The Public-Policy-Making Function Of The Supreme People's Court

Abstract: Nowadays, China's Supreme People's Court has widely interfered with the social life than ever before. As a new-type judicial phenomenon, the public policy making function has appeared and played an increasingly important role yet has not attracted enough concern in theoretical circles. Based on the relevant judicial interpretations and cases of the Court and focused on its public policy making function, this dissertation tries to reveal why should the Court have and how to develop such function. The standing and approach of functionalism in legal studies do not concern the uniformity between the legal phenomena and certain theory or doctrine but its historical reasonableness. What is its role ever played? What are its problems and through which means can we effectively solve such problems. In the light of such way of thinking, this dissertation develops through putting forward the problem, then analyzing the problem and solving such problem.In the introduction part, the problems to be studied and its significance are put forward in the first place, then reviews its studies history and current situation and analyzes its important concepts of public policy making and function, at last the studies approach and methods are briefly discussed.In the first chapter, the author analyzes the reason why the Supreme Court should make public policy from exterior and interior perspectives in three respects. From the interior angle, with the changes of duties and functions of modern countries and inadequacy of rule of regulation, it objectively demands the courts especially the Supreme People's Court should undertake the function of public policy making. But only the above two points in not sufficient to elaborate the reason. Should any other agencies can undertake such function well there is no need for the Supreme People's Court to exercise such function, so it is necessary to analyze its comparative advantages for the court to make public policy from the external angle of the framework of the three–courts, legislature and administrative agencies. The above said three points make up the necessary and adequate reasons for the Court's function of making public policy.In the second chapter, the author analyzes the background what the Supreme People's Court face in making public policy.The transformatiom of contemporory China's society, the inattentive and sluggish law and the role changes of the Court requires the policy making. There is many problem during the transformatiom of contemporory China's society,but inattentive and sluggish law can't solve them, so the Supreme People's Court shouldn't make public policy. And the role changes of the Court somewhat provides a prerequisite for this function and obtained relatively independent status make the Court can actively interfere with the social and economic lives.In the third chapter from the angle of protecting the weak, the author makes a positive analysis on gazette of the Supreme People's Court.The policy includs the weak of circumstances, institution and physiology.The way of making public policy by the Court may find their expressions in the form of judicial interpretations, judicial instruments ,typical cases and judicial review. Judicial interpretations has its significance yet such kind of legislative character also exist some problems; the judicial instruments has potential defects;the typical cases has its obstacles in theoretical construction yet they play their role in reality; the limited role of judicial review due to its confinement in the narrower legality review of administrative agencies.In the fourth chapter, the factors that affect the making of public policy are studied. In general, the Court as a part of a greater system should make its due contributions. Making public policy may be influenced by various elements and forces especially the consideration of political correctness, the pressure of interest group and the attitude of public opinion. Judicature possess some political character is a objective existence no matter researchers accept it or not emotionally, the Court so frequently make the state policy firstly transform into a kind of judicial issue and make more concreter public policy in accordance with the new problems appeared in the process. In current China, the imbalanced interest groups make the stronger individual one manipulate the making public policy and result in the lack of impartialness and justice of some public policies made by the Court. The public opinion's role to the development of legal system can both be positive and negative and we shall pay special attention to some mass media to impose improper influence upon the Court's making public policy in the name of maintaining political stability. From the interior perspectives,the role of the Court in the whole judiciary system should be defined as the Court of Appeals and the fulfillment of such function depends on the knowledge the Court possess as a Court of Appeals, therefore the status definition and knowledge become the important conditions for the Court to make public policy. In author's opinion, in addition to the status definition and knowledge, the establishment of judicial authority is also a condition to fulfill such function while the establishment thereof relies on the guarantee of the independent exercise of judicial power.In the fifth chapter, Firstly the author points out that the Supreme People's Court's inaccurate role defining, less authority and knowledge , unscientific impact elements, improper means and unspecified timing and scope etc. all become the targets to be discussed hereinafter. Secondly the author examines the perfection of such function of the Court. Based on the above analyses, as for the subject of making public policy, the supreme status of appeals should be established for the Court, through the"supreme"to demonstrate its authority, the"appeal"to define its duties and powers and knowledge, the"court"to demonstrate its difference from other political organs. As for the various factors affect the making public policy should be placed in the rail of legal proceedings with the aid of the legality of procedures; as for the forms, should choose the case form with the prerequisite of perfecting them; as for its limitation, with the goal of judicial equilibrium, to fulfill the activism within the context of judicial restraint.Finally the author examines the perfection of such function of the Court. From the timing angle, the Court should master the principle of maturity while for its scope, should comply with the principle of avoidance of political question.In the conclusion part, the author makes a brief summary and expresses his reasonable expectation for the fulfillment of the Court's function with prudence.The traditional studies more often focus on its status as the supreme judicative organ or court management agency, this dissertation makes a relatively systematic study and expound and prove for its role as a agency of political decision and enforcing organ from a more broad dimension. In this author's opinion, this dissertation has several novelties in these aspects as follows: firstly, his dissertation makes a systematic combing in theory of its reasons or bases; secondly ,this dissertation probes the present sitution and the types of the he making of public policy;thirdly, the author points out that the problems that the Court faces in undertaking such function; Fourthly, the author puts forward some proper suggestions to improve and perfect the function of making public policy in four aspects.