The Criminal Law Is Judicial Interpretation Of The Institutional Theory

"Judicial interpretation" has a special meaning in China. As one kind of law interpretations, judicial interpretation is not a commonly-used concept. In China's system design, judicial interpretation, generally speaking, neither belongs to judicial judgement authority, nor belongs to legislation authority or law implementation authority. It is considered as a kind of single authority, which is formed through interpretation and has general judicial eflFect. Meanwhile, allocation of this authority among different government organs constitutes a law interpretation system of Chinese characteristics. In criminal law application field, this judicial interpretation system develops to its extreme. Because of the overlock on criminal law judicial interpretation, many theories find it difficult to make a proper target. Does criminal law judicial interpretation refer to standard rules made by the Supreme Court or the Supreme Procuratorate? Is criminal law judicial interpretation a kind of authority or means (process)? Is there any judge interpretation in China? Can the supreme Procuratorate issue any judicial interpretation? Does only the Supreme Court have the authority to issue judicial interpretation? How should criminal law judicial interpretation come into being?The writer makes a overall research into the criminal law judicial interpretation system. First, starting from explaining the concept of criminal law judicial interpretation, the writer makes a difference between special criminal judicial interpretation (referring to the standard law rules of general law effect made by the Supreme Court and the Supreme Procuratotate) and judge's single case interpretation. Here it involves where and when for judicial interpretation to exist or be necessary. In other words, in different occasions, the concept of judicial interpretation has different meanings. Different judicial interpretations in different occasions have different goals and characteristics. So, if we study judicial interpretation, we should make clear of the occasions of judicial interpretation, and make clear of the occasions of judicial interpretation when we try to understand the criminal law judicial interpretation. In the writer's opinion, implementary standard judicial rules issued by the Supreme Court and the Supreme Procuratotate have general law effect, and should be called standard criminal law judicial interpretation (or unified interpretation, authorized judicial interpretation or abstractinterpretation); while those interpretation of single criminal law cases made by judges of all levels in their judging process can be called single-case interpretation (or specific interpretation, judge interpretation or application interpretation).Second, starting from explaining the characteristics judicial authority, procuratorial authority and trial authority, the writer probes into the problem of whether to maintain or annul the criminal law judicial interpretation authority of the Supreme Procuratotate. The writer insists that, according to the characteristics of procuratorial authority and judicial interpretation practices, the judicial interpretation authority of procuratorial organs should be annulled. In other words, the Supreme Procuratotate cannot issue judicial interpretation of general judicial effect However, the objective interpretation activities in the criminal law application by procuratorial organs should not be neglected. The procuratorial organs play an indispensable role in the forming process of the judicial interpretation, and has a supervision on the judicial interpretation activities by the Supreme Court.Third, on the basis of the reality function of standard criminal law judicial interpretation, the writer points out that only the Supreme Court can issue standard judicial interpretation, while courts of all lower levels have no authority to issue judicial interpretations of general effect. The writer also points out that the forming of standard criminal law judicial interpretation must be combined with specific judgements.Last, the writer emphasizes on the rationality of judges' single-case interpretation, thus making the criminal law judicial interpretation more close to the original judicial interpretation. The writer points out that criminal law judicial interpretation should be formed through process step by step. Process should provide system guarantee for judicial interpretation, thus setting up legal precedent system step by step, so as to form a sound operation system from higher to lower levels.