Analysis of the System of Kin Concealment between Relatives and Modern Legal Tolerance System ()
1. Introduction
The system of “Kin Concealment System” has persisted in Chinese culture for thousands of years, and the concepts of “benevolence” and “filial piety” represented behind it have permeated the culture, law, and ethics of the Chinese nation. In recent years, with the deepening of reform and opening up, China’s economic structure has undergone tremendous changes, followed by changes in social structure. Families of three or four have become the main force composed of families, and the original patriarchal system has lost its inherent existence environment. The traditional ethical and moral values represented by the patriarchal system are also facing impact under the construction of a rule of law society. However, it cannot be denied that in the conflict between emotions and law, people are often dominated by emotions and make a dilemma between “righteousness over family” and protecting family ties.
Throughout history, the system of mutual concealment of relatives has played an important role in maintaining the stability of a family state homogeneous society since the maturity of our feudal society. The current rule of law society is committed to building a harmonious society where “governing the country by virtue” and “governing the country by law” mutually promote each other. However, the implicit system in China’s legal system is still lacking. How to absorb the reasonable part of traditional law and apply it to the construction of a modern rule of law society is a social development trend and a hot topic of discussion in the academic community.
2. The Origin, Regulations, and Controversies of the Chinese Concept of “Kin Concealment System”
2.1. The Meaning and Cultural Background of “Kin Concealment System”
The literal meaning of “Kin Concealment System” is the mutual concealment and concealment between relatives, and the academic community has unified it as “The System of Kin Tolerating and Concealing”. It is closely related to the development of Confucianism. After Confucianism gained dominance, it legalized the “kinship” and “respect” that maintain the ruling class, and stipulated them in legal form, allowing for the protection and concealment of designated relatives. Except for criminal acts that endanger national security such as treason and treason, whether it is hiding from criminal relatives without reporting or concealing their criminal acts and evidence in court testimony, it is legal. In the early days, its hidden range was relatively narrow, basically limited to direct blood relatives; The target of Rongyin is mainly biased towards safeguarding the interests of respected relatives such as grandparents and parents, and even punishing those who expose crimes committed by respected relatives; In the later period, the scope of Rongyin was expanded, and by the late Qing Dynasty, including relatives within the five uniforms, they could all be within the scope of Rongyin.
The idea of “Kin Concealment System” was first recorded in the Analects of Confucius, where Ye Gong said to Confucius: “In our party, there are those who bow straight, and their father raises the sheep, while their son proves it Confucius said, “The straightforwardness of our party is different. The father hides for the son, and the son hides for the father. It is straight among them (Yang, 2009). The gist is that Ye Gong told Confucius that there was an upright person there whose father had stolen someone else’s sheep, and he reported his father. Confucius said that the upright people in their village party were contrary to what Ye Gong said. The father concealed it from his son, and the son did not publicize his father’s mistakes to the outside world. Here, Ye Gong’s “straightness” refers to selflessness and impartiality, meaning that everyone is equal under the law, while Confucius’ “straightness” is a beautiful virtue that is based on maintaining human relationships and family ties.
The historical and cultural accumulation behind the idea of “Kin Concealment System”: why did Confucius propose the idea of father son concealment? This is closely related to his era and region of life. Confucius was born in an era of declining rituals and music, and was from Pingxiang, Luchang, probably in present-day Qufu County, Shandong Province. Lu State was the fiefdom of Zhou Gongdan, the founding father of the Zhou Dynasty. During the chaotic period of the Spring and Autumn Period, Lu State’s national strength gradually declined, but it preserved the etiquette, cultural relics, and music of the Zhou Dynasty, creating a good cultural atmosphere. Confucius was born and raised in the state of Lu, and the cultural heritage of Lu allowed him to inherit the requirements of these Zhou rituals.
The thoughts of Zhou Rites had a great influence on him. As for his mastery of Rites, he said, “In Xia Rites, I can speak, but Qi Rites is not enough to conquer; in Yin Rites, I can speak, but Song Rites is not enough to conquer.”. Due to insufficient literature. If it’s enough, then I can conquer it (Yang, 2009). It can be seen that Confucius believed he had confidence in mastering etiquette. Zhou Rites combined ritual and law together. In the Zhou Dynasty, where there was no developed legal system, ritual became the general principle guiding the country, including the judiciary, in matters of all sizes.
