On Accommodation And Supplement Of Criminal Law

As a multi-ethnic unified country, unified penal code is one of the symbols of one country’s unity on the political and legal system, also it is the choice of the people of all ethnic groups in China. However, with the long-term historical accumulation, the habits between all ethnic groups in our country differ. Some national habits, have gradually developed into national customary law with normative force and are respected by the local people. It’s been proved that the minority customary law plays a positive role in resolving the social contradictions and the ethnic disputes as well as maintaining social order. Some national customary law, however, are not in coordination with national norms of the criminal law, or even directly contradict. In order to solve the conflict, specified in article 90 of the penal code, national autonomous areas may, according to their own characteristics,namely the local ethnic specific political, economic, culture, on the basis of the basic principles of the criminal law, formulated in the national autonomous areas of flexible or supplementary provisions, report to the standing committee of the National People’s Congress for approval. This article is of great significance to implement the national policy, to safeguard national unity, protect the cultural heritage and promote the minority people to the identity of the criminal law.However, due to the weakness of the theoretical research and the lack of experience in legislation, none of a nation autonomous area developed any formal regulatory documents about accommodation and supplement of the criminal law.This makes article 90 a dead letter. Though the criminal law encourages the nation autonomous area to formulate the local ethnic flexible provisions and supplementary provisions on the whole. There are no detailed rules to guide them.The flexible provisions of the criminal law shall refer to those special rules that are made by national autonomous areas in accordance with constitution, other laws and the actual situation in the region. Those rules are under the guidance of the basic principles of the criminal law, and are modified to adapt to the ethnic autonomous region characteristics. The supplementary provisions of the criminal law shall refer to those rules which are made under the circumstance that the criminal law is not explicitly. There are connections and differences between those two kinds of rules.As for the connections, those two rules both should have national, local, gentle and special characteristics. To develop flexible provisions of the criminal law andsupplementary provisions of the criminal law requires multiple basis: the theoretical basis lies in the needs of the special customs and the legal construction of the ethnic minorities, while the legal basis includes the constitution, the legislative law, the law on regional national autonomy, the criminal law and other laws in different hierarchy and different departments, and the factual basis is the endless contradiction caused by the ethnic customs and special needs which raised in the criminal cases.To develop flexible or supplementary provisions of criminal law, should meet the principle of legality, necessity and flexibility. The legislator can consider formulating flexible or supplementary provisions of the criminal law targeting on rape, bigamy, crime of illegally manufacture or trade in guns, illegally possess of guns, and some crimes of destruction of wildlife resources. In addition, legalizing some discretionary sentencing plot should also be reflected in the flexible or supplementary provisions.