Criminal law interpretation customary law from the perspective of culture

Xu Guanghua*

(Law School of Jiangxi University of Finance and Economics Jiangxi Nanchang 330013)

Abstract:Customary law still in today's social disputes in practice plays a complementary role for the law, and even to replace the legal effect to a certain extent. Respect the traditional culture, the cultural interpretation of the criminal law, the criminal law is an important way to obtain public recognition. But the field of different departments to customary law attitude is not the same, in the area of civil law, "law in accordance with the law, not law according to the habit of habit, not in accordance with the law" basically has become the basic provisions of the criminal code, and in the field of criminal law, its function has not been released. In the initial stage of the rule of law in China, the positive significance of crime can not be denied, but can in the statutory framework, through the interpretation of criminal law that customary law should be organic can be released.

Key word.The interpretation of criminal law The customary law Compensation for the life price 

When the rationalism legislation view cause a temporary clamour, "rule of law" for the evolution of "code" countries, customary law as the traditional residual, almost equivalent to the "backward", "conservative" pronoun. In the early society, legal disputes before processing mode is mainly dependent on the habit. Even in today's society, the rule of law has been highly developed under the background of social life, because the law is not all, customary law plays a complementary role to the law is still in dispute settlement mechanism, and even to replace the legal effect to a certain extent. Respect the traditional culture, the cultural interpretation of the criminal law, the criminal law is an important way to obtain public recognition. At present, the gap between the rich and the poor, the judicial corruption problems in a certain extent, the trust crisis already exists in a certain range in China, while the judicial dispute solution, as the most important means of mechanism, most likely to be the final point of social contradictions aggregation. And to develop the public belief in law, respect the people's customs and habits, is a good initiative.

The significance, the customary law in the judicial practice

"In the event of a conflict between national law and traditional customs, and try to change the traditional custom, in essence, the general pattern of behaviour change an existing".[1]Therefore, too much emphasis on national law assimilation folk customs, ignoring the people's daily living standards, customs, acceptance will be greatly reduced the state law. "As long as human life and growth in nature, as long as the society a variety of other conditions can (and will) change, will continue to produce new habits, and will constantly and forever as the countries to develop a never break free of the background and other decrees operation factors and the law effect of various effects".[II]

Habit will become a kind of folk culture in the long process of development, or say that the existence of the root in traditional culture, respect the habit is the "essence of culture".The customs of ethnic minorities is an important carrier of the traditional culture, is formed gradually in the national long-term development process, many have the nature of customary law, be adjusted within minority members and important rules of behavior relationship between them and the rights of non national obligations.[3]"The result of basic, a country formed a Taiwan's wind, namely the habit".[4]Western rule of law in the highly developed society, customary law is still an indispensable. "On the surface, foundation of the western rule of law is the law, but if we observe carefully, will find that, not only in the countries of Anglo American law system, there exists various kinds of local custom, is in the continental law system countries, various autonomous group protocol also many. Thus, not only is the traditional Eastern countries to customary law have quite a space, resulting in a legal pluralism pattern, and the western democratic countries to various local customs and group protocol space".[⑤]For example, in American Shasta County agricultural areas, residents are strongly agree with the informal way to resolve the internal disputes. A shepherd as Norman Vorgna -- in the supervisory board office -- say, "good neighbor is not to fight".[6]Do not say, Shasta county is not very special. As described by James Eichsen, the lobster fisherman in Maine, there are some rules, against the court: the fishermen are strongly felt, should not let the law close, people should solve their own problems. Any fisherman if shrimp cage was cut to find the police, not only look useless and ridiculous, and to some extent or a threat. When a person shrimp cage can not find, self enforcement is not only more efficient, but also to maintain his position in the fishermen in the peer.[7]China in traditional society is an agricultural production as the main body, with a life of farming as the main form of life in society. In the agricultural society, people mainly depend on land and life, economic activity is relatively simple, social mobility is weak, so the habit of be handed down from age to age rule dominates people's life in a large extent. But, in the Xia and Shang Dynasties to Ming Qing ancient society, the national most grass-roots political power is generally set up to a level below the county county, mostly in the "autonomous" or "semi autonomous" status, in addition to life steal case, levy tax and other circumstances, the government generally does not involve the village daily life. In this state, clan regulations, local rules and other non state law level of social rules, in fact play a normative role of subject. In addition to national law guidelines, the normal operation of our social order, to a large extent depends on long-term accumulation, inheritance of moral values, ethical rules, traditional customs to dominate.[8]Generally, the national law mainly occupy the center city and small city, the folk custom rule entrenched in the rural areas and small towns. But notable is, in many big city, customary law by community norms and rules as the main industry is quietly rising, and become a new subject in the study of folklore.[9]