Zhou Rites is the standard for governing a country, practicing law, and educating the people. The Book of Rites, QuRites, records: “Moral benevolence and righteousness cannot be achieved without proper etiquette; teaching the righteous and the vulgar, without proper etiquette; dividing disputes and complaints, without proper etiquette; rulers and ministers, superiors and subordinates, fathers and sons, brothers, and improper etiquette are not determined; eunuchs and teachers are not allowed to engage in improper etiquette; officials and officials are not allowed to engage in improper etiquette in court, military affairs, military affairs, and law enforcement; improper etiquette is not respected; prayers and sacrifices are offered to ghosts and gods, and improper etiquette is not sincere or dignified (Ruan, 2009). The ritual here is not only the foundation of social morality and customs, but also the basis for judging civil disputes. It is also a model for stabilizing the relationship between monarchs and ministers in politics, as well as the relationship between fathers and sons in families. As for the activities related to the image of the country, such as the court, military governance, and sacrificial ceremonies, they are guided by ritual.
The Book of Zhou Yu and Guoyu records: “Under the rule of Fu Xianwang, there were various forms of clothing used within the state, including the attire of nobles outside the state, the attire of guards and guests, the attire of barbarians, and the attire of barbarians and barbarians. Those who wear traditional attire offer sacrifices, those who wear traditional attire offer sacrifices, those who wear traditional attire enjoy it, those who wear traditional attire offer tribute, and those who wear traditional attire become kings. … If there are those who do not offer sacrifices, then cultivate their intentions; if there are those who do not offer sacrifices, then cultivate their speech; if there are those who do not enjoy, then cultivate their literature; if there are those who do not offer tribute, then cultivate their reputation; if there are those who do not become kings, then cultivate their virtue; if the order is completed but not reached, then cultivate their punishment. So there are punishments that do not offer sacrifices, punishments that do not offer sacrifices, levies that do not enjoy, concessions that do not offer tribute, and complaints that do not appeal to the king. So there are punishments, soldiers to attack, preparations for conquest, orders to surrender, and words of proclamation (Zuo, 2022). From this passage, it can be explained that the Zhou ritual stipulated the obligations that feudal lords should fulfill to the Zhou emperor based on blood relations and kinship. This kind of submission is a natural ritual. As for those who do not abide by the ritual, the Zhou emperor will first issue a written accusation. If it does not work, if the lords still do not pay tribute and cannot fulfill their duties, they will accept the punishment of “cultivating virtue”. If not, the Zhou emperor will resort to “cultivating punishment” and use force to punish them.
From the above text, it can be seen that the status of “li” in the Zhou Dynasty, and the saying “li cannot be separated from” in the Zhou Dynasty is also in line with reality. Confucius lived in the state of Lu, which was heavily influenced by Zhou rituals. This can also explain why Confucius proposed the concept of “Kin Concealment System”.
From Mencius’ exposition, we can further understand the meaning of “Kin Concealment System”: Mencius lived in the middle of the Warring States period, and the conquests between countries were even worse than Confucius’ era. He inherited Confucius’ concept of “hidden kinship” and expressed his attitude towards it through a virtual story.
The book “Mencius, Devoted to the Heart” records the Q&A between Mencius and his disciple Tao Ying. The two imagined how Shun would handle his father’s crime and hypothesized his reaction after his father’s crime. Tao Ying asked, “Shun was the emperor, Gao Yao was a scholar, and Gu Sou killed someone. What was the situation like?” Mencius said, “It’s just holding on to it.” But then Shun couldn’t help but associate with it He said, “So Shun couldn’t help but join in He said, ‘Did Fu Shun punish him for his evil deeds?’ Did the husband suffer from it?” “So what is Shun like He said, ‘Shun regarded the world as worn sandals’. Escaping from the burden, following the seaside, being happy for life, and forgetting the world with joy.” (Wang, 2003). This dialogue assumes that Shun’s father committed a crime, and as a judge, how would Shun handle the matter? Mencius believed that Gao Yao would arrest Shun’s father according to the law, but Shun would not stop Gao Yao. Shun would rescue his father from prison and flee to the seaside with his father on his back. Shun abandoned the world like a discarded shoe, and from then on, he lived happily with his father on the seaside, completely forgetting the mission entrusted to him by the world to govern the country.
