National Customs And Criminal Conflict And Adaptation

As the national fundamental law, the criminal law has the character of universality, and it was made upon the basic situations and characteristics of the economical society in the Han areas, so the factors like the traditional customs, religious beliefs and the degree of economical and social development can't be considered carefully one by one. Criminal statutes have the limit influence upon the people in the minorities; the national conventions have played the different roles in the aspects such as the control of local society, the settlement of criminal disputes, and the adjustment of human relationships and it has largely influenced the people's value judgments. This has hindered the appliance of the criminal law in the minorities and even caused the conflicts between the national conventions and criminal law. How to solve these conflicts and how to strike the balance between the maintenance of legal unity and the protection of ethnic traditions have been the important issues of the legal construction.This article takes the conflicted case between the customs in Hani and Yi autonomous prefecture and the criminal law as the investigation project and uses the research methods of the anthropology and sociology of law to analyze and demonstrate. The first part of this article has analyzed the current situation of such conflict and it has concluded that the national conventions objectively influence and restrict the formulation of criminal law, criminal justice and national criminal in the aspects of conviction and measurement of penalty. The second part has analyzed the cause of that conflict and it thinks that the cause does not rely upon the difference between the two but the necessary adjustment mechanism they lack. The third part has analyzed the problems arisen from the handling of criminal disputes in the minorities and it thinks that the difference between the national relief system and civilian relief system has caused the phenomenon of double punishment there. In the end of the article, the writer thinks that in addition to the legislative work, it also needs to improve the professional skills and qualities in the law enforcement and judicature troops, perfect the national judiciary, induce the national conventions to take the positive changes by the way of introduction so that it can have the good interaction with the criminal law to adjust the requirements of the modern rule of law.