The Immunity Of " Concealment Of Relative Criminal" And Crime Of Harboring And Concealing Among Relatives

"Concealment of relative criminal" originated from the Confucian ideology of "filial" ethics in pre-Qin period, which has developed as an important legal principle for more than two thousand years in China's feudal society history. There are provisions similar to our traditional "concealment of relative criminal" in China's Hong Kong, Macao, Taiwan regions and all over the world. However, since the founding of New China, this system was completely abolished, that is to say, regardless of the relationship with criminals, as long as violate the harboring and concealing crime, and matching the general subject conditions according to criminal law, even the offender's relatives shall be punished in accordance of the crime of harboring and concealing. The author suggests to introduce "concealment of relative criminal" system into crime of harboring and concealing. First, analyze from ethical aspect, "concealment of relative criminal" contains a human instinct of family ties and ethics, is done to meet the security requirements of human beings, is an norm of conduct accumulated in the traditional legal and cultural practices; the normative role of family ethics is also the foundation of the legal system; Furthermore, analyzed from the perspective of criminal law, punishment of relatives conducting the crime of concealment is inconformity to the theory requirements of caution of penalty in the criminal law; Last but not the least, from an economic analysis, from the point of social utility or individual utility, under the premise of good social order, the implementation of"concealment of relative criminal"system brings the community greater benefits than costs, and the probability of personal choice of"non-concealment of relative criminal"is very low, and offers little help to improve the detection rate. What is more, from the actual situation since the founding of China for sixty years, the abolishment of"concealment of relative criminal"system, is due to the positioning of National interest comes above everything else, and the needs for political struggle, but also one-sided interpretation of the rule of law. However, it has caused negative social effects in all aspects, including the collapse of social infrastructure, leading to indifference to family relationship, not conducive to the protection of human rights, running in the opposite direction of the international community. Finally, to introduce "concealment of relative criminal" system into crime of harboring and concealing, from the conceptual level, four changes should be achieved. "Concealment of relative criminal" system reflects modern legal system idea, the protection of human rights and so on. To avoid the unlimited abuse of the concealment principle, restrictions must be made for subject, scope, content, way of act and other aspects of applicative relatives.This article includes introduction, body and conclusion, and the body is composed by four chapters.The introduction introduces the writing purpose of this article in brief.ChapterⅠmakes the vertical and horizontal study of"concealment of relative criminal"system, describes historical development of the"concealment of relative criminal"system in China over two thousand years, as well as its legislative expression in China's Hong Kong, Macao and Taiwan regions and all over the world.ChapterⅡThe theoretical basis of introducing"concealment of relative criminal"system into crime of harboring and concealing among relatives, from ethics, criminal law, economics points of view respectively, analyzes the rationality of the introduction of"concealment of relative criminal"system. ChapterⅢAnalysis of status quos of"concealment of relative criminal"since the founding of China for 60 years, expounds reasons to abolish"concealment of relative criminal"system and negative effects brought afterward.Chapter IV The embodiment of"concealment of relative criminal"principle in crime of harboring and concealing among relatives, from the conceptual level and system level to analyze how to keep a foothold in contemporary Chinese reality, makes a properly abandon of"concealment of relative criminal"system.The conclusion conducts a summarizing retrospection of the full text, and prospects the"concealment of relative criminal"system and the return of legal traditions.