From Mencius’ answer, it can be seen that he agreed with the practice of concealing kinship. When there is a conflict between national interests and father son relationships, the ethical bond of filial piety prevails over national laws. Because Mencius did not evaluate Shun’s act of stealing and fleeing, but only pointed out that Shun should have stolen and fled, it has sparked widespread debate among modern scholars, with Deng Xiaomang and Guo Qiyong being representative of this habit.
2.2. The Embodiment of “Kin Concealment System” in Ancient Law
During the Spring and Autumn period, the idea of mutual concealment of relatives inherited the idea of Zhou rituals. At this time, various countries had not yet emerged from feudal feudal states, and Zhou rituals still had a scope of application. By the unification of China by the Qin Dynasty and the promotion of Legalism in governing the country, the idea of mutual concealment of relatives was no longer valued. The Han and Tang dynasties were more representative of ancient laws in various dynasties. The establishment of the “Kin Concealment System” system in the Han Dynasty witnessed the downfall of King Kufa II, the tyrannical ruler of the Qin Dynasty. The resistance of the people under high-pressure policies caused the Qin Dynasty to cease to exist in a short period of time. The ruling class of the Han Dynasty absorbed the lessons of the early downfall of the Qin Dynasty. In addition, after the establishment of the country, the national treasury was empty, and years of warfare exhausted the financial and material resources of the people, resulting in “five stones of rice per square meter, five thousand stones of food per person, and more than half of the dead”. The world is established, and when the people perish, Xizang autonomous region is replaced. Since the emperor was unable to produce a virtuous Si, the situation was bleak, with ministers or officials riding on ox carts. They adopted the Taoist philosophy of “purity and non action” to govern the country and formulated the strategy of “governing the world with filial piety”. During the reign of Emperor Hui of Han, people were encouraged to practice filial piety, brotherly love, and farming. It was stipulated that as long as the people were filial to their parents, friendly to their brothers, and diligent in farming, they could avoid paying or underpay taxes. This policy objectively laid the foundation for respecting relatives.
During the reign of Emperor Wu of Han, Dong Zhongshu submitted a memorial to Emperor Wu, stating that “all schools of thought should be abolished, and Confucianism should be respected only.” Confucianism officially became an official school. In the fourth year of Emperor Zhixuan’s Dijie reign, Emperor Xuan of Han issued an edict: “The bond between father and son, the way of husband and wife, is innate. Although there are calamities, they still exist in death. Sincerely loving and virtuous in the heart, with utmost kindness, how can we go against it! From now on, the son hides his parents, the wife hides her husband, and the grandson hides his eldest parents, all of whom are not seated; His parents hid their children, his husband hid his wife, and his eldest parents hid their grandchildren, all of whom committed heinous crimes. They all went to court to hear about it. This edict is a symbol of the formal establishment of the “Kin Concealment System” system in law. The purpose of this concealment is to maintain the natural affection between spouses and parents and children, and this concealment still tends to be a single concealment that favors the younger generation over the older generation; Elders hiding their juniors should report to the central government for discretionary reduction or exemption when it comes to capital punishment. Afterwards, Ban Gu of the Eastern Han Dynasty expanded the system of concealing family ties to “brothers as concealment” and “friends as concealment”, which were accepted by laws throughout history.
2.3. The Improvement of the System of “Mutual Concealment of Relatives” during the Sui and Tang Dynasties
During the Sui and Tang dynasties, society was prosperous and stable, people were open-minded, and the country’s laws were gradually improving. The Chinese legal system developed to a new height during this period, and the scope of “Kin Concealment System” was further expanded. Commentary on Tang Law According to the Code of Rites, if cohabitants are at the level of Grand Duke or above, including grandparents, grandchildren, grandchildren’s wives, husband and wife brothers, their guilt shall be concealed. Bu Qu and the maidservants are the main hiding places, let alone the elder sister. Even if the matter is revealed and the news is conveyed, there will be no sitting. His small achievements are hidden below, reducing ordinary people by three levels. If someone commits rebellion or above, this law does not apply (Shen, 1715).
In the Tang Dynasty, those who lived together and shared wealth, regardless of whether their registered residence was the same or whether they belonged to relatives not above Dagong or whether they had a uniform relationship, were within the scope of concealment. Relatives below Xiaogong concealed each other, and the punishment was three degrees lighter than that of ordinary people. As for tribes, slaves and maidservants, they had the obligation to hide for their masters. This law is not suitable for criminals who have committed the crime of treason and treason.
