The Chinese side of the game relatives' immunity from "hidden relatives" and "big righteousness"

Li Yongjun's summary In recent years, there has been a fierce game between the official discourse of "Dayi's annihilation" and the folk discourse of "kissing relatives". In the process of this game, the rights appeal of relatives exempt is growing. The legislation on the immunity of relatives first opened in the field of testimony in criminal proceedings, but due to the game between the interests of the department, the original intention of the system was not realized. The revival of traditional culture provides a source of rationality and motivation for the return of “close relatives”, but the traditional way of thinking has set up various obstacles for the true relatives to testify immunity. The game from the positive and negative forces of culture makes this right unique to China. The Chinese face of relative immunity should be viewed rationally. The legislation should follow a path of gradual, limited, continuous improvement, and mature promotion in China.

In 2010, the Hebei Provincial Higher People's Court issued the Supreme Court's Sentencing Guidance (Trial) Regulations (hereinafter referred to as the “Regulations”): “The relatives of the defendant reported the defendant's crime, provided the defendant with a hidden place or led the judicial personnel to arrest the defendant. And if there are other cases that assist the judicial organs in detecting cases and arresting the accused, they may reduce the defendant's benchmark penalty by less than 20% as appropriate." The provision came out, and the public opinion criticism, most public opinion believes that this encourages "big righteousness" The judicial policy is a move that violates human nature and undermines the trust mechanism. (1) During the revision of the Criminal Procedure Law in 2011, public opinion was generally praised for the new provisions of the draft “not forcing close relatives to testify in court”, or that this is the concept of “kissing relatives” in ancient China. Returning, or thinking that it is subversion, is established. 3 Behind the paradoxes in these two directions, in fact, the common position of the people is revealed, that is, the professor and doctoral tutor of the Center for Theoretical and Law Studies at the University of Jilin University. This article is the 2011 plan. The research results of the Judicial Civilization Collaborative Innovation Center and the phased results of the Ministry of Justice project "The Application and Application of Chinese Traditional Family Ethics in Modern Judicature" (12SFB2003).

See ridiculous: Hebei stipulates that the relatives of the righteous annihilation of the pro-accused can be commuted, including the Beijing News on October 2, 2010, the A02 version: Hebei's relatives of the "Dayi annihilation" defendants can be commuted to dispute, including China Radio Network October 4, 2010; Xu Reformation: Relatives "deeds and annihilation", criminals commuted, and a "highly discretionary sentence" in Hebei Higher Court cited controversy, and the report was published on October 12, 2010, the third edition.

Liu Dong: Do not force close relatives to appear in court to reveal the progress of the rule of law civilization. The 8th version of the Criminal Procedure Law overhauls the subversion of the righteousness of the prosperous Man Wenjun can refuse to prove his wife drug abuse, including the Beijing Evening News on August 31, 2011.

Li Kejie: ​​"Residents can refuse to testify" to make the law more humane, including the procuratorial daily newspaper August 24, 2011, the sixth edition.

The public hopes that the country should give more tolerance to family. Therefore, we will further introduce the question of how the law should treat family issues in modern society. The law is the norm that regulates people's behavior, while the real people are emotional animals, and no one can escape the family. Therefore, the law must encounter the problem of coordination with family in its operation.

In the face of family ties, China has had two concepts of ''Kissing and Kissing' and "Devotion of the Righteousness" since ancient times. Although they have different positions, they are not mutually exclusive with the moral tradition of the Chinese. Although moralism is not unique to modern law. Adhere to the position, but if some laws disregard or even deviate from basic social morality, then its legitimacy may be questioned. The principle of "illegal law" may motivate people to resist such laws. From this point of view, the law The question of the choice of the two positions of ''Kissing and Kissing' and "Fighting the Righteousness" is not an irrelevant issue, but a question worthy of letting the legislator ponder or even let it suffer. Because the legislator must face the entanglement of the two, and the abandonment of any kind of position may encounter the moral crisis of the law, in which some values ​​of the law may be derogated to varying degrees. The difficulty of this issue is not limited to this. The current China is in a critical period of reform and development, and the strategy of building the rule of law has prompted the state to use legislation as a routine measure to rebuild the interests. However, for a country like China that is in the post-development stage of the legal modernization process, certain legislations often become extremely difficult and complicated due to the blending and collision of old and new systems, old and new interests, traditions and modern concepts.

In other words, certain legislative processes are often a difficult game between various forces. It is precisely because of this that the law has become more complicated in the choice of the position of "kissing relatives" and "dealing the pros and cons", because in this game, legislators need to make value choices and position choices on more issues. Specifically, driven by utilitarianism, the state and the people have different interests and thus hold different positions. Due to the consideration of order and efficiency, the country is more inclined to let the people 'decisively annihilate the pros and the people are more willing to proceed from the perspective of freedom or rights. I hope that the state can let them 'close to each other', and how should the legislators choose this time? In the face of the pressure of traditional state power and the growing demand for rights of the people, the interests of the departments that depend on the legal system of "righteousness and annihilation" belong to different entities and the people are eager to "relax" the family based on good humanity. The conflict between desires and the reform of the interests pattern, how should the legislators weigh, from the cultural tradition, the "kissing of relatives" has its historical foundation, from the perspective of revolutionary tradition, "the great deeds" Its legitimacy, in the modern society where traditional culture is reverted and the political politics of the law is weakening, how should the legislator's position be chosen in dealing with family issues, and further, back and forth between the official and the private, traditional and modern The game between power and power, power and power.

In this process, we can see that the country’s authoritarian thinking is loosening, and the emerging rights of a relative immunity have begun to sprout and start in legislation, but at the same time we will see that due to the complexity of this game, This kind of right encountered an unusual experience in the process of establishment and presented a unique face of China.

The game between national discourse and folk discourse In Foucault's theory, power is not only something that is related to law and state machine, power comes from all sides, everywhere, and discourse also constitutes a kind of power. Borrowing Foucault's theory of "kissing relatives" and "big righteousness" is a power game in Chinese society.

