| "Mutual concealment of kinship offenses"had been regarded as a basic instructive principle for dealing with the corporal punishment and judicial cases in the long history with the feudal autocracy society, being one of the classical Confucian thoughts. In our long feudal society, the system of mutual concealment of kinship offenses had played an important role, becoming a foundational principle of Chinese ancient law. From the Han until the Ming and Qing Dynasty, through the whole history of feudal society, the system of mutual concealment of kinship had accompanied with whole feudal society through the ages of 2,000 years with honors and disgraces. Since the establishment of the People's Republic of China, this system was totally eliminated from the law as one of the"feudal harmful traditions", it finally became a historical remain.The Western concealment system was sprouted in ancient Greek. To Roman period, some provisions like that relatives shall not offer testimony for each other, parent or the father had the right not to surrender to the victims. The idea of concealment has been continued till today. In order to protect some important social relations, in statutory law and case law, countries of Anglo-American law system entitles some people who knows about the case the right to refuse to offer testimony. Thus a confidential privilege principle is established. There is some coincidence with the Chinese system that"the concealment between relatives should not bear the criminal responsibility"which was started to be established in Han Dynasty. After these comparisons, our future evidence law gets its theoretical and practical bases to establish the rule of privilege.The system of mutual concealment of kinships offenses originating from China, benefitting to Japan and Korea, reaching as far as Europe and the America, is one of the fruits and spirits of Chinese legal system, it is obvious to find out the rationality in some ways for this system to exist. In contemporary, the system of the western society that social relatives shall refuse to offer testimony for each other still plays an important role. But there is no such provision in Chinese legal system. And avoidance of relative being witness system of Chinese traditional legal system has disappeared.The tradition never means decay and conservation; national character is not shortcomings, the tradition is the historic and cultural heritage, it's not rational to eradicate it; to lose the tradition means the characters of the national culture is lost, and the historic and cultural basis for progressing is lost. To some degree, the law with affection as the core, affection and law combination might be a way to explore the social justice. Only when the law reflects the affection, the judgment of the law would be sincerely convinced. With the constant development on Chinese politics, economy and culture, in the process of constructing a harmonious society and socialist law, such a system that embodies human care should be rebuilt in modern Chinese legal system.Therefore, this paper tries to compare the principles of mutual concealment of kinship offenses of ancient Chinese with the modern concealment system of some countries which confirm the right of relatives, and to analyze how to transform the tradition of"mutual concealment of kinship offenses"to be modern. Affection is the life of a law. It should be prosperous if the law conforms to the affection, otherwise it should be perished. So, the reasonable"mutual concealment of kinship offenses"system should play an important role in the present process of building Chinese law and the harmonious society. In the future, our lawmakers should pay necessary attention to and rationally check the traditional principle of mutual concealment of kinship offenses system. Especially in litigation evidence legislation in the future, a space for this principle should be reserved. In the basis of this principle, a system of the immunity of witness that is fit to our country should be established. |
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