2.4. The Controversy Surrounding the Concept of “Kin Concealment System” in Today’s Academic Community
A few years ago, there was a discussion in the academic community in China about the Confucian concept of “kinship and mutual concealment”. The spark for this discussion was Professor Liu Qingping’s article “Virtue or Corruption?—The analysis of two cases related to Shun in “Mencius” sparked a discussion article by Professor Guo Qiyong in the 10th issue of the same year, titled “On the Relationship between ‘Son as Father’s Concealment’ and Mencius’ Discussion on Shun”. This sparked a major academic discussion on the concept of “Kin Concealment System”, in which scholars such as Ding Weixiang, Yang Zebo, and Wu Genyou also participated. Later on, opposition forces represented by Liu Qingping and Deng Xiaomang gradually formed, while supporters represented by Guo Qiyong and Yang Yibo emerged.
Their point of disagreement lies in how to interpret Confucius’ “the son hides for the father” and Mencius’ “stealing and fleeing”. On the first question, Professor Deng included the behavior of “the son hides for the father” in the legal consideration of this behavior, believing that “these three examples are typical cases where family relationships override the law” (Deng, 2010). Professor Guo Qiyong believes that the value of these ideas should be studied in a specific historical, cultural, and social ethical context. He believes that “the theory of ‘father son concealment’ and ‘straight’ morality advocates maintaining the natural temperament of human beings, being consistent in appearance and appearance, not being artificial, and bending oneself to serve others” (Guo, 2004). From this, it can be seen that Professor Deng pays more attention to evaluating whether Confucius’ straight morality meets the needs of today’s society and conforms to the laws of ancient countries from the perspective of today’s society. Professor Guo advocates returning to the historical context of dialogue and empathizing with the value of this passage, He emphasized that the difference between public and private affairs in Confucianism lies in the boundary between public affairs and personal affairs, where “the governance within the door conceals righteousness, while the governance outside the door conceals righteousness” (Guo, 2004).
On the second issue, scholars’ explanations are even contradictory. For example, Professor Guo stated that the boundary of tolerance for concealment is limited to small matters, and major events such as murder and theft cannot be included in the scope of tolerance for concealment. At the same time, he believes that Mencius’ assumption of Shun’s approach and the maintenance of judicial justice also avoid the abuse of power. Self exile is a good strategy that takes into account both emotions and laws, as well as family and country. Both of these issues discuss the boundaries between emotions and laws, and between family and country. Within what scope can people protect their families? Extinguishing family members with righteousness and protecting family members are often incompatible. Scholars’ interpretations of classics cannot be arbitrarily determined. When subjective emotions are incorporated, the standards of analysis vary with the changing circumstances, and many evaluation criteria such as “kindness,” “righteousness”, “loyalty”, and “filial piety” are mixed together, making it difficult to make accurate judgments.
3. The Rationality of the Ancient Legal Concealment System
After sorting out the ancient Chinese system of “mutual concealment of relatives” mentioned above, it can be found that the idea of “mutual concealment of relatives” originated from Zhou Li, and was gradually developed and applied to the legal system by Confucian thinkers such as Confucius, Mencius, and Dong Zhongshu. During the nearly two thousand years from the Han Dynasty to the late Qing Dynasty, although the content of concealment changed, the main purpose was to maintain the ethical family ties of relatives. Except for the crime of treason, which was not within the scope of concealment, other crimes and punishments were allowed to be concealed by relatives. The “Kin Concealment System” system of the traditional Chinese legal system has existed for more than two thousand years in history. From allowing only direct blood relatives to be concealed, to allowing relatives within five or nine clans to be concealed, it has gone through a long process. The concealment system between relatives has been advocated by rulers of various generations, indicating that this system has a strong public opinion foundation.
3.1. The System of Mutual Concealment of Relatives Conforms to the Ethical and Moral Traditions of the Chinese Nation under the Clan System
“Kin Concealment System” prioritizes family relationships and kinship, which is in line with human nature. The family is the starting point for studying legal theory, and Engels pioneered the theory of the origin of state law from a Marxist perspective in Morgan’s study of “Ancient Society”. He believes that since the beginning of human coexistence, the relationship between individuals and communities has always been a core issue that runs through human civilization. In ancient Chinese society, clan families were the group on which people relied for survival. The prosperity of clan families was crucial for safeguarding individual interests, and maintaining family unity and stability was more conducive to maintaining local social order and prosperity. In ancient China, home and country were inseparable.
