The Normative Creation Function Of China's Judicial Regulation System

Judicial regulation system is an important part of China's judicial interpretation system and an important basis of China's judicial judgment.According to the existing theoretical research and empirical investigation,it is found that,on the practical level,judicial provisions have obvious normative creation function compared with the narrow judicial interpretation and judicial approval.This paper is divided into four parts,aiming to carry out a series of research on the function of judicial regulation system.In the first part,the author proposes and verifies that the judicial provisions have the obvious function of creating norms through the combination of the existing theoretical research and the empirical investigation of typification.In the second part,the author analyzes the factors contributing to the establishment of the judicial regulation from two aspects: the internal factors of the system and the external demand factors.Among them,the internal factors of the system include: the nature of abstract judicial interpretation provides a theoretical space for creating norms of judicial provisions;The lack of effective restriction on the right of judicial interpretation facilitates the creation of judicial regulations;The subjective will of the subject of judicial regulation.Realistic external demand factors include: the need to make up for the lack of legal norms and internal rules of the court system;The implicit demand of implementing and creating public policies promotes the creation of judicial regulations;The concept of judicialinitiative induces the supreme people's court to issue creative judicial regulations.An indispensable part of China's judicial reform requires judicial provisions to play a role.In the third part,the author sorts out the disputes arising from the creation of judicial regulations and reflects on the reasons behind.The disputes existing in the creation of norms of judicial provisions can be summarized in the following aspects:first,the creation of norms in judicial regulations may undermine the independent exercise of judicial power;Second,the creation and standardization of judicial regulations impairs the independent exercise of judicial power in China.Third,there is no reference basis for the creation of judicial regulations.After in-depth analysis,it is found that the root cause of these disputes lies in several unclear boundary issues.First,the confusion of legal norms,legislative intention and legislative spirit;Second,there is no distinction between judicial provisions and legal interpretation of the boundaries;Third,it is difficult to distinguish between judicial work and non-judicial work.In the fourth part,the author tries to solve the problem of unclear boundary from the perspective of thinking within and outside the judicial regulation system.On the one hand,in the system of judicial stipulation,we should cancel the substantive normative creation judicial stipulation,retain the majority of procedural normative creation judicial stipulation,and classify the normative refinement judicial stipulation into the narrow judicial interpretation.In addition,the judicial regulation system should be standardized and purified,the judicial regulation system and the judicial interpretation system should be strictly distinguished,and the whole process of the formulation and release of the judicial regulation should be supervised.On the other hand,in addition to the system,guiding cases should be given full play to the role of providing guidance for judicial decisions,in order to eliminate part of the negative functional impact of the judicial system,and clearly give judges the right of legal interpretation and legal renewal.