Rational Study On Judicial Interpretation

The problem of judicial interpretation is usually discussed in the way of systematic interpretation and methodical interpretation, which causes us not to be able to go deep into the discussion. The first reason for that is the structure of legal interpretation in China differs much from those in western countries with developed legal system. Naturally, the knowledge exchange has many difficulties during the research on the problem and so the research is like done behind closed doors. And the other reason for that is the methods of legal interpretation are of universal significance and are shared by the community in law. Furthermore, if the methodical interpretation becomes the exclusive way of the discussion of judicial interpretation, the field of law will be too hard to avoid sticking to old ways inflexibly. In the thesis, the author makes great efforts on philosophical thoughts on original problems about the judicial interpretation in the perspective of Jurisprudence, and meanwhile, the author analyzes the problem with an eye on the course of law's development. Because of this, the thesis is sure to be of creative significance.In the thesis, the problems of law relative to judicial interpretation are discussed from three aspects. Firstly, the author makes a discussion of the definition of judicial interpretation in the perspective of Law ontology. In this part, the evolvement of judicial interpretation is explored with the contents of interpretation and judicial interpretation. Besides, the special emphasis is laid on introducing the outward appearances of the systems of judicial interpretation in Mainland of China and in Taiwan Area. The judicial interpretation is stated with the descriptive words rather than the definitive words, whose aim is to set a broader scope for the thesis. Secondly, the author discusses the value rationality of judicial interpretation in order to verify the judicial interpretation's necessity for legal applicability and legal development. In this part, judicial interpretation is studied in the course of law's application. Besides, the author proves the reciprocal effect between judicial interpretation and a variety of written laws' origin and probes into its creative value for law making. Additionally, the rationality of judicial interpretation is verified so that the functional relationship between dynamic role of judicature and judicial interpretation gets clear. Finally, the author makes great efforts on the investigation of instrumentality rationality of judicial interpretation and classification of law's methodology. In this part, the formal rationality of judicial interpretation is demonstrated and the trend of methods of judicial interpretation is put forward through precisely comparing the bases of various methods of judicial interpretation. The problem of beyond interpretation is also mentioned. The thesis does not mean to discuss the problem of system or method in a certain field specifically and chooses a philosophical way to go into the topic. It focuses on the universal, basic and profound problems relative to judicial interpretation. In addition, a concept is advanced that legislators reform laws while judiciary modify laws in the course of law's development. Moreover, the two sides are supposed to be reciprocal to assist in law's development. The way of argumentation in this thesis is interpretive. That is to say, the author makes the value judgment after weighing the relative values to judicial interpretation. The conclusion is drawn that a kind of judicial interpretation with a law making spirit should be advocated.The creative significance of this thesis lies in the method of analysis, with which the law making function of judicial interpretation is demonstrated through explaining the mutual and dynamic relationship between written laws and judicial interpretation. Furthermore, the thesis distinguishes the effects of judicature from the effects of legislation, while proves their reciprocal effect. Therefore, the thesis avoids following the old way, that is the way of systematic interpretation or that of methodical interpretation, to probe into the problem of judicial interpretation.