In ancient China, according to the kinship between relatives, the system of conviction and sentencing for crimes between relatives was

In the ancient criminal law of China, "relatives against each other" is a part of identity. The reason why it is included in the content of identity is that the punishment for infringement cases between relatives is different for different criminal subjects. "Relatives kill each other" is a very small knowledge point in China's ancient criminal law, but it embodies the strong foundation of China's ancient criminal law. There are many kinds of crimes between relatives, such as personal injury, property infringement, sexual crimes, false accusation, abandonment, obstruction of freedom and so on. The first three types are mainly introduced here.

(1) Personal injury between relatives

Personal injury between relatives mainly refers to the violation of life and health between relatives, including injury and killing. In the ancient criminal law of China, this kind of behavior was convicted and sentenced by strictly distinguishing seniority, seniority and kinship. As early as the Xia, Shang and Western Zhou Dynasties, the rulers regarded the unfilial behavior between relatives as the most serious crime and imposed the most severe punishment. "Business Patent" said: "Yuan is evil, but you are unfilial and unfriendly." People who commit crimes against their parents, brothers and sisters must be severely punished. This behavior was classified as a felony in China's ancient criminal law.

The laws of the Tang Dynasty were the most complete in China's past dynasties, and all subsequent dynasties were based on the laws of the Tang Dynasty. It is stipulated in the Law of the Tang Dynasty that between the two, it is not necessarily a crime to commit humble behavior because of respecting others, and committing humble behavior is not only a crime, but also the most serious crime. Respected relatives hurt humble relatives, and the punishment is lighter. The closer the relationship, the lighter the punishment; If inferior relatives hurt noble relatives, the punishment will be heavier, and the closer the relationship, the heavier the punishment. The closeness of the relationship is determined according to the "five clothes", and the relationship between defeat, Cui Zi, great achievements, small achievements and memories is from near to far.

The relationship between husband and wife is also a kind of blood relationship, which has existed since ancient times. According to the law of the Tang Dynasty, the personal crime between husband and wife is also a relationship of respect and inferiority. The principle of punishment for crimes between husband and wife is that the husband is more important than the wife; If there is a crime between wives and concubines, wives are lighter than concubines. The law of the Tang Dynasty even stipulates that a husband who kills his wife by mistake will not be held accountable by law.

(2) Property crimes between relatives

Property crimes between relatives are mainly reflected in theft between relatives, and the Tang law also has detailed provisions on this. The punishment for theft between cohabiting relatives is relatively light, but it is only 100 stick; But for theft between separated relatives, the punishment is relatively heavy. Tang law also considers the status of property crimes between relatives, and the principle of punishment is opposite to that of personal crimes between relatives. The closer the relationship, the lighter the punishment, and the farther the relationship, the heavier the punishment. This practice is in line with the acceptance of the general public. After all, there are deep feelings between relatives. The relatives of the victims actually don't want their relatives to be punished for minor property violations, and most people don't quite agree that this kind of behavior between relatives belongs to theft. They tend to treat it as a family problem and solve it internally.

(3) Sexual crimes between relatives

China has been accused of "animal behavior" since the Han Dynasty, severely punishing rape and adultery between relatives. The Law of the Tang Dynasty also stipulates that adultery between relatives should be severely punished, and stipulates that raping relatives and their wives, half-sisters, and wives and ex-husbands' daughters over 2,000 years old will cause the injured to stay. Rape of women, granddaughters, mothers and grandmothers is "beyond the reach of saints" and "beyond the reach of legal books", and the crime is even heavier, and about all of them will be beheaded. From this point of view, the closer the relationship between relatives, the heavier the punishment, even the death penalty. Compared with sexual crimes between ordinary people, the punishment is very severe. The main reason for this situation is that ancient people attached great importance to ethics and thought that sexual crimes between relatives were against human relations and unforgivable ugly behaviors. Therefore, we should try to curb this behavior with the most severe punishment.

