On Conviction Of Incest In China

As the basic law of one country, criminal law has the function to punish crime and protect legal rights. However, the criminal law will change and improve itself constantly with the development of society. Since the reform and opening-up, China has changed dramatically. Meanwhile, the business of democracy and legal system goes orderly and the legal systems including criminal code also improve continuously. But there are no perfect systems and norms, so does the criminal law of our country. Therefore, it is necessary for us to reflect on and improve the criminal law constantly.The process of Chinese legal modernization begins with the modification of the law on late Qing Dynasty. With the newly revised law getting rid of the influence of traditional ideas, the punishment to relatives rape also eased gradually. Even so, the provision of "incest is sin" remained in the law of our country until the eve of the founding of new China. However, due to the influence of various factors there are no provisions or sanctions for the incest between close relatives in penal code of1979or1997. With the implementation of the reform and opening-up policy and the deepening development of the socialist market economy, the original politics-oriented society in China gradually disintegrated and the civil society begin to form. And the following is the stepwise regression of Chinese family ethics and the revival of Chinese traditional culture. But under this background the incest occurs frequently and the provisions of punishment on incest are few in existing law. And in practice, the incest between relatives is regarded as ethical issues instead of crime or will be given a heavier punishment in accordance with the rape and child molestation charges because of the lack of related legislation. However, all the above do not give the exact definition to incest and it not only can’t better punish crime and protect the rights of the parties, but caused all sorts of problems in practice.The opinion of this paper is that China’s criminal law needs to be further perfect and especially on how to regard incest. To explain this idea the thesis analyzed the causes and effects of incest and also analyzed the reasons and shortages of incest not being regulated in Chinese penal code. There are no perfect systems in the world and all of them will change with the development of social practice. The development of social economy has greatly increased the people’s living standard and people began to pursue spiritual life after satisfied with material life. However, the excessive pursuit of enjoyment and spiritual meet makes incest which is a special social phenomenon came frequently in people’s vision gradually. Such immoral sexual behavior occurs between close relatives has badly damaged the normal order of social ethics and family life. Although we can’t find the trace of incest in the present China’s penal code, it is regarded as crime in most of the penal codes no matter in continental law system or Anglo-American law system countries throughout the world.In the process of writing this thesis, I found that the articles about incest in China are very few. And in such few articles they just kicked the tires instead of studying the causes, characteristics and damage of incest, not to say putting forward some constructive suggestions. Therefore, in order to provide some references for promoting the perfection of Chinese criminal law and be benefit to push the process of our rule of law, I analyzed the existing problems in Chinese criminal law about incest and made a bold vision about the elements of incest crime through studying the incest rules in ancient China and western countries with historical and comparative research methods and some other methods.