It is no stranger to mention ''Kissing intimately' with Chinese. Traditional China is a patriarchal ethical society, and family is the most important bond to maintain the society. Therefore, the state often regards maintaining family as a higher law to protect. The value of this. For this reason, in China, the relatives appear in the form of official discourse. This is manifested in the aspect that, in the mainstream ideology, the ruler has always advocated the mutual hiding between relatives. Confucius's expression of this should be the most convincing. Confucius once had the argument that "the father is the child, the child is the father, and he is in it." 5 Mencius designed a scheme of 'stolen and fleeing according to the family and the law of the country. 6 On the other hand, in legal practice, the state has always regarded "kissing relatives" as the people. An obligation, and the scope of ''hidden') has gradually expanded, and even the Tang Dynasty has even developed into a "cohabitation." In line with this, the law also stipulates a system of compulsory relatives' refusal to certify. For example, the head of the Da Ming law stipulates: "The younger brother does not plead with the brother, the wife does not prove the husband, the slave does not prove the lord." Since the late Qing Dynasty, with the advancement of the modernization of the legal system, the original contents of the characteristics of the Chinese legal system have been almost abandoned, but the system and concept of "kissing relatives" have been preserved after necessary transformation. According to Mr. Fan Zhongxin's investigation, from the Qing Dynasty's new criminal law to the Republic of China's criminal law, he has retained the detention of relatives for the protection of relatives and the imposition of evidence, indulgence or convenience for relatives to escape the punishment, for the benefit of relatives, perjury and false accusation, surrender for relatives or Replacement of impunity, confiscation of grievances for relatives, right to refuse to prove that relatives are guilty, and against relatives may not file a private prosecution.

With the establishment of the new China, the official discourse on ''Kissing and Kissing') began to be interrupted, which directly represented the ''Kissing and Kissing' system) along with the old law and was abolished. On the surface, the interruption of this discourse is due to the need for the new regime to break with the old system. In fact, there are deeper reasons behind this. First of all, the "philosophy of struggle" played an important role in it. Since the new democratic revolution, the Chinese revolution has always been guided by a "philosophy of struggle." This philosophy is based on a certain degree of denial of family and tradition. From the standpoint of class, it attempts to replace the family ethics with blood and marriage as a link to a 'comrade-style' political ethic. Often political ethics should be "great justice". At the same time, under the guidance of this philosophy of struggle, crime is usually considered as "an isolated personal objection. See Faforc: History of Sexual Experience, translated by Qi Biping, Shanghai People's Publishing House, 2002, 63, 5 pages.

The struggle for ruling relations "8 is the product of irreconcilable class struggle. Thus, criminals are often seen as part of the reactionary class. Therefore, cooperating with the state to take crimes is regarded as an important political task given to each citizen by the state. It is the "big righteousness" that every revolutionary must insist on. This kind of insistence on "big righteousness" is no exception even if it encounters family ties. Progressively, influenced by the "philosophy of struggle", in real life, political ethics In the natural state, the classification of human "relatives" and "non-relatives" is changed to the classification of ''comrades'' and "enemies". According to this political logic, although there is a murder of the father, but the same revolutionary camp will also become a comrade because of the enemy, and although there is the right to raise and the righteousness, but because of standing in the opposite camp They should also be regarded as enemies in each other. Then, when someone sinned, he alienated the opposite side of the people, and the relationship between him and his relatives evolved into an enemy-friend relationship without exception.

Therefore, even in the face of the crimes of relatives, no one has any reason not to expose crimes, not to cooperate with the state to punish crimes. If this is negatively slackened and even facilitates the perpetrators, it is a political "capital" behavior, which should naturally be severely punished by the law.

Secondly, the "humanity view" of revolutionaryism is another cause of the traditional interruption of "close relatives". Because of the mechanical application of Marx's "the essence of man is not the abstraction inherent in a single person, in its reality, it is the sum of the social relations," the revolutionary "human view" often believes that human nature is not Innate and immutable things, but the product of specific social relations; in class society, the problem of human nature is the problem of class nature, that is, it cannot be separated from class to talk about human nature. Therefore, family is not inherent in human nature, it should be subordinate to class. Class society is a union of non-blood and unrelated, which is regulated by the unified political ethics within the class. The family is maintained by the private level of family ethics, which is far from the relatively universal political ethics. A qualified revolutionary must dare to step out of his family and get rid of the shackles of family ethics, especially when family and class conflicts. In time, he must be able to overcome his narrow family with class emotions. When political ethics is characterized in the form of law, the conflict between family and class is directly manifested as the conflict between family ethics and legal norms.

Therefore, when a loved one breaks the law, every revolutionary (or citizen) can not only cover it, but should courageously report and expose it.

Under the guidance of this "philosophy of struggle" and the "humanity view" of revolutionism, the family and family concept has been criticized. The official discourse status of "kissing relatives" has been subverted, and of course it is a kind of "big righteousness" The form of discourse expression. This kind of discourse profoundly affects the legislation and judiciary of the new China before the reform and opening up. This is manifested as: The act of "dealing the pros and cons" is often supported and commended by official discourse as a measure of justice. In this way, this official discourse is often expressed in three ways: it is given a case-by-case commendation in the form of a typical case; Gao Minglu, editor: Chinese Criminal Law, Renmin University of China Press, 1989, p. 25.

Wen Yiquan: Yang Guixin reports his father, carrying life knowledge on May 11, 1951; Xu Dongcai stabilized the people's position and prosecuted the profiteer's father, carrying the People's Daily on February 6, 1952; Hu Yuxiu: Family woman Wang Peifang resolutely prosecuted the spy husband, carrying the Liberation Daily 1951 May 9th, and so on.

Second, it is universally affirmed in the form of documents, editorials, and leaders' speeches; third, it is explicitly supported in the form of judicial interpretation. And because of the revolutionary needs against patriarchal power, husband's rights, and parental rights, the state especially encourages and supports the "righteousness and annihilation" of the young and the esteemed. So in those years, the children exposed their fathers and wives to expose their husbands and younger brothers to expose their brothers’ "many examples" and "moving deeds" that "cry a family crying and not crying". In the official discourse, "the great deeds" and "the courage" Words such as "exposure" and "daring prosecution" appear frequently. This kind of discourse reached its peak in the ''Cultural Revolution' with the proliferation of extreme "Left" thoughts.

In the present China, although the influence of class theory and struggle philosophy is gradually weakening, and the law is gradually depoliticizing, the discourse based on the inertia of history is still stubbornly retained in the current Chinese legal system. In the process of depoliticization of law, the position of nationalism has quietly replaced the position of classism and has re-emerged as the reason and soil for supporting the discourse of the "big righteousness and annihilation". In other words, cooperating with the country to take its own relatives is not a political task for citizens, but it is still a due state obligation.

