A Study On Status Of Normative Judicial Interpretation In Source Of Law

The nature and function of normative judicial interpretation are studied in this paper. The writer's conclusion is that its nature is alternative legislation, its function is consummating and develop legal system. Therefore, as a pattern of manifestation of legal norm , normative judicial interpretation ought to be a source of law. The content of the doctoral dissertation is as follows.The first part is a introduction of the dissertation, which is to define several concept, including source of law, formal source of law and informal source of law , and etc. Then the writer puts forward his questions. The first is that, if the legal interpretation is solely confined into the interpretation made by government agency with binding effect, that will lead to a wrong conclusion that is ,lawyers and the public should not interpret the law. But actually, the writer argues that everyone has the right of power. The second is , what is source of law? The notion that the source of law is the external manifestation of the law , is too limited .The kernel of the source of law is the origin of the law, which not only contain the contents but also the external form of the law.The first chapter is to explain the nature of the judicial interpretation. The concept judicial interpretation is diverged greatly and hard to communicate. So it is very necessary to clarify judicial interpretation. The writer consider that judicial interpretation concludes the normative interpretation which has legal force made by the judiciary committee of the supreme court ,and individual interpretation, which is made by the court lower the supreme court, and the judges, to the individual cases. China has a history of normative judicial interpretation, but has no history of judicial decision made on the basis of legal precedent .Chinese legal family has, not only a highly centralized governments and totalitarian dictatorships, but also many flexible legal practice. Chinese legal family has many valuable tradition, which is worth to inherit, those factors conclude the rule of normative legal interpretation, that can keep a balance between the stability and the development of the law. The normative legal interpretation is the continuation of the normative law-making interpretation, but it of course not an interpretation made by legislature. Thereafter, what on earth the nature of the interpretation? Is it a kind of power or method? If it is a kind of power, is it legislative or judicial? The writer considers normative legal interpretation is different from the individual judicial interpretation, which is mainly a sort of method, and is different from the former, which has a legal force to guide lower court of different level. This kind of power is legislative, interpretive and alternative.The second chapter is about the concept and the system of the source of law .Some researcher in our country consider it should be only confined within the external manifestation of the law, some consider it is not the actual law, but the material source of the actual law , others can be summed up as judicial source of law ,which is opposite of legislative source .This remark is not right, for if it is a source of law ,despite of legislative or judicial, it will have same legal force. The law binds not only jurors, but also legislators. Furthermore, if the judging norm were permitted to be as law, it will lead to the concept of the live law, to break up the concept of the law, and leave a loose for the judgers to yield random judgments. If this problem could not be settled, we can not achieve"there shall be laws to abide by, everyone should abide by the law, and runs state affairs according to law". The writer consider the source of law is the origin of the law and its external manifestation, including the contents and the external origin ,the former is called the origin of substance ,and the latter is called the external origin ,that is origin of the force. Then is the normative judicial interpretation belongs to legal interpretation? The answer is positive. Then what is its nature? The writer consider ,the system of our country has a structural defects, that is the state of the conventional law and normative judicial interpretation are not clarified ,therefore the source of law is barely confined within statute law.So we must take development of the law seriously ,and acknowledge that the practice of the civil society and judiciary practice, is also the origin of law, on the basis of Official authorization or warrant. The conventional law may become the source of law if it could be approved by the legislature, the normative judicial interpretation may be authorized by The NPC and its Standing Committee. As to the boundary of the legislative and judicial interpretation, it is not clearly defined too. It come to the state that the normative judicial interpretation prevail predominantly over the legislative interpretation. These practice actually becomes an constitutional convention, which clarify the edge of them.The third chapter argues about the current situation and controversy of the normative judicial interpretation. Now the normative judicial interpretation can be made by the supreme People's Court, superior People's Court and intermediate People's Court. The author thinks that the normative judicial interpretation made by the supreme People's Court and superior People's Court should be the sources of law, but the ones made by the intermediate People's Court should not be, only having directive effect and no compulsory effect. The author finds through the questionnaire investigation that most of the courts, lawyers and civil servants think the normative judicial interpretation has legitimacy. In Soviet Russia, there are controversies in the question that whether the normative judicial interpretation belong to the sources of law between the scholars, but recently the scholars in Russia almost admit that the normative judicial interpretations belong to the sources of law although it isn't admitted in the official legal documents. In China, most of the civil law scholars approve of the legitimacy of the normative judicial interpretation, and most of the criminal law scholars object it, while most of the jurisprudent scholars keep silent about it. The author argues that the normative judicial interpretation should be the source of law whether in the theory or in practice, because it has been developed during the process of building the legal state and has no harm to it.The forth chapter argues about the rationality of the normative judicial interpretation. What function does the normative judicial interpretation have? The author argues that the normative judicial interpretation is helpful to reunite the understanding and applying of the law because it can provide more concrete legal rules. It has some creativity, not being localized in the skin-deep meaning of the law. In order to apply the legal provisions, it is necessary to search the purpose and tenet of them and interpret them. The judicial office is responsible not only to the People's Congress, but also to the citizens and the society. The normative judicial interpretation links the law and the society, being the rain glass of the social relationship, being the foreland of the legal development. It should also build a bridge between the law and the social need, the law and the policy, the law and the morality, the law and the social custom, between keeping the peace and discretion, exerting as a kind of lube. This is its function and its rationality. Through summarizing and reflecting the legal practice, the normative judicial interpretation creates the new concrete rules between the crack of the legal rules.The fifth chapter argues about the legitimacy of the normative judicial interpretation. What the basis of the legitimacy of the normative judicial interpretation, since it is the legislative documents and the source of law. Is it the constitutional law or the basic law or the ordinary law? The author thinks that it is basically the constitutional law although it is prescribed in other laws. The constitutional issues are not necessarily prescribed by the constitutional law because it is not suitable to prescribe some immature issues through the constitutional law, and it is better to resolve them in practice. The modus operandi in the long historical practice will be the universal rules and the constitutional tradition unless it disobeys the constitutional law. The direct basis of the normative judicial interpretation is the resolution made by the standing committee of the national People's Congress and the indirect basis of it is some rules of the constitutional law and constitutional tradition. The direct ones are to resolve the legitimate effect of the normative judicial interpretation and the indirect ones are to resolve the legitimacy of the normative judicial interpretation as the basis of adjudication and source of law.The sixth chapter argues about the development trend of the normative judicial interpretation. The current situation is that, on one hand, there are a large amount of the normative judicial interpretation exerting on the production and the people's life; on the other hand, it isn't accepted in the theory. Then what is the future of the normative judicial interpretation? Is it a kind of staggered and transitional institution? If not, what is the relationship between the normative judicial interpretation and the case guiding system. The author argues that although there is tradition of codifying cases and codifying laws and regulations, it does not mean that there is tradition of case law. There are much difference between the prejudication and the case. There is no more surplus space left for the development of the case law because there is an absolutely perfect system in the positive law. The normative judicial interpretation is used to interpret and develop the law and this forms the constitutional tradition, blocking the development of the case law. The case guiding system can fetch up the deficiency of the normative judicial interpretation, but it has its own connatural shortage. Because of this, it can only act as a kind of informal system—informal source of law. It can be the reference, not the direct basis of the adjudication. In addition, the development of the normative judicial interpretation involves perfecting the form, content and institution of the judicial interpretation.