Study On The Criminal Responsibility Of Harboring And Shielding Done By The Relatives

Throughout the history of the world, whether from the ancient time to the modern today, or from China to western countries, countries or regions make the punishment of relative harboring light more or less considering the affection among family members. However, for the sake of policy, history, economy ect, the current law in China rejects the behavior completely. The family relationship is our natural emotion which we are unable to get rid of. It is embedded in our lives, fused into our blood and becomes the important component of public moral system. When relations face serious difficulties, most people will do their best to help then out selflessly due to the emotion among relatives which we are unable to overcome.There was "close people harbor each other" system in ancient China and simultaneously expected possibility in western countries. The coinciding in the maintenance of the affection makes many scholars doubt about the neglect of affection in the current law in China. Although our current law to the punishment of the relations’ harboring is tough, the actual effect is beyond ideal. This paper regards this point, the gap, as the starting point, trying to delve further into the subject of harboring.Firstly, actually, to evaluate whether the behavior of harboring to be criminal or not is expressing the different choices in value between law and morality, legal equality principle and "close people harbor each other" principle, loyalty and filial piety as well as emotion and the interest of the state and the victim’ interests. The author thinks that, first, the family emotion is a very important part in moral system. It is against the requirements of basic public morality and the enforcement of the law to stipulate the subject of harboring to be general one. Second, it does not violate the equality before the law principle to light the punishment of relatives’ harboring. The meaning of equality does not mean treating everything absolutely without distinguishing. Most of the relatives’ hiding shield behavior derive from family emotion. This act is different from the act done by others. If it is treated without distinguishing, then there leaves inequality. Third, if one commits crimes, his relatives will face the dilemma of "the chose of filial duty or piety". As the highest interest, the state’s and social interests cannot be abandoned due to personal affection, so all harbor behaviors should be blamed, including relatives harboring shield behaviors. However, as the fundamental emotions, relative love should get the protection of the law. Under the premise that the behavior is not a serious threat to the state interests, the appropriate concession is necessary made by law.Secondly, to reduce the punishment of relative harboring shall not only conform to the human natural, accord with Maslow’s hierarchy theory of needs, the criminal law humanism, economy theory and the theory of expectation of possibility but also conform to current situation in China. After decades’rapid development of China’s reform and opening up, the level of people’s material life increases greatly. People’s demands develop from the basic dominant life needs to the needs of security. Of course, this kind of family security needs become the booster agent of relatives shield act. At the same time, the current imperfect social security system and social relief lead the lack of sense of security among people, so as to make people pay more attention to their own family, which undoubtedly improves the possibility of relative harboring crime. Moreover, the rapid development of economy and a series of problems caused by social transformation is not allowed to ignore, especially the moral problems. After the incident "xiao yue yue"’happened, the moral construction is proposed. The law, as a system closed to morality, should make efforts to moral construction.Finally, the relative harboring punishment reduction should be done but at the same time be done with constraints. First, the relative harboring punishment can be reduced only when it is conducted for the purpose of protecting the family, or it will be set against the provision of the original intention. Second, if the implementation of the actor is serious harm to the interests of the state, the shield behavior punishment should not be reduced. Because to light the punishment of relative harboring is a kind of assignment to personal emotion, but it does not mean an unlimited sacrifice of national interests. Third, the penalty should be dealt with according to the specific conditions if the shield behavior is done by specific subject. The same punishment should be conducted since there is no difference between the general relative shield behavior and the ones done by specific subjects if they do not do it by taking advantage of their authority of office. But their penalty will not be reduced if their behavior has used their authority, because this kind of behavior has greater social danger than the general one.