The customary law, punishment, two people from a comparative perspective

    In recent years, about the folk law, customary law, received a positive evaluation is more and more high. Behind this law thought, although there are a variety of reasons, however, to recognize customary norms that is a true reflection of public opinion, customs, customs. If the judge in the judicial process to express these customary law's loyalty, actually is also the specific community respect and loyalty.[⑩]

    (a) the customary law in civil law

The civil code also generally admit the validity of customary law in the judicial practice. In the early Qing Dynasty to the Republic of China period, China has launched a nationwide, large scale commercial intercourse habits survey movement, leaving a lot of relevant national folk aspects of basic data for civil and commercial legislation, has compiled into "civil custom Daquan" and "civil and commercial habits.".1907Shen Jiaben proposed "amendments to the law library service charter" in specific provision: "the revised law all the provinces, habits should be field investigators, may at any time to send personnel to the investigation."[11]In the world of civil law culture, there was a civil legal principles recognized in many countries, namely "law in accordance with the law, not law according to the habit of habit, not in accordance with the law". China is no exception,2007The "property law" article85Regulation: "laws, regulations have provisions on adjacent relationship, in accordance with the provisions of the laws, regulations; the absence of such provisions, according to local customs." The local judicial organ in the civil trial also attaches great importance to the processing of habit,2007Jiangyan City, Jiangsu province people's Court judicial committee to discuss the adoption of the "guiding opinions about the good customs in civil trial work (for Trial Implementation)". In judicial practice, respect the habits and customs also achieved good results. This guidance in Jiangyan city "marriage betrothal gifts return" this a habit rules and achieved good results in practice, according to the3Years of investigation,57A return of betrothal gifts and dispute withdrawal rate82%An appeal, No.[12]

The civil judicial practice, according to custom, the legal rule, so as to break through the current law provisions, resulting in a range of support. For example, Dali Institute for three years on the nine eight eight case, in the case of the court again stressed: "habits have legal effectiveness, especially not harmful to the public interest is the requirement to appeal, who advocated, to trade security real nuisance; even fruit habits Ning Yi there, it is difficult to break that has legal effectiveness." Dali hospital four years No. two three five four case once again stressed: habit if effective law, so "the fact but with no public order and good customs hamper, and generally have to comply with the heart".[13]Accordingly, used as long as it is not contrary to public order and good customs, but also must have the legal effect. Researchers in Guangxi in the Qing Dynasty judicial practice are pointed out: much of the literature shows, Guangxi area in the Qing Dynasty judicial organs in the trial, not only pay attention to the local ethnic folk customs, often these habits as the judgment basis and reference, greatly added the content of law. This not only helps to solve disputes, has been officially recognized the customary law of long-term effective, efficiency has greatly improved, also can play a greater degree of.[14]

