It is not difficult to see from the establishment and inheritance of the principle of "relative first, then close relatives" that this principle not only runs through the entire feudal society of China, but also has an impact on modern society. The reason why it has been used for a long time and continuously developed and improved is generally due to the following reasons: First, this principle fundamentally reflects the affinity of human beings. Human family affection is the prerequisite for maintaining the stability of the entire society. The love between relatives is the instinctive reflection of human beings, the starting point of all love, and the emotional foundation of human beings. The principle of "close relatives hiding from each other first" stipulates that hiding from each other by relatives does not constitute a crime and is in line with people's instinctive needs. Therefore, it is supported and supported by most people. Secondly, the principle of "relatives hiding each other" is conducive to maintaining social stability and the long-term peace and order of the rulers. The patriarchal system and hierarchical system tied by blood relations were the core and foundation of the feudal social and political system. Under this system, the family and the country are integrated, and the harmony and stability of the family directly determines the stability of the country. The idea of ????relative concealment is based on people's family affection and emphasizes the confirmation and protection of parental rights, which is not only conducive to family harmony, but also conducive to the stability of the entire social order. Third, the principle of "getting married first and hiding later" maintained the feudal economic order and was conducive to agricultural production. In feudal society, the small-scale peasant economy with the family as the basic production unit was the main body of the social economy. Solidarity, cooperation among family members and commitment to agricultural production were prerequisites for the development of a feudal economy. If relatives are not allowed to hide from each other, it will inevitably increase family conflicts and cause family instability, which may eventually lead to families being separated and fields being barren. This is very detrimental to maintaining the feudal economic order.
The historical evolution of "relatives hiding from each other"
The development of the "relatives hiding from each other" system in the Tang Code
Did the principle of cohabitation in the Tang Dynasty originate from "The Analects of Confucius"? "The father is the son, and the son is the father," Lutz said. The so-called "the father hides the son" refers to the father's kindness; the so-called "the son hides the father" refers to the son's filial piety. In the Han Dynasty, this Confucian theory was promoted to the legal principle of "relatives should first hide each other". The scope of "kissing" in this principle includes "big parents" (grandparents), parents and self-body. The so-called "hide first", Yan left a note saying: "Whoever hides first will speak first to avoid the sinner." The principle of "hiding between relatives" pioneered by the Western Han Dynasty is one of the important symbols of the convergence of etiquette and law. Since then, this system has been adopted as a principle of criminal law and influenced the laws of China's entire feudal society.
Tang Law inherited the legal system of its previous dynasties and stipulated the principle of "cohabitation and concealment" in the "Name and Regulations Law" (46 articles in total). The scope, content and restrictions of concealment are greater than those in the Han Dynasty. By the Sui Dynasty, the regulations were more systematic and complete.
The scope of mutual hiding
The scope of seclusion in the Tang Dynasty expanded from the three generations of the Han Dynasty to "living together". Shu: "It is said that people with the same wealth live in the same place, and there are no restrictions on the similarities and differences in household registration. Although there are no services (referring to the "five services"), it is not." According to Shuwen, the scope of cohabitation should not be limited to the home. In addition, grandparents, grandchildren, grandchildren's wives, husband's brothers, brothers' wives, "although their clothes are light, their affection is heavy" are also within the scope of mutual concealment. Finally, the slaves of the trilogy are also legally "hidden masters".
Safeguard measures for the principle of mutual concealment
In order to implement the principle of "living together in seclusion", Tang law stipulates that people who live in seclusion must sue or file lawsuits and be convicted according to their kinship.
The "Procedural Law" (a total of 345 articles) stipulates: "Children and grandchildren who sue their grandparents or parents will be detained." In addition, the "Judiciary for Fighting Officials" (a total of 346 and 349 articles) all impose penalties on convictions of inferior children. There are regulations, such as "report to relatives, report to elders," and "report to domestic slaves."
