| Our country's criminal law is legal norms which are provisions about crime, criminal responsibility, punish. In general, the effectiveness of its geographical rang of crimes within Chinese territory, namely, "Whoever commits crimes within the territory of the PRC, in addition to the laws other than those specifically provided, all applicable law", also "in the applicable to law, crime of any person is equal." Here "the special legal requirements of case" includes the provisions of Article 90 in our country's Criminal law, "The ethnic autonomous areas cannot be fully applicable provisions of this law, by the Local People's Congress of the national autonomous areas or province formulate accommodation of criminal law or supplementary provisions according to the political,economic,cultural characteristics of local and the basic principles of this Law, submitted to the National People's Congress Standing Committee for approval and implementation." The reason for the provisions of, mainly because, our country have 55 national minorities, each national minority has its own language and culture and custom, national minority customary comes into being is a long process of historic development, And by the rules of behavior handed down from generation to generation. In history, national minority customary law had played an irreplaceable role in resolving conflicts, resolving disputes and maintaining local social order. In modern time, in some ethnic minority areas customary law is still in a hidden, secret ways to play a unique role, especially in remote border areas, national minority customary law plays a role in replacing criminal law, Resulting in criminal law can not be effectively implemented.However, the provisions of article 90 in our country's criminal law is only principled, do not stipulate specific accommodations of criminal law, namely, for the criminal acts of ethnic autonomous areas, which needs to be applied uniform provisions of criminal laws, which needs to make accommodation of criminal law, The contents of the lack of operation, Resulting in different approaches taken in different regions, different standards. In fact, draw up provisions about accommodation of criminal law, that not only is a legal issue, but also is a complex national problem, it has a direct impact on ethnic relations, affecting the national unity and ethnic equality, impacting on the social harmony and national stability and security. So, What minority customary law will be absorbed into the provisions of accommodation of the Criminal law, How to achieve positive interact between Criminal Law and Minority customary law, in order to effectively address local crime issues and maintain the social order and safeguard national equality, unity, helping each other, harmony, maintain the social stability and national security is The real problem which is worth exploring, that also is the purpose of this study.The body of this article is divided into five parts:Preface section describes expatiates the meaning; Domestic and international legislation and research status; the thinking and methods.The first part main investigate the necessity and basis of accommodation of criminal law. This part first clear definite accommodation of criminal law is a legislative definition, in the context of the definition, from respecting the customary of national minority, facing the reality of economic backward in the minority areas, the needs that maintaining stability in the national minority areas and national unity to discuss accommodation of criminal law. Next, through these two aspects that from researching the provisions of accommodation of criminal laws in China's current laws and regulations and the history of all nationalities in China experienced facts of multiple fusions, division to discuss the basis of accommodation of criminal law.The second part is the practice of Chinese criminal law in the ethnic autonomous areas. The section first examines how to applicant to Chinese criminal law in the national minority areas from Xia Dynasty, Shang dynasty, Zhou dynasty to Ming dynasty, Qing Dynasty, Northern Warlords Government of China, National Government before the founding of the People's Republic of China. The next, inspecting the practice of Chinese criminal law in the ethnic autonomous areas after the founding of state. Final, sums up the experience and lessons from them.The third part studies the practice the criminal laws how to apply to national minorities on abroad .The part introduce from four aspects: The first study on the policy of the Criminal law how to apply to the national minority in foreign. The second study on legislation which criminal law how to apply to national minorities on abroad. The third, study on the reality of criminal law how apply to the national minorities. The forth are experience and lessons.The forth part introduces the principles of accommodation of criminal law and that we pay attention to problems in the process of making accommodation of criminal law. This part from the four aspects: maintaining the unification of legal system, respecting the customary of national minority, really necessary, regionality and temporality to investigate the principles of accommodation of criminal law. We should pay attention to problems: First, provisions of main body which related to accommodate of the criminal law in Legislation Law and Criminal Law should be consistent, not conflicting. Next, there should have clear to concrete form and effectiveness in our law. Final, we should strengthen our work to study the theory about accommodation of criminal law.The fifth part put forward the concrete content of accommodation of criminal laws. According to the basic principles of criminal law, With the actual situation in ethnic minority areas in China, the concrete content of our country's accommodation of criminal law should include: crime related to one's body; crime related to marriage or sex; crime related to mode of production,lifestyle, crime related to religion or superstition.
|
PDF Full Text Request