Confucius believed that the world is one family, and that the ruler, minister, father, and son are interconnected. The Analects of Confucius: Yan Yuan: “Duke Jing of Qi asked Confucius about politics. Confucius said to him, “A ruler, a minister, a father, a son (Ruan, 2009). By doing a good job in filial piety and brotherly love within a small family and handling the duties of “father, father, son, son”, we can make the family harmonious and also do a good job in the affairs of the country as the “ruler, subject, and minister” of everyone. The Analects of Confucius states: “Filial piety is only about filial piety, friendship with brothers, and governance. Is it also for politics, Xi thinks for politics?” It is also said that the family and the country are closely connected. A ruler governing a country is like governing a family, and the world is a big family. A ruler who fulfills the duty of filial piety and brotherly love is good at governing.
The idea of the homogeneity of family and state was also developed during the Song and Ming dynasties due to the flourishing of Neo Confucianism. Zhang Zai expressed the relationship between family, state, and individual in his representative work “Xi Ming” as follows: “Qian is called father, Kun is called mother; Yu Zi is despised, it is mixed in. The barrier of heaven and earth, my body; The beauty of heaven and earth is my nature. People, my fellow citizens; Things, me and also.
Great ruler, my parents and descendants; His minister, the prime minister of the royal family. Honoring one’s seniority leads to their growth; Compassionate and weak, so be young; Holy, its virtue; Xian, her beauty is also impressive. All the weariness, disability, loneliness, and widowhood in the world are the result of the entanglement of my brothers and have no one to tell. Yu Shi Baozhi, the wings of the son; Happy and carefree, pure filial piety. Violating morality is called a violation of virtue, harming benevolence is called a thief, and those who help evil are not talented. Their practice is only exemplary. … Wealth and prosperity will enrich my life; Poor and humble, worried about the people, Yong Yuru and Yu Chengye. Survival, I will follow orders; No, Wuning (Huang, 2012). The general idea of this passage is that heaven and earth are my parents, and all things of the same kind as me are my compatriots. The emperor is the eldest son of my parents, while the ministers are the stewards of the eldest son. Those who are widowed, lonely, elderly, weak, sick, and disabled are the objects of my obligation. The blessings of wealth, fortune, and prosperity are the gifts of the parents of heaven and earth to enrich my life; Poverty, poverty, and sorrow are the tempering of the heavens for my achievements and accomplishments. When I am alive, I obey the principles arranged by heaven and earth; When I die, I should feel at ease and pass away peacefully.
It is precisely this ethical concept of viewing the world as a big family, treating all the people as family members, and treating the emperor as the eldest son of the big family that communicates the relationship between ancient families and the country. “Mutual concealment of relatives” maintains the unity of families and the prosperity of the country. Whether it is from the perspective of caring for relatives from a young family to achieve “filial piety and brotherly love”, or from the perspective of taking care of the members of China’s “big family” at the national level, “mutual concealment of relatives” conforms to the ethical traditions of the Chinese nation and also maintains the needs of the members of the “small family” of the clan.
3.2. “Intimate Concealment” Maintains the Stability of the Country and Society by Restricting the Scope of Concealment
The politics of Confucianism combines the idea of becoming a king with the idea of becoming a saint, emphasizing the unity of the world and opposing local separatism. The great unity of monarchy and the authority of patriarchy cannot be violated. The “Three Obediences and Five Constant Virtues” were proposed by Dong Zhongshu, but they were not his original creation. As early as the Spring and Autumn Period, Han Feizi believed that “officials should serve the ruler, sons should serve their fathers, and wives should serve their husbands. If the three are in line, the world will be governed; if the three are against, the world will be in chaos. This is the common way in the world, where the wise ministers of the Ming dynasty and the Fu Yi are also respected (Zhang, 2012). Dong Zhongshu standardized these ideas into ethical norms. The system of “mutual concealment of relatives” is more inclined towards the tolerance and concealment of elders by the younger generation, which is inseparable from the requirements of the Three Obediences and Five Constants.
