Research On The Application Of Criminal Law In National Autonomous Areas

Article 90 of China's Criminal Law stipulates that the provincial people's congresses of national autonomous areas have the right to make provision for adaptation of the criminal law,but so far there have been no provincial people's congresses promulgated regulations applicable to criminal law.For this Implementation status,most scholars believe that a large part of the reason lies in the fact that there is a large theoretical gap in the adaptation of criminal law.One of its root causes lies in the misunderstanding of the nature of the criminal law in the ethnic autonomous areas stipulated in Article 90 of the Criminal Law.Research based on the autonomy of the legislative power of ethnic autonomous areas will inevitably lead to the existence of institutional paradoxes in the context of the ethnic regional autonomy system.There is a conflict with China's "Constitution" and "National Regional Autonomy Law," such as restriction or Deprivation of the autonomous legislative power of autonomous prefectures and autonomous counties improperly expanded the legislative power of provincial people's congresses.Provincial people's congresses could not implement the legislation applicable to the adaptation of criminal law,which of course would lead to the failure of Article 90 of the Criminal Law in practice.The current Constitution and National Regional Autonomy Laws do not clearly stipulate the powers of the ethnic autonomous organs for the modification of the criminal law.The province,autonomous region's criminal law necessary modification based on the special authorization of the National People's Congress concerning the application of the criminal law and is enjoyed by provincial people's congresses.However,based on the study of the special authorization of the criminal law,according to the relevant provisions of the Constitution and the Law on Legislation,some scholars believe that the provisions of Article 90 of the Criminal Law conflict with their superior laws.For example,if the authorized subject is unconstitutional,the authorized matters are unconstitutional.This article analyzes the relationship between the provision for adaptation of the criminal law of the Provincial People's Congress and the Constitution,the National Autonomy Law of the People's Republic of China on the autonomy provided by Article90 of the Criminal Law,and the relationship with the authorized legislation provided for in the Legislative Law.The author believes that Article 90 of the Criminal Law stipulates that it is in conformity with the provisions of the Constitution and the relevant laws of the Constitution and is a special authorization of the Criminal Law.It does not belong to the autonomous legislative power of the Provincial People's Congress.Since the provisions of the article itself do not have any problems,why would they fail in practice?In response to this question,the author believes that the objective reason is the complex ethnic composition within the national autonomous region,and the restriction of the nature of the criminal law,the nature of the work of the provincial people's congress.This led to the falsity of Article 90 of the Criminal Law.However,because of the legislative goals stipulated in the article,it is necessary to give full play to the existing legal space,to meet the legal needs of ethnic autonomous areas and to maintain the ethnic relations of equality and unity and common prosperity.