Comparative Study Of The Kin Concealment And The Privilege Of Family System

Kin concealment is an important legal system in China's ancient legal system,and it plays an extremely important role in Chinese traditional legal culture.It is a typical legalization of Chinese traditional spirit of kindred human relations(according to feudal ethics).The ideological and theoretical origins of kin concealment can be traced back to the pre-Qin period,and it was first discovered in Confucianism.With the deepening of Confucianism in various fields of culture,politics,and economy,kin concealment gradually become a part of the ancient Chinese legal system,and was developed in the process of system construction in various dynasties.In the Han Dynasty and the Tang Dynasty,the kin concealment was gradually completed,and the successive dynasties continued to use the concealment system built on the basis of “The Tang Law Explanation”.After the founding of the People's Republic of China,during the establishment of socialist legal system,kin concealment was considered as inopportune feudal dross and was completely abolished The kin concealment system in ancient and modern times are split,and is dismissed in modern legal system of China.There are some similarities between family privilege in modern legal system and the protection of the relatives' affection in kin concealment system in ancient China.Family privilege,which is a part of relative privilege system in the Evidence Law,sacrifices latent evidence to protect the affection for relative in human nature,a higher value in society.Under the provision of Article 193 in the present Criminal Procedure Law : “If witnesses will not testify in court without a valid reason,the court may force them to testify,except for spouse,parents,and children of the accused.” This article is regarded as kin concealment in the modern legal system of China,a manifestation of respect for human rights in modern rule of law,the exploitation and inheritance of Chinese local legal resources.Meanwhile,the “privilege for relative to refuse testify in court” essentially constructed by the regulation is considered to be “the incomplete family privilege” in Chinese legal system.Many scholars pointed out that although this provision reflects the return of kin concealment in Chinese law to some extent,it only applies during the trial stage and is merely a formality.This provision doesn't achieve the legislative purpose of protecting family affection and caring for humanity.Focusing on kin concealment and family privilege in the modern sense,using the method of value analysis and comparative research,this thesis starts with the research of kin concealment and then makes a jurisprudential comparison with family privilege.Combined with the legislative provisions of Article 193 in the present Criminal Procedure Law,the thesis attempts to explore how to truly realize the legalization of kin concealment in China in order to promote modern criminal legislation and justice in China.This thesis is divided into five parts.The first part conducts institutional research on kin concealment system,sorts out the legislative origin and institutional development of kin concealment,and summarizes the value disputes occurred during the modern legalization process.The second part discusses the personal,social,and institutional value of family privilege,and analyzes the jurisprudential structure of family privilege from the angle of the essence of rights.Comparisons are made between kin concealment and family privilege,with an emphasis on the jurisprudential structure differences between kin concealment and family privilege.Different legal construction logics develop differentiated legal effects.The third part is based on the specific provisions of Article 193 of the Criminal Procedure Law,and analyzes the practical significance of the provisions for the realization of the legal value of kin concealment,and the gap objectively existed between the provisions of Article 193 and the family privilege.The fourth part systematically analyses the existing legislative model of family privilege,aiming at benefiting the construction of a family privilege which suits China's national conditions.The fifth part puts forward the legislative suggestion of establishing a modern family privilege system that adapts to the development situation of our country.