Although the behavior cannot be defined as a political "capital" behavior, it still belongs to the illegal act of helping criminals. For this reason, Articles 162 and 172 of the Criminal Law of 1979 and Articles 305, 306 and 310 of the Criminal Law of 1997 stipulate that no one who knows the circumstances of a criminal suspect, including relatives, cannot As a perjury, it is impossible to carry out acts of concealment or cover-up, otherwise it constitutes a crime; the Criminal Procedure Laws of 1979 and 1996 stipulate that “all persons who know the circumstances of the case have the obligation to testify”, and close relatives cannot be excluded. The current Criminal Procedure Law This continuation of such regulations.

The so-called nationalist stance is a position that gives priority to the interests of the state in the pattern of diversified interests. The logic is that human beings are social animals and must live in a political body like the state. The state is self-sufficient and self-consistent. The national interests, will and purpose are regarded as more advanced than individual or non-state organizations. "Good" presents undoubted superiority. However, individuals or non-state organizations have an obligation to ensure that this superiority of the country's superiority of sexuality and devotionality clearly reflects this nationalist stance. The establishment of the system is entirely conducive to detecting cases and cracking down on crimes. It is the premise and goal of punishing crimes and maintaining the overall social order. In order to achieve this goal, all forces and resources must be mobilized to use all available means to fight against criminals. Individuals should obey such goals. Therefore, for a long time after the reform and opening up, the official textbook ''people are also more willing to fight against the counter-revolution. For example, the incidents of counter-revolutionary incidents have increased unprecedentedly. Some wives accused the counter-revolutionary husbands, and some sons accused the sinful fathers. Because this so-called father not only persecuted the people, but also persecuted his own sons in all directions. Expanding the report of Luo Ruiqing and the director of the Beijing Public Security Bureau at the joint meeting, the People’s Daily reported on May 22, 1951: "In many places, there have also been children’s prosecutions of spies and other fathers and deeds." See the release of the masses to lodge complaints and accuse the counter-revolutionaries. On May 21, 1951, the People’s Daily reported that the counter-revolutionaries were listed on the Northeast Daily on May 5, 1951.

On December 2, 1964, the Supreme People's Court stated in the reply that the children of the counter-revolutionaries demanded that they should be separated from their parents. "The children of the counter-revolutionaries demand that separation from their parents is a very complicated political issue. We think this is a treat. The problem should be handled in a positive way to encourage their progress requirements."

See the previous introduction.

See Sun Bangyi: How do I go from "Dayi to save my relatives" to "Dayi and kill the pro", published in the Daily News on May 10, 1951; see the previous quote.

The theory of scholars and scholars still interprets the idea that "in our country, the interests of the state and the people are above all else, and the violation of the interests of the state and the people, each known citizen has the obligation to report, expose and testify. Regardless of the relationship with the accused, no matter how the situation is obtained. It is illegal to advocate the spirit of 'dealing righteousness and detoxification', knowing it or intentionally hiding the evidence." "Our socialist law is the concentrated expression of the will of the people." In order to safeguard the democratic dignity of the people, in order to safeguard the dignity of the socialist law, we should vigorously advocate the spirit of 'great justice and annihilation', and the construction of the "father and son" and the rest of the poison must be thoroughly criticized and rejected. Although the legal system of "great justice and annihilation" appeared in the face of nationalism, although it lost its previous political nature and added more procedural and certainty, it is determined by the nature of nationalism that its intolerance of ethical affection is no more than classism. Inferior conditions, even under special conditions, have been strengthened in some areas. For example, in 1982 With the deconstruction of the political society, the concept of human nature and the concept of family began to return, and the concept of human rights and the rule of law gradually gained. In this process, the legal system of "big righteousness and annihilation" gradually became questioned by the public. And critique, the law should give the necessary tolerance to the relatives to begin to grow, these criticisms and appeals gradually form a non-negligible folk discourse from weak to strong. As early as the 1996 Criminal Procedure Law amendment, the 1997 Criminal Law revision, Some scholars, including Liu Renwen, have called for the granting of criminal immunity to relatives. In 2003, the draft of the Civil Evidence Law drafted by Tang Weijian and other scholars clearly designed the content of relatives and people with specific occupations who could refuse to testify.

In 2007, a NPC deputy submitted a proposal to the General Office of the National People's Congress Standing Committee to restore relatives' tolerance as soon as possible. In 2010, after the introduction of the relevant implementation rules by the Hebei Provincial High Court, the criticism of “almost one side” fully reflected the people’s resentment against the “big righteousness” legislation and the expectation that the law would be tolerant of family. Recently, the network’s opinion polls on “Dayi’s annihilation” also showed that up to 55.4% of the people objected, and only 26. 2% said they supported it.

Academic circles are one of the main positions of folk discourse. Scholars have expressed a high degree of consistency in the critique of "the great deeds." This kind of critique is usually carried out in a "natural law" way, that is, scholars believe that there is a higher value of natural justice in the existing legal order that needs to be protected, and that "the righteousness and degeneration" destroys these. value. First of all, from the perspective of human nature, it is believed that the pursuit of "big righteousness and annihilation" violates human nature; secondly, from the perspective of trust, it is believed that the pursuit of "great justice and annihilation" is the destruction of the trust relationship that human society relies on; thirdly, from the perspective of family ethics, It is believed that the pursuit of "big righteousness" is not conducive to the maintenance of family relationships. In the presuppositions of scholars, the good law is to take care of these 10 Zhang Pei, Chen Guangzhong: Criminal Evidence Theory, Mass Publishing House, 1982, p. 210.

10 Yu Ronggen: General Theory of Confucianism, Guangxi People's Publishing House, 1992, p. 277.

Huang Xiuli et al: The choice of sentencing: "Dayi annihilation" or "Kissing relatives", Southern Weekend October 14, 2010, A04 version Wen Jianmin: China's first evidence law will be reported to the National People's Congress witnesses can refuse to testify, with the new express January 20, 2003.

Guo Qiyong talked about the overhaul of the Criminal Procedure Law: Why did the great righteousness and dereliction of the pro-independence, and the China News Network, May 17, 2012.

Zhang Qian: The family members of the deceased can be sheltered and carry the youth weekend on October 21, 2010.

