论文部分内容阅读
Tibetan areas in Sichuan province include Ganzi Tibetan Autonomous Prefecture , Aba Tibetan and Qiang Prefecture , Muli Tibetan Autonomous County , and some Tibetan Autono-mous Townships scattered in Mianning County , Yuexi County , Ganluo County of Liangshan Yi Autonomous Prefecture , Baoxing County of Ya ’ an District, Pingwu County and Beichuan County of Mianyang District . Among these areas , Ganzi Prefecture and Aba Prefecture are the main Tibetan areas in Sichuan province . The stability and de-velopment of Tibetan areas in Sichuan Province are important for the stability of the Tibetan Region and even for the entire country.Historically, an important cause for the bloody conflicts and insta-bility of this region was the competition over the re-sources in the grasslands and border areas . For several decades after democratic reform , the num-bers of these kinds of criminal conflicts maintained a fixed level, and did not increase .This was ob-viously due to an overall lag of national economic development together with strong governmental con-trol.However, during the recent decade , rapid economic and social development in this Tibetan area of Sichuan and the diversification of the bene-fit structure became one of the main reasons for the increase in these kinds of criminal conflicts .The cause of these conflicts include the competition o-ver resources , such as the grasslands , Chinese caterpillar fungus , matsutake mushrooms , with neighboring provinces , counties , township or vil-lages.The conflicts are also caused by environ-mental issues resulting from present economic de-velopment projects , such as hydroelectric develop-ment , sand excavation and mining explorations . There are also conflicts due to traffic accidents , medical disputes and other events .These conflicts are always followed by serious consequences , in-cluding the loss of life and personal injury , the loss of property etc .Some cases are very difficult to resolve and control .In history, these kinds of conflicts were generally managed by the adminis-tration of the tusi ( native official ) , monasteries or the village administrations according to customary law.Because financial reimbursement was the main way to handle the conflicts , later scholars called this “reconciliation”.Solving various con-flicts through this kind of “reconciliation” has a very long history in the Tibetan areas of Sichuan province , and it effectively maintained the stability of the local social order . The various tusi in the Tibetan areas of Sichuan kept their own powers and formed their own independent political powers be-fore democratic reform . These tusi were an inde-pendent political entity within their own administra-tive areas, and powerfully managed affairs in their own areas according to their own tribal customary law.However, regarding to their “external rela-tionships”, because they were not subordinate to each other , they were often in a state of competi-tion.Hence, when there were conflicts , “pres-tigious Lama, tusi, rich men, or old men”would be invited to handle the conflicts . Re Naiqiang has written a detailed descriptionon the process of conflict resolution .The method used in the Tibetan areas in Sichuan to resolve conflicts was negotiation , and the punishment to the person who caused the harm was financial reimbursement ( reflected mainly in “the price of life” and “the price of blood”) . The people who handled this kind of conflict were often the heads of a third par-ty or Rinpoche , or eminent monk .However , this kind of negotiation lacked the coercive force for im-plementation , and, once the agreement was viola-ted, all previous efforts were wasted , and all would return to disorder .Of course, in most ca-ses, the negotiations made by third partis were very effective .There were two reasons for this ef-fectiveness: 1 ) the preference of order and stabil-ity was a choice stemming from human instinct;and 2 ) this kind of agreement often included reli-gious content .After democratic reform , following the collapse of the political power of the tusi , and its replacement with a system of local administra-tive organizations on various levels ( including county, township and village level organizations ), judicial organs on various levels ( public security organs, the people′s procuratorate or the people′s court) the traditional system for conflict resolution was demolished .The institutions mentioned above were responsible for resolving different disputes and conflicts according to the national law .In or-der to have an overall understanding of present criminal reconciliation in the Tibetan areas of Si-chuan , we conducted an investigation by handing out questionnaires to the local people , staff in ju-dicial organs and monasteries , and also inter-viewed some administrative cadres from county and township administrations . This was done so as to understand their thoughts on and understanding of local criminal reconciliation .According to the in-vestigation , for those cases which have big impact in Tibetan areas and are difficult to solve , the main method was to combine the various strategies ( such as religious powers , administrative organi-zations at the basic levels ) to solve conflicts.
Current criminal reconciliation practices in theTibetan areas of Sichuan include reconciliationsoutside lawsuits and reconciliation within lawsuits .Those in charge of reconciliation outside lawsuitsare other organizations.The judicial organs do notinvolve themselves, or if they are involved, theyonly play an auxiliary role.The basis and procedurefor dealing with conflicts basically does nothave legal attributes.There are generally two situationsregarding reconciliation outside lawsuits.The first situation is related to remote areas whereit is difficult to carry out national law.This is dueto the restrictions caused by natural geographicalconditions.The second situation is related to thelocal government’ s handling of some collectiveconflicts in recent years.This kind of dispute involvesa wide circle, and has serious consequenceson the local area.Hence, although it belongsto legal issues, it has already transcendedthe solving ability of the law.Reconciliation withinlawsuits often happens in the areas where thetransportation is more convenient; the economiclevel is higher; and the influence of the nationallaw is deeper.The major players of reconciliationwithin lawsuits are the national judicial institutions,including public security organs, the people′s procuratorate and the people′s court.The judicialinstitutions play, respectively, their functionsof investigation, prosecution and judgment.Conflict management normally is based on the nationallaw, and the management procedure isbased on the national criminal procedure .However,some of the local traditional customs, especiallythe customs in some counties or townshipswhere the Tibetan population is more concentrated,will also have an effect on the specific sentencingprocess.
