Judicature's Nature Of Legislation--Approach Of The Conflict Of Interests And The Conflict Of Applications Of Rights

The author tries to put forward the analysis of Judicature's Nature of Legislation in virtue of three typical cases by the approach of the conflict of interests and the conflict of applications of rights.This article sets out a new topic. The author hereby is not discussing how Case Law becomes a part of legislation, nor whether the Interpretations of Law promulgated by the Court should rule, also nor the pure theoretical problems of legal interpretation, but more generally how the judgments from the Justices hold the nature of legislation in some ordinary cases, e.g. Yao Ming vs. Coca-Cola, Ye Yingzi vs. Xu Gang and Yu Yizhong vs. News Publishing House, under the background of Statutory Law System, like China's. Certainly, not all cases share this nature, which becomes a part of the author's analysis--to tell what kinds of cases have and what kinds not.Firstly, this article explores the internal meaning of legislation. Most existing definitions of legislation put their attentions on its form, e.g. "Legislation means all activities taken by certain authorities to make, modify and abolish all kinds of regulatory documents according to the power and the procedure regulated by law"; Some metaphysical definitions also stand, e.g. "Legislation embodies essential and eternal justice. Law made by men is merely some notes and copies of these principles, and lawmaking is to discover and proclaim these principles." The author considers, however, the definitions above lack the care of people's real lives. They are either too far from ordinary lives or too apart with ordinary thought. After all, "Law holds real ordinary lives as its precondition and realm. The generation and operation of ruling by law must depend upon ordinary people's real lives." Therefore, for the sake of the requirements of this article the author tends to define legislation as below: legislation, essentially, is making clear the circumscription among conflicting interests. If it is regulatory legal language that describes this relationship, the law holds the form of Statute; if it is a case, the form of Case Law. But the problem is that legislation by certain authorities is incapable of dealing with new conflicts occurred in judicature ever and again, just as the situations in the three cases of this article. So judicature with the nature of legislation is inevitable and judicature's nature of legislation comes out.Secondly, the reason of judicature with the nature of legislation is the legislation's flaw of haziness. This is to say if we got clear legislation all the way despite its form, judicature with the nature of legislation would no longer exist. So a key analysis is that why the law is clear or hazy. After presenting the disagreement to H. L. A. Hart's point, and refuting treating the legal language and levels of effectiveness of law as the reason, the author puts forward that the reason for the clarity of law is its pertinence to some certain conflicts; on the contrary, the reason for its haziness is the lack of pertinence. It is because new conflicts will happen at all time that the law always holds the nature of haziness and judicature has to share the load of legislation.But the "legislation" of judicature is very different from the real legislation by certain authorities. An important difference is that real legislation gets its inherent legitimacy in its subject, power and procedure and people also consider it is right and effective; but "legislation" of judicature hold Justices as its subjects, who are commonly believed merely to be the subjects of judicature. Legitimacy is the leading problem if we let them "make law". So "legislation" of judicature cannot be publicized like real lawmaking and we need some latent means to not only achieve our goal of "lawmaking" but also not break legitimacy. Free-inquiry interpretation of law, therefore, is required, in which Justices shall not be confined in provisions of legal documents and legal history and can interpret the law relatively freely, regarding finding best way to...