A Study Of Legal Protection Between Relatives

Legal protection between relatives originated from the remark "The father keeps silence for the son and the son keeps,silence for the father" that made by Confucius in pre-Qin days Confucianism. China's Law Dictionary explains it like this:it can mean that relatives can conceal sins of each other in China's old system. China's ancient literature explains it like this:when one of the two relatives has made a mistake, the other relative should keep silence. Although he knows the truth, he will not denounce and attest initiatively in order to take blood relationship and affection into account. As a result, Confucius offers critics to the practice of "The son attested for the father's stealing sheep and then advocates "Father and son keep silence mutually". Mencius also makes a hypothesis for the story of Shun's father's killing others, he think that the judge FuTao will not practice favoritism because of his status of the emperor's father, and as a son, Shun must "Release his father and run away". Here Confucius and Mencius both put Confucianism blood relationship and affection on a priority. "Legal protection between relatives" was just at the moral level and did not become an law system in pre-Qin time. Not until Tang dynasty did it carry on "the combination of manners and laws" and realize the combination of Confucius ethic and the legal system. The refinement and development of this system embody the relationship between opposites and unity of emotion and law, public and private, when individual is faced with the crime made by relatives, it caught into dilemma:if he choose the way to denounce his relative, he will betray affection and ethic, but if he doesn't do this, he will betray social justice, so he feels embarrassed and upset for hoping to preserve relatives and the rights of relatives. It is precisely because of such a dilemma, "Legal protection between relatives" issue sparked a lot of attention and academic study. Many theorists who opposed to Confucius opinions think that "legal protection between relatives" advocates hiding up relatives, agree with "legal protection between relatives" means to encourage putting the family affection on social justice, and even think that it is corruption to approve "legal protection between relatives". So, in modern society, the claim of Confucianism legal protection between relatives is given the crime of regardless of home and country, private and public, which seems to make Confucianism loses the qualifications of the right to speak of modern social construction. At the superficial level, legal protection between relatives seems violate social justice, betray the freedom centered on logos which is advocated in modern society and value orientation of the equality before the law. But in fact, legal protection between relatives plays a positive role in adjusting social conflict and balance human relations. Its implementation better meets the needs of humanism and social development, better embody humanism care behind law. The text trys to clarify most of the scholars' misunderstanding toward legal protection between relatives in modern society based on the Confucians'text, and briefly highlight its feasibility and practical significance in today's society of the system.