Dilemmas And Solutions Of The Judicial Interpretation Of The People's Supreme Court

In the most western countries,the judicial interpretation is made by judges. We possibly can not find the concept of the judicial interpretation in theirs law. They name the judicature the judicial activities of the court. Their judicial organ is a court, and naturally judicial interpretation is made by judges. But China's judicial interpretation's main body is stipulated by the law. From the Standing Committee of the National People's Congress promulgation about Strengthened Law 1981 to explain that Work Resolution to the People's Republic of China People's Procuratorate Constitutive law and the People's Republic of China People's court Constitutive law, judicial interpretation's main body are the Supreme People's Court and the Supreme People's Procuratorate.What this article studies is precisely the Judicial Interpretation of Supreme People's Court. This kind of explanation is not only different from judges in Common Law System interpret the law separated from the case,but also different from judges in Mainland Law System make the law in the concrete case. The Judicial Interpretation of Supreme People's Court proposes abstractness which in view of the execution of the law in the massive questions and explains the subordinate instruction,e ven does some quite comprehensive law,sy stem's regulation explanation on the base of the full investigation and study and trial practice,It has nature of the accurate legislation. Moreover this kind of explanation has the specific manifestation: explanation,regulation,reply and decision. The Supreme People's Court announced the judicial interpretation in the People's court Newspaper and Supreme People's Court Bulletin. It is playing the role of the law and used by the Chinese Court and judgers to handle cases every day.The Judicial Interpretation of Supreme People's Court is displaying the unique function. It fills law blank and the crack to maintain the law to keep the pace with the social development. It searches original intention of laws and limits judge's freedom to judge and guarantee fair judicature. It unifies legal system and unifies judicial criterion. But The Judicial Interpretation of Supreme People's Court actually cannot get rid of its all sorts of difficult positions theoretical with practical although its usefulness. The accurate legislation judicial interpretation of Supreme People's Court oversteps the legislative power,and conflicts with the principle of the modern government by law,and violates the intrinsic property of the legal explanation. It cannot satisfy completely the judicial practice the legal suitable need and guarantee the applicable legislation the accuracy. The reply intervenes in the adjudgment of judges and eliminates litigant's appeal right and the right of petition. The reason that will have the above difficult position are as follows. Legal system is not perfect and legislation coarse and too principle. Legal explanation system's influence and the need to expand judicial organ authority and judicial organ's administration management pattern all result in these problems.What the accurate legislation judicial interpretation of Supreme People's Court oversteps the legislative power cannot put the blame completely on the judicial organ. No doubt has the judicial organ expanded and abused its authority. Mostly the reason is that the Legislature is negligent and incapable to exert its right to make and interpret law promptly. The coarse legislation and the insufficient application caused the social reality to have such urgent demand of judicial interpretation. Therefore the Legislature must fulfill its legislative responsibility earnestly and enhance the legislative technology unceasingly to provide the law quality high and explicit. Next, it also appears especially important to establish the processing mechanism to guard and present the judicial interpretation to overstep the legislative power. Finally,the construction of the ease guidance system is an objective need of The Judicial Interpretation of Supreme People's Court.