The Conflict And Way Out Between The Customary Law Of The Yi Nationality And The Criminal Law

This article is divided into three parts to discuss the conflict and outlet between Yi’s Criminal Customary Law and criminal law.The first part briefly introduces the characteristics of Yi’s Criminal Customary law,such as family support system and hierarchical society,the dispute settlement mode of Degu mediation,the punishment mode of economic compensation and apology,and on this basis discusses its basic principles and criminal case management with modern criminal law.Conflicts in jurisdiction and punishment.The second part introduces the concrete ways of dealing with conflicts in practice through the introduction of three cases in judicial practice,and analyses each mode of dealing with conflicts.Under the dual judicial mode,criminal law and customary law act differently.Criminal law does not consider the requirements of customary law at all,which not only makes criminals subject to double punishment,but also makes the people of Yi nationality area impartial to the judicial system.The fundamental reason is that the exclusion of customary law by legally prescribed punishment for a specified crime makes the application of customary law without legal basis,and judicial organs can only "act according to law";in the mode of evasion of law,the requirement of unification of legal system is put aside and the authority of criminal law is destroyed;compared with the former two,customary law is ignored or completely laissez-faire.Customary law,the third mode of customary law intervention in criminal law,customary law and criminal law interaction,joint settlement of disputes,both can maintain tension and can settle disputes,but there are still doubts about rationality and legitimacy.The third part of this article first carries on the step-by-step analysis to the questions raised in each model analysis of the second part.The first part analyses the feasibility of customary law intervening in criminal law,specifically analyses the relationship between the principle of legality of crime and customary law,and sees the opportunity for customary law to enter into Criminal Law Hermeneutics from the substantive aspect of legality of crime and criminal law.The second part analyses the necessity of customary law intervening,and the author Max Weber’s theory on how to establish the ruling relationship is analyzed in the motivation of people’s social behavior,and how to strengthen people’s voluntary obedience to criminal law.Finally,the necessity of establishing a criminal reconciliation system with the model of Degu mediation in the specific judicial practice and in the Yi nationality areas is concluded.Thirdly,the rationality of the access of customary law is analyzed in detail.It should be recognized which forms of customary law punishment can play the role of "replacing" part of the penalty,and which ways should be used to replace it.At the same time,it should respond to whether the penalty substitution will impair the retribution and preventive purpose of the penalty.Finally,on the basis of resolving the above three problems,the author puts forward concrete suggestions for the intervention of customary law in criminal law: as the cause of exceeding the law and obstructing the violation of the law and the discretionary circumstances of punishment,to play its role of commutation of offences and commutation of sentences in the field of substantive law;and to establish a unique system of criminal reconciliation with the model of Degu mediation in the area of Yi nationality to open the way for its intervention in criminal justice practice in the field of Pro.