If you fail to abide by the "cohabitation concealment" and prosecute, the reporter will be punished according to regulations. Even if the defendant is really guilty, he will be punished as "surrender". The "Law of Litigation" (347 articles in total) says: "The defendant can accommodate a hermit, which is the same as the law of surrender." It also stipulates that one's own father or grandfather can sue his own children, grandchildren, children's wives or concubines, or his own concubines No one will be punished, regardless of whether they accuse him truthfully or falsely.
Handling of mutual concealment
First, avoid punishment. The "Tang Code" stipulates that "cohabitation", "close relatives with major achievements", and "partial servitude as the main concealment" are exempt from crime. They will not be punished for hiding things from each other, even if they "reveal the truth and pick up the news".
Second, reduce the sentence. Tang law stipulates that relatives with minor meritorious deeds who conceal themselves from each other can also be "reduced to the third level". Wen Shu said: "If there is a death penalty, mortals will only be lowered by one level, meritorious and numb by three levels, and four levels will be two years in total." That is, the punishment of four levels will be reduced according to the crime of the prisoner.
Restrictions on mutual concealment
Not all crimes committed by soldiers in "Tang Code" can be concealed, and those who directly target the ruling class for treason, rebellion, and rebellion cannot Covered. The law stipulates: "There is no need for this law to commit the above crimes of treason." Shu said: "The three things of treason, conspiracy, and rebellion cannot be concealed from each other, so there is no need for the law to conceal each other. Everyone should follow his own course." "Dou" A sparse article in the "Procedural Law" (345 articles in total) says: "Those who talk about treason, treason, and rebellion will not obey, so future generations are not guilty."
In the Song, Yuan, Ming and Qing Dynasties, "relatives secluded each other" Inheritance
During the reign of the Song Dynasty, the Song Criminal Code inherited the content and content of the Tang Code. Except for the minor changes to the legal system caused by the Song Dynasty's political concept of "emphasis on internal affairs and neglect of external affairs", the basic principles in Tang law have been retained. The provisions of the "relatives' mutual concealment" system are just like the laws of the Tang Dynasty. The legislation clearly stipulates the rights and obligations of cohabitants.
The Yuan Dynasty was the first unified multi-ethnic feudal dynasty established by the Mongols in the Central Plains. Its establishment extended the influence of the Chinese legal system to ethnic minority areas such as Mongolia, Tubo, and Xinjiang. Not only have the above-mentioned minority areas integrated into the Chinese legal system, but the Chinese legal system has absorbed the essence of legislation from other regions, promoting the further improvement and development of the Chinese legal system. The rulers of the Yuan Dynasty implemented the legislative guiding ideology of "adapting to ancestors", "depending on Han law" and "varying according to customs", which was different between Mongolian and Chinese. The laws of the Yuan Dynasty, represented by "Zhiyuan Carrier Pigeon" and "Datong Yuanzhi", basically followed the legislative content of the Tang and Song Dynasties, and at the same time confirmed the principle of "relative concealment" in criminal law.
The "Da Ming Law" (Supplementary Provisions of the Ming Law) was first introduced in the legislation of the Ming Dynasty. Although the style has changed significantly compared with the previous laws, it is divided into name regulations, officials, households, rituals, soldiers, punishments, Chapter seven of work. However, the traditional criminal law principles originating from Tang law have not changed, that is, the principle of "hiding relatives from each other" has continued. The law of the Ming Dynasty confirmed the rights and obligations of hiding relatives.
After the Manchu and Qing Dynasties entered the country, the style and content of the Qing Dynasty's law revision were almost consistent with the supplementary provisions of the "Ming Dynasty Law". As for the provisions of the principle of "relatives hiding each other", precedents were followed, so the "relatives hiding each other" system lasted from the late Qing Dynasty to the end of the first century. In addition, the author believes that "raising children" stipulated in the "Qing Code" can also be regarded as a supplement to "hiding relatives".
