Practice Investigation And Theoretical Reconstruction:The Status And Role Of Customs In The Field Of Contemporary Criminal Law

In the criminal law,the principle of a legally prescribed punishment for a specified crime strictly excludes customary law and the concept of exclusive penal power in the criminal procedure law still dominates,so the status of custom in conviction,sentencing and criminal dispute mediation is strictly restricted.Affected by the concept of formal rationality and the state's exclusive right to penalties,criminal justice or cases of blindness to the custom or swaps argument,the role of customs in the criminal field to promote the reasonable and legal treatment cases is seriously obscured.However,the principle of a legally prescribed punishment for a specified crime has gone from absolute to relative.It can be considered that the principle of a legally prescribed punishment for a specified crime is merely a rejection of customary law as a source of formal criminal law.It excludes the use of customary law to plead guilty and add punishment.Customs can play a role in exclusion of crime and influence sentencing;criminal private prosecution and criminal reconciliation system have adjusted the concept of state monopoly penal power,and customs as an informal legal source can play a role in it.It is necessary to re-examine the status of custom in criminal law,uncover the curtain of the actual role of obscuring customs,remove the obstacles of inherent thinking and construct a stable operation mechanism.The full text is about 65,000 words,and the main body of the article is divided into four parts:The first part is to clarify the basic issues and grasp the concept of custom.Customs are social norms that people have formed in long-term production and life,which are recognized and repeatedly practiced,and adjust people's rights and obligations.It has the characteristics of repeatability and inheritance,spontaneity and consciousness,regional and group,life and specificity,sociality and normativeness.There is a species relationship between "custom" and "folk" and "folk law";there is no essential difference from "convention";under the narrow concept of "law",the difference between "custom" and "customary law" is that it has no legal effect;under the broad concept of "law",there is no essential difference between "custom" and "customary law".The second part gives a comprehensive examination of the legal status and practical roleof the custom.The investigation found that the custom has legal status only in the criminal law applicable to the minority autonomous area,the private prosecution and criminal reconciliation system;the private prosecution and criminal reconciliation system only allow customs play a role in misdemeanor cases,the legal status of the custom is very limited;but the actual role of the custom is far beyond the legal scope,the customs affect the criminal discovery of criminal cases including felony cases,criminal identification and sentencing determination.The conflict between customs and criminal law actually exist.The third part reconstructs the theory of customary functions in the criminal field.It introduces and criticizes the existing criminal norm theory--criminal norm theory,the use of indigenous resources theory and the use of cultural defense theory;it reconstructs the existing theory based on the basis of the investigation of custom on criminal law,it defines the informal legal sources status of custom in the field of criminal law and the legal status of discretionary criminal sentiment;it points out that under the premise of establishing custom screening criteria,within the framework of the principle of a legally prescribed punishment for a specified crime,customs can run through the whole process of criminal justice,and promote the mitigation of criminal enforcement measures,exclusion of crime,light punishment or even exemption,and mitigation of punishment execution.The fourth part explores the path of the role of customs in the criminal field.On the legislative level,speeding up the formulation of the applicable provisions of the criminal law in ethnic autonomous areas,and incorporate some ethical crimes into the scope of prosecution;on the judicial level,improving the applicable mechanisms of customs,and clarify how customs can be proved,cross-examined,and certified;In addition,the felony cases were limitedly included in the criminal reconciliation system,and the national compensation system for criminal victims should be established.