed by most countries.Chapter 4 is the characteristics and flaws of China's stipulations on steal belonging for relatives. There were no detailed provisions on steal belonging for relatives in Criminal Law of 1979 and Criminal Law of 1997. It is pointed out by the Supreme People's Procuratorate in Ratification Concerning How to Deal with Theft on Their Own Family or Closer Relatives that : relatives include spouses, parents, children, siblings , closer relatives and live-in distant relatives. The punishment principle is that it is generally not handled as the crime case. If prosecution for criminal liability is indeed essential, steal belonging for relatives still should be distinguished from crimes in public places. After the amendment of Criminal Law, in the Article 1 Part 4 of Interpretation on Several Issues of Specific Law Application of Trial on Theft Cases made by Supreme People's Court, it is stipulated that: the behavior of stealing property from her or his own family or relatives is generally not taken as crime. If prosecution for criminal liability is indeed necessary, steal belonging for relatives still should be distinguished from crimes in public places These two interpretations are the only stipulations on the issue of steal belonging for relatives. The flaws and deficiencies of judicial interpretations of stipulations on steal belonging for relatives made by Supreme People's Procuratorate and Supreme People's Court are: first, the inconsistent stipulations on the range of relatives easily result in the conflict of judicial operation. The judicial interpretation of relatives made by the Supreme People's Procuratorate is closer relatives and live-in distant relatives while the interpretation of relatives made by the Supreme People's Court is limited to family members and closer relatives. The ranges of relatives of these two are surely not in consistence. Second, the limitation of relatives ranges is too narrow that the real situation of steal belonging for relatives can not be reflected fully. In the judicial interpretation of Supreme People's Procuratorate, relatives is limited to closer relatives and live-in distant relatives without live-in family members who are not relatives, while the judicial interpretation made by Supreme People's Court limits relatives to only family members and closer relatives which is narrow. The interpretation excludes theft among uncles, aunts, nieces, and nephews, and among cousins, which is unacceptable in both theory and practice in the China with time-honored tradition and the reputation of a state of ceremonies. Third, the judicial discretion is enlarged. This not only contributes to judicial corruption, but also is against the value of criminal laws. The stipulation of if prosecution for criminal liability is indeed necessary is a quite elastic summarization that different people in different regions can have different understanding. Thus it is difficult to ensure that every judge can determine whether there is the necessity to prosecution for criminal liability or not objectively and justly.Chapter 5 is the comparison of stipulations on steal belonging for relatives between China and foreign countries in ancient and modern times. It is composed of two sections, in which section 1 gives a discussion on the similarities and difference in the stipulations on steal belonging for relatives in China and foreign countries. Concerning crimes against property, it is stipulated by European and American laws and Chinese laws coincidently that it is not serious as crime against property among common people. The differences in the stipulations on steal belonging for relatives are: first is the issue of theft. In Chinese ancient laws, the seriousness of responsibility for a crime is directly proportional to the closeness of relatives'relationship, that is to say, the closer the relatives, the lesser the punishment (even to no punishment). While, this is not so complicated in ancient and modern laws of Europe and America, in which the range of relatives whose responsibility for a crime can be remitted is relatively narrower. In Anglo-American law system, the range is only wives and husbands; while in Romano-Germanic law system, it refers to blood relatives including direct relatives, spouses, parents (siblings) and marriage relatives (sisters-in–law and brothers-in-law) and others which is much smaller than the range stipulated in Chinese ancient laws. What is more, in this range of relatives, no matter how close the relationship is, the remission is the same, which is different from Chinese laws in which the remission is made up of different levels of punishment till to the level of no punishment. Section 2 is the critical reference and inheritance of the ethical feature of criminal law. There are provisions of criminal laws on relative crimes in ancient China, modern Japan, modern Korea, Taiwan China, Germany and France in Europe. In the punishment principle, stipulations are made on responding aggravation and reduction of criminal punishment according to the different requirements of ethics and morality, which play a positive role in maintaining social stability and ensuring paternity, also it meet the needs of inheriting tradition an maintaining ethics and virtue. However, there are only supplementary interpretations of Supreme People's Court and Supreme People's Procuratorate which are narrow, but no stipulation on relative crimes in the provisions of criminal laws of China. This means that the relatives and ethics are put outside the criminal law totally. In traditional virtue, there are still reasonable and positive kernels such as respect for relatives, veneration especially for relatives, piety, mutual cherishment among relatives and helpfulness and so on. This rational and positive requirement of ethical morality is mass-based in China and the soil is fertile. The establishment of criminal law provisions should be based on the recognition of the mass; otherwise, it would become empty by losing the basis. The stipulations of aggravated punishment on the crime of encroachment upon the personal right of relatives and remitted or reduced punishment on the crime of encroachment upon relatives'property are all based on relatives'ethical relationship, which is positive and reasonable that should be referenced and represented in criminal laws of China.Chapter 6 is the suggestions on China's legal improvement of stipulations on steal belonging for relatives. The first is to enlarge the range of relatives properly by defining the range of relatives in steal belonging for relatives as family members and relatives. It is no doubt that, if the scope of relatives is enlarged without any limitation, for example the cousin of the second cousin's cousin even to relatives of strangers, law provisions would be not in the right place. Relatives should be divided into there circles of relatives, which are closer relatives, closer relatives'close relatives (collateral relatives within three generations) and closer relatives'other relatives (other collateral relatives beyond three generations). By doing this, the operability of jurisdiction is enforced. The second is to return the prosecution right to victims, that is to say, only when informed can the case of steal belonging for relatives be handled. The third is to strive for the reasonability and flexibility of the qualitative punishment. When the punishment is put on the theft behavior among family members and closer relatives, it can be stipulated that not to take as theft crime or punishment is remitted; as to theft acts among other relatives beyond closer relatives, the punishment can be carried out according to the range of relative circles, in which the leniency level can be reduced. Provisions of theft among closer relatives'close relatives (collateral relatives within three generations) can be reduce or remit punishment; as to theft among closer relatives'other relatives (collateral relatives beyond three generations), the punishment can be reduced or be lesser.Finally is the conclusion part. It is suggested from the legislature perspective that the discussion on the legal improvement of stipulations on steal belonging for relatives in China should be ascended to provisions of criminal laws for amendment.