On The Power, Procedures And Documents Of Judicial Interpretation By Supreme People's Coutr

The Supreme Court's judicial interpretation draws much attention of legalpractitioners and the favor of the legal theory workers. Around the system of theSupreme Court's judicial interpretation and related issues,academia has launched along-lasting discussion. Relative to the theoretical analysis,perhaps empirical studymay more directly find the question which really has legal and practical significance.This paper attempts to do such an effort: depending on 349 judicial interpretationsand relevant literature enacted by the Supreme Court as empirical resources since1997 when judicial interpretation standardization process starts,to inspect "theSupreme Court's judicial interpretation". Related discussion is around the followingthree issues:the power of judicial interpretation and judicial interpretationprocedures,and judicial interpretation files. In the system of judicial interpretation,these three are inseparable:the power of judicial interpretation is the starting point toestablish judicial interpretation system, the dynamic process of the exercise ofjudicial interpretation power is the judicial interpretation procedure,and itsmaterialized achievement is the judicial interpretation file.About "the power of judicial interpretation by the Supreme Court",this paperdiscusses two problems. The first issue is the normative legitimacy of the power tointerpret the specification. Specification of the Supreme Court's power ofinterpretation is scattered into different legal documents. Through the normativeanalysis,as well as its effectiveness is proved,it can be identified that theSupreme Court 's power of legal interpretation has the current legal basis; in thenormative level,it can be defined as the power while the Supreme Court makeconcrete application interpretation in trial work. The second question is the actuallegality of the power of judicial interpretation. In the present stage,subject to the imperfect law and the reality of the situation of current court system,SupremeCourt formulates relevant legal rules through the exercise of the power of legalinterpretation. It is the only system selection to legal perfection in order to meet thetrial needs. And the actual operation of the Supreme Court's power of legalinterpretation conveying the rich content to "the concrete application of the law" inthe normative level,at the same time,also found the harmonious coexistence logicwith other subjects who also have interpretation power. In short,the power ofjudicial interpretation of the Supreme Court meets the trial needs. The exercise ofpower is within the framework of the legal limit,and is rarely associated withconflict,therefore,it has realistic legitimacy.About "the procedures on the Supreme Court's judicial interpretation",according to different procedures,this paper takes a different inspection strategy.Firstly,on making process of the judicial interpretation,the discussion startedfrom two aspects,the specification and the actual operation. Procedures and rulesof judicial Interpretation are too general,it is difficult to form a substantiveconstraints on the formulation work. In the development of judicial interpretation,the Supreme Court focuses on consideration of factors such as law,trial practice,judicial policy and social reality. To a certain extent,this approach make updeficiencies for the system mentioned above,but the kinds of considerations arealso pros and cons to both. Secondly,there are less relevant norms on changes,repealed,cleaning,supervision procedures of the judicial interpretation,andrelevant discussions commence from the actual operation of these procedures. Goodoperation of changes,cancellation,the clean-up and supervision of judicialinterpretation is a necessary condition to achieve standardization,systematizationand legalization of judicial interpretation. The chaotic state of complex rules ofSupreme Court is closed related to the previous program's "casual" and "slack". Thisis mainly manifested as,on the one hand,the Supreme Court rarely start changes,cancellation,clean-up procedures on judicial interpretation; on the other hand,very few body standing on their rights start supervisory procedures,the Supreme Court in most of the time enjoys the supervision exemption of their judicialinterpretation by using anti-supervisory strategy.About the "Substantial legitimacy of judicial interpretation files by the supremepeople court",this paper discusses four questions. The first is "the normative statusof the judicial interpretation". The judicial interpretation by the Supreme Court isnormative legal documents,its effectiveness is under the law. The Supreme People's court should further consolidate the independent status of judicial interpretation, soas to better guide the judicial practice. The second is "the necessity of judicialinterpretation". The Supreme People's Court's judicial interpretation should besubject to two factors,namely the demand of judicial practice and the complexityof legal issues. To meet the above two conditions of the judicial interpretation willmeet the necessary requirements. Through empirical study,it can be found that inthe judicial interpretation,necessary explanation and unnecessary interpretationboth exist,each of them can be divided into different types. Thirdly,it is about the"legality of the content of judicial interpretation". Judicial interpretation must acceptthe interpretation object's constraints,namely the content of the judicialinterpretation should be" legitimate". "Legitimacy" means that judicial interpretationcan not be contrary to law; violation of legal cases include violates the legalpurpose,contrary to legal principles and rules of law. The three kinds of situationsin judicial interpretation can be found in the example. Fourthly,judicialinterpretation must accept the position's constrains,it is mainly manifested as thejudicial interpretation's effectiveness should meet standardization requirements.Rules of judicial interpretation of the "time effect" are very imperfect,and itseriously impact on the uniform application of judicial interpretation. In this regard,the Supreme Court shall promptly study and formulate the appropriate rules,so thatthe effectiveness of judicial interpretation meet the standardization requirements.About form legitimacy of judicial Interpretation,this paper investigated thejudicial interpretation documents'three main components - the number,title,andbody. About the request of form legitimacy,there is a high degree of standardization of the number; but there is a low degree of standardization of thetitle,and their respective components'degree of standardization is also inconsistent.Among them,the more standard is "file form",the heading styles is veryconfusing; title content is inadequate in four aspects such as normalization,clarity,simplicity and uniformity; "caption" is used excessive. The body of judicialinterpretation file is composed of two parts,the enactment and the provisions,theprovisions are according to certain style choreography. "The formulation of mainmeaning" is too general and even errors,it can be omitted from the judicialinterpretation of document. There is a part of the judicial interpretation layout is notstandardized,which should be corrected. Content of judicial interpretation also lackthe normalization,clarity,simplicity and uniformity as content of title.The system of judicial interpretation by the Supreme People's Court is amicrocosm of the judicial system. It clearly reflects the complex and difficult processof the rule of law in China. With the development of the rule of law and society,system and forms of judicial interpretation by the Supreme Court may be undergoinga fundamental change. However,at present,the Supreme Court need to furtherexplore the various programs that improve the system of legal interpretation andefforts to practice hard,so that the system is able to leave an indelible mark in thebuilding process of the rule of law.