青海藏区“赔命价”习惯法与刑事制定法的互动关系

The Interaction of the Customary Law of Cost of Life in Tibetan Area in Qinghai and Criminal Statutes

在世界各国的国家正式法中,刑事制定法是推进效果最令人满意的法律。制定法成为唯一正当的法律渊源,除国家及其制定法以外,再不能允许其他主体、其他规范拥有配置和发动刑罚的权利。但是,从社会发展的规律看,我们必须认识到,习惯法是在长期反复的博弈和筛选之后自然演化而成,占据着时间惯性的强大优势。习惯法是在乡民的长期生活中积累而成的经验和共识,受到民众内心深处的信奉与认同,更符合他们的利益取向。进而,习惯法和制定法之间的紧张对立关系发展开来。因此,对于少数民族地区来说,习惯法与刑事制定法是存在着良性的互动关系的,青海藏区形成的"赔命价"习惯法正是习惯法和制定法互动关系下最有利的佐证。

In the formal law of countries in the world, the criminal law is the most satisfactory law to promotethe effect. Criminal law, which bears a peacetime state authority to exercise the core role, is also a political state control of important territory and never allowed folk strength interference and involvement. Criminal law has un-doubtedly become the country＇s most power to give up the bottom line. The formulation of law as the sole legitimate source of law, in addition to the state and its development law, can not be allowed to other subjects, other norms have the right to configure and launch the penalty. However, from the perspective of social development, we must recognize that the customary law is a long-term repeated game and screen after the natural evolution, which occu-pies a strong advantage of the inertia of the time. Customary law is the villagers for a long life of the accumulation of experience and consensus, close to real life, from deep in the hearts of people believe in and identity, more in line with the orientation of their interests. Then, there must be a tension between the customary law and the law of the conflict. However, for the ethnic minority areas, customary law and criminal law are benign Huan moving relation-ship, Qinghai Tibetan formed lose the life price ＂ customary law is customary law and the development of the inter-active relationship between the law under the most favorable evidence.