Harboring criminals is one of the traditional accusation of criminal law in china. China's current criminal law 310th stipulation: knew perfectly well that is the crime, and provides a hiding place, for the property, to help them escape, or false proof shield, a fixed-term imprisonment less than three years, criminal detention or control; if the circumstances are serious, three to ten years in prison. This provision, from the value orientation, theoretical basis, practical utility and so on many aspects, has a rational side, but also obviously insufficient.

Misprision of object

The provisions of the criminal law and scholars discussed the shielding object is defined as "the crime". Look from the procedural law, "criminals" refers to the court to determine the guilty person, namely the convict. But in fact, the target of shielding can be both culprit, it can be convicted. If you think that is convicted and provides a hiding place, for the property, to help them escape, or false proof shield constitutes the crime of shielding, obviously reduces the applicable scope of the crime. The criminal procedure law of our country has established without the approval of the people's court shall not determine any person guilty of principle, the principle requires that, before the legal judgment by the people's court and declaratory judgment, shall any person be as guilty people treat. In 1996, after the amendment of criminal procedure law, in cases of public prosecution in the prosecution before will be held is called "suspect", in the trial stage is called the "defendant", and removed the "man", "criminals" these marked with a presumption of color terms, it is a concrete manifestation of implementation of this principle. But the author thinks, without the approval of the people's court shall not determine any person guilty principle in our criminal law is not completely implemented, China's criminal law revision after revision of the criminal procedure law, the crime of shielding prior to the pronouncement of judgment was still using the "criminals" this one formulation, is this not complete performance in criminal law of.

From the perspective of substantive law, to cover up the crime refers to the "crime" should be "illegal", namely the implementation of criminal violations of the people. Because the theoretical circle of criminal law in China long-term serious social harmfulness as the essential feature of crime, cause people to form such a concept: a behavior as long as with serious social harm, it must constitute a crime. This view is one-sided. Should see, some behavior has serious social harm, but as long as the criminal law does not stipulate it as a crime, we cannot think that it is a crime, because it violates the principle of legality. "Criminals" this one formulation, easy to make people behavior and its consequences as sanctions directly linked, so as to put some not criminal behavior as the crime to treat, is not conducive to guide the judicial practice, and "knew perfectly well that is the crime person" this one formulation, will determine whether a person is a crime task to the behavior people, clearly is not reasonable.

Shield method

According to the criminal law 310th stipulation, shielding the behavior has three kinds of forms, from nature, these three types of behavior are as. China's criminal law provisions will not fail to report the facts in crime of shield. Fail to report the facts is known to others to commit a crime but not reported behavior, is a typical omission.

Although generally fail to report the facts do not constitute a crime, the law of our country some special rules will fail to report the facts of crime. For example, "people's police law" ninth article and the provisions of article nineteenth, if the people's police knowingly criminals escaping and fail to perform their duties, can be forgetful of one's duties crime. Also, according to article 311st of the criminal law, knowingly committed criminal acts of espionage, in the national security organ investigates the situation, collect relevant evidence rejects the offer, if the circumstances are serious, which refused to provide evidence of crime of espionage. However, these a few scattered in criminal law and other provisions of law, can not meet the need of serious crime in real life. Such as intentional homicide, kidnapping, escape from traffic accident, terrorist crime and other serious, serious crime. In real life, some serious crime, there are a lot more or is one of the important reasons for investigation is not broken, this is the phenomenon of fail to report the facts.

Other countries in the world of criminal law, many have made the provisions. For example, the Russian Penal Code stipulates the crime of failing to report. Don't expose crime refers to the act of knowing someone ready to implement or have already implemented the criminal law the enumeration of intentional homicide, if the circumstances are serious rape, theft, robbery, robbery, fraud, bribery and other crimes without complaints, constitute the crime of failing to report, shall bear criminal responsibility.

Not as a crime is an important prerequisite for civil legal obligations as. Of course, if the common demands of citizens in the knowledge of the situation, must take the initiative to the public security and judicial organs to report, expose, provide a clue to the crime, it is not possible. However, the law can make limited obligation, especially serious harm to social security in the terrorist crimes are increasingly rampant, today, China's criminal law is necessary to make such provisions, need to match against the serious crime, strengthen social security, improve judicial efficiency. Will fail to report the facts conditional, limited crime, means that will not be as regulations of crime of shielding behavior way down, to give citizens and serious crime fighting obligations, the supervision organs and the masses of the people work together, it is a concrete manifestation of the mass line in the judicial work. The author thinks, the actor has prepared implementation or have implemented some felony criminal law and does not report listed the behavior of knowing, into the harbor crime, shall be prosecuted for criminal responsibility. For example, terrorist crime, the crime of intentional homicide, if the circumstances are serious robbery, rape, theft, bribery and so on.

To cover up the crime from the property

Misprision of object of the act constitutes a crime, is the basic premise for a crime. However, the provisions of the second paragraph of article 362nd of the criminal law: the hotel industry, catering industry, culture and entertainment industry, taxi companies and other units of the staff, in the public security organs and prostitution, whoring activities, to send news secretly criminals, if the circumstances are serious, the crime of harboring, package cover. Obviously, this rule helps to maintain social order, purify the social atmosphere, but here the "criminals" formulation, worthy of scrutiny.

The establishment of the harbor crime should be the protection object acts constitute a crime as the premise, if prostitution itself constitutes a crime of shield behavior, if the circumstances are serious, shall be investigated for criminal responsibility in the sense; but if prostitution itself does not constitute a crime, harboring prostitution is not a crime. Otherwise, the behavior is illegal, from behavior can become the crime? For example, a in B business hotel open room prostitution, public security personnel coincides with the security check, B to a send news secretly, but a still by public security officers seized. Assume that B again and again for a send news secretly or set up a special device send news secretly, if the circumstances are serious, in accordance with the provisions of the second paragraph of this article, for illegal molecular send news secretly, in serious cases can constitute the crime of shielding. That is to say, if a behavior is illegal, B behavior can constitute a crime. In prostitution, whoring behaviour only public security penalty, but concealer to cover up the crime punishment, is clearly contrary to reason, but also the lack of legal basis. So, for "illegal molecular send news secretly" criminals in crime, should be treated differently. But, in the specific provisions of criminal law have been tempted, shelter, crime of introducing prostitution conditions, the behavior as the dependent behavior of prostitution, prostitution to handle, questionable. The author thinks, this should be made clear: when the prostitution activities constitute a crime, the send news secretly behavior, can press the harbor crime; and when the prostitution activities not to constitute a crime, the behavior to send news secretly, as security punishment can only. In accordance with article 359th of the criminal law, the lure, shelter prostitution crime, to lure, shelter, crime of introducing prostitution punishment.