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A Study On The Conflict Between Customary Law And Criminal Law Of Miao Nationality In

Posted on:2016-02-15Degree:MasterType:Thesis
Country:ChinaCandidate:M LuFull Text:PDF
GTID:2206330479478953Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
Under the contemporary context of criminal rule of law in China, it seems awkward to explore the status of customary law. Although there are provisions for adaptation of Minority Regions in constitution and criminal law, however, the conclusion of criminal rule exclusion customary law is not controversial. The most obvious is from the principle of legality in the criminal law and the general contempt for criminal formulation. However such status is not the actual situation of customary law in judicial operation. The implementation of the national criminal law in many Miao areas in Huizhou is not smooth sailing, there is fierce conflict long-term existed between the unity of the criminal rule of law and the local Miao Customary Law as well as the local characteristics. While the transformation of the national criminal law did not gain a complete victory, the Miao Customary Law has been kept to maintain the order of the local community, so it is necessary to seek effective conflict resolution between them. This article based on field investigation and mainly from the following three parts to start:The first part is the introduction. This paper mainly introduces the definition of the customary law of the Miao nationality, the background of the research, the research status, the purpose, the method and the mainly process of investigation.Among them, we give main focus to introduce the mainly process of investigation.Selection of survey points mainly concentrated in Dade village, the villages of Fangzhao town, Fansheng town, Nansheng town and other towns and villages near from the County with convenient transportation. Classify and reorganize the collected cases, and select twelve typical cases from them. According to these twelve cases,classified them into four categories, these are marriage and family, spiritual beliefs,production and life, disputes relief areas. This section focuses on the contents of the research methods and applications; there are three main types Literature survey, Field investigation method and Case analysis method. Field investigation is the most important research method and it is also the most difficult research method. Lastednearly a year, witnessed the scene to deep into the Miao village visits, to observe the behavior of the local people under the control of customary law, in-depth interviews and detailed records. We collected about twenty cases which relevant to this research in this year, by sorting and classification, we decided to take twelve cases.The second part is about the case and the analysis of the conflict between the customary law and the criminal law of the Miao Nationality in Taijiang. They are embodied in the first, second, third and forth chapters of the text respectively. It concentrated expression in four areas, the field of marriage and family, spiritual belief,production and living areas, the field of dispute relief. In the first chapter, the typical cases involving the conflict between the family and the criminal law are further subdivided to marriage customs case, marriage taboo case and divorce system case.This part of the case accounted for half of the full text case. There are two cases Involving marriage customs, they are Yang rape case and Zhao rape case; there are three involving marriage taboo, they are the ghost marriage taboo case, Zhang jumping off a building case and Fansheng lovers explosion case; there are two cases involving the divorce system, Li Lao "broken bamboo" divorce case, “a husband two wives” case of Ou, total seven cases. Customary law to adjust the rules of marriage customs, is the best preserved, thus, the relevant cases collected are also the most adequate. In the second chapter, the paper introduces the adjustment of the case of the field of the spiritual belief of the Miao nationality customary law. It divided into ghost marriage taboo case and “Jing Qiao, Zhao Long” custom cases. They are Zhang frame Masiya case, Jing Qiao case in Pailang village and Zhao Long case in Yanghao village,total 3 cases. Spiritual beliefs are also important parts of the adjustment of customary law, the Miao people express their spiritual sustenance or national faith through the festival and the ceremony.The third chapter is about the case of the production and life. Concrete is the forest fire cases of Dageba and the “three one hundred and twenty” Wu adultery case according to customary law to punish which is in the fourth chapter. In addition to the case of the description of the case, this part of the case analysis is also the focus of the content, use the law, the case facts, the conclusion of the judicial practice deductive inference method and basic principles of criminal lawto analyze from conformity of constitutive elements, illegal to the responsibility one by one.The third part is the fifth chapter of the paper. It mainly expounds the ways of solving the conflicts between the customary law and the criminal law of the Miao nationality. Firstly, to demonstrate the necessity and possibility of adjustment,secondly, propose the solution, that is, the adjustment of the legislation and the judicial adjustment.
Keywords/Search Tags:Customary law, legally prescribed punishment, conflict, adjustment
PDF Full Text Request
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