Font Size: a A A

Research On The Effectiveness Of Judicial Interpretation Of The Supreme People's Procuratorate

Posted on:2020-08-21Degree:DoctorType:Dissertation
Country:ChinaCandidate:J RenFull Text:PDF
GTID:1366330602457745Subject:Legal theory
Abstract/Summary:PDF Full Text Request
Different from many laws and legislative interpretations of China,judicial interpretation is not a legal transplant of other countries,but a unique form of legal interpretation that has gradually developed under the special historical and social background of our country.In recent years,judicial interpretation is not only more than three times the number of existing effective laws,but also tends to be legislated in terms of content and form.It plays an increasingly important role in trials and prosecution activities.Legislators used to intentionally left some issues blank and submitted to the judicial interpretation which are still not mature in some laws;The judges and prosecutors expect the judicial interpretation to make the legal provisions more specific,making the trial and procuratorial work more operable;people will also consciously control the prescribed behavior of the judicial interpretation to avoid adverse consequences of judicial activities in the event of a dispute.In practice,people have become accustomed to the application of judicial interpretation without thinking,and gradually attach importance to judicial interpretation as much as the emphasis on legal provisions.Sometimes they ignore the principled provisions of the law and directly use the specific circumstances listed in the judicial interpretation as the legal basis.It is undeniable that judicial interpretation has played an indispensable role in optimizing legal procedures,interpreting legal connotations,refining legal provisions,figurative legal principles,and filling legal loopholes.However,the more important the judicial interpretation is,the more it should return to its source and the justice to explain the development context and rationally consider the effectiveness of judicial interpretation.When it comes to judicial interpretation,the first thing people think of is the Supreme People's Court,which often ignores another subject of judicial interpretation—the Supreme People's Procuratorate.Compared with the vast number of judicial interpretations made by the Supreme People's Court,the judicial interpretation of the Supreme People's Procuratorate in terms of quantity and applicable fields,so scholars haven't payed too much attention.Therefore,in the process of studying judicial interpretation,the article mainly focuses on the judicial interpretation formulated by the Supreme People's Procuratorate to broaden the horizon.After nearly seven decades of exploration and development,the procuratorial organs have begun to take shape and have introduced more than 700 documents of judicial interpretation and judicial interpretation.For certain stages of litigation activities,procuratorial organs perform legal supervision duties and law enforcement.The prosecution has played a certain role in the conflict of understanding of the law.However,through the typed analysis of the documents of the judicial interpretation of the procuratorate,it is found that these judicial interpretations are more focused on criminal substantive law and procedural law,and the type is relatively simple.In recent years,the number of judicial interpretations independently formulated by the Supreme People's Procuratorate has gradually decreased,and the number of effective and abstract judicial interpretations have also been reduced.In practice,the judicial application of the judicial interpretations separately formulated by the Supreme People's Procuratorate is less,and the Supreme People's Procuratorate has formulated the importance of judicial interpretation in the judicial interpretation system is also gradually weakening.The Supreme People's Procuratorate has already shifted the legal policy research work from the formulation of judicial interpretation to the issuance of guiding cases.Therefore,the practice of judicial interpretation formulated by the Supreme People's Procuratorate analysis.It retains its judicial interpretation power,which may result in confusion between normative judicial interpretation and judicial interpretation documents,no interpretation of specific legal issues,arbitrary expansion of legal provisions,secondary interpretation of judicial interpretation of interpretation laws,etc.The court's interpretation of conflicts and contradictions are not as clear as the validity of some procedural judicial documents formulated by the Supreme People's Procuratorate,which abolish its power to issue judicial interpretations of substantive laws and direct the Supreme People's Procuratorate to inspect the procuratorial work of procuratorial organs at all levels.The method was changed from judicial interpretation to issuing guiding cases.The article mainly studies the effectiveness of judicial interpretation from five aspects.The first part is the question of the substantive legitimacy of judicial interpretation.From a global perspective,the right to legal interpretation of the judiciary has also gone through a process from absolute prohibition to relative limitation to full affirmation.Judicial power of interpretation is an important part of administration of justice.In addition,the law has the principle,high generality and abstract features,which leads the judiciary to pass.The exercise of discretion in the interpretation of the law and the exercise of subjective initiative,of course,the exercise of judicial interpretation must also be subject to the necessary restrictions.The second part is the formal legality of judicial interpretation.As early as 1981,the Standing Committee of the National People's Congress issued a resolution to clarify The People's Procuratorate has the power to interpret the specific application of the law in judicial activities.The "Legislative Law of the People's Republic of China" and the internal norms of the Supreme People's Court and the Supreme People's Procuratorate have all stipulated relevant issues concerning judicial interpretation.Through the analys of the law,it can be found that the authorization of the law and the legislative interpretation of the judicial interpretation is a suggestive provision,and the judicial practice of the long-standing judicial people's court and the Supreme People's Procuratorate answering the difficult problems of the lower-level judicial organs has been affirmed.It is not an encouragement to formulate an abstract judicial interpretation,and the legislation always has a negative attitude towards the abstract judicial interpretation without specific targets.The third part is the practical effect of judicial interpretation.It mainly discusses the application of the judicial interpretation formulated by the Supreme People's Procuratorate in judicial practice.After examining the formal legal documents such as procuratorial documents and referee documents,it was found that only about one-third of the judicial interpretations independently formulated by the Supreme People's Procuratorate were cited in 107 judgments,all in four thousand seven.The citation rate is not high in more than one million cases,and the procuratorial organ has not invoked the judicial interpretation separately formulated by the Supreme People's Procuratorate as the basis for prosecution in the indictment.The judicial organs applied it to the law,the legislative interpretation,and the Supreme People's Court.The judicial interpretations have no relevant provisions and the judicial interpretations formulated by the Supreme People's Procuratorate are not considered in conflict with the legal provisions.In essence,the judicial review is also carried out before the judicial interpretation is applied.However,judging from the existing regulations in China,the judicial interpretations of the Supreme People's Court and the Supreme People's Procuratorate should not be neglected in the application process,or the differences in the school calendar should not be caused by the different subjects.Therefore,the Supreme People's Procuratorate is discussed.The practical effect of judicial interpretation can also further clarify the effectiveness of the judicial interpretation of the Supreme People's Procuratorate in practice.The fourth part is the scope of application of the effectiveness of judicial interpretation.From the perspective of the legalization of crimes and the protection of human rights,criminal justice interpretation should have independent time effectiveness;In addition to the law,judicial interpretation should also include judicial interpretation and customary law,and should allow the judicial organs to interpret administrative law in the trial process.In addition,judicial interpretation should apply in principle to judicial proceedings,but it can also be applied in administrative procedures and arbitration proceedings.The fifth part is the level of effectiveness of judicial interpretation.The scope of validity of judicial interpretation is limited and should be applied only to judicial activities.Within this scope,judicial interpretation should have the same effect as the law being interpreted.In addition,on the basis of the existing NPC Standing Committee's record review,the Constitution and the Law Commission should be given full play to the judicial review of judicial interpretation,and the Supreme People's Procuratorate should be more cautious in formulating judicial interpretations.
Keywords/Search Tags:judicial interpretation, legal effectiveness, legal hierarchy, The Supreme People's Procuratorate
PDF Full Text Request
Related items