“亲亲不能相隐”的经济学分析——兼论“亲亲相隐”于民间法的归隐

An Economic Analysis on Illegitimacy in Shielding Relatives

长期以来,"亲亲不能相隐"的制度因为难以推行一直被认为是我国刑事立法的软肋。本文通过经济学的分析方法,揭示"亲亲不能相隐"对提高破案率几乎没有作用,从而打破了公安机关依靠亲属的口供寻找突破点的期许。同时,本文立论了"亲亲相隐"已归隐于民间法,并且正在不经意间以理所当然、天然合理的方式规范着国民的行为。对比"亲亲不能相隐"与"亲亲相隐"的效用,我们不得不呼吁"亲亲不能相隐"的淡出和"亲亲相隐"的现代重构与立法。

The law of illegitimacy in shielding relatives is considered as a weakness of criminal legislation of our country for a very long time, because of its efficiency in carrying the law. In this paper, we will show that this law system almost has no help in detection. Therefore the expectation can not be achieved for police that they can rely on relatives＇ affidavit in searching for breakthrough. In the same time, we also argue that the principle of shielding relatives has existed in the nongovernmental law, and thus naturally regulates people＇s behavior. Therefore an appeal shall be made for abolishing the law of illegitimacy in shielding relatives.