| The Decision on Amending the Legislation Law of the People’s Republic of China was voted through at the 3rd Session of the Twelfth National People’s Congress on March 15, 2015. It means that the Legislation Law, adopted at the third Session of the Ninth National People’s Congress on March 15, 2000, was first revised. What is worth mentioning is that paragraph 1 of Article 104 in the amended Legislation Law(hereinafter referred to as the new legislative law), as the newly added article, ruling that the interpretations on specific application of law in trial or procuratorial work as developed by the Supreme People’s Court or the Supreme People’s Procuratorate shall primarily involve the specific clauses of laws and conform to the objectives, principles, and original meaning of legislation.The newly added article indicates the object and standard of the judicial interpretation and also limits the power of judicial interpretation. Notably, this article describes the standard of judicial interpretation in three key words as follows: legislative objectives, legislative principles and legislative intention. After investigation, I found that compared with two other words, the “legislative intention” belongs to a low frequency word as to the frequency of appearance in the normative documents. Furthermore, the level of legal effect of new Legislation Law is the highest among all the normative documents which have the words legislative intention. Why can “legislative intention” be the word of the legal text? What Is its legitimacy? Why can it limit the power of judicial interpretation? How to do that? When it comes to localization, what’s the phenomenon of the legislative intention in China? How to evaluate it? What is its way? This paper tries to answer these questions.The research methods adopted in this paper mainly include: comparative method, historical analysis, semantic analysis, empirical analysis. The comparison method is mainly to analyze the theory and method of Chinese and foreign interpretation. It is an essential to use the historical analysis method when exploring the legislative intention. As a method of legal interpretation, "legislative intention" can even be called "historical interpretation". Semantic analysis method is indispensable considering all the analysis of words and sentences in this paper. Empirical analysis method is widely used in the analysis of the relevant normative documents and judicial judgment of Chinese current system and judicial practice.The general idea is that “legislative intention” is the restriction to the power of judicial interpretation according to the first paragraph of 104 th article in the new legislation law. The reason is that legislative intention has a natural legitimacy, and is consistent with the theory and method of analytical positivism, and also fit the objectivism of the legal interpretation. In the context of legal interpretation, legislative intention can be used as the target and method of legal interpretation to achieve the purpose of limiting the power of judicial interpretation. In China, due to the unique characteristics of legal interpretation, academic debate has been beyond the present dispute of subjectivism and objectivism, and system designing has a phenomenon of legislator centrism, and judicial practice reflects the competition of name and reality in the legislative intention interpretation method. How do we treat the legislative intention in the context of legislative interpretation in China? My opinion is that the idea of either this or that is not sensible. The priority is urged as follows: on one hand, reconstructing the legal interpretation system, gradually admitting the judge’s discretion power, and improving the quality of judges; on the other hand, making the information legislation open, strengthening the verdict reasoning.The possible innovation of this paper is to investigate and analyze the legislative intention in the context of legal interpretation in China. In other words, the possible innovations lie in as follows. On one hand, I have used comparative method, historical analysis, semantic analysis, empirical analysis methods comprehensively and comprehensively. On the other hand, legislative intention" is no more than a question of system designing, and should gradually change the position of "legislators".In particular, the thesis can be divided into six parts, including the introduction and the conclusion:The first part is "Introduction". This part describes the research background, research value, research review, research methods, general position and possible innovations. Legislative intention limits the power of judicial interpretation according to the 1st paragraph of 104 th article in the new legislation law. It also can be a glimpse of the present situation of legal interpretation system, academic research and judicial practice in China. At present, scholars mainly study the relevant issues of legislative intention in four perspectives. The analysis mentioned above makes the writing ideas and research methods clear.The second part analyzes the legitimacy of the legislative intention. This part mainly answers such a question: how does legislative intention limit the power of judicial interpretation? I demonstrate it form three aspects. First, from the perspective of philosophical foundation, on one hand, the political and philosophical interpretation of "legislators" enhances the authority of "legislative intention"; on the other hand, the legitimacy of the legislative intention is also from the objectivism of interpretation theory. Secondly, from the perspective of legal foundation, legislative intention coincides with the "positivism" orientation of modern analytical positivist jurisprudence and legal research methods. Finally, the political foundation of "legislative intention" comes from the political theory of Democracy and the Separation of Power.The third part studies the faces of legislative intention in the context of legal interpretation. This part mainly solves the following questions: how does it define the power of judicial interpretation? I make the demonstration from two aspects. On one hand, legislative intention can be used as the target of legal interpretation to do that. As a goal of legal interpretation, is legislative intention is the actual meaning of the legislators making the law, or the present meaning of the legal norms itself? The dispute of subjectivism and objectivism arises at this moment. On the other hand, legislative intention can be used as a method of legal interpretation. Of course, as a method of legal interpretation, it will encounter challenges and questions from three aspects: ontology, method, technology.The fourth part examines the legislative intention in the context of legal interpretation in China. This part mainly studies the localization of legislative intention. I make the investigation from three aspects. First, legislative intention in the system designing presents the situation of "legislator centrism ". Secondly, it shows the competition between the name and the reality in the judicial practice. Finally, it has gone beyond the traditional dispute of subjectivism and objectivism on the academic debate.The fifth part discusses the path of legislative intention in the context of legal interpretation in China. This part analyzes the development trend and direction of legislative intention in China. I reason it from two aspects. On one hand, it is the qualitative question. It has been a trend that strict interpretation will divert to the open interpretation. In addition, the function of judiciary is to decide, and legislative intention is one of the factors judges consider. On the other hand, it is an essential to divert the attention from legislators to judges in all the aspects.The sixth part is conclusion. This part summarizes the argument structure. It draws a conclusion that judiciary is a decision, and the selection of pragmatism will dispel the contradiction between relativism and absolutism. Wherever in system designing, judicial practice and academic study, it is an essential to convert roles and admit judges’ discretion. Furthermore, enhancing the reason of judgments is also indispensable. |
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