National Customary Law And Criminal Law Interpretation Research

As a national minority areas to maintain social order,to resolve contradictions and conflicts of civil rules,national customary law has a profound historical heritage,cultural foundation and survival of the soil.From the perspective of sociology of law and anthropology,national customary law arises from national taboos and human imitation,national customary law has gone through a long process of development,from the primitive society of the clan custom law to today,it becomes more rich and perfect,even in the trend of legal system under the customary law in China's ethnic minority areas still maintain the vitality,such as in the criminal field,marriage and family fields.The influence of national customary law on our criminal law is mainly reflected in the conviction and sentencing,it has always affected our judicial practice.In the interpretation of criminal law,there are formal interpretation of the interpretation of criminal law and the interpretation of the essence of criminal law.The formal interpretation of criminal law advocates the literal and formal interpretation of penal regulations,the substantive interpretation of the criminal law advocates the substantive and purpose of the punishment.Although the form of interpretation in the interpretation of the law strive to reflect the legislative intent and deny the arbitrary and arbitrary of judicial power,but we can not guarantee that the interpreter does not have his own understanding of the law or prejudice when interpreting the legal text,and completely stand in the legislator's point of view to explain the meaning of the legal text.Even if the interpreter's explanation fulfills the above requirements,but this legislation is intended to be unfair when it comes to social development.In the form of formal interpretation,national customary law is independent of the legislative intent,and thus lost in the interpretation of the meaning of the existence of criminal law.The loopholes in the form of criminal law interpretation are obvious,it emphasizes the stability and security of the law,thus ignoring the substantive justice and protection of the lawThe essence of the interpretation of the meaning of criminal law is not to explain the meaning of the legislator at that time,but rather the interpretation of the legal text of the times,in the present situation and the present context to elaborate the meaning of the legal text.Substantive explanatory theory does not conflict with the principle of legality in criminal law in our country,it has promoted the development of this principle,it helps to establish the authority of the criminal law and the realization of the law of substantive justice,so the existence of substantive interpretation in our country is reasonable.Although the form of criminal law interpretation will help to achieve the stability of criminal law,but it can not maintain the balance between our criminal law and customary law.The substantive interpretation of criminal law is conducive to China's criminal law and national customary law between the benign interaction,it provides a greater space for the incorporation of national customary law into criminal justice.Therefore,China 's criminal law should be established and the implementation of substantive interpretation of criminal law...