Conflict And Adjustment Between The Application Of Ethnic Minority Customary Law And Criminal Law From The Perspective Of Legal Doctrin

China is a multi-ethnic country,and all the ethnic minorities have produced various customs in their long life.These habitual customs have a great role in guiding and restricting their behavior.Although our country has been in the modernization of criminal law propaganda and reform,but the minority customary law in minority areas of judicial practice is still real,imperceptible influence,sometimes its effect even exceeds the national law,thus the strong conflict between national law and ethnic customary law.Country to transform the traditional minority customary law into a lot of efforts,give minority areas with criminal cases flexible preferential treatment,but practice proved that the criminal law is not operational,so the rule of law and maintain minority traditional customary law two propositions seem to be difficult to complete,find other more operational ways to communicate the minority customary law and criminal law is imminent.In order to solve the protracted conflict and contradiction between customary law and ethnic minority law and a criminal law.The thinking of usage and doctrine studying the contradiction between minority customary law and criminal law is to solve specific cases through the interpretation of the conceptual content and structure of the law,and make the judgment knowledge systematic as far as possible.Based on this,the purpose of this paper is to type the conflict between the two by introducing real cases,and to use the teaching of thinking to explain the cause of the contradiction,and tries to put forward the path of adjustment.Specifically,this paper starts out the argument from four aspects:The first chapter is the determination of the basic theoretical problems and the case empirical analysis.When necessary,the flexibility of criminal law is the right given by the law to the ethnic minority areas,but the flexibility of criminal law has encountered practical difficulties that cannot be flexibly applied in different places.On the one hand,the reason for the flexibility comes from the constitutionality of the flexibility such as flexible subject and matters,on the other hand,there is also the great uncertainty of the flexibility and application scenarios.At the same time,the customary law of ethnic minority areas is not unchanged,and it is unrealistic to generalize with flexible terms.In examining the cases in ethnic minority areas,it is not simply docking the facts of the case with the legal provisions,but more important is to make the value judgment of the facts.This paper believes that there is time and space in value judgment.The cases of ethnic minority areas in ordinary cases cannot be homogenized.The differences between different regions and ethnic customs and habits must be taken into account,so as to truly make a specific and regional analysis of the facts of the cases.Of course,this is not a separate view of ethnic minority crimes,but a class judgment under the threshold of law and doctrine,forming the balance of the ethnic minority and the application of criminal law.The second chapter is the study of customary law and criminal law.Although the two different forms of regulation means of ethnic minority customary law and criminal law are different in terms of action form,the two influence each other.The dual cross perspective can have a clearer understanding of the complex relationship between ethnic minority customary law and the application of criminal law.From the perspective of the criminal law,the customary law of ethnic minorities is greatly bound,and its effect is not fully exerted,mainly reflected in the use of the customary law under the formulation of the criminal law,and the contempt of ethnic minorities.In practice,the customary law of ethnic minorities does not disappear because of the limitation of the criminal law,but is active in a more secret way,which not only affects the identification of criminal acts in ethnic minority areas,but also restricts the implementation of criminal justice,but also affects the formulation of criminal policies in the macro aspect.The third chapter is the conflict between the common law of ethnic minorities and the application of the criminal law.The types of conflict can be divided into coexisting conflict and repeal conflict.Repeal conflict has been,or is gradually being prohibited because it runs counter to the value pursuit of the modernization of the rule of law.Although the coexisting conflict is different from the criminal law in terms of crime identification and the application of punishment,it is basically in line with the value pursuit of the modernization of the rule of law.Such conflicts are worth discussion and adjustment.The conflict between minority customary law and criminal law is reflected in the three levels of legislation,justice and law enforcement,There are three reasons for the conflict,First,the two have different requirements in the value standards,the customary law of ethnic minorities pays attention to rules,individual and substantive fairness.And the criminal law attaches more importance to the fairness of the procedure,the whole and the form.The second is the different choices of institutional standards,the customary law of ethnic minorities has the characteristics of closure,heavy punishment and cruel punishment,And the criminal law adheres to the openness,modesty and the severity of the punishment.The third is in the benefits,The customary law of ethnic minorities seeks the stability and peace within the nation,And criminal law focuses more on national nationals.The fourth chapter is the adjustment of the customary law of ethnic minorities and the criminal law.In the process of building the community consciousness of the Chinese nation,the important legal resource of ethnic customary law cannot be ignored.The adjustment between ethnic customary law and the application of criminal law is determined by the limitations of statutory law and the inherent defects of minority customary law.When adjustment,we must take the unity of the rule of law as the premise and pay attention to the integration of the positive part of minority customary law with the application of criminal law within the framework of the existing system.On this basis,uphold the principle of necessity,only when the general legal provisions should not be applicable or the cost of traditional means is too high,can we consider using other means to adjust.In addition,the facts of the case should be guided by time,space and facts.Specifically,it is necessary to determine the customary law of ethnic minority groups under the legal threshold through the threshold of composition,illegality and responsibility.