With the foundation of the code of conduct, the crime of treason and rebellion cannot be allowed. Therefore, the bottom line of national tolerance is not to undermine the unity of the country. By using political influence to promote benevolence, filial piety, and reward filial piety, politicians will naturally gain the support of the people and maintain the stability and unity of the country. For the ruler, there is no royal land under the sky, and no royal minister on the shores of the land. The world is one family, and the ruler is the master of the family. The crime of rebellion, which is to murder the ruler’s father, is unacceptable to the ruler. On the surface, this system claims that everyone is one family and encourages “kinship”, but in essence, it still maintains the “respect” of expanding the small family into the big family of the country, making filial piety a ritual shackle for parents to control their children, making the younger generation absolutely obedient to the elders, and thus stabilizing the family and the country. In terms of familial affection, tolerance and concealment have indeed maintained the harmony of the family, but more emphasis is placed on the absolute authority of status and ethics rather than the reasonableness of hidden events. As Dai Zhen once said, “When a person dies by the law, there is still pity; when they die by ritual, who pity them (Dai, 2010). Under the banner of ancestral rituals and laws, doing things that go against one’s father, betray the country, and go beyond the limits of the law would be a great disrespect to the world.
4. The Rationality of Modern Legal Concealment System from the Perspective of “Relative Concealment”
The natural love between relatives is the most fundamental emotion of humanity. In ancient times, both Western sages and early Chinese thinkers advocated for the protection of this human nature. In ancient Greece, where Western civilization originated, Socrates believed that it was unethical for Euphorbia to accuse his father, and Confucius also said, “When a disciple enters, he is filial; when he leaves, he is brotherly (Ruan, 2009). In terms of religion, both Christianity and Judaism in the West prohibit family members from reporting illegal activities to each other, and in ancient Roman law, it also emphasizes the absolute power of parents over their family members. The personal, property, safety, and even their lives of children are controlled by parents, and it is forbidden for family members to accuse each other of criminal offenses.
4.1. Western System of Privileged Refusal to Testify
In both civil law countries and common law countries, it is stipulated that acts of mutual protection and perjury by close relatives within a certain range are not guilty. For example, the Criminal Procedure Code in the United States also defines the act of relatives refusing to testify as innocent. Meanwhile, most Western countries exclude acts of harm between relatives from the scope of tolerance. From this, it can be seen that these countries have a common value orientation for the inclusion system, which first guarantees the personal rights and equal rights of every citizen. The spirit of freedom is first manifested in its reality as independent personality and equal identity, which makes it possible to discuss a series of rights issues (Gao, 2020). Secondly, the law safeguards family ties, and when there is a conflict between family ties and human rights, family ties take precedence over the law. Finally, in the conflict between family ties and human rights, human rights take priority. For example, in cases like the Tang Lanlan case, children have the right to sue their parents who have violated their own rights.
4.2. East Asian Countries and Regions Influenced by the Chinese Legal System
The Chinese legal system revised its laws during the political environment of internal and external troubles in the late Qing Dynasty, but its influence weakened with the disintegration of the Qing Dynasty. South Korea and Japan have been deeply influenced by the Chinese legal system in history. After their disintegration, they chose the mainland legal system, but they all retained the early inclusive system and adapted it to the process of modernization of the rule of law. This also proves to a certain extent the rationality of “Kin Concealment System”, which contains the value choices of human ethics. It is a deduction of the concept of “living goodness” or “freedom” under the premise of ethical protection of individual free will to make choices (Zhang, 1961).
4.3. Current Situation of Relatives’ Right to Refuse Testimony in the Mainland of China
There is no provision in Chinese law for the privilege of relatives refusing to testify, and the defendant’s relatives still have an obligation to testify.188 of the Criminal Procedure Law of the People’s Republic of China, as amended in 2012, stipulates: “Where a witness fails to appear in court to testify without justifiable reasons after being notified by a people’s court, the people’s court may compel him or her to appear in court, except for the spouse, parents and children of the defendant.” (Chen, Huang, & Chu, 2012).
In fact, this provision has considerable limitations. It merely specifies that close relatives are not subject to compulsory appearance in court to testify, rather than exempting them from the obligation to testify. Close relatives may still provide testimony in the form of written statements, audio recordings, video recordings and other such means. Therefore, the obligation of close relatives to testify remains intact, which also fails to ensure that they will not be subjected to extortion of confessions by torture or forcible collection of evidence.