Value. Therefore, they generally use the words 'the father and the son, the couple's way, the nature is also such a sentence to demonstrate the rationality of the anti-humanity and the "close relatives" of ''Day of Defence'; they often use Beccaria, Meng Dessin and other enlightenment thinkers, the views of new natural lawists such as Fuller and Rawls, show that the law should be tolerant of affection and humanity. From the perspective of Western academic traditions, such arguments can be said to be a kind of 'natural law' argument, but from the perspective of Chinese cultural traditions, such arguments can also be expressed as a kind of "two-point" The argument is that the so-called "rational, the way of doing things, the nature of biology is also; the gas is also the person who goes down, the instrument of the bottom, the creatures also. 12 The logic of its argument is that there should be more “Tao” on the instrumental system, and “Tao” is the foundation on which this society depends. Humanity, trust, and ethics are undoubtedly such a "dao". If the current empirical law operates in a manner that violates these ''dao's', the consequences it brings to the society are undoubtedly subversive. In fact, no matter which The arguments are all based on a critical thinking. The ultimate goal is to oppose the legalist thinking of the law on family issues from the standpoint of rights, and call on the state to give more autonomy to the people in the choice of family and national law. The necessary humanity and ethical values.

Since the initiator of the "big righteousness and annihilation" type of legal system is ''revolutionary politics', then its opponents are more willing to start from the "presentation", "time-space flashback", "exclusive case extraction", etc.: I have witnessed the father and son. The murder between the two, the mutual exposure of the husband and wife, the rebelliousness between the brothers, and the embarrassment of the students to the teachers are really bitter. The cruel scene of the scene is still in my mind, and I will come to my attention from time to time. That is the tragedy of Mencius's so-called "human food"! "The closest relationship in the private sphere, such as the family, father, son, brother, couple, etc., then friends, teachers, students and other friendships have been destroyed, and each other has fallen into the ground, revealing the sale, and even private words and deeds have become The evidence of crime can only be the tragic appearance of the 'Cultural Revolution'. The testimony of relatives in the history of China and the practice of the rule of law in the modern world can not find an example, it is completely the product of the 'Cultural Revolution' extreme leftist trend of thought. Encourage people to be brave and mothers, and the situation of husband and wife exposing each other is everywhere. "In the anti-right struggle of 1957, in order to prove that their loved ones, friends, and teachers are guilty, how many people follow the example of Shu Yi's "Dayi and Defence" reveals the most secret things in normal interactions." Here, critics use history. The rhetorical tactics of the ideology are aimed at reflecting on the present. They metaphorically point the critique to the current politics of "deity and annihilation". With the gradual disintegration of China's political society and the gradual return of the concept of human nature, more and more people are beginning to think about the issue of "big righteousness and annihilation" politics and the legal system itself. high.

The critique of the legal system of "big righteousness and annihilation" is not derived from metaphysical mystery, but is supported by a profound social foundation. In reality, the law's torture of human nature and the helplessness of the people in the choice of love law support the criticism of the academic circles to varying degrees. A police officer from the criminal investigation line was quite touched: "When the public security organs investigate and collect evidence, most of their relatives adopt two attitudes: they do not support or resolutely oppose it, that is, they are contradictory. According to the Wuhan Public Security Bureau, they have been arrested for three consecutive years. The investigation of the escaped prisoner showed that 81.5% of the fugitives were harboured. The mother was arrested and imprisoned for hiding her criminal son. In prison, when the reporter interviewed her, she said: "I can hide Count the day and do your best. When he was interviewed by reporters who helped his daughter to escape, he still replied calmly: "With conscience, it is just today, when I ask her to take the daughter to report the case and surrender, it is unlikely." A father who reported his daughter’s possession of drugs learned that his daughter and his nephew had been sentenced to death. They often sneaked into their daughter’s room and shed tears, even regretting their reports. “What’s more, After reporting his brother’s murder, his brother couldn’t stand the pressure from all parties and eventually hanged himself. The reality behind the helplessness of the people is the reaction of the “big righteousness and annihilation” legislation to human nature. For this reason, the official and private evaluation of such behavior As early as in the 1980s, Jiang Pei-ling’s fiancé who fled the crime of financing, despite the punishment of the law, won the good reputation of “wife and wife Jiang Pei-ling” in the folk. In the "big righteousness", his wife was sentenced. Although his behavior is legally incomprehensible, in the eyes of the public it has become the image of a "good husband" who is not responsible. From this point of view, with the return of reason and humanity, the current legal system of "great justice and annihilation" in China is experiencing an unprecedented crisis of legitimacy. Therefore, it is not enough for the implementation rules of the Hebei Provincial High Court to be so repulsive. Oddly. In response to the general criticism of the people, scholars once commented: "The behind the public opinion boom is actually the conflict between citizens' high awareness of rights and the backward concept of the rule of law."

Behind the folk discourse implies a new form of rights. The immunity of relatives is sprouting and surging. Its power comes from the people themselves. It comes from the return of human nature and comes from the rational cognition of the shortcomings of the legal system.

However, its power cannot yet fundamentally subvert the legal model of "righteousness and annihilation" because the benefits brought by the model to the country, especially the resulting departmental interests, make the legislators unwilling or even afraid to completely abandon. This is the tradition. However, the growth and growth of folk discourse has undoubtedly put a certain pressure on the official. In order to make legislation and justice have vitality or reduce unnecessary resistance, legislators cannot completely ignore these paradoxes and discourses. At least the "mass line" is still the line that China must implement today. Therefore, the legislators no longer dare to "take the world's big and big" to directly enforce the legislation that forces people to "destroy the pros and cons," but try to reward the 3 high people's procuratorate, the Ministry of Public Security, the Ministry of National Security, and the premise of retaining existing legislation. The provisions of the Ministry of Justice jointly issued a number of issues concerning the examination and judgment of death penalty cases, whether "the close relatives of the accused assisted in the capture of the accused" is regarded as the plot of the defendant from a light sentence. The aforementioned regulations of the Hebei Provincial High Court are also based on such ideas. However, the voice of criticism does not seem to be weakened by this, and the hot debate triggered by the judicial decision of the Hebei Provincial High Court is evidence. Obviously, between the public opinion of the people and the legal tradition of the country, the legislators are in a dilemma. In order to comply with the needs of the people, the traditional legal system must have a breakthrough. The legislators first selected this breakthrough in the field of relatives' testimony.

But in the face of a solid tradition, the legislators dare not run too far, and at the same time it must take into account the interests of other departments. Just as the highest legislature has stated itself, it is necessary to "adhere to the specific national conditions of our country and gradually improve the perfection of China's criminal litigation system." It is necessary to keep pace with the times and not to surpass the actual situation at this stage." It is precisely because the legislators need to take into account the content and the need to balance too much interest, so the original "breakthrough" is actually not "breakthrough". The "bright spot" under the praise is actually not a 'bright spot' and the relatives testify immunity. It has a unique face in China.

