Research On The Power Of Legal Interpretation

In our country, scholars have achieved much production on the research of legal interpretation domain, but the research on the power of legal interpretation just lies in the beginning phase. Much problems on legal interpretation can be attributed to the power of legal interpretation, thus the research on the power of legal interptation not only brings crucial significance to the research on legal interpretation problems, but also do good to the foundation of a rational legal interpretation system. In current China, the research on the power of legal interpretation can help us to accelerate the process of our judicial reform and push our construction of rule of law.In this thesis, the research on the power of legal interpretation expands from those questions such as the concept of the power of legal interpretation, the master of the power of legal interpretation, the object of the power of legal interpretation, the content of the power of legal interprertation, the exertion and restriction of the power of legal interpretation, the compare between the power of legal interpretation and other correlative powers, the scheme of the power of legal interpretation in current China. I want to form a relatively integrated theory system on the power of legal interpretation, and scan our actual status of the scheme of the power of interpretation according to the theory, then put forward some advice. Positive analyse is the main research method in this thesis, and based on judicature position, I regard the power of legal interoretation as a part of judiciary power, so some discuss to the power of legal interpretation may be similar to judiciary power, but the power of legal interpretation is not took as judicial power.In China and Occident, legal system or legal thoughts about the power of legal interpretation have appeared from of old. In the legal thoughts of anglo-american legal family, the power of legal interpretation is not put forward as a problem, for they think that the judge hold the power of legal interpretation is self-evident. In the legal thoughts of continental legal family, judge's power of legal interpretation was once denied, but is admitted at last. In our country, the research on the power of legal interpretation is not profound, but scholars have admitted that some departments of our country interpret law shows that they hold the power of legal interptetation. According to its nature, the power of legal interpretation belongs to the judicial power, and it is the power that judiciary clarifys all kinds of sources of law which is used and the fact of case in judicial process, so it takes on some obvious judicial character.In the three kinds of departments including legislature, administration and judiciary, why should judiciary hold the power of legal interpretation? Firstly, legislature can not hold the power of legal interpretation.The reasons are those: (1) According to hermeneutic principle, once legislature legislate, it separates from the law. (2) ligislature holds the power of legal interpretation goes against the stability of law, and violates the principle of power abruption.(3) legislature does not need to apply law, and does not need to interpret law, too. (4) The interpretation by legislature would be interpreted at last, so it hold the power of legal interpretation has no sense. Those excuses that claim legislature to hold the power of legal interpretation can not come into existence. Secondly, administration can not hold the power of legal interpretation.The reasons are those: (1) Administration holds the power of legal interpretation violates the principle of power abruption. (2) The social role of administration decides that it hold the power of legal will lead to unfair. (3) The interpretation of administration has no final effectiveness, so it holds the power of legal interpretation has no sense. Those excuses that claim administration to hold the power of legal interpretation can not come into existence. Thirdly, prosecuting department can not hold the power of legal interpretation. No matter prosecuting power belongs to administrative power, judicial power, both administrative power and judicial power, or a kind of power out of legislative power, anministrative power and judicial power, prosecuting department can not hold the power of legal interpretation. Lastly, only judiciary can hold the power of legal interpretation. The reasons are those: (1) The nature of legal interpretation demands judiciary to interpret the law.(2) Judiciary holds the power of legal interpretation is the inevitable demand by applying law. (3) Judiciary holds the power of legal interpretation shows the power abruption. (4) Judiciary can interpret the law better. In judiciary, the unitive power of legal interpretation should be held by the Supreme Court, and the individual power of legal interpretation should be held by judge.What is the object of the power of legal interpretation? Generally speaking, all kinds of sources of law can become the object of the power of legal interpretation. The interpretation to positive law, unwritten law, case law, international law, justice concept, legal theory, has different request and brings different problem. The facts can also become the object of the power of legal interpretation, the course that judge cognize facts and clarify facts' sense is the course that judge interpret the facts. At the same time, judge's interpretation to the law and facts is not isolated, this course happens during the circle between the law and facts, so the mutual rernodification between the law and facts becomes the object of the power of legal interpretation.The power of legal interpretation is a general appellation, it includes ample content, and can be divided into discovery power, clarifying power, argumentation power and verdict power. Discovery power is the beginning of the power of legal interpretation, so it becomes the first content of the power of legal interpretation. Combined with the facts, judge should clarify the legal sense of the law discovered, so clarifying power becomes the second content of the power of legal interpretation. Whether the legal sense clarified by judge can come into existence, needs judge to argue, so argumentation power becomes the third content of legal interpretation. Nomatter in the argumentation course or not, judge need come into verdicts continuously, so verdict power becomes the last content of the power of legal interpretation. Those four powers have mutual contact.The exertion of the power of legal interpretation is not have the judge's fling, it is restricted in some aspects. No matter how to be exercised, the power of legal interpretation must be based on the law, so the sources of law becomes the obvious restriction to the power of legal interpretation. Judge's individual factors restricts the power of legal interpretation, too, for although judge tries his best to realize the justice, his interpretation act can not break away from his political idea, culture and tradition, life experience and cognition ability. Legal interpretation needs the participation of the legal profession community. The different number of legal profession community has different interpretation, which must be taken into account by judge, and the judge and the legal profession community realize the mutual remodification, thus the legal profession community becomes another restriction.During the three kinds of power such as legislation, administration and judicature, the power of legal interpretation is similar to legislative power and judicial power, we should make a compare between them. The power of legal interpretation and legislative power are both exercised according to law, they both create criterion, both distribute the rights and obligations of relative person, and justice is their common the highest aim. But in those aspects such as the nature and status of power, the master and exert fashion of power, the social function and logical order, the creation extent and effectiveness scope, they are different. Since the power of legal interpretation belongs to judicial power, theie common feature is obvious, but they have some difference in some aspects such as idiographic content, exert scope, object they disposed, emphasis of the power and direct aim.Our research on the power of legal interpretation should serve our construction of rule of law. The legal interpretation system of our country had drived our legal system construction, but it does not adapt to our need to construct our country of rule of law any longer, which takes on three conflicts between one interpretation and excessive interpretation, judicial interpretation and prosecuting interpretation, and legislative interpretation and legislation. Reviewing the scheme of the power of legal interpretation in anglo-american legal family country, continental legal family country and our Taiwan district, we can find the rule of the scheme of the power of legal interpretation, which shows that the power of legal interpretation is held by judiciary and is run passively, at the same time judge holds the power of legal interpretation in individual case. Consulting their system and according to our praxis, we put out the following assumption to collocate our power of legal interpretation: constitute a Interpretation Act to prescribe legal interpretation, which impower the power of legal interpretation to court, the Supreme Court hold the unitive interpretation power and judge hold the individual interpretation power.This thesis just do some elementary research on the power of legal interpretation, becourse of some reasons, some questions have not been expanded, and more questions have not been discoursed, they need to be completed in the later research.