A Study On Decriminalization Of The Crime Of Harbouring And Sheltering Among Close Relatives

The crime of harboring,shielding mainly contents: The crime of harboring,shielding,crime of concealing,or concealing the proceeds of crime,harboring and shielding drug trafficking criminals,crime of helping to destroy or falsifying evidence.Although there are no exemption clauses for close relatives who break the crime of harboring,shielding,more and more cases have been declared by the court around China.Usually it is treated as a kind of circumstances of a light punishment,so that light punishment or reduce punishment terms can be applied.Whther punish criminal suspects who harbored or shielded their close relatives or not depend on the answer of question whether there should be immunity for relatives in the Penal code.It has been a hot topic since the 1990 s,most people hold positive attitude.But it has not won the attention of the legislature until now which means that the lawmaking way is still very difficult for us.On the other hand,more and more relevant cases appeared.By reason of absence of an universal judgement standard,many of this kind of cases are unjust.In order to solve this problem,we should turn our viewing angle from legislative centrism to Rechtsdogmatik.It is very indispensable to discuss this topic.The Concealment System in ancient China;the extensively existed immunity for relatives in the penal code of world’s main law system;relevant judicial interpretation of criminal law and Rechtsphilosophie can be the significant arguments.Theory of probability of expectation and the immunity for relatives share the same sympathy for frail humanity;Theory of neutral conducts can be quoted to judge some helping behavior to fulfill basic necessities of living.These two theory can be used as extenuating circumstances,however,the scope of application of them is very narrow.In order to find a more powerful way to solve this problem,we have to find argument from Current legal system.The criminal adjudication should comply with rechtsordnung of country which contains constitutionlaw.The interpretation of penal law should comply with constitutionlaw.When a case contents domestic factors the court should cite family protection code and human rights clause of constitutionlaw to interpret the penal code.As a consequence,we can ask conditional constitutional interpretation for help.Both the Concealment System and the immunity clause for relatives contain shared values that public power should be modest to family right.Due that Chinese people treasure family much more than any other nations around the world,so the relevant clause in constitutional law should be interpreted based on this national character.To conclude,when judging this kind of cases,the court should cite the above-mentioned constitutional article to interpret clauses of criminal law,this is exactly conditional constitutional interpretation.It can be a new way for the court to interpret the relevant penal code when judging cases about harboring arelative criminals.It can be used to inhence the persuasiveness of theory of probability of expectation and the immunity for reletives.By this new way,the court can find arguments in current legal system so that we can solve the problem in a larger degree.