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Jurisprudence Of Judicial Interpretation Of Research

Posted on:2011-10-24Degree:MasterType:Thesis
Country:ChinaCandidate:R Z ChenFull Text:PDF
Abstract/Summary:PDF Full Text Request
The law can never run alone. The premise of legal practice is that we can comprehend and explain the legal provision. The judicial interpretation is the most important interpretation in various legal explanations. So it is not only important to the parties of the case, but also important to the public in our society. If we had no judicial office to explain and practice legal articles, and to enforcement of judgments, the people should not understand the legal articles, and even should not feel the existence and functions of law. As one of the legal sources in our country, the judicial interpretation have played more key roles in adjusting social relationships and guaranteed judicial fairness. And meanwhile it is significant to realize social justice. In the past recent years, more and more people have done much research in judicial interpretation. But most of these studies were concentrated on the area of academic research, so these studies were lack in how to improve the level of judicial interpretation, and lack in how to seek the effective method to solve the problems about the aspect of abstract judicial interpretation. The other studies have no reality effects in integration of theory with practice. Since these studies are useless in judicial interpretation practice, or these research were not studied to the heart of the matter. On the contrary, in recent years, in order to decrease the quantity of "the same cases but made different court decisions", and try to achieve the judicial fairness, Chinese courts in different grades and different areas have done much positive research in order to find the way to solve the problems of abstract judicial interpretation. The problems of abstract judicial interpretation mainly include of abstract character, behind the times character, not comprehensive character, and etc. We should pay more attention to the phenomenon of that the theory of judicial interpretation is separated from practice.With the study and practice of the judges when they made court decisions were guided by cases, our country now has the social condition to decline the quantity of abstract judicial interpretations. Meanwhile we should improve the system of judicial interpretation through Legal precedent (JITLP), based on the judicial interpretation by particular case. The thesis is tried to study the situation,the value,,the problem and the improvement of the JITLP which was not only force of legal constraint to particular case, but also to the same case in the future. In order to answer the question of how to improve the system of judicial interpretation, the thesis try to seek the way to solve the problems of that the same case have different sentences in different courts.This paper consists of five parts. The first part of the paper introduces the basic concept of JITLP, and the real meaning of JITLP. The author has analyzed the relationships between JITLP and the other related phenomenon. The article point out that we should give up the traditional name of'case guidance'in judicial practice, and we should made the definition as JITLP in which the legal provisions were interpreted by really judicial sentences. The second part discusses the social value and judicial value of JITLP. The author thinks that the fundamental value is the most important value of JITLP, because it can solve the judicial unfairness of'the same case with the different sentence'. We can realize the judicial aim of that'the same case with the same sentence, the different case make the different sentence'depends on JITLP. The third part makes an institution about JITLP in process. In order to keep the unity of law in judicial area, we must be sure that the supreme court of the people's republic of china has the unique power to make JITLP in our country. In the fourth part, the author analyzes the problem, source and affection in system of JITLP, and point out that the traditional statute law consciousness is the main reason. The fifth part of the thesis focus on how to choice judges for courts, how to improve the stipulation of interpretation law, and how to make JITLP.
Keywords/Search Tags:Judicial interpretation, Judicial interpretation through Legal precedent, the same cases the same court decisions, perfect institution
PDF Full Text Request
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