Research On The Law Interpretation System Of Republic Of China

The origin of the law interpretation system of Republic of China can be traced back to the late Qing Dynasty.The instruction of western law interpretation theories in the late Qing Dynasty prepared the theory reserve for the establishing of the law interpretation system of Republic of China.In the process of bureaucracy reformation and preparations for the constitution in the late Qing Dynasty,the law interpretation system operated by the central organs answering the law questions raised by the lower organs made practical preparations for the birth of the law interpretation system of Republic of China.The legal norms of t the law interpretation system of Republic of China directly inherited from the relevant provisions of Court Organization Law of the late Qing Dynasty.The power of law interpretation of Republic of China included the uniform interpretation law power and the constitutional interpretation power which clearly defined by the law,the legislative interpretation power and the administrative interpretation power which exited in fact.The uniform interpretation law power was expressly given to the supreme judicial organ at that time.Specifically,the supreme judicial organs in the period of Republic of China respectively were Daliyuan in the period of the Northern Government,the Supreme Court in the initial national government,and the Judicial Yuan.The legislative interpretation power was belonged to the legislation organs,including the Provisional Senate and the Congress and the Senate in the period of the Northern Government,and the Central Political Conference,the Supreme Council of National Defense,the Legislative Yuan.The administrative interpretation power was arranged between the administrative department in according the "who’s in charge who explain" and "who makes who explain" principles.The constitutional interpretation power belong the supreme judicial organ or the specialized agency was controversial.Eventually,the constitutional interpretation power was given to the Judicial Yuan in the 1947 Republic of China Constitution.The uniform interpretation law power of the supreme judicial organ was exercised by the way of making interpretation case and precedent.The start of the program of making the interpretation case firstly needs a qualified legal interpretation request raised by the qualified body.After receiving the request,the supreme judicial organ makes an interpretation through a series complex program of drafting and deciding.Precedent was an original way to use the uniform interpretation law power,made by the supreme judicial organ choosing the cases which may be precedent from its own judgments to publish and print.The run of legislative interpretation was attached to the legislative process,including the raising of legal interpretation request and the resolving of the legal interpretation case two steps.The operation mode of the administrative interpretation was substantially "consult-indicates" mode.When the subordinate authorities in case have legal doubts,they request the central competent administrative authorities to interpret.After the authorities accepting the interpretation requests,the competent authority or counselor or the two jointly drafted the answer consultation solution.If it has no right to interpret,it would request the unified interpretation organ or the legislature to explain.The force of law interpretation in the Republic of China was different from the common law interpretation theory.The interpretation cases which created by the supreme judicial organs using the uniform interpretation law power have the same effect as the law.The effect of precedents was decided by the relationship between the precedents creation subject and the uniform interpretation law subject.In the northern government and the initial national government when the precedents creation subject and the uniform interpretation law subject were same,the precedents have the same effect as the interpretation cases.When the uniform interpretation power was monopolized and wielded by the Judicial Yuan,the effect of precedents was lower than the interpretation cases,but still had binding force to the judicial organs at all levels in fact.In practice,both the interpretations and the precedents can be used as the basis for the judgment of the judicial organs and the administration of the administrative organs.The legislative interpretation of Republic of China had the force of law,and in fact had been complied by the judicial organs and the administrative organs.In theory,the administrative interpretation only has relative effect.The administrative interpretations of Republic of China can’t against the law interpretation of the supreme judicial organs.However,due to the expansion of executive power,the administrative interpretations prevailed when they were conflict with the judicial interpretation sometimes,even had the same effect as law.The law interpretation system of Republic of China exhibited the concentration of the law interpretation power.This characteristic was not only related with the legal trend that unifying the law interpretation by the supreme judicial organ at that time,but also was the continuation that the law interpretation power was monopoly by the official in the Chinese tradition,and was influenced by the concept of "great unity"and "obedience to authority" psychology.The law interpretation system of Republic of China was indicative,for it following the "consult-indicates" mode.The so-called legal interpretation has a clear "instructions" and "command" color,but lack the necessary "reasoning" and "interpretation" color.This characteristic was deeply influenced by Chinese traditional administrative operation mode.At the same time,the requester’s lack of legal knowledge and ability to explain law also need for such explanation.The law interpretation system of Republic of China had the function to supply and create legal norms.So it has a distinct legislative which was decided by the traditional Chinese law interpretation supplementary legislation functions and the special legal conditions that the laws were not prepared of the Republic of China.Law Interpretation System in the Republic of China also showed a strong pragmatic character.It was flexible,and not followed the established rules to meet the actual needs of the society.This characteristic was influenced by the rational spirit of traditional Chinese,and was also the rational choice under that social situation.The rationality of the law interpretation system of Republic of China was shown as two aspects:firstly,it provided the accurate uniform and authority law interpretation to meet the compliance requirements of judicial and administrative under the historical conditions that the law was not prepared,and the concepts and provisions and theories were entirely new,while the quality of the judicial personal and the law enforcement officers were generally not high;secondly,it implemented the principle of legality,freedom,equality,and other advanced concepts of the rule of law,spread the social and ideological concept of "marriage freedom" and "equality between men and women",transformed the traditional backward habits,and promoted the social progress.Of course,the law interpretation system of Republic of China also had its drawbacks and problems,the most prominent:the power line of different interpretation subjects’ interpretation power was unclear;the indicative explain alienation for the command and substitute judge;the abstract interpretation deviated from the aim of the legal interpretation;there were many problems in the specific operation of law interpretation system,just like:the repeated interpretation waste the judicial resources,the frequent changes in the law interpretations destroyed the stability of the law,the mutual changes of law interpretations were not easy to know and so on.The law interpretation system of Republic of China and its practice provide a sample for the perfect even reconstruction of our current law interpretation system.First of all,it is the premise of the effective operation of the law interpretation system to allocate the power of law interpretation scientifically and reasonably.It is necessary to set up a uniform law interpretation power.In our country,the uniform law interpretation power should be charged by the National People’s Congress Standing Committee.The supreme judicial organs and the supreme administrative organ,are responsible for the unified interpretation of their own system.The second is to correctly exercise the law interpretation power.The answer type interpretation is necessary for it can make the law doubt get maximum presentation in application,and to ensure the explaining rapidly and effectively.But it should be taken to avoid becoming instructions to the concrete cases.Every interpretation subject can not only explain the law for the applying of the requesters passively,but also can explain initiatively when finding the law questions.But it should be interpreted mainly passive,active interpretation supplement.The legislative law interpretation should be gradually abolished,let the form of law interpretation regress the original appearance that point on interpretation and reasoning and combine with the specific issues.We should introduce the factors of case law to our interpretation system in the course to set up directive cases system,and the precedent should be a form of law interpretation.The relevant legal provisions should be formulated to regulate the law interpretations codification subject,form,procedure and so on.So the law interpretations can be cleared and.published timely.Finally,we can learn the great judgers interpret constitution system to construct our constitutional interpretation system.Specifically,that is setting up a special constitution interpretation conference to interpret the Constitution in the case that the s qualified requesters apply.