A Study On Criminal Responsibility Of Crime Among Relatives

The crime among relatives refers to the criminal behavior which occurs in the relatives and is seriously harmful to the society. For the criminal responsibility of the crime among relatives, at all times and in all countries the legislation has made the rules different from the general crime. However, the theory and practice of Chinese justice in this area has entered a difficult situation. On the one hand, the cases of the crime among relatives show a high incidence trend in recent years and bring great shock and upset to the society. On the other hand, there are few articles about the crime among relatives in the criminal law. Only the judicial interpretations in some of the crime think that the cases of the crime among relatives should be distinguished from the general criminal ones. And the criminal law lacks the penalty terms and the legal circumstance of punishment, unable to guide the judicial practice effectively. Thus, by tracing back to ancient China legal system and comparing legislation modes of other countries and regions, this paper explores the necessity and rationality of establishing a penalty system of the crime among relatives in the criminal law. Based on summarizing the previous research on the problems of criminal liability of the crime among relatives, this article focuses on the analysis of how the kinship connects with personal dangerousness and social harmfulness factors of the conviction and sentencing to make the punishment of that crime among relatives heavier or lighter, and offers beneficial enlightenment to the theory and practice of criminal responsibility of the crime among relatives in our country.In addition to the introduction and conclusion, the paper is divided into five parts:The first part is a summary about the concept of crime among relatives and the related regulations in China’s current criminal law. The first part of this paper puts forward the definition of the crime among relatives of relatives range. Secondly, based on defining the scope of relatives, this part discusses the concept of crime among relatives and several common types of crime among relatives. After that, this part describes the current provisions of the criminal law and the judicial interpretations referring to the crime among relatives.The second part is the study of crime among relatives of China’s ancient legal system. This part expounds that Confucian ethics and norms are the origin of thought of the criminal legislation of crime among relatives in ancient China. Secondly, this part introduces that five different types of mourning apparel system are the discretion standards of punishment of crime among relatives. Thirdly, this part discusses the provisions of the law and the principle of sentencing of personal injury crime and property crime among relatives. Finally, this paper carries on the evaluation to China’s ancient legal system and points out what we can learn from it.The content of the third part is the comparative analysis of the legal system of crime among relatives of other countries and regions. This part firstly introduces the different legislation modes of personal injury crime and property crime among relatives of civil law countries and common law countries. In the aspect of the criminal responsibility of property crime among relatives, this part discussed the private prosecution mode in the German Criminal Law, the Immunity from prosecution mode in the French Criminal Law, the mixed mode in Japan and Italy criminal law and the restricting punishment mode In the UK and USA criminal law. In the aspect of the criminal responsibility of personal injury crime among relatives, this chapter points out that only the civil law countries generally adopt the aggravated punishment principle. After that, the part introduces the provisions about crime among relatives of the current criminal law of Hong Kong, Macao and Taiwan regions in China. Lastly, there is a summary of crime among relatives of other countries and regions of the principles of criminal liability.The content of the fourth part is the analysis of basic principle of criminal responsibility of crime among relatives. This part firstly elaborated that the kinship has the characteristics different from the general social relationship, and points out that the peculiarity of crime among relatives is that the crime causes damage to the family ethical order. Secondly, the fourth chapter discusses the influence of kinship on evaluation of the personal danger and social harmfulness of property crime and personal injury crime among relatives. Thirdly, the part elaborates the special criminal responsibility of crime among relatives of historical and cultural origin and basic theory. Finally is to explore the influence of kinship to the confirmation of criminal responsibility from three aspects: the social harmfulness of Criminal behavior, the victim of criminal behavior and the social environment.The fifth part puts forward advice to perfect the provisions of criminal law of crime among relatives in our country. The fifth part firstly criticizes the long popular concept of criminal law of Instrumentalism, and points out the importance of establishing the concept of criminal law based on human nature standard. Then it discusses the necessity and feasibility of setting the terms of crime among relatives in China’s criminal law statute. After that, this part proposes to establish the principle of lighter punishment of property crime and negligent injury crime among relatives. In addition, the Intentional personal injury crime among relatives shall be given a heavier punishment in the substantive norms. Lastly, the chapter points out to change the start-up procedure of the criminal accountability programs of crime among relatives and set the private prosecution procedure for property crime and negligent injury crime among relatives.