Second, the Chinese side of the testimony immunity of relatives: the "pro-intimacy" legislation under the departmental power game Article 188, paragraph 1, of the Criminal Procedure Law amended in 2012 of China stipulates: "After the notice of the people's court, the witness does not appear in court without justified reasons. If the testimony is given, the people's court may force him to appear in court, except for the spouse's spouse, parents, and children." The provision was well received by public opinion as early as the draft of the Criminal Procedure Law amendment, and was once hailed as a modification of the Criminal Procedure Law. One of the highlights is seen as the beginning of the transition from the ''righteousness to the pro-intimacy' to the "close relatives" in legislation. Some even believe that China has thus established the expectation of public opinion. First, the clause only stipulates that no close relatives are allowed." "Testing in court" does not mean that close relatives can not testify, but they cannot be forced to appear in court. The close relatives of the accused can also testify by writing, recording, video, etc. without the appearance of the court. Therefore, the obligation of the close relatives to testify is still Secondly, such a provision only applies to the trial stage of the first instance, and does not run through the whole process of criminal proceedings, which is crucial for the identification of cases. There is no corresponding regulation in the stage of investigation or prosecution. The limitations of this regulation are quite profound: "The relatives of the defendant must not be forced to testify in court. First of all, it does not mean that relatives do not have the right to testify. Secondly, it does not mean that there is no The obligation to testify once again does not mean that the investigating officer cannot force (non-violent) evidence collection. In the end, it does not mean that the prosecution cannot submit evidence of the defendant’s relatives before and outside the court. In this way, the actual results have completely gone to the opposite side of the legislative intent. "Therefore he asserted that 'the clause has nothing to do with the relatives'." He even urged a publication to publish his views as soon as possible. Mr. Chen Guangzhong, a senior expert in criminal law law in China, also said to the media: "The provision 4 has not reached the level of denying the righteousness of the righteousness;" such a provision '' is far removed from the internationally accepted relatives’ refusal to testify. The feeling of semi-masking. From this point of view, the provision does not establish a true immunity for the testimony of relatives. To the maximum extent, it can only be said that the ''relatives in court to testify immunity” or "incomplete meaning" Relatives on the testimony immunity."

The limitations of this “incomplete sense of relatives’ testimony immunity” are not limited to this. At present, China's criminal justice actually pursues a referee mode defined by Professor Chen Ruihua's "taking the case record as the center", that is, judges generally read the transcripts transferred by the procuratorial organs to initiate pre-trial preparation activities, for witness testimony. The verbal evidence of the victim's statement, the defendant's confession, etc., is generally conducted by means of a transcript of the case file, and the ruling is usually made by citing the record of the case file produced by the investigator. Since the trial does not depend on witnesses appearing in court, witnesses appearing in court to become insignificant in criminal proceedings. According to empirical research by scholars, the current rate of witnesses appearing in criminal proceedings in China is less than 1%. Since the significance of witnesses appearing in court is so small, the significance of the appearance of witnesses in court can be much greater. Since the need for witnesses to appear in court is rare, Since the court can completely complete the trial without the relatives appearing in court, how much can such a provision of the new Criminal Procedure Law be meaningful? In fact, in my opinion, this is a separate name of ''name'' and 'real'. The symbolic meaning of the move is far greater than its actual meaning.

In fact, in China's criminal justice, the real need for witnesses to testify is not in the trial process but in the investigation process, because the task of discovering crimes is mainly done by the investigation organs. If we really care about human nature, protect human rights, and maintain trust, it is most meaningful to establish a system of witness testimony exemption at this stage. But if this is the case, it must face the two major departments of public security and prosecution, and their strong position determines that it is much more difficult to set up the system at this stage than in the trial. China's Constitution stipulates that the three organs of the Public Prosecution Law are responsible for the division of labor, mutual supervision, and mutual restraint. In theory, the three formed a kind of equal rights division of labor cooperation, but in the actual power structure, the weight index of the three is not equal. Due to the special functions of maintaining public security and social stability, the public security organs have an absolute advantage in terms of political status, number of personnel, and actual management capabilities. The procuratorial organs are specialized public power supervision organs stipulated in the Constitution of China, and public security organs and courts are under their supervision. In comparison, the court has neither the "strength" of the public security organs nor the "power" of the procuratorate, but has become a "vulnerable group" in the criminal litigation power structure.如果将亲属作证豁免运用到侦查阶段，势必会增加侦破案件的成本，会冲击到公安机关和检察机关既有的权力，它们自然不会坐视自己的利益受到克减，当它们凭借自己的“实力”和“权力”进行抗争时，必然会给立法者造成相当大的压力。其实，在此次刑诉法修改之初，立法专家们也原本设想在刑事诉讼全程设立这样的规定，并且已经将此写入了征求意见稿中，但在正式的文本中，却“最终退回去了”。 5刑诉法现在的规定实际上是立法者对亲属作证豁免权的1种“打折”式的处理，之所以出现这样的结果，其原因就在于公安和检察机关的抵触。

这种“打折式”立法的背后折射出来的是立法者在权力博弈中的纠结和无奈。对人性给予必要尊重、不强人所难，是现代立法的宗旨，它既是衡量部法律先进与否的重要标志，也是该法律能否得到民众认同的关键。随着中国法治化进程的推进，这样的观念也正逐渐深入到立法者的内心。舆论对“大义灭亲”式法制模式的反感，也促使立法者要对传统的“所有人都有作证的义务”模式予以突破。于是立法者便有了开启亲属作证豁免权的动议。众所周知，任何改革都是一次利益的调整，突破传统必然要触犯到某些部门的利益，亲属作证豁免自然也不例外。当某些部门的利益受到挑战时，这些部门便会向立法者施加压力，特别是当强势部门向其施压时，立法者便不能不考虑它们的意见。于是在强势部门利益面前，该项立法不得不绕过公安机关，也不得不绕过检察机关。审判阶段是刑事诉讼的终极环节，如果再绕过法院，亲属作证豁免权的立法设想便彻底流产了。但如果单单不放过法院，难道法院的利益就应该“牺牲”吗，法院虽然在刑事诉讼权力架构中属于“弱势群体”，但对于立法者来说，它并不弱势，它的利益和意见都不是无足轻重的。在权力博弈中，让某部门接受某制度的前提是该制度必须不能使其利益受损，而法院之所以能接受这一制度，正是基于这样的理由。

