The Legislative Defects And Improvement Of The Crime Of Harboring Of China

The crime of harboring is a kind of shield person’s criminal which produces accompanied by other crimes. From the beginning of 1979 of the Penal Code, our country has made the unified regulation on the crime of harboring, in 1997 the new criminal law has made revised for the crime of harboring, it can be said that the provisions of the Penal Code for the crime of harboring is becoming more and more perfect. However, it does not mean that the provision in China’s criminal law on the crime of harboring is perfect. In fact, the provisions in China’s criminal law for the crime of harboring still exist many defects that lack of appropriate legislative interpretation and judicial interpretation. To finish the wish of perfecting the provisions of the criminal law and punishing crime more effective, the scholars of criminal theories have published their views against various problems in the crime of harboring. However, scholars have not reached a consensus on many issues. This article is based on the provision which in current criminal law on the crime of harboring as chief source, on the one hand, from the perspective of factual level to analyze the constitution of the crime of harboring in our current criminal law, in order to make the contribution to unify the understanding of the related disputes of the crime of harboring; On the other hand, using the method of comparative study from the perspective of ought level, try to reference the relevant experience of extraterritorial legislation in the crime of harboring, combined with China’s judicial practice, and put forward the suggestion for legislation improvement in our crime of harboring. This paper is divided into three parts:The first part is the case of legislation and the legislative defects of the crime of harboring. It based on the provision of the crime of harboring in our current criminal law, proposed the legislation’s deficiency on subject setting, the object of crime, deploy of legal sentence and the legal fiction for the special harbor behavior. Reflected mainly in : Firstly, it is inappropriate to make relatives as the subject of the crime of harboring. The set of the subject of the crime of harboring in our current criminal law has violated the requirement of the modern theory of the criminal law, cut off our heritage to traditional legal culture and deviated from country around the world’s general provisions in the subject of the crime of harboring in criminal law around the world; Secondly, it is not clear in the connotation of the object of this crime in China’s present criminal law,this makes the continuing controversy in the criminal law theorists on define of the connotation of the object of this crime, causing the object of the crime of harboring cannot be explained and resulting in an embarrassing situation in interpretation; Thirdly, it is not scientific in penalty configuration of the crime of harboring in China’s present criminal law, leading to an imbalance in crime configuration between the crime of harboring and other homogeneous crimes, besides, the criminal law did not make clear provisions to the "serious cases" that lead to the increasing of the difficulty in judicial practice. Finally, the legal fiction in the article 362 of the criminal law for special harboring behavior is unreasonable, lead to the fuzziness in quoting accusation in the article 362 of the criminal law, the unreasonable in penalty configuration, caused inconsistent with other provisions of the law and the legal fiction has suspects of violating the basic principles of criminal law.The second part is the comparative study of the legislation of the crime of harboring in the extraterritorial. Based on the introduction about the legislation summarizes of the crime of harboring in countries around the world and Hong Kong, Macao and Taiwan regions, analysis on the characteristics of the crime of harboring which from several aspects such as the subject of exemption from relatives, the object of crime, the punishment to the configuration of species and the configuration of penalties, in the hope of our country can absorb a reasonable portion of its provisions and improve legislation of the crime of harboring as soon as possible.The third part is the suggestions for legislation improvement of the crime of harboring. Based on the comprehensive analysis on many defects in the crime of harboring, referenced the legislation of the crime of harboring from outside and combined with our practice of legislation and judicature, this part puts forward suggestions in four aspects: First, put forward suggestions for the legislation of the subject of exemption from relatives, at the same time in formulate the subject of exemption from relatives in the crime of harboring, we should determine the range of relatives, limit the types of crime in allowing relatives harboring and determine the principle of responsibility in the behavior of relatives harboring; Second, it is recommended that(the object of the crime of harboring in Chinese criminal law) "sinner" changed to "criminal suspects, criminal defendants, criminal", make the provisions of the criminal law of the object of the crime of harboring both comply with the requirements of legislative technique, but also reflect the legislative intent fully, and do not conflict with the principle criminal law; Third, it is suggested that it should add the provisions of “the punishment for this crime shall not be heavier than the crime which had been harbored” in configuration of the legal sentence of the crime of harboring, and add the provision of fine penalty in the basic legal sentence of the crime of harboring; Fourth, combined with our practice of legislation and judicature, put forward the imagination that it should abolish the legal fiction of the special harbor behavior in the article 362 of the criminal law, which can make the offenses system of criminal law more coordinated.