    (two) the customary law in the context of criminal law

The customary law has become one of the principle of statutory derivative, customary law cannot become the sources of criminal law, which can not be directly based on the conviction and sentencing. "Originally, in a certain range, the customary law can best reflect the public opinion, seems to be most consistent with the thought of democratic legality principle requirements. If the thought foundation of the legal principle of crime and punishment is democratic, customary law may become sources of criminal law. However, in our country like this, there is almost no customary law reflect the public opinion. More important is, according to the principle of predictive likelihood, must exclude customary law".[15]China's criminal law article90Regulation: "not in national autonomous areas completely apply the stipulations of this law, by the autonomous region or province of the people's Congress according to the basic principle of the characteristics of the local nationalities in political, economic, cultural and the provisions of this law, formulate adaptive or supplementary provisions, shall be approved by the standing Committee of the National People's congress." But in practice, there is no national autonomous areas will be flexible or supplementary provisions of the criminal law shall be reported to the Standing Committee of National People's Congress of the phenomenon.

Extraterritorial criminal legislation and judicial practice of customary law is not completely consistent attitude. On the importance of experience or experience of the country, customary law has been rulers relied on. The common law is based on the type of legal traditional empiricism philosophy above, they attach great importance to the traditional elements of law, and be vigilant attitude to the rational order component which. "The legal system in common law countries, habits and the judgment of the court was and still is the most basic (although not the only) source of law".[16]In a rational on the country, the customary law relatively by rulers left out in the cold, on this, civil law countries for suitable cases. Not only that, rational theory in civil law countries, but also with the national supreme theory and legal theory of will combine together to form of customary law, the compression force.[17]Nowadays, Anglo American law system and continental law countries also gradually merge each other's advantages, the countries of Anglo American law system have gradually attention to the law in the trial practice significance, similarly, the countries of continental law system have gradually attention to the significance of the case in the trial practice, respect the habits in criminal judicial practice significance.

Nowadays, with the development of modern rule of law, people gradually realize that, the law of a country must be based on its own national characteristics, any national law (including the criminal law) may not apply to other countries, even if it could, and accidental coincidence. Nowadays, the customary law in the framework of the principle of legality is not completely wiped out, gradually got attention. In the general theory (such as intentional boundaries, and the fault of justifiable defense, offense of nontypical omission), the provisions are not important is by the law, more is determined by the legal precedent and theory. The interpretation of law problems recognized can which is mainly related to the customary law.[18]The customary law is in Germany, Japan, Italy and other countries scholars explore even generally recognized in the constitution interpretation function. For the minority, in the deeply influenced by national customary law, itself has a "conflict" of the psychological law. In judicial practice, customary law can not be sources of criminal law, but it is still one in explaining crime and illegality judgment, accountability, must be taken into account. In addition, when there is a customary law to human behavior, behavior person to customary law is based on the implementation of behavior, may take the behavior people lack the possibility of cognition of illegality is established, eliminate crime".

    (three) analysis of differences between people, a sentence of two treatment of customary law of

    Customary law widely exists and is widely used in civil and criminal field, customary law and the principle of legality is perverse because instead of exclusion.[19]Although criminal legislation and civil legislation has many differences, for the folk wisdom and life consensus on effective absorption and cautious approval, is any legislative activities in general consensus. The author thinks, it is necessary to explore how customary law suffered "cold" in the criminal field, to further clarify the reasonable position of the customary law in the criminal field.

   1. undeniably, than other legal criminal law emphasizes stability. The practice of criminal law, instability of customary law based on, judicial personnel should be far away from habit and comply with the law. But in the Chinese background, demand in criminal practice completely from the customary law will become unrealistic. In the contemporary Chinese, "justice for the people" is an ideological requirements; in the judicial process "the mass line" is the Ma Xi a new tradition since five; in practice, "sending law to the countryside", "sending law into the village" is the judges a self-conscious activity. The reality of these China modern tradition and Chinese law, are China judge, China justice in the whole background, the background is limited Chinese judges and Chinese judicial behavior and the range of choices, but also decided in their expression of loyalty, not only to be loyal to law, but also be loyal to people; not only to the pursuit of legal effect, but also to the pursuit of social effect.[20]And respect the people's habits, respect the people's way of life is an important way to achieve better social effect of law.

