A Research About The Influence Of The Kinship On Conviction And Sentencing

Under the Criminal Law Context, whether as elements of the constituentelements of the crime or as a sentencing discretionary circumstances indicate that theconviction and sentencing of kinship. However, in the boom of the Criminal Code ofEthics of kinship in our criminal legislation began to dissipate, the label of the ethicsof the Penal Code and the identity of the Criminal Code makes the proposition isalmost a taboo subject. However, from the current situation of extraterritorial criminallegislation and criminal justice in China, kinship conviction and sentencing, andindeed exist for a long time, this de facto recognition shows the existence ofrationality. Therefore, How to deal with the relationship of the Penal Code Value andEthical Value. How to demonstrate kinship for the conviction and sentencing of therole of rationality in the context of modern criminal law idea. How to realize thereality of criminal legislation and judicial rational return for the conviction andsentencing of the role of kinship.Undoubtedly placed in front of the legislators, thejudiciary and theoretical researchers. Affect the conviction and sentencing of kinshipmade of concrete expansion around the following four parts:The first part, an overview of the kinship.This part mainly makes a systematicintroduction of the range of kinship in the criminal law, the concept of kinshipposition in criminal law theory and kinship in the role of criminal law from theconcept of kinship itself.In consideration of the scope of the the ancient kinshipextraterritorial kinship, combined with the concept and scope of the relatives of otherlegal departments, and more clearly define the scope of the criminal law kinship. Andplace the kinship under the proposition of the theory of the criminal law on the crimeidentity in reason,On this basis, demonstrate kinship in the criminal law as a criminalidentity for the conviction and sentencing of the type of role.The second part, Legislative visits affect the conviction and sentencing ofkinship.Mainly from the two sides of the longitudinal and transverse kinship incriminal law legislation made a comparative law study.Analysis of ancient criminallaw of rational and irrational kinship legislation, comparative analysis of kinshiplegislation with extraterritorial criminal law,From the side of the comparison methoddemonstrates the possibility of establishing kinship influence conviction andsentencing in the criminal law. The third part, Proof of kinship affect the establishment of the conviction andsentencing of theory. From the three aspects of the ethical basis and the legal basisand foundation in reality of the Kinship affects of the conviction and sentencing todemonstrate the reasonableness of its existence. Whether it is from the human natureof the investigation, or from the ethical and legal equitable relations, Or from thefoundation of the modern theory of the rule of law advocates, and even from thenorms of criminal law sense, The kinship conviction and sentencing have thenecessity and feasibility.The forth part, Rational conception of kinship affect the conviction andsentencing. The main content is: Include the elements of kinship in reason in the threetypes of crime in the criminal law, simultaneously from both substantive andprocedural aspects, Design the specification of kinship affect the conviction andsentencing Rationally. Return to the proposition of existing criminal legislation andjudicial, strive to achieve the perfect proposition in the normative and institutional.Therefore, This article basically come to the following conclusions by theargument of the four parts. First, the concept and scope of kinship should bedetermined in the criminal law, involved in it as the regulation of the entire criminallaw provisions of the general principles of kinship. Secend,through legislativeinvestigation and theoretical justification, establish the influence of kinship toconviction and sentencing, argumente the rational regression from multipledimensions such as ethics, legal theory and reality which characterized by kinshipfamily ethics in criminal law. Established the specific offense provisions relating tokinship, at the same time appropriate adjustments in the Criminal Procedure Act, Toensure the integration of the criminal law.