“亲亲相隐”在我国刑事立法中的嬗变与终结

On Evolution and Termination of “Shielding between Kinfolks” in China's Criminal Legislation

"亲亲相隐"是中国传统法律中的重要制度,它是儒家伦理精神在法律上的典型体现。"亲亲相隐"制度在中国古代法律实践中发挥了重要的作用,然而自清末变法修律以来,该制度逐渐式微和流变,在中国当代的刑法体系中"亲亲相隐"已经被完全抛弃。"亲亲相隐"制度同儒家伦理中的"尊尊"、"亲亲"密切关联,在法律实践中具有一定的合理性,在当代外国的刑事立法中仍然可以看到"亲亲相隐"制度的相关规定。当代的刑法实践证明,"亲亲相隐"制度的缺失会导致制度的某些困境和局限。儒家法律传统并非一无是处,"回采历史",批判地继承儒家法律传统是我国当下法律变革中的理性选择。

＂Shielding between Kinfolks＂ is an important traditional Chinese legal system and a typical manifestation of the spirit of Confucian ethics in law. ＂Shielding between Kinfolks＂ system has played an im- portant role in ancient Chinese legal practice. Since the law reform in the late Qing Dynasty, however, the system gradually declined and has been completely abandoned in the contemporary China＇ s criminal justice system. The system is closely related with Confucian ethics ＂Respect＂ and ＂Closeness＂ which are reasonable in law practice to some extent and can still be found in contemporary foreign criminal legislation. Contempora- ry criminal law practice has proved that the lack of ＂Shielding between Kinfolks＂ system leads to some diffi- culties and limitations of the system. Confucian legal tradition is not completely useless. ＂ Recover history＂, critically inherited Confucian legal tradition is a rational choice under China＇s current legal transformation.