Study On Judicial Law-Making In China

Judicial law-making is an important part of juidical power, as well as a necessary method of using judicial power. From different angles it has been widely accepted by many countries, especially those of Anglo-American of written law and the court's decision is just based on the lawmaking stipulation. However, there exists legal loop holes so judicial law-making occurs unavoidably in the judicial practice.Judicial law-making refers to the judicial activity of making the coercive rules for individual case complying with legal principles and spirits in the course of the trial by people's court at different level, which results from the existing legal loopholes. It has two forms, I.e., judicial interpretation and case-mading. And it is characterized by class, judement of value and creativity. Therefore, exact realization of its functions is significantly important to reveal the relation between legislature and judicature, and to develop and perfect laws.Judicial law-making is both necessary and possible in China. In the view of the legislative situation, the duty of judges and judicial organs, the trend of legal family's integration, it is necessary, meanwhile, it is possible because of its consistence with the political system, the permission of current law's and the accumulation of concerned experience.Everything has two sides in the world, as well as judicial law-making in China. There exists some disadvantages in judicial interpretation, such as irrational stipulation about the subject and its effect, over-abstractness. In case-making, the power of law-making is abused and the reasoning of the decision is not adequate. Meanwhile, there are some factors that restrict the normal development of judicial law-making, such as the ideological barriers, the low quality of the judicial personnel, serious judicial corruption and erroneous implementation of system of investigating into misjudged case.In order to perfect judicial law-making, besides the consideration ofits present situation and the introduction of foreign successful experience, we can do so as follows: 1. Defining judicial law-making scientifically; 2. Strengthening the reasoning of the judicial decision; 3. Switching the judicial interpretations to cases; 4. Containing judicial corruption and improving the quality of judges.