刑法视域下民族习惯法司法适用性研究

Research on the Judicial Applicability of the National Customary Laws within the Area of the Criminal Law

习惯法作为一类社会规范,发挥其特有的社会调节作用。但在刑法视域下由于罪刑法定原则的确立,排斥习惯法以及成为理论共识,造成习惯法处于被压制地位。本文通过构建习惯法的理论基础来探讨习惯法在刑法视域下司法适用性相关的问题以及应有的司法态度。

As a kind of social criterion, customary laws play a special role in social regulation. However, within the area of the criminal law, due to the establishment of the principle that the crimes and penalties can only be confirmed by the stipulation of the criminal law, the exclusion of customary laws has been regarded as the common theory, putting the customary laws in a suppressed status. This article, through the theoretical foundation of the construction of the customary laws, discusses the judicial applicability of the customary laws within the area of the criminal law and the proper judicial attitude towards them.