But judging from the appearance of relatives and witnesses in court, the situation is not optimistic. According to a survey report by Legal Weekly, the new Criminal Procedure Law implemented on January 1, 2013 made significant revisions to the witness appearance system, with the aim of changing the low witness appearance rate in China’s criminal proceedings, safeguarding the defendant’s right to pledge, and protecting the defendant’s human rights. However, after more than a year of implementation, the Juye Court analyzed 411 criminal cases concluded in 2013 and found that 287 cases had witness testimony, and 3 cases had witnesses appearing in court during the trial stage, accounting for 0.7% of all cases (Tian & Yang, 2014). In2019, according to data provided by some people’s courts and procuratorates, the criminal witness appearance rate is only 5% to 10%. For example, the rate stands at 2% to 5% in the Shenzhen Intermediate People’s Court of Guangdong Province, and a mere 1% in the Yantai Intermediate People’s Court of Shandong Province (Zhang, 2019). It is not difficult to see from this set of data that relatives hold a resistant attitude towards the testimony of family members committing crimes. In this emotional state, even if one appears in court, it is difficult to ensure the authenticity of their testimony and evidence, which not only reduces case efficiency but also increases judicial costs.
In China, the Confucian concept of “Three Obediences and Five Constant Virtues” has been integrated into the law, becoming a unique “Kin Concealment System” system in China. In the West, under the banner of the Enlightenment Movement, an atmosphere of freedom and equality between people has been formed, and its “privilege of relatives refusing to testify” is a humanized legal system that combines human nature and law.” The regulations stipulate that relatives who have the qualifications to be witnesses are entitled to receive reduced punishment or no punishment for acts such as not reporting crimes committed by relatives, knowingly helping relatives cover up criminal facts, helping criminal relatives evade pursuit, and destroying criminal evidence. Filial piety is a natural behavior that originates from the heart. If it is imposed with the shackles of norms, etiquette, and righteousness and is taken for granted, and the equal rights between relatives cannot be guaranteed, it will cause harm to the individual’s soul. In the current Chinese legal system, there is no protection for the privilege of refusing to testify in the family law, which is an extreme in the judicial trend. The right of relatives to refuse testimony in the West, whether it is the ancient Chinese legal system of “mutual concealment of relatives” or the current legislation and judiciary of the right of relatives to refuse testimony in China, balances the relationship between the rights of relatives and family affection relatively well, avoiding the dilemma between legal facts and the emotions of relatives.
5. The Feasibility of China’s Legal Concealment System from the Perspective of “Kin Concealment System”
With the development of society and the progress of morality, we are increasingly calling for the protection of human rights and the establishment of comprehensive family refusal privileges in legislation and judiciary. After the establishment of the People’s Republic of China, the implementation of the “abolition of the Nationalist Party’s six laws and all reactionary laws” led to the prevalence of collectivism where national interests were paramount, and the system of “hiding relatives” was also seen as a feudal legacy and abandoned. Since the reform and opening up, China has not yet established a system of tolerance and concealment.
5.1. The establishment of Modern Legal Concealment System Is Conducive to the Protection of Human Rights
Putting the people at the center is the fundamental stance, starting point, and foothold of socialist rule of law construction, and protecting human rights is the core value and basic goal of socialist rule of law construction. There is no reason for an individual to show affection and love towards family members, it is a natural right and obligation. In other words, this is the love of nature (blood relatives), just as becoming a family blood relative does not require a reason. Therefore, everyone has the right to protect the safety and freedom of their loved ones. If the state excessively guarantees social justice through violence, it will increase individuals’ legal obligations in this process.
5.2. The System of Relative Concealment Complies with the Moral Requirements of National Governance
From the origin of law and morality, morality emerged in ancient times with the interaction between people, and law is a product of the gradual development of social organizations. Morality precedes law, and law is the bottom line of morality. The reason why the traditional system was abandoned is because it was tied to the “Three Obediences and Five Constants” of feudal society, used to maintain the corrupt state machinery that oppressed the people. Although the old system of tolerance and concealment had its reasonable role, it was ultimately a vassal of feudal politics, with many unreasonable aspects, and could not escape the fate of disappearing in historical choices. In modern society, there is no historical limitation of “hiding among relatives”, and the system of tolerance and concealment can coexist with the morality of national governance.
