Judicial Law-Making In Private Law In The PRC

For the purpose of this research, judicial Law-making means the creative interpretation and application of statutes by the judiciary when deciding cases and the process that the new rules developed by the judiciary through creative interpretation and application of statutes themselves become an authority and thus part of the living law. The mechanism of judicial law-making exists most actively in the area of private law. The purpose of this research is to develop a general theory of judicial law-making in private law and thereby contribute to the reform of judicial law-making mechanism in China.The judicial law-making mechanism exists in different forms in continental law tradition and common law tradition. The judicial law-making mechanism in continental law tradition is based on statutes, or law codes, while that in common law tradition is based on a case law system, that is, common law. In terms of methods of law application, there is no fundamental difference between both great traditions. Application of law, whether with statutes or cases as primary authority, is, in its very essence, a process of evaluation, thus a creative process. The new rules developed in this process themselves become a source of law, due to the principle of "like cases shall be treated alike". Indeed, the effect of judicial law-making as a source of law is different in different jurisdictions. On the other hand, judicial law-making is legitimate only when it occurs in the process of deciding cases, and is bound by other state powers, including the legislative power and the executive power. In the process of judicial law-making is also obliged to provide reasoning for the new rules developed.The rebuilding of legal system and order since 1978 in China, together with the launching of economic reform, has been focused on legislation. The mechanism of judicial law-making is basically ignored, or even denied. Although the existing judicial interpretations of the Supreme People’s Court (SPC) has its historical grounds and has played an important role in the rebuilding of China’s legal system, it is a distorted form of judicial law-making by nature and is not firmly based on the Constitution. It’s also problematic in practice.The guidng case mechanism launched by the SPC in the end of 2010 aims to promote uniform application of law. As there is no appeal on points of law in China, the guiding case mechanism can not secure uniform interpretation of law in China. However, under current circumstances, the guiding case mechanism is a helpful measure to replace the judicial interpretation practice of the SPC and help to normalize the judicial law-making mechanism in China. The new rules developed by the SPC do not have the force of law in abstract, but as a supplementary source of law, it may make the law more elastic and responsive by clarifying the vagueness of the law and filling the gaps. Selection of guiding case shall be for purpose of promoting uniform interpretation of law and judicial law-making. The guiding case mechanism introduces case law methods into China’s legal system. It should be able to stimulate judges to improve their professional ability in interpreting and applying the law.The constitution of a state declares and confirms the basic values which constitute the core and basis of the legal order of the state. The division of jurisdiction among different powers of the state shall be subject to the state purpose derived from the basic values declared in the constitution, that is, to optimize the basic values under specific socio-historical circumstances (principle of optimization). Therefore, although the legislature enjoys priority in deciding the way to realize the basic values in particular areas of law through legislation, for those issues which are not directly decided by the legislature, the judiciary shall have the priority to deal with them in the form of judicial law-making according to the principle of optimization. This function of the constitution and this principle of power allocation also comply with China’s constitutional system.According to the priority of the legislature in implementing the constitution over the judiciary in particular areas of law, the relationship between different critearia/means of interpretation under traditional legal methodology, including the literal interpretation, systematic interpretation, historical interpretation, (subjective and objective) teleologish interpretation may be reasonably sorted out. When the intent of the legislator can not be determined according to these criterias, the judge shall interpret the law according to the principle of optimization.The order of basic values declared in the constitution also constitute the basis of the private law system. However, the provisions in the constitution shall not be directly cited as the legal basis of private rights and interests. The basic values in the constitution can only enter the area of private law through particular institutions in private law. When the judges interpret the law according to the constitution, or introduce the basic values in the constitution into the area of private law via institutions in private law, the judges should be able to cite the constitution to support his reasoning and decision.The fundamental nature of private law is its autonomy, which is also the logic requirement of the basic values in the constitution. In private law, the state and the legislature shall be bound by the principle of subsidiary and aim to promote the autonomy of private law. The judiciary enjoys special advantages in finding and assisting the development of the autonomous system of private law, which has been evidenced and more and more acknowledged by the process of decodification and recodification process in continental law countries and the process of codification in common law countries since 19 centuries. The current work of civil law codification in China shall take this into consideration. The civil law codification in China shall aim to integrate and rationalize the existing civil and commercial laws and judicial interpretations, coordinate the different sources of law in the area of private law and provide a basic law for an open private law system. The civil law codification should pay attention to the living jurisprudence developed in the judicial practice and integrate them into the civil code. On the other hand, the legislator should also take into consideration the burgeoning judicial law-making system in China and handle the relationship between civil code and judicial law-making properly. It’s specifically suggested that the legislator reshape the basic principles of private law in China, which shall serve as a fundamental guidance to the judicial law-making, the specific designing of civil law institutions and rules shall leave room for further development of private law via judicial law-making and the civil code shall include a general provision governing the application of different sources of law in deciding private law cases, so as to establish the role of the civil code as the nexus of all the sources of law in the area of private law.