At present, criminal reconciliation is appliedwidely in the Tibetan areas in Sichuan.Therefore,its necessity and rationality should doubtlessly beconfirmed.However, there are still some problemsin the Tibetan areas of Sichuan province.Forinstance, due to the party’ s lack of correct understandingof the national law, he or she mightappeal again after a reconciliation judgment becausethey think that national law has been heavilyhanded down on him /her.Some customary lawsrelated to the aggregate amount of compensation normally require that the party pay back a threetimes or six times the price.If the parties are requiredto take the criminal responsibility as well,the suspicion of the secondary judicial is very bigfrom the perspective of moral principle.Moreover,due to the lack of enforceability in the compensa -tion reconciliation, the waste of judicial resourcesresulting from the parties’ pulling back of the contentin the agreement is one more problem.Hence, bringing criminal reconciliation in currentTibetan areas of Sichuan into a standard system iswhat the lawmakers need to think about in theirnext step.It is necessary to improve the currentcriminal reconciliation system in the Tibetan areasof Sichuan in the form of local legislation.Thestatus and rights of the reconciliation moderators,the criterion for the basis of reconciliation, therange of criminal reconciliation, the connection ofthe reconciliation outside and within lawsuits, andso forth, should all be considered.Meanwhile, itis also an important way to govern Sichuan Tibetanareas according to the law through further strengtheningpublicity of the law to the local population,promoting appropriate reforms to religious doctrine,and integrating them into the national criminal lawideology .
Current criminal reconciliation practices in theTibetan areas of Sichuan include reconciliationsoutside lawsuits and reconciliation within lawsuits .Those in charge of reconciliation outside lawsuitsare other organizations.The judicial organs do notinvolve themselves, or if they are involved, theyonly play an auxiliary role.The basis and procedurefor dealing with conflicts basically does nothave legal attributes.There are generally two situationsregarding reconciliation outside lawsuits.The first situation is related to remote areas whereit is difficult to carry out national law.This is dueto the restrictions caused by natural geographicalconditions.The second situation is related to thelocal government’ s handling of some collectiveconflicts in recent years.This kind of dispute involvesa wide circle, and has serious consequenceson the local area.Hence, although it belongsto legal issues, it has already transcendedthe solving ability of the law.Reconciliation withinlawsuits often happens in the areas where thetransportation is more convenient; the economiclevel is higher; and the influence of the nationallaw is deeper.The major players of reconciliationwithin lawsuits are the national judicial institutions,including public security organs, the people′s procuratorate and the people′s court.The judicialinstitutions play, respectively, their functionsof investigation, prosecution and judgment.Conflict management normally is based on the nationallaw, and the management procedure isbased on the national criminal procedure .However,some of the local traditional customs, especiallythe customs in some counties or townshipswhere the Tibetan population is more concentrated,will also have an effect on the specific sentencingprocess.
At present, criminal reconciliation is appliedwidely in the Tibetan areas in Sichuan.Therefore,its necessity and rationality should doubtlessly beconfirmed.However, there are still some problemsin the Tibetan areas of Sichuan province.Forinstance, due to the party’ s lack of correct understandingof the national law, he or she mightappeal again after a reconciliation judgment becausethey think that national law has been heavilyhanded down on him /her.Some customary lawsrelated to the aggregate amount of compensation normally require that the party pay back a threetimes or six times the price.If the parties are requiredto take the criminal responsibility as well,the suspicion of the secondary judicial is very bigfrom the perspective of moral principle.Moreover,due to the lack of enforceability in the compensa -tion reconciliation, the waste of judicial resourcesresulting from the parties’ pulling back of the contentin the agreement is one more problem.Hence, bringing criminal reconciliation in currentTibetan areas of Sichuan into a standard system iswhat the lawmakers need to think about in theirnext step.It is necessary to improve the currentcriminal reconciliation system in the Tibetan areasof Sichuan in the form of local legislation.Thestatus and rights of the reconciliation moderators,the criterion for the basis of reconciliation, therange of criminal reconciliation, the connection ofthe reconciliation outside and within lawsuits, andso forth, should all be considered.Meanwhile, itis also an important way to govern Sichuan Tibetanareas according to the law through further strengtheningpublicity of the law to the local population,promoting appropriate reforms to religious doctrine,and integrating them into the national criminal lawideology .