On Practice And Perfection Of Chinese Judge-Made Law

Generally, judge-made law is specific legal rule made by the judges in the judicial process to resolve disputes. This article first analyzes the concept of judge-made law within the context of China, and then it introduces the development of judge-made law in common law, civil law and international law systems from the perspective of comparative study, which provides the basis for the analysis of Chinese judge-made law. Finally, the article comes back to China and discusses necessity and feasibility, practice and perfection of Chinese judge-made law in order to integrate theory with practice.This article includes three parts: introduction, body and conclusion. The main body is divided into five chapters.The first chapter gives a general introduction to judge-made law, which points out that law is both created and discovered and a broad concept of judge-made law is to be adopted in this article.The second chapter describes the general situation of development of judge-made law in the common law countries, civil law countries and the international law field. Judge-made law is the most important source of law in common law countries whose legal system is guided by the principle of stare decisis, it also has gradually become an important source of law in civil law countries. In the field of international law, judge-made law is increasingly becoming important source of law, especially for the settlement of international disputes.The third chapter examines the necessity and feasibility of the judge-made law in China. Due to the existence of loopholes in the law, the principle of not to refuse to judge, the frequent appearances of social sufficient necessity for judge-made law. At the same time, there is full feasibility of judge-made law in terms of legal tradition, political system, the quality of judges, etc.The fourth chapter discusses the specific existing practice of judge-made law in China, i.e., the judicial interpretation and the "precedent." Judicial interpretation has become an essentially important source of law of the legal system, while "precedent" is gradually developing. Both of the two kinds of judge-made law have played an important role to fill the loopholes of the law. Of course, both of them are in need to be further developed and improved.The fifth chapter gives some specific recommendations to the perfection of Chinese judge-made law on the issues of the scope, subject, "precedent", supervision and so on.