从理论上说，公检法三机关的关系是种分工负责、互相监督、互相合作的关系，而事实上，由于出于惩罚犯罪的共同需要，它们之间形成了一个利益共同体，因此，在它们之间合作多于监督。由此，中国当下现实中的刑事诉讼结构是一种公检法三位一体、前后递进、接力互补的“线型”结构，刑事诉讼过程是一种侦查、起诉、审判依次“流水作业”式的过程。由于刑事诉讼的主要目的在于发现犯罪事实，所以诉讼过程的重心在审前而不是在审判。因此在这样的结构中，“法院只是我国公检法三机关联合惩罚犯罪流水线上的最后一个'操作员'，法院的刑事审判活动并非完全站在中立的立场上对追诉机关的刑事指控进行独立的审查和裁判，而是在惩罚犯罪问题上起到查漏补缺的作用，以及通过形式上的法庭审判应景般对追诉机关的刑事指控进行最终的权威认定，从而在程序上完成惩罚犯罪的最后一道手续。”这样，出于为完成“最后道工序”而进行的审判，法院在证据上更依赖于侦查机关所取得的笔录，更信赖于公诉机关的意见，正因如此，一般情况下，刑事审判是不需要证人出庭的，或者说证人即使出庭了，在既有的诉讼结构下，通常也不会改变法官的“内心确信”。当由公检法三家共同构建起来的堡垒趋向于坚不可摧时，证人出庭的价值便被消解了；当证人出庭的价值被消解时，规定不强迫证人出庭还能有多大的意义昵，不仅如此，刑诉法第188条中规定的只是''不强迫到庭“并不是可以拒绝作证，如果法院认为有必要让亲属作证的，它依然可以在庭下完成。并且，立法者并没有像其它条款那样使用”近亲属“的概念，而是有意将之限缩为”配偶、父母、子女“。这或许是立法者出于减少来自法院的压力而作的策略性的处理，但事实是，法院的利益不但没有受损，反而灵活性增加了。正因如此，对于这样的规定，法院并没有像公、检两大机关那样表现出明显的抵触。其实，法院也不会把这”不疼不痒“的规定当回事，在随后的最高人民法院关于适用刑诉法的解释中对其不作任何解释性的规定就能看出这一点。

这样看来，该项规定并不能发挥出关怀人性、保护人权、维护信任关系的意义，换言之，刑事被告及其亲属并不能从中受益，相反，这种不完全意义上的所谓的“亲属作证豁免”在公检法三机关“共谋”的情况下，不但不能充当保护当事人的手段反而可能成为危害当事人的机制。正因为该规定在侦查阶段没有亲属作证豁免的限制，侦查机关完全可以强迫亲属作出不利于犯罪嫌疑人的证词，到了审判阶段，当其亲属愿意走上法庭推翻先前的不实之词或公开其中被强迫的缘由时，而公诉方和审判机关则可能出于维护“共同利益”的考虑，限制证人出庭，于是这一条款便很可能成为它们不让证人出庭的借口，这样，司法机关便会以落实亲属作证豁免权的名义来剥夺被告人的质证权。6陈光中先生说得好：刑诉法的修改是一次部门权力与权力之间的博弈。这一点生动地体现在了当下亲属作证豁免权的立法中。经过这种权力的博弈，经过这种立法的个名实不符的“形象工程”。在笔者看来，从“亲属作证豁免权”轰轰烈烈地提出，到舆有一种更深层的力量在发挥着作用，这种力量我们必须要到文化的层面来寻找。

三、“亲亲相隐”的复兴与迟滞：来自文化传统的动力与阻力的复归助推了这样的思潮与话语。众所周知，传统中国的法治资源是不足的，于是才有了自晚清法制改革以来的法制现代化运动。正因如此，现代中国的法律和法学从某种程度上说是在“仿制”西方的意义上建立的。换言之，中国的法制现代化从某种意义上说其实是一个''西化“的过程。面对由西方话语主导的中国法制现代化，其实国人心中存有种”不得不“的苦痛和”欲迎还拒“心态。其根源在于国人对待西方文化持有种既”离不开“又不愿表示出”过分亲近“、既钦佩又不愿”放下架子“、'吃饱了还要骂厨子”般的心态。因为两千多年来的中华文化曾称雄于世界，蛮、夷、戎、狄都依赖于中华文化的滋养旦这个位子被别人抢占，国人的失落感和不情愿便会滋生。正是基于这种失落感和不情愿，中国人更愿意从传统中寻找现代性的根据，更愿意把某些现代性的东西表述成“古之就有”的东西。这种心态比较典型地体现在''亲亲相隐“的思潮的复兴中。

亲属间的容隐源于善良的人性和本能，而对这些人性和本能的宽容与尊重是良法必备的品格。因此，容隐制度并不是中国传统社会的特有产物，而是跨越时空的在人类历史上的普遍存在的现象。法史学界的研究证实了这一点。据范忠信先生的考察，容隐制度不仅仅存在于中华法系，在西方，早在古希腊、古罗马时期该制度就已存在，在近现代大陆法系、英美法系、社会主义法系国家对之都有明确的法律规忠“亲亲相为隐制度和现象，不是某一个国家和民族文化传统中的特有现象，也不是某一个历史阶段的特有现象，也不跟特定的社会制度共存亡。”“不同的时代不同民族不同地域的法律文化，虽外观千姿百态，但他们在某些根本的问题上常有着根本的共性：通过法定的庄严制度规范保障自己的社会不断'文化'一向'文'（文明、人道）而'化'（进化）。容隐制度也正是这种共性的典型体现之。”既然是''共性“，既然不为我国传统所独有，那么在当下我国的立法中无论是开启亲属包庇伪证的除罪化工程还是确立亲属作证豁免权制度，在其合法性以及动力来源上是表述为''继承传统”还是''移植外法“都是无所谓的。但是中国学者在阐释这一问题的时候，更多地则是先从中国古代的”亲亲相隐“入手，然后才联系国外的亲属豁免权的相关规定。这点在关于刑诉法第188条的讨论中体现得非常明显，为了表征其合理性，学者和媒体更愿意把它与中国古代的”亲亲相隐“连在一起。

