The Minority Criminal Customary Law Study Under Context Of Principle Of Legality

As one as the most important principles in the criminal law field,principle of legality is created to oppose the imprudent trial in the feudal crimes.It pays attention to formal rationality,while criminal customary law has the characteristics of emphasizing substantive rationality and neglecting formal rationality,so it has always been rejected by principle of legality.However,in ethnic minority areas of China,due to the deep-rooted status of the minority criminal customary law in the local people's legal awareness,people are often willing to use their own criminal customary law to resolve criminal disputes.This has formed a situation of conflict and integration between the national criminal customary law and the criminal law in the criminal justice practice in the minority areas of China.The Liangshan area is the largest Yi ethnic group in the country.the criminal customary law of the Yi nationality is a behavioral norm that has been passed down and followed by the local Yi nationality.It is a folk conscious order born in the real life of the local people.At present,the criminal customary law of the Yi nationality still has an unshakable position in the dispute resolution in the Liangshan area,which has a certain negative impact on the implementation of the state law and judicial authority.At the same time,in the criminal justice practice of Liangshan area,the rational use of the criminal customary law of the Yi nationality has certain value for completely solving disputes and resolving contradictions,which is conducive to the stability of local social order.Therefore,in view of the particularity of current environment of the rule of law in the Liangshan area,the criminal customary law of the Yi nationality can't be completely exclude from the national judiciary simply cause of “principle of legality exclusion of criminal customary law”.In judicial practice,we should make a new understanding of the meaning of principle of legality,and strive to find a balance between the criminal law and the criminal customary law of the Yi nationality,and adjust the conflict between them,and properly assimilate the criminal customary law of the Yi nationality into the criminal law field.On the one hand,it can be given the criminal customary law of the Yi nationality the status of the law by the modification or supplementary legislation;on the other hand,due to there is no precedent for modifing legislation in the criminal field in China,under the circumstances of the relevant laws are missing,we can make full use of the characteristics of the criminal customary law of the Yi nationality of emphasizing substantive rationality,and apply it in the criminal justice practice in Liangshan area.This not only follows principle of legality,but also maintains the unity of China's legal system,and appropriately integrates local ethnic customs into judicial activities,which can resolve disputes and resolve conflicts better,and achieve "the case is closed and the matter ended." This has a positive impact on the stability and development of the social order in the Liangshan area,it is also conducive to the advancement of the rule of law in the Liangshan area and the construction of a harmonious society.