   2Civil law belongs to private law., while private law itself is built on the basis of the daily life of people, therefore, respect the habits, accustomed to the legislation of civil law "instinct". "The civil law is the expansion and the inclusion of the situation in the scope of regulation, the law does not explicitly regulate social relations, also can use other methods and resources, will be incorporated into the regulation scope of their. The honest credit, public order and good customs of the basic principles of civil law is the breakthrough into the grammar limitations, the huge function expansion adjustment range".[21]Criminal law belongs to public law, that China's traditional criminal law, the crime is "isolated individualopposition ruling relations" behavior, therefore, criminal law is a legal, between the state and the criminal of this law, even the interests of victims are almost not be considered, such as the victim in the criminal prosecution no right of appeal. Therefore, China's criminal law is to consider how powerful countries to punish criminals, attention is the national penalty right side, but does not pay great attention to the crime person, protect the rights of the victim side, pay more attention to the class of criminal law. Therefore, people's habits is rarely considered. However, generally believe that in today's society, is not only the criminal human rights, the rights of victims should be respected. And the respect for the human person, both criminal and victim, with respect to its usual custom is a necessary way.

   3In our country, the customary law is not based on certain historical background field of criminal law value.1997After the new criminal code promulgated, China first established the principle of legality, the rule of law is often understood as a form of the rule of law. In a complex social and economic developed, certainty requires a high degree of law, but not the natural law that handed down to provide security, therefore, produced on the rationalism, in the abstract -- craving laws generally formal.[22]In the formal rationality of the respected, "national customary law is considered as a backward, and the national criminal law is not on traditional knowledge and suffered a severe negative. However, the reality is, ethnic customary law and not because of extrusion state criminal law and quit the stage of history, it is still the overt or covert way of permeability to solve conflict in criminal".[23]

Field should pay attention to the customary law interpretation, criminal law three

Based on the important significance that customary law in the field of criminal law on, how to respect the customary law in the field of criminal law, especially to deal with the relationship between statutory and customary law, worthy of study. At the present stage of our country, the process of the rule of law is in the primary stage, at the expense of statute law and customary law of maintenance, breakthroughs in the development of law and a large number of application of customary law, it is a very dangerous thing. The process of criminal legislation on the customary law in the collection, collation, conducive to closer between criminal law and the people's sense of identity. In fact, the majority of rural society, many contents in the customary law, such as rural people about the regulation of many contents are directly copy the current legislation. This shows, two are fused to a certain extent. Stability method based on the current criminal law, not possible to mass modification of the premise, the author thinks, should consider the customary law in the interpretation of criminal law perspective. "The attitude of rejection in the past to the ethnic customary law adopted is questionable, must seek the national criminal benign interaction mechanism between law and customary law. The aim of criminal law interpretation, in a reasonable explanation theory is to realize the benign interaction is an important way to".[24]In the interpretation of criminal law has developed situation, criminal judicial power should pay attention to the customary law and statute law in a certain degree of integration. As some scholars have pointed out, "to the criminal law and the needs of the people the best way between appropriate compatibility, is a useful resource recognition and absorb the customary law in the formulation of the criminal law in. This is a fundamental way to prevent each other between law and life of alienation and separation. However, we cannot guarantee, criminal law makers will be in the legislation to properly comply with public opinion and absorb the customary law, and criminal law, has the stability, once completed and impossible in a short period of time to change. Therefore, as a kind of relief, through the criminal law to continue to repeat and give them a traditional, custom content, in order to maintain its synchronous development with morality and customs, it may be an appropriate complement mechanism. This is the power of legal interpretation".[25]