2. Theoretical basis of different punishments for "relative crimes"

From today's point of view, it is inconceivable and unacceptable that the ancient criminal law of China gave different legal evaluations and punishments to the same behavior because of different kinship status. However, no matter what the modern legal person's vision is, from the standpoint of ancient people, it still has its basis for existence. Although there were many schools of thought in ancient China, and there were many schools of thought contending during the Spring and Autumn Period and the Warring States Period, on the whole, in the long feudal society of China, Confucianism had the most profound influence on ancient society. Therefore, Confucianism will also penetrate into the ancient criminal law of China. The criminal law thought of "relative crime" with different punishments involved in this paper is mostly based on Confucianism.

(A) a strict feudal class system

The hierarchy originated from slave society and has a long history in the development of human society. China ancient feudal society was a hierarchical society. When it comes to rank and privilege, the first thing that comes to mind is the relationship between the ruling class and the ordinary people. In ancient China, people at the bottom of society were constantly squeezed by the rulers at the top, and they had no social status. However, the hierarchy is not only reflected here, but also exists between families and relatives. We are very familiar with "men are superior to women" and "don't marry from the father, marry from the husband, and marry from the son", which all reflect the phenomenon of unequal hierarchy in ancient families in China.

The family in feudal society was centered on "patriarchy" and "male power", so in the family, children should be completely subordinate to their parents and wives should be completely subordinate to their husbands. This concept is also deeply rooted in the hearts of the people, and most people have never questioned it. Therefore, under such a big social background, the ancient criminal law of China was influenced by the class system of Confucianism and gave special protection to a group of people at the core of the family. However, when a person in a humble position in the family infringes on a respected relative, he will be severely punished, even the death penalty, because he is "deviant" and "disobedient". Therefore, in the feudal hierarchical society, the criminal law concept of "relative crime" with different punishments appeared. And this criminal law thought further maintained the feudal hierarchy.

(B) the ultimate respect for "filial piety"

China's traditional "filial piety" is the core of China's traditional culture and one of the main contents of feudal social ideology. This advocacy of "filial piety" can be found everywhere in the literature about the ancient history of China. As we all know, "it is a great filial duty for parents to dare not hurt their bodies." And "the father is there, watching his will; Father didn't, observe his actions; If you don't change your father's way for three years, it can be described as filial piety. " In ancient times, there was even the ultimate "filial piety", such as "if you want to die, I have to die; The father told the son to die, and the son had to die ",which is a very extreme example for us modern people, but it was very respected in the ancient feudal society of China, and people's words and deeds were deeply influenced by it.

Therefore, in ancient China, if a father wanted to kill his children, he would enjoy a great degree of immunity because of his father's identity. If a father killed a child because his parents were unfilial or disobedient, he could be exempted from punishment in ancient times. There are "ten evils" in the ancient criminal law of China, among which "disobedience" means beating and killing one's parents and grandparents, and the "ten evils" are also included. The ancient ruling class defined this behavior of beating and killing parents, even "unfilial" behavior, as "the top ten crimes" based on the extreme respect for filial piety. In ancient China, the punishment for "heinous crimes" was the most severe. Those who have committed "heinous crimes" are generally not allowed to be "officials" or "eight arguments". The criminal was almost executed.

(C) the penetration of ethical concepts into ancient criminal law

China's ancient society is a society with very strong ethical concepts, and all people are bound by ethical concepts. Of course, the lower the social status, the greater the constraints. Many ethical concepts not only existed in ancient times, but were widely followed by modern people, which is why the ancient criminal law reduced or even exempted the punishment for sexual assault between relatives and hell to pay for property crimes between relatives.

Whether in ancient society or modern society in China, people protect and cherish the kinship between families. Mutual respect and love between relatives is the mode of getting along with each other. Therefore, when sexual crimes occur between relatives, people can't tolerate this kind of behavior, which will not only hurt the victim's body and mind, but also cause the breakdown of family ties and produce unhealed scars. Based on the maintenance of family reputation and harmony, the ancient criminal law not only severely punished sexual assault between relatives, but also severely punished adultery between relatives.