The dispute over "relatives hiding from each other" during the reform and legal reform in the late Qing Dynasty
Since the Qing Dynasty experienced the first Opium War, the Daoguang Dynasty has been repeatedly invaded by foreign countries, which also aroused People of insight in the country are constantly exploring ways to save the country. At the same time, the Qing government itself also hoped to imitate the great powers and carry out reforms and innovations in order to achieve the goal of "permanent throne, less foreign aggression, and less civil strife." Therefore, under the auspices of Shen Jiaben, the Qing government launched top-down legal revision activities. However, the amendment itself went against the interests and values ??of the feudal aristocracy, and aroused strong opposition and resistance from etiquette groups such as Zhang Zhidong.
Among them, the conflict between the introduction of Western jurisprudence and traditional Chinese etiquette concepts is the focus of dispute between the two parties. The system of "relative concealment" has also been criticized because it violates the principle of legality of crime and punishment and the compatibility of crime and punishment in modern criminal law.
The resurrection of the "relative concealment" system in the Nanjing National Government's "35 Criminal Law"
Confucianism is reflected in ancient laws, allowing relatives of criminals to conceal themselves based on family ties. , indulged criminals to resist the official "relative hiding" system, which was also absorbed by the criminal law of the Republic of China to a certain extent. Article 126 of Article 35 of the "Criminal Law" stipulates: "Whoever accommodates a person who has been arrested or detained in accordance with the law or provides convenience for his escape shall be sentenced to fixed-term imprisonment of not more than three years." Paragraph 5 of this article also stipulates: "Spouse, third party If a blood relative within the fifth generation or a relative by marriage within the third generation commits the crime of escape as stipulated in the first paragraph, the punishment may be reduced.” Articles 164 and 165 respectively stipulate the crime of hiding or harboring, the crime of substituting a crime, the crime of destroying criminal evidence, and the corresponding penalties. Article 167 also stipulates: “If a spouse, a blood relative within the fifth generation, or a relative by marriage within the third generation commits the crime in Articles 164 and 165, the punishment shall be reduced or exempted.”
“Kindly kiss each other. Evaluation of the value of the "incognito" system
The inherent rationality of the "incognito" system
Any type of social order is based on the special setting and evaluation of human nature, and different understandings of human nature and evaluation are directly related to what kind of social adjustment method is chosen to ensure social order. In ancient society, both vertical relationships, that is, the country, clan, family, and individuals, and parallel horizontal relationships, that is, political organizations, blood organizations, religious organizations, and cultural and educational organizations, were all based on the family. The country is just an enlarged version of the family, and the family is like a microcosm of the country. The concepts of "as a son and as a minister, loyalty and filial piety come first" and "respecting relatives" constitute the traditional Chinese fundamental legal concept. The law takes it as its own duty to fully maintain this model of "integration of family and country". Patriarchal ethics became the cornerstone and core of ancient Chinese legal concepts. In Confucianism, the so-called "reasons", "rituals" and "righteousness" continue to penetrate into the law, and even become the law of the law, or the law outside the law. People use this "spontaneous method" to judge whether a word or deed is illegal and the severity of the crime. The Ethical Principles and the Three Principles and the Five Constant Principles have become the core content of the law, the most typical of which is "relatives hide each other". There is an old saying: "Those who create laws should consider human feelings, and there is no need to set up crimes to trap others." In the eyes of the ancients, it is human nature for relatives to protect each other and conceal crimes. It can be seen that for ancient Chinese law, the order of respecting human nature has always been advocated by legislators.
