A Study On Qualification Of Judges' Interpretation Of Laws

From middle of the eighties of twenty century to nowadays researches on the interpretation of laws have gone deep in our nation during more than twenty years, especially after twenty first century, Chinese scholars pay more attention to our own experiences and problems in the charge of the academic reflection and critical consciousness. And under this background the concept with Chinese characteristics,"judges'interpretation of laws", can emerge and has been studied as an academic question. As far as I am concerned, it is very significant that this question has been raised. Because it is a question that has emerged in the progress of law in China, from certain point, the significance of the problem not only lies in its theoretical values, but also its practical values that it takes part in the process of the changes of Chinese legal knowledge. There are some studies on the question, but they are either not deep enough, staying on superficial contentions, or too ideal, limiting to discuss the question on the level of institution. In accordance with the deflects in the past researches, I will take the qualification of interpretation as the breakthrough point, restricting the question on whether judges interpret laws but not how, in order to probe into the essence of the question from one aspect.After making clear the question, the next duty is to explicit what"judges'interpretation of laws"is in China, how it is regulated in the system and how it works in the real world. So the second part of the thesis describes the practice of judges'interpretation of laws in China through institutional inspection and sociological investigation. On the level of the institution, Chinese interpretations of laws include legislative interpretation, judicial interpretation and administrative interpretation. The judicial interpretation refers to the documents of judicial interpretation which are created and issued by entitled offices, the highest judicial offices. These documents are a kind of the normal interpretations which are different from those interpretations that judges or the courts make in the specific cases. Judges are not entitled in the institution of legal interpretations and don't have power to make normal interpretations. On the level of the practice, judges interpret laws every day, however, the recognition of judges is not the same as their practice. The phenomenon that judges'consciousness of the role of interpretation is dim is prominent.From investigation of the practice of judges'interpretation of laws, it can be realized that there are two kinds of legal interpretation separately on institutional and practical level due to the existence of the judicial interpretation system: one is the normal interpretation, another is the specific interpretation. Nevertheless in the theory and practice, these two kinds of the interpretations are often confused, either we deny the fact that judges interpret laws in the process of applying laws on the ground that judges are not entitled in the judicial interpretation system, even judges themselves are not certain of their role of interpretation and don't dare to interpret laws openly; or maintain that judges are naturally the subjects of the judicial interpretation system owing to the fact that judges make the specific interpretation, which oversimplifies the problem of judges'qualifications of legal interpretation. Therefore we need to distinguish these two kinds of interpretations at first in order to avoid the confusion in the usage of concepts.As far as specific interpretations concerned, the judges'qualification of legal interpretation don't need to be entitled, because as an affiliated function of judicial power, judges interpret laws in the process of judging even if they are not entitled the power. The problem of judges'qualifications of legal interpretation is one that emerges in the special judicial interpretation system in China, so it is significant only when it is discussed in the frame of judicial interpretation system.The essence of the problem of judges'qualifications of legal interpretation is how to deal with the relationship between the normal interpretation and specific interpretation, how to merge the specific interpretation into the judicial interpretation system. Concretely there are two trains of thought: one is to enlarge the range of subjects of judicial interpretation, and entitle local courts to draw up and issue documents of the normal interpretation; the other is to join the judicial interpretation with the specific interpretation and turn the judicial interpretation into the guidance of cases. In fact, these relate to some complex problems of the reform of judicial interpretation system, such as the independence of judges, the certainty of laws, the judicial discretion and so on. The third part of the thesis tries to analysis one of problems mentioned above, the problem of the independence of judges, by transforming the topic of the independence of judges to that of the intense between two roles for judges, to supply the question disputed with a new view, so as to promote researches on the reform of judicial interpretation system.