其实，如果真的要在中国建立亲属豁免权制度，借鉴西方国家的经验要远比中国的传统务实得多。因为传统中的“亲亲相隐”毕竟建立在宗法宗族社会之上，它首先是为维护尊卑等级秩序而服务的，其中即使有尊重人的本能、关怀人性的性质，但其最终也要服从这一目的。正因如此，传统法律要求中国人必须''亲亲相隐“即''亲亲相隐”是人的义务而不是人的权利，不容隐反而是犯罪，特别是在当卑亲属遇到尊亲属犯罪时，就更需如此。7正所谓“事亲有隐而无犯，左右就养无方”。而现代西方国家的相关规定是直接建立在人道、人权的基础上的，不揭发指证亲属是个人的权利，因为它源于人性，发乎本能，因而应得到法律的宽容。在全球化时代，显然这样的立法精神更适合于现代中国。但是由于国人普遍存在着上面所提及的文化上的“不情愿”的心理，所以要在“继承”和“移植”两种表述中来作选择时，他们更倾向于“继承”的表述，或先表述为“继承”然后才表述为“移植”。在政治制度、生活方式、价值理念等方面都与传统社会存在着众多''质“的差异的现代社会，在充斥着大量的由西方传来的技术与理念的法制现代化进程中，偶然间把一个制度的确立的根据表述成来自于传统，其实就连表述者也不自信，但他们往往会通过该制度来源于传统而西方现代国家也有类似规定的方式来证明继承传统的正当性。正是由于表述者更愿意、更急于从传统中汲取亲属豁免权制度的正当性的证据，因而他们常常将”亲亲相隐“的传统从先秦一直贯穿到民国，而忽视了此间在近代中国所发生的质的变化，即从清末法制改革以后的”亲亲相隐“已从人的义务变成了人的权利了。也因如此，他们还忽视了两者在容隐限制方面的差异：中国古代更强调保护国家利益和意识形态，因此''十恶”之罪不在容隐之列，而在近现代西方，由于法律政治性的弱化和强调个人权利的保护，各国纷纷取消了“国事重罪不得隐”的规定。

近年来，随着儒学在世界范围内的兴起，中国传统文化中的合理内涵普遍受到重视，这足以让国人为之自豪。然而，在其发源地一中国，对传统文化的研究和发展却相当落后，因为在''革命主义“思潮下，它曾长期被当成反动和落后的东西来批判。经过几十年和平稳定的发展，在世界范围内，中国的经济实力和政治地位显著增强。然而，作为个大国，不光要有经济实力和政治实力，还要有文化实力。在世界结构中，个国家独立的话语权需要它自身的文化体系和魅力来支持。显然，通过以往的亦步亦趋地”仿制“西方话语的方式是无法完成这一任务的。由此，国家开始把目标锁定到传统文化上。于是，传统文化的复兴获得了官方的鼓励和支持，它的发展也已经纳入到国家战略之中，8并被视为实现文化上的自觉、自信和自强的必须依赖的力量和途径。

于是，当亲属豁免权以一种“亲亲相隐”的传统话语的方式来表述的时候，既满足了国人文化上的虚荣，同时也契合了国家意识形态上的需要，这无疑降低了来自民众和官方的拒斥程度，提高了民众的可接受性和政治上的安全性。

然而，来自传统文化的不仅有动力，还有阻力。“大义灭亲”法制模式的形成，虽然现代革命的“斗争哲学'、”人性观“起了主要作用，但来自传统的”结果主义“思维对其的影响也不能小视。所谓”结果主义“就是种只注重结果而不管过程的价值观，认为只有结果才是有意义的、有价值的，而过程本身是没有意义、没有价值的，为追求某种固定的结果，可以牺牲程序，可以不拘泥形式。这是小农社会滋生出来的一种实用主义的价值观。该思维典型地体现在古代的战争中。孙子兵法中说：”兵者，诡道也。故能而示之不能，用而示之不用，近而示之远，远而示之近。利而诱之，乱而取之，实而备之，强而避之，怒而挠之，卑而骄之，佚而劳之，亲而离之，攻其无备，出其不意。此兵家之胜，不可先传也。“也就是说，打仗是不讲规则的，只要能赢得胜利，各种手段都可以用，所谓”兵不厌诈“。而在战争中因讲究规则吃了败仗的宋襄公历来都是被人们嘲笑的话柄。司法犹如战争。这正如中国古代的位讼师所说的：”凡构讼之事，与行兵无异，我若决告，彼示以不告之形，使不防备，我若不告，则虚张以必告之状，使之畏法。所谓用而计之不用，能而示之不能，虚实实虚诡道也。“战争的目的在于赢得胜利，赢得胜利的关键在于消灭敌人；而司法的目的在于正确裁判，正确裁判的关键则在于发现真实。

于是，只要能发现事实，什么手段都可以用，什么样的技术都不排斥。于是，在中国古代司法中，法官“诈供'、"骗供'、”诱供“屡见不鲜，刑讯逼供更是司空见惯，并且这些往往被视为”妙判“的技巧来宣扬。这样的”结果主义“思维仍为现代司法所秉承。在这样思维下，法律事实与客观真实”法律之内的正义“与''法律之外的正义”发生了混淆，司法的“过程性'、”形式性“的价值受到了排斥”司法是一个在满足程序性要件的基础上得出结论的过程“的观念不能确立，9相反，发现真实成为了裁判案件的终极目标或唯一宗旨，一切司法活动都要以此为中心展开，一切有碍事实发现的环节都应被排除，一切与之冲突的价值都应该被抛弃。所以，凡是知道案件情况的人都应该出来作证，凡是能够证明案件事实的手段都可以采用。既然如此，即使是亲属知道案件事实，也不能知情不举，更不能包庇窝藏。刑诉法中关于''凡是知道案件情况的人都有作证的义务”的规定，其实就是该思维在现代司法中的体现。在这样的思维和理念下，在实践中司法机关不但把亲属的证言当成重要的证据，而且还期待亲属能够作出或提供不利于当事人的证言或其他证据，因为在他们看来背离常理和常情的证据更有证明力。

正是在这样的思维下，在司法过程中，亲属提供的证据，特别是不利于当事人的证据不但不受限制，相反，让亲属提供线索或配合还成为侦查机关破案经常依赖的手段。

所以，在官方话语中这样的叙事屡见不鲜：“在确定抓捕对象后，办案民警从该逃犯亲属入手，最终锁定其母亲住在安肃镇复兴西路一小区内，随后立即组织警力在小区外围进行布控。经过两天两夜艰苦蹲守，于11月17日下午在小区内将在逃犯马某抓获。”