Collectivism, as the fundamental principle of China’s socialist moral construction, has been widely recognized in the domestic theoretical community since the founding of the People’s Republic of China. The construction of the “Kin Concealment System” system does not violate the requirements of collectivism. Collectivism does not oppose balancing individual interests. The essential feature of socialist collectivism is to achieve the combination of individual and collective interests while safeguarding the overall interests of society. Socialist society is a product of the balance between collective interests and individual interests. Only by protecting individual interests and overall interests can collectivist morality be endowed with lasting vitality. Individual interests are not completely in conflict with collective interests, and overall interests are fundamentally consistent in socialist society. Therefore, when facing conflicts between individual interests and collective interests, we cannot focus solely on collective interests, nor can we only see the legitimacy of individual interests. Eliminating legitimate individual interests under the guise of protecting collective interests is contrary to the principles of socialist collective interests. With the process of urbanization, the relationship between families and clans has weakened. According to the 2020 census data, the proportion of core families in China is about 55%. The concept of “close relatives” has become relatively narrow, and the scope of “close relatives hiding” can be limited to close relatives such as parents, spouses, and children. The establishment of the system of relative concealment in current laws does not violate the principles of socialist legal fairness and impartiality. In the long run, this system is more humane and accepted by the people. It is not difficult to implement and also maintains the authority of the law. On the contrary, if individuals must testify against their close relatives of the crime, the protective role of the family in protecting family members is broken by the coercive power of the state, resulting in everyone being responsible only for their own freedom and safety. The security of individuals in society largely relies on self realization, and individuals in the family will follow the law of the jungle, putting the safety of family members behind them. The basic survival needs of individuals to obtain a sense of security at home cannot be met, which poses challenges to the construction of personal morality and the overall moral construction of society.
5.3. Feasibility of Establishing a System of Family Concealment
Firstly, establishing a modern system of Kin Concealment System is legally feasible. In terms of legislation, the legal system regarding the concealment of relatives in Western countries, China can learn from their experience in this area, clarify the scope of the concealment system, establish ways to conceal relatives, delineate prohibited areas, and avoid improper concealment of relatives being implicated. Based on China’s national conditions, we can establish a suitable concealment system that meets the requirements of criminal law modesty.
Secondly, in terms of legal enforcement, the system of tolerance and concealment has a long-standing public opinion foundation. The concept of tolerance and concealment, as a result of Confucian education on benevolence, righteousness, propriety, and filial piety, was established during the Han Dynasty and has been deeply rooted in the people for thousands of years. The collision between blood thicker than water and selfless law is actually a competition between law and morality. At this time, people often tend to maintain family ties and help their loved ones evade legal investigation. Although in a few cases, relatives may cooperate with the court to report the defendant, this behavior is often not recognized by the public. After the singer Man Wenjun reported his wife’s drug use, it sparked a debate in the public opinion. A few people supported Man Wenjun’s approach, and most people believed that he should not ignore the husband and wife to expose his wife. Both sides’ relatives also had to bear the consequences of their family’s sentencing. Man Wenjun himself also faced the breakdown of a complete family. Out of the 411 criminal cases concluded by the Juye Court in 2013, only 0.7% of relatives testified (Chen, Huang, & Chu, 2012), indicating that people would rather choose to protect their relatives and have a clear conscience than bow down to the authority of the law.If witnesses are unwilling to appear in court, even more so are close relatives to testify in court.
As a result, the function of the law in regulating social behavior is greatly reduced, which goes against the original intention of the law.
6. Conclusion
The privilege of relatives to refuse testimony has not yet been clearly established in China’s current legal framework. However, by tracing the historical origin of “Kin Concealment System” in the Chinese legal system and referring to the mature legislative experience of Western rule-of-law countries, it is not difficult to find that this system is highly consistent with China’s goal of building a socialist country ruled by law, and its establishment holds significant practical necessity. The construction of such a system is by no means an overnight achievement, but a systematic project that proceeds in an orderly manner and is continuously improved. Faced with the current institutional gap, the path to establishing the privilege of relatives to refuse testimony in China remains long. Only by taking root in the soil of fine traditional Chinese legal culture and rationally drawing on the advanced achievements of extraterritorial rule of law can we promote the gradual implementation of this system, injecting into the improvement of China’s rule of law system a force that combines traditional heritage with modern value.