Discussion On The Judicial Interpretation Of The Supreme Court In China

The Judicial Interpretation of the Supreme Court in China, which is as old as thenew government of China, is a kind of legal phenomena with Chinese Characteristic.Though it is put into practice so widely, it has many questions need to research, whichare significant because they relate closely to the construction of rule of law in China.The dissertation put emphasis on the discussion of the reasonableness of the JudicialInterpretation in present China.After the careful research on the Judicial Interpretation from its coming intobeing to now, we find that after the Cultural Revolution it made great difference onamount, content, form, language and other aspects with it before the CulturalRevolution. It means that the judicial power expanded greatly and the Supreme Courthas more and more confidence with the time going. At another aspect the SupremeCourt could not break the political shackles though he tried to separate the politics andmorality from the law in Judicial Interpretation. As to the reason why the JudicialInterpretation was born, we think that interpreting the law and policy of thegovernment identically, supplying the legitimacy for the trial of the courts of thewhole China and the means for the Supreme Court supervising the lower courts of thecountry are the main reasons after researching the social background of the TheResolution on the Problem of Legal Interpreting issued by the Standing Committee ofNational People's Congress in 1955. And the mode of administrative system inJudicial System is the reason why the Judicial Interpretation has such form. The wantof trial of the courts, the want of politics and the want of perfecting the judicialsystem are the three main reasons that cause the different concrete JudicialInterpretations produced. The Constitution of 1982 in China had canceled the powerthat the Standing Committee of National People's Congress can issue Decree so thatthe Resolution On Enhancing the Legal Interpretation Work issued the StandingCommittee of National People's Congress in 1981 could not legitimate the JudicialInterpretation for it is a decree. And the Supreme Court broadened unreasonably themeaning of the 33rd Article of the People's Court Organization Law when heinterpreted it for legitimating the Judicial Interpretation. So we need to amend laws tolegitimate the Judicial Interpretation. And only when we regard 'Legal interpretation'in our constitution and the Law of Making Law as a special term that can the JudicialInterpretation Power not conflict to the constitution. The form of JudicialInterpretations is also unreasonable because they are abstract rules. It will make theJudicial Interpretations produce more Interpretations and make the judges rely moreon the Judicial Interpretation then on law. This will harm the authority of law and theability of the judges on legal reasoning and legal argumenting. As to the substantialrationality of the Judicial Interpretation, the Supreme Court believes that it bases onsuch aspects: interpreting and applying the law identically and rightly, making up thevacancy of the statute law and overcoming the local blockage. After analyzing theseaspects carefully, we think that the Supreme Court could not reach these aims by theJudicial Interpretation. Nerveless the present Judicial Interpretation will do harm tosome important legal values such as the independence of the lower courts. So theSupreme Court should think over the relation between his aims and its means andre-evaluate the function of the Judicial Interpretation. After this we research theinterpreting methods of the Judicial Interpretation and find that there are about twentyinterpreting methods adopted by the Supreme Court. From the frequency of thesemethods we find that the Supreme Court has strong substantial thinking mode. Thisthinking mode is not in favor of the practice of respecting the legal rule. Then wediscuss the aim of the legal interpretation from two aspects. One is the relationbetween the legislative power and the judicial power. The other is the legaldevelopment on history. We think that we shall think over the aim of the law weinterpret on the base of respecting the legislator intention. However, the aim of'uniting legal effects and social effects' when interpreting law put forward by theSupreme Court is not the aim of interpreting law we discuss. From the view of trialpractice, the 'social effects' of legal interpretation is often misused by lower courts.So we shall call for 'legal effects' now. The last question we discuss is the role ofSupreme Court in interpreting constitution. In reality there is no true constitutioninterpretation in China. The present constitution does not authorize the Supreme Courtthe power of interpreting constitution. The more important point is that from thepractice of the Judicial Interpretation of the Supreme Court we can not believe that theSupreme Court could do a good job in interpreting constitution. And the status andstrength of the present Supreme Court is not strong enough to do this job. We thinkthat the task of the Supreme Court now is to be more patient, take more measures onperfecting the judicial procedure, give more respect on law, win more public opinionsupport, and engage in a peaceable reform on China legal system.