"亲亲相隐"的时代价值及其刑事法适用重构

The Era Value of"Kin Concealment"and the Reconstruction of Criminal Law Application

“亲亲相隐”规则是古代中华法系和西方法律体系的结合点之一,其在两大法系法律史中均很早产生并为历代各国所沿袭,在西方法治发达国家至今仍在发挥作用。随着该规则雏形在我国刑法中再现,某种程度上预示着其作为一种伦理价值观所蕴含的社会价值效果依旧具有生命力。基于此,在比较吸收与历史溯源、继承与变革原则指引下,有必要将其作为一项调整亲属间法律关系的重要原则,将亲属身份作为一项刑事出罪事由,并在亲属范围确定、亲疏区分、亲属证言排除以及除外类型等方面综合性进行制度重构,以彰显其时代法治价值。

The rule of "kin concealment" is one of the joint points of ancient Chinese legal system and western legal system. It was born early in the legal history of the two legal systems and followed by all the countries in the past dynasties. It is still playing a role in the western countries with developed rule of law. With the embryonic form of the rule reappeared in China’s criminal law, to some extent, it indicates that its social value effect as an ethical value still has vitality. Based on this, under the guidance of the principles of comparative absorption and historical tracing, inheritance and reform, it is necessary to take it as an important principle to adjust the legal relationship between relatives, take the identity of relatives as a criminal cause, and comprehensively reconstruct the system in the determination of the scope of relatives, the distinction between kinship and estrangement, the exclusion of relatives’ testimony and the types of exclusion, so as to highlight its legal value of the times.