论窝藏包庇罪下亲属间窝藏包庇的轻刑化
发布时间：2019-01-27 21:11
【摘要】：纵观世界主要国家、地区的法律,无论是古代封建中国还是现在的台湾地区,不管是远在欧洲的德国还是近在咫尺的日本、韩国,对于亲属间的相互掩盖犯罪事实、为犯罪人提供物质支撑等一系列妨害正常司法秩序的行为,均有从轻、减轻甚至免除处罚的规定。而从当前我国刑法第310条关于窝藏包庇罪作的规定中,我们很难看到关于亲属相隐的例外规定,事实上,亲属之间的窝藏包庇行为是人的一种天然本能,如果非要进行硬性处罚的话,那么势必会造成忽视伦理道德和人文关怀的后果,给人一种强人所难的印象。窝藏包庇罪的概念较为复杂,不同国家的规定不一样,同一个国家不同时期的规定也不一样。窝藏包庇罪下亲属关系的范围,除直系血亲和三代以内旁系血亲外,还应包括拟制亲属和有监护或赡养关系的特别亲属;亲属之间的包庇行为并非只是与法治国家理念相抵触的违法行为,从一定角度看它还是人性最温情的告白,为构建和谐社会提供最有效的道德支撑,是"良法"所认可的行为。轻刑化是建立在坚实的法学理论基础之上,窝藏包庇罪下亲属间窝藏包庇的轻刑化追求以尽可能轻的手段来惩罚包庇犯罪的亲属,具体表现为刑罚体系中惩罚总量的降低,进行从轻、减轻、甚至免除处罚。法的人权、秩序和公正价值要求我们在定罪量刑时,为亲属间窝藏包庇行为轻刑化提供了一定的空间。法的期待可能性理论所追求的法不强人所难的理论精神、刑法谦抑性所折射出的经济性、罪刑法定原则、宽严相济的刑事精神,为亲属间窝藏包庇行为的轻刑化提供了可靠的法理支撑。随着社会、经济、文化交往的日益频繁,法律国际化已经成为一种必然趋势,这为亲属间窝藏包庇轻刑化提供了现实指导。刑事立法理念也由过去单纯作为惩罚性的统治工具向着预防犯罪、重视人本的理念转变,这为亲属间窝藏包庇行为轻刑化提供了理论指导。在确立对亲属间窝藏包庇行为轻刑化时,要明确行为人主观上必须要基于维护亲情不悖人伦的动机而实施;行为主体必须是配偶、父母、子女等直系血亲和三代以内的旁系血亲、法律抑制的亲属和丧偶仍然照顾公婆的女婿等具有特殊的亲属主体;犯罪范围必须将严重危害国家安全的犯罪、严重危害公共安全犯罪和国家公职人员职务犯罪剔除在外。经济在发展,社会在进步,我国在现代化法治建设进程中,要学着用开放的心态积极吸收国内外立法中合理的思想理念,为亲属间窝藏包庇轻刑化的确立开启一扇敞亮的大门。
[Abstract]:Throughout the world, the laws of major countries and regions, whether in ancient feudal China or in the present Taiwan area, whether in Germany in Europe or in Japan and South Korea in close proximity, are concerned about the mutual cover-up of criminal facts between relatives. A series of actions which impair the normal judicial order, such as providing material support to the criminal, all have the stipulation of lighter, mitigated and even exempted from punishment. However, from the provisions of Article 310 of the Criminal Law of our country on the crime of harbouring and harboring, it is very difficult to see the exception of the concealment of relatives. In fact, the act of harbouring and sheltering among relatives is a natural instinct of human beings. If must carry on the rigid punishment, then will inevitably cause the neglect ethics morals and the humanities concern consequence, gives the person a kind of hard impression. The concept of the crime of harboring and harbouring is more complicated, the regulations of different countries are different, and the regulations of the same country are different in different periods. The scope of kinship under the crime of harboring and sheltering should include fictitious relatives and special relatives with guardianship or maintenance relationship, in addition to direct blood relatives and blood relatives within three generations. The act of protection between relatives is not only an illegal act that conflicts with the concept of a country ruled by law, but also the most tender confession of human nature from a certain point of view, which provides the most effective moral support for the construction of a harmonious society and is recognized by the "good Law". The light punishment is based on the solid legal theory foundation, the light punishment that harbours between relatives under the crime of harboring and harboring seeks to punish the relatives of the crime by the lightest means as far as possible, which is embodied in the reduction of the total amount of punishment in the penalty system. Carry out lighter, mitigated, or even exempted punishment. The value of human rights, order and justice of law requires us to provide some space for lenient punishment of concealment between relatives when we are convicted and sentenced. The expected possibility theory of law pursues the theoretical spirit that law does not impose people's difficulties, the economy reflected by the modesty of criminal law, the principle of legally prescribed punishment for a crime, and the criminal spirit of combining leniency and severity with punishment. It provides reliable legal support for the lenient punishment of the sheltering behavior between relatives. With the increasing frequency of social, economic and cultural exchanges, the internationalization of law has become an inevitable trend, which provides practical guidance for the protection of light punishment between relatives. The concept of criminal legislation has also changed from the past as a punitive ruling tool to the concept of crime prevention and emphasis on humanism, which provides theoretical guidance for the lenient punishment of concealment among relatives. When establishing lenient punishment for the act of harbouring relatives, it is necessary to make it clear that the perpetrator must be carried out subjectively on the basis of the motive of maintaining kinship and not contrary to human relations. The behavior subject must be the spouse, parents, children and other direct blood relatives and blood relatives within three generations, the relatives restrained by law and the widowed son-in-law who still take care of their parents-in-law have special relatives subject; The scope of the crime must exclude crimes that seriously endanger national security, serious crimes against public safety and crimes committed by state public officials. The economy is developing and the society is progressing. In the course of the modernization of the rule of law, our country should learn to absorb the reasonable ideas in the legislation at home and abroad with an open mind, so as to open an open door for the establishment of concealment and protection of light punishment among relatives.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.3