    The interpretation of criminal law can handle the relationship between criminal law and the customary law, its important reason lies in the criminal law, customary law itself as "reserved" a certain space. China's criminal law article13A provision, "plot remarkable slight harm not big, not be considered a crime", and how to identify "the plot remarkable slight", can have the customary law of position. China's Macao criminal law in legislation and customary law reserved interpretation space. Macao penal code article30Article1Paragraph: "on the whole be considered legal order, that the illegal facts as the legal order of resistance is, the fact is not punishable." This provision shall not be punished, in fact, can be considered from the "whole" legal order, this is the customary law as a crime for which provide space. With the development of the absolute principle of legality to the relative legal doctrine of crime, especially explain the theory developed, the Open Constitution of crime settings, provide the theoretical space for accommodating the customary law of crime in law. The customary legal principle of crime and punishment of the law, is not to customary law as the crime according to the. Based on the concept of crime, the conviction of a citizen, in any case must follow. However, the customary law as a crime according to the legal principle of crime and punishment is not exclusive. In other words, the customary law in the absorption of certain social moral concept, eliminate the rigidity of law, the handling a case more in line with the reasonable aspects, mainly is one kind of the crime, this is undeniable.[26]

In the contemporary China, some habits impact folk or instead of the provisions of national law, if we allow folk according to customary law, state law is useless. "Compensation for the life price" customary law as an example. Compensation for the life price, in short, is "punishment to the people", the current law should be treated as a crime of causing the death of the victims (such as death caused by negligence, intentional injury death, murder, etc.) as long as the behavior of compensation for the victims of a certain amount of "life price", will not be investigated for criminal responsibility the defendant. From theTubo Period"Hunting law concerning compensation for injury" established "compensation for the life price" system of Tibetan history, local laws have stipulated "compensation for the life price" content. With the development of history, "compensation for the life price" is not only suitable for processing due to negligence causing death cases, treatment but also gradually applied in the crime of intentional homicide. Only from the ad692Formulate the year after Song Xan Gan Bbu took office the first statute law "twenty" the date, so far, "compensation for the life price" customary law has a history of over one thousand years.[27]Obviously, this approach is directly contrary to the criminal law. In practice, the judicial administrative department legislative, Tibetan has also introduced a ban on "compensation for the life price" customary law decision. The resurgence of compensation for the life price, interfere with the applicable national law in these areas, brings very big impact, the area of criminal justice at the same time, a number of initiatives to national and banned from compensation for the life price do little.[28]Implementation of the "Regulations of compensation for the life price" of the area against the national criminal law is very simple: since it has been lost, but people have died, and then the murderer kill again have what use! According to the survey, if the defendant compensation for the victims and their families loss, judicial executions and words, often leads to the following results: on the one hand, the victim's family will be subjected to the local people in the local cast aside, she could not live, and even produce new social problems; on the other hand, the people will think that since the perpetrators of compensation for the victims and their families of the loss, but also sentenced to death, the state criminal law is not human. Here, the national criminal law has become a hate thing, establish is obviously not conducive to the legitimacy of the criminal law.[29]If the strict provisions of criminal law from the form of compliance, after the compensation for the victim's property, tough sanctions must undertake the customary law, the inevitable "double duty" phenomenon, which is obviously to the crime person is not reasonable. In fact, "compensation for the life price" can in certain regions persisted for so long, will have its rationality. In their culture, "kill" culture. Since the act has caused the death of the victim, and the behavior of the dead, is once again on their inherent cultural destruction. If you can think of a culture in the framework of the interpretation of criminal law, respect the "compensation for the life price" reasonable, and does not destroy the establishment method, which can achieve a win-win. The author believes that, in the premise of crime have be some compensation for the families of the victims of crime, has shown that harm people through their own efforts for their own behavior caused by remedy, can consider lenient punishment to crime to some extent, try to choose not sentenced to death immediately, without provisions necessary to amend legislation. The development for the felony criminal settlement agree without prior without previous consultation, customary law and "compensation for the life price", also agree without prior without previous consultation and limit, the abolition of the death penalty idea. In fact, "compensation for the life price" concept is popular in certain area, and the people forgive culture are inseparable.