Research On Criminal Custom Of Ethnic Minority Areas

Criminal law undoubtedly plays a very important role, while our country has embarked on the train of legal modernization since the early 20th century. In the process of criminal law modernization, China’s laws and cultural traditions which are often seen as backward and outdated things have been shelved. Criminal custom, which is an important part of cultural heritage law, has also been denied largely. Criminal custom is marginalized in the knowledge of the whole system of criminal law. However, it has an effect on the judicial practice in ethnic minority areas with a true and imperceptibly manner.The unity of the Criminal law attracted much attention because of the modernization of the Criminal law. Although state stresses constitutional law’s unitization and authority, the formation of legal order is the interactive result of state law and customary law at the grass-root society. China is a multi-ethnic country, so criminal custom is different from each other, which plays a unique role in the ethnic minority areas respectively. From the beginning of the process of law modernization, there is a strong impulse and desire which can transform criminal custom, at the same time government has also invested a lot of effort on it. Nevertheless, criminal custom which has be seen a "local knowledge" doesn’t step down from the stage of history at the active implementation of the criminal law. While, criminal custom plays an important role in judicial practice. In the new period of building a harmonious society, it’s necessary and important for the construction of rule of law in ethnic minority areas to study basic theoretical issues of criminal custom, illustrate the rationality of the existence and function of criminal custom, explore positive interaction means of criminal law and criminal custom.This thesis consists of five chapters, and respectively discusses general introduction of criminal custom, function of criminal custom, specific application of criminal custom (including two aspects of crime and punishment), positive interaction of criminal law and criminal custom. The details are as follows: In Chapter One, it discusses general introduction of criminal custom. This section defines the concept of criminal custom, analyzes its characteristics, explores the history of criminal custom from two aspects of the origin and development.In Chapter two, it analyzes function of criminal custom. This section explores the positive function and negative function of criminal custom from two opposite aspects. The positive function of criminal custom lies in function of acquitting, function of reducing or waiving the penalty and function of protecting of human rights. The positive function of criminal custom is embodied in such things that would undermine the authority and unity of the criminal law, bring about limitation of dispute-resolving mechanism, easily lead to abuse of the discretion of the judge.In Chapter three, it interprets the first specific application of criminal custom. Firstly, it analyzes the premise and strategy on application of criminal custom. Subsequently, it interprets the reference value for "illegality" from the perspective of criminal custom and illegality, social harmfulness, social relevance. Finally, it explores the "responsibility" of the judgment from the perspective of criminal custom and illegal consciousness, probability of expectation.In Chapter four, it elaborates the second specific application of criminal custom. This section explores criminal custom and adjudication of punishment. It analyzes that criminal custom would become disrectionary circumstances of sentencing and actual performance in judicial discretion. Furthermore, it explains the meaning of restorative justice and judicial practice and tries to give reasonable suggestions on building new penalty mechanism.In Chapter five, it explores positive interaction of criminal law and criminal custom. Firstly, it brings theoretical analysis on positive interaction of criminal law and criminal custom from interaction basis and possibility. Secondly, it explores application principles which are principle of rationality constraint, the principle of compress and modesty, pragmatic principles of national characteristics and the leniency principles of the criminal policy. Thirdly, it analyzes conflict and solution between criminal custom and the basic principles of criminal law. Lastly, it elaborates positive interaction method of criminal law and criminal custom from the positive function of criminal custom and adaptive provisions of criminal law.