本文编号：2416702
[Abstract]:Throughout the world, the laws of major countries and regions, whether in ancient feudal China or in the present Taiwan area, whether in Germany in Europe or in Japan and South Korea in close proximity, are concerned about the mutual cover-up of criminal facts between relatives. A series of actions which impair the normal judicial order, such as providing material support to the criminal, all have the stipulation of lighter, mitigated and even exempted from punishment. However, from the provisions of Article 310 of the Criminal Law of our country on the crime of harbouring and harboring, it is very difficult to see the exception of the concealment of relatives. In fact, the act of harbouring and sheltering among relatives is a natural instinct of human beings. If must carry on the rigid punishment, then will inevitably cause the neglect ethics morals and the humanities concern consequence, gives the person a kind of hard impression. The concept of the crime of harboring and harbouring is more complicated, the regulations of different countries are different, and the regulations of the same country are different in different periods. The scope of kinship under the crime of harboring and sheltering should include fictitious relatives and special relatives with guardianship or maintenance relationship, in addition to direct blood relatives and blood relatives within three generations. The act of protection between relatives is not only an illegal act that conflicts with the concept of a country ruled by law, but also the most tender confession of human nature from a certain point of view, which provides the most effective moral support for the construction of a harmonious society and is recognized by the "good Law". The light punishment is based on the solid legal theory foundation, the light punishment that harbours between relatives under the crime of harboring and harboring seeks to punish the relatives of the crime by the lightest means as far as possible, which is embodied in the reduction of the total amount of punishment in the penalty system. Carry out lighter, mitigated, or even exempted punishment. The value of human rights, order and justice of law requires us to provide some space for lenient punishment of concealment between relatives when we are convicted and sentenced. The expected possibility theory of law pursues the theoretical spirit that law does not impose people's difficulties, the economy reflected by the modesty of criminal law, the principle of legally prescribed punishment for a crime, and the criminal spirit of combining leniency and severity with punishment. It provides reliable legal support for the lenient punishment of the sheltering behavior between relatives. With the increasing frequency of social, economic and cultural exchanges, the internationalization of law has become an inevitable trend, which provides practical guidance for the protection of light punishment between relatives. The concept of criminal legislation has also changed from the past as a punitive ruling tool to the concept of crime prevention and emphasis on humanism, which provides theoretical guidance for the lenient punishment of concealment among relatives. When establishing lenient punishment for the act of harbouring relatives, it is necessary to make it clear that the perpetrator must be carried out subjectively on the basis of the motive of maintaining kinship and not contrary to human relations. The behavior subject must be the spouse, parents, children and other direct blood relatives and blood relatives within three generations, the relatives restrained by law and the widowed son-in-law who still take care of their parents-in-law have special relatives subject; The scope of the crime must exclude crimes that seriously endanger national security, serious crimes against public safety and crimes committed by state public officials. The economy is developing and the society is progressing. In the course of the modernization of the rule of law, our country should learn to absorb the reasonable ideas in the legislation at home and abroad with an open mind, so as to open an open door for the establishment of concealment and protection of light punishment among relatives.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.3
【参考文献】
相关期刊论文 前8条
1 郭俊峰;;“亲亲相隐”在我国刑事法中适用的可能性[J];新东方;2007年03期
2 钱叶六;;论“亲亲相隐”制度在中国刑事法律中之重构[J];法学评论;2006年05期
3 陈兴良;;宽严相济刑事政策研究[J];法学杂志;2006年02期
4 王桂芳;亲亲相隐及其在我国现代刑事法律中之活化[J];南京师大学报(社会科学版);2004年02期
5 马洪涛,曾昕;“亲亲相隐”的刑事立法化思考[J];福建公安高等专科学校学报;2004年01期
6 江学;亲亲相隐及其现代化[J];法学评论;2002年05期
7 蔡道通;犯罪与秩序——刑事法视野的考察[J];法学研究;2001年05期
8 吴大华;试论家庭内部人员相盗窃的定性问题[J];公安研究;1999年04期
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