当代中国司法中亲属相犯的实践逻辑——以人身侵犯为中心的考察

The Practical Logic of Kinship Offences in Contemporary Chinese Justice—Investigation Centered on Personal Assault

现行刑法未对亲属相犯作特殊规定,但亲属关系在个案中依然可能影响法官量刑。当代中国司法中法官处理亲属间人身侵犯案件时,亲属关系对量刑的影响呈现多样性和不规则性:有对行为人从宽处断的,有对行为人从严处断的,有不考虑亲属关系而依法惩处的。残留在社会中的传统法律思想、从西方涌入的平等法律思想等都会左右法官的价值判断。亲属相犯法律专条规定从有到无,但司法实践中仍有法官在处理案件时会考虑亲属关系因素,恰好说明亲属关系对司法的影响仍然存在,也证实了书本上的法和实践中的法并不是完全统一的。

The current criminal law does not make special provisions for the relative crime, but the relative relationship in the case may still affect the judge sentencing. In contemporary Chinese judicature, when the judge deals with the case of personal assault between relatives, the influence of kinship on sentencing shows diversity and irregularity: some give leniency to the perpetrator, some give severe punishment to the perpetrator, and some punish according to law without considering the kinship relationship. The traditional legal thoughts that remain in the society and the equal legal thoughts that pour in from the west will influence the value judgment of judges. The special provisions of the law on crimes committed by relatives vary from existence to absence, but in judicial practice, there are still judges who consider the factors of kinship when dealing with cases, which just shows that the influence of kinship on the judiciary still exists, and also proves that the law on books and the law in practice are not completely unified.