Buyi Customary Law In North Pan River Basin Study And Conflict Criminal Law

Recently it has been a problems for the world that how to enforce the secureminorities’ rights. And this article is based on field investigation. The author hasvisited and researched a number of Buyi villages in Zhenfeng County, Beipan RiverZhenning County, Guanling County, Qinglong County, the special administration ofLiuzhi, etc. It’s found that there are written norms of customary law, unwrittensystems of customary law as well in Buyi society. Observed as a whole, Buyicustomary law has its own legal culture tradition, and many ethnic taboos have thesame quality of customary law because of external force. Other customary laws, suchas steles still act as law norms among the Buyi people. Besides the conclusion, thisarticle consists of four parts.First part is the introduction, which is to introduce the reasons why the subject ischosen and the background, meaning, purpose, subject, method of the research.What’s more, it also about a brief introduction of the Buyi people in Beipan River’sdomain and the process of investigation.The second part mainly analyzes some basic viewpoints about the customary lawin both domestic and foreign academic, and then summarizes the meanings andcharacteristics of the Buyi customary laws. As for the definition of customary law, formy point of view, those have been ensured to implement by external forces arecustomary law norms, otherwise it‘s not.The third part adopts the method of case study, focusing on the conflicts of Buyicustomary law and criminal law and its reasons. Buyi society’s sex taboo has its owntradition and of great majesty, but it has some conflicts with criminal law, for example,Buyi’s punishment of premarital sex, rape usually have great conflicts with criminallaw. Buyi people view the offensive of sex taboo as some behaviors controlled byghosts who are called “rags ghosts”, and the most common punishment of it is towash sperms and exile, which can be introduced in detail in the body part. Intermarriage taboos, such as rags taboo, poison taboo, often conflict with the criminal law.Buyi customary law on the punishment of marriage flee, the custom permitting to rob bride, and the custom to beat up people who escape of marriage and steal, all havegreat conflict with criminal law. The Buyi customary law is enacted law independentof the state, in the Buyi society based on its historical tradition, nationality andreligion, taboo, etc. multiple factors in the formation of the maintenance of socialorder and the adjustment of the Buyi society members, has to enforce constraints andpunitive social behavior standard external. Ancient feudal dynasty and the Buyi tribesof Beipan River’s domain have loose relationships, since China’s feudal society hasadopted the way of Jimi system, chieftain system to in charge of these regionsindirectly. After the Qing Dynasty emperor Yong Zheng landed reform movement,these regions were returned to central government, but some local authorities, such asthe “Village leader”, the “village elders”, still played mediation role in the Buyisociety, the steles and family agreement made by the authority also plays a role inadjusting people’s norms of behaviors, actually working as a kind of law. In modernBuyi society, even if many steles haven’t existed, the contents of them have beenautomatically generated into customary law which can adjust folk Buyi disputes, andmany Buyi customs also have become lawful by inheriting the tradition of their owncustomary law.The fourth part is mainly about the solutions to conflicts of criminal law and thecustomary law of Buyi. The main reason for the conflict between customary law andcriminal law is that the differences of legal culture tradition cause the tension contrastof crime and non-crime. In mainland of China, where is under the crime legal contextof written law, the contradiction between the two is irreconcilable. Crime legalprinciple in western countries, especially the United States and Japan, has experiencedthe process from the procedural due process to the substantive due process. And it hasseen the change from absolute to relative, from form to essence. The real side contentof crime legality is to limit the tyranny of the legislative power. According to the latestcontent of the crime legal in United States and Japan, this article is to point out thegreat theoretical and practical meanings for China to bring in this criminal law idea toguarantee the minorities’ human rights, so it’s suggested that the provisions on thecrime legal in the criminal law should be modified by directly using the code type of legality expression. The advantage of this is that when the customary law of Buyiconflict with the criminal law, the judge’s interpretation can alleviate the intenserelationship and so as to guarantee the basic human rights of ethnic minorities.