日，汉阴勹16特大杀人案犯罪嫌疑人邱兴华的儿女，在安康警方的陪护下爬上一道道山梁，试图用他们的深情感化藏在深山的父亲早日归案。“在这样的思维下，如何从犯罪嫌疑人的亲属处获取证据甚至成为了司法人员必备的侦查技能：”应当利用'实则虚之，虚则实之，虚实相应'的方法尽可能多的从犯罪嫌疑人家属处获取案件信息和犯罪嫌疑人个人信息“：”在犯罪嫌疑人家属态度不端的情况下，晓以利害，一语中的，促其如实作证；然后扩大战果，作为询问犯罪嫌疑人的'炮弹'从而各个击破，彻底查明案情“。正因为司法机关秉持着这样的思维并在工作中内化为一种习惯，所以当亲属作证豁免问题在刑诉法修改阶段一经提出便遭到侦查机关的反对就不足为奇了。

由此看来，传统文化带给亲属豁免权的既有''利“的一面，又有''弊”的一面。传统文化的复兴为“亲亲相隐”的回归提供了合理性和动力之源，由此''大义灭亲“法制的坚冰开始松动，亲属豁免权首先在作证领域启动，但来自传统的思维方式又为悖离规律的司法运作提供了理由，进而为真正的亲属作证豁免权设置了种种障碍，致使该制度的原初功能不能实现。刑诉法第188条的规定实际上是两种文化权力博弈的结果，在这种文化的博弈中亲属作证豁免权便具有了中国独有的面相。

四、亲属豁免权在当代中国的命运和出路民众的需求虽然是项权利生长的主导因素，但是国家对此需求的承认则是它成为有保障的、可操作的项制度化诉求的核心要素；既然权利是种诉求，那么权利成长就有赖于人们的意识，而个国家的社会文化对这种意识的养成具有至关重要的作用。所以民众、国家、文化传统是影响当下中国权利生长的三大要素。拉德布鲁赫曾经言及一种立法上的''目的转换“现象，即''一种法律设置伊始的目的早已迷失，不可追寻，但它却向着截然相反的方向发展出公理的效果，以此作为其继续存在且言之成理的目的。”其实在刑诉法第188条上就发生了这样一种''目的转换“。当一项常规性的立法在中国不能不启动，而这种立法又有可能触及传统的利益时，那么该立法中的制度便会以一种''目的转换”的形式表现出来，即在该制度上发生种功能异化，异化后的制度虽有其名，但已无其实。这种''目的转换“其实就是费孝通先生所说的中国文化中的面子。面子是表面的无违。”这种“名实分离”和“目的转换”就生动地体现在了刑诉法第188条的亲属作证豁免权的立法之中了。在民众需求面前，立法者有意要启动此立法，在顽固的部门利益面前，在坚硬的传统司法观念面前，立法者又必须作出妥协，妥协后的立法只给亲属作证豁免权留下来一张''面子“，这样，中国面相下的”亲属出庭作证豁免权“已与民众所期待意义上的''亲属作证豁免权”大相径庭。对于这样的种落差，国家常常会以“立法要与中国具体国情相适应”来诠释。

亲属豁免权在当下中国的刑事诉讼领域刚一尝试便遭到了''目的转换“的命运，这一转换使该制度的原初功能几乎消耗殆尽。尽管如此，在笔者看来，我们仍然要理性地看待这一现象。新刑诉法第188条对所规定的”亲属出庭作证豁免权“虽然有很大的局限性，但是它至少表明立法者开始关注亲属关系在司法中的特殊性问题，至少表明立法者开始意识到在司法中，在发现犯罪事实之外还有其他价值需要保护。这些关注和意识在极”左“的”革命法制“下是不可能有的，从根本上说这是当代中国权利观念和法治10意识发展到定程度后才衍生出来的。对善良人性的尊重是世界立法的潮流，因此亲属豁免权在世界上几乎所有的国家都获得了法律上的认可。在经济、法律一体化的全球化时代，中国并不能长期站在这一潮流之外。另外，中国是一个最重亲情伦理的国度，亲属关系在中国最为发达，亲伦传统深厚而浓重并在当代中国开始复兴，这些都会成为推动亲属豁免权制度得以确立的重要动力。我们从先前的民间舆论对河北省高院的实施细则的激烈的批判和的刑诉法草案的不成熟的褒扬就看到了这一点。由此，我们对亲属豁免权在中国的前途仍持乐观的态度。如前所述，权利的成长不仅需要民众权利意识的增长，还有赖于国家不断地”松绑“和”放权“。国家对''大义灭亲”从''强迫“到”鼓励“（河北省高院的规定）再到”有限度的限制“（刑诉法第188条）的过程实际是一个在法律上对亲属不断地''松绑”和“放权”的过程，正是有了这过程，亲属豁免权才可以萌芽和继续成长。如卡尔波普所说的，人的认识是个不断试错和证伪的过程，由此我们也可以把刑诉法第188条的规定视为对亲属豁免权的一次''试错性“经验，在从”大义灭亲“到”亲亲相隐“的过程中，只有伴随着一次次的试错和证伪，最终真正意义上的亲属豁免权才能被确立。卡尔波普还指出，社会的发展应该依靠种”零碎工程“，即在不断的”可错性“的试验中一点一滴地循序渐进。由此而言，制度的确立也应如此，也需要一个不断完善的”零碎工程“，由此看来，当下的亲属作证豁免权的尝试即使是不成功的，也是有意义的。也可以这样说，对于中国这样的一个后法律发展国家，在犬牙交错的利益格局中，立法的试错代价是不可避免的。此中，由一场场复杂的博弈而带给立法者的纠结和无奈，我们应给予必要的理解和宽容。

亲属豁免权制度在中国确立最大的障碍莫过于司法机关的抵触。无论是对亲属间的包庇、窝赃的免罚还是不强迫亲属作证都无疑给司法机关的工作增加了难度，为其权力的行使构成了实质性的限制。这种抵触表面上是源于部门利益，而从更深层次上看则源于以发现事实为终极目的的结果主义思维。因此，亲属豁免权制度真正确立有赖于司法机关思维方式的转换和对司法性质的重新认识。司法机关必须树立''诉讼活动并不仅仅是一个以发现事实真相为目的的认识活动而更是

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