Above, we have introduced that family is an indispensable environment for each of us to grow up from ancient times to the present. The affection between relatives in the family is better than any emotion in the world, mainly blood relationship. Based on this concept, in ancient China, personal injuries between relatives, especially when inferior relatives hurt their respected relatives, were severely punished. Similarly, based on this concept, the ancient criminal law also gave them a very tolerant attitude towards property crimes between relatives. It is generally believed that "blood is thicker than water" between relatives, and the affection between relatives is the most important. After all, money is a thing apart. Ordinary people are unwilling to send their relatives to prison and accept punishment because of some property disputes. Therefore, it is precisely because of this social ethics that China's ancient criminal law thought gave different, strict or wide legal evaluations to crimes between relatives.

3. Thinking about different penalties for "relative crime"

(A) the implementation of the principle of equality makes the current criminal law abandon the unequal punishment method.

The main purpose of studying and studying China's ancient criminal law is to learn from and absorb its essence, so as to promote the development and perfection of modern criminal law. The above discusses the different punishments for personal crimes between relatives and the reasons for this phenomenon. In the development of modern criminal law in China, the concept of "equality" has been added. The principle of criminal law in our country clearly stipulates that "everyone is equal before criminal law", which is not only stipulated by our country. At present, almost all countries in the world have incorporated this principle into their laws. Therefore, in today's judicial practice in China, there will be no cases in which respected relatives hurt or kill inferior relatives, and the criminal law evaluates them as innocent. Although in judicial practice, the specific kinship between two people is sometimes the object to be considered in criminal judgment, and sometimes it will affect the severity of sentencing, but the phenomenon of being completely exempted from punishment because of the respected kinship does not exist.

This progress is not only the result of learning from western countries, but also the result of the research and reflection on ancient criminal law in China. The development of China's criminal law is not only the transplantation of foreign countries, but also the inheritance of excellent laws and regulations in China's history, and it is a process of "taking its essence and discarding its dross". This unfair punishment method in China ancient criminal law had its reasons and roots in the society at that time, but with the progress of society and the opening of the country, people thought about this provision, saw its shortcomings, and then abandoned it.

(2) The enlightenment of the punishment principle of property crimes between relatives in ancient criminal law to contemporary criminal law.

In ancient times, the law generally gave a lighter evaluation of "theft" between relatives, and the closer relatives were, the lighter the punishment was. As we mentioned above, there are also social reasons, which reflect people's maintenance of family and affection. This kind of psychology exists not only in ancient times, but also in modern society. Even today, affection is still the most important emotion of human beings, and most people will give in or forgive because of affection, thus maintaining family harmony. In ancient China, the special provisions on "stealing" between relatives were the provisions that considered and took care of people's feelings and reflected people's wishes.

In China's modern society, there is still a phenomenon of "theft" between relatives, and for these non-debt disputes, most families do not want their relatives to go to prison because of such behavior. In the judicial practice of our country, it is also a lighter circumstance to encounter such a case. China's modern criminal law has a good reference to the ancient regulations on this issue. Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Theft Cases No.65438+. If criminal responsibility is really to be investigated, the punishment should be different from that committed in society. "According to Item 6 of Article 82 of China's Criminal Procedure Law, the so-called' close relatives' refer to husbands, wives, fathers, mothers, sons, daughters, brothers and sisters. However, if the perpetrator's bad habit of stealing is ingrained and refuses to change after repeated admonitions, the amount of theft is huge, and even the property of family members and relatives is stolen with outsiders, which seriously affects the peace of family members and relatives. If other family members or injured relatives insist on criminal responsibility, they should be investigated for criminal responsibility according to law. From this point of view, China's modern criminal law not only draws lessons from the relevant provisions of the ancient criminal law, but also absorbs its essence, and makes more detailed and strict provisions on it.