In addition, the tolerance system makes the law easy. "It is not enough to have laws to follow." The realization of laws depends on people's compliance and obedience. Therefore, the actual feasibility of the law must be fully considered when formulating its design. According to the concept of criminal law, even if the law has the possibility of expectation. In practice, from ancient times to the present, few people are willing to put justice above their relatives and take the initiative to report their relatives to the public security organs. This is because blood relationship is the strongest social relationship with living things. This inevitable psychological habit makes human love inevitably manifest as the love of relatives and blood relationships from the beginning. Even in the eyes of Western ethics that pay attention to the spirit of citizenship, "fraternity" is first and foremost based on love for relatives. Aristotle believed that people would take any evil deed lightly if it happened between non-relatives, but if it were done to parents and close relatives, it would become a heinous crime. The expectation of special feelings between relatives and the social reality of "honor, disgrace and * * *" within the family and between relatives make it impossible for criminal law to expect people to take the initiative to expose and accuse their close relatives of crimes. Contrary to the political preaching that was once promoted by the state but actually deviated from human nature, the traditional tolerance system that has lasted for thousands of years may seem contradictory, but in fact it contains profound humanistic heritage and expresses the ancients' profound insight into human nature. The evolution of moral principles into an important part of the country's legal system also shows the superb political art and foresight of ancient rulers on human issues. From this point of view, the ancients already knew very well that the stable social order that the country hopes to form through law must be based on the premise that law and humanistic concerns coincide.
Looking at the "hidden relatives" system from the perspective of traditional Confucian ethics
In terms of the Confucian ethical tradition that has infiltrated our country for thousands of years, the "hidden relatives" system is a manifestation of humanistic care. The traditional Confucian concept is that the family and the country are integrated. The so-called "cultivation of one's morality, orderliness of the family, governance of the country, and peace of the world." In fact, they are all one, and one is a standard ritual. In this Confucian context, the principle of "relatives hiding from each other" reflects the intra-clan relationship of concealing and caring for each other among family members, especially close relatives within the five robes, and extends it to the national level. This is the principle of loyalty and filial piety advocated by the feudal dynasty. Of course, the main concealment of the part of the kinship system involving forced slavery, and the provisions of heavier convictions and penalties for inferior juniors and elders, are the dregs of the feudal hierarchy, and are also a violation of the principle of equality in the modern legal sense, and are inconsistent with the Confucian "Great Harmony" "Thoughts should be abandoned.
The choice of "relatives avoid each other"
In reality, legal principles and human relationships are not diametrically opposed. In a good country with the rule of law, human relations should be taken into consideration when the laws are formulated. In fact, it is difficult to consciously abide by laws that only have legal principles and no human feelings. In practice, even if criminal suspects and relatives of criminals know that harboring behavior will be punished by law, they will still choose to harbor and protect their relatives who committed crimes. Even the sentenced people will not regret their actions after they are released from prison. . To them, the so-called judicial order is a mirage. Although the victim feels wronged, he is not as close as he is to the criminal. In order to preserve discipline, it destroys human nature, which is the source of discipline. In fact, not only does China respect the relationship between blood relatives in legislation, but contemporary countries are also fully aware of this. Civil law countries such as Germany and Japan have "possibility of expectation", so if the lack of such possibility of expectation becomes the cause of liability, the perpetrator cannot be held criminally responsible. This includes not only recognition of behaviors based on blood relations, but also respect for people's nature of seeking advantages and avoiding disadvantages. Both the British and American countries have provisions on the right to silence, including that witnesses and defendants have the right to remain silent if they believe that the testimony required by the court will cause damage to themselves or their family or marital relationship. This stems from the concept that people cannot incriminate themselves. This more clearly highlights respect for basic human feelings. Based on the above analysis, whether it is respect for human nature, the family related to the most basic social unit, reasonable reference to our country's traditional legal culture, or transplantation of Western law, the principle of relative concealment has its own characteristics in the contemporary Chinese legal system. practical significance.
The system of "relative concealment" has demonstrated the Confucian idea of ??humanistic care since its inception, and has been continued as a basic criminal law principle in laws compiled by successive dynasties over thousands of years. The "relative concealment" system takes family relatives as the standard, fully considers the relationship between law and human relations, limits the scope of punishment in criminal law from the perspective of relative concealment, and makes the ancient Chinese criminal law system more reasonable and in line with the etiquette system. The establishment and evolution of the system of "relative concealment" is an outstanding contribution of the Chinese legal system to the development of world law.