Abstract
As the Constitution of China, 1982, vests the power to interpret the law in the Standing Committee of the National People’s Congress, the nature and constitutionality of judicial interpretation of laws and the Constitution in China is quite uncertain and controversial. In this chapter, the author discusses the issue of judicial interpretation in historic, organizational, and normative perspective and arrives at the conclusion that the issue of interpretation of laws in China has undergone substantial change in the direction of becoming a judicial interpretation through the Supreme People’s Court. In author’s view interpretation of laws by the courts is natural that legitimately inheres in the judiciary and it cannot be called as delegated power or usurpation of legislative power by the courts. For this understanding, difference must be drawn between the abstract and the concrete judicial interpretation. While the abstract judicial interpretation may be regarded as usurpation of legislative power, the interpretation in concrete cases is inherent in the judiciary. Accordingly, the judicial interpretation of laws ought to be regarded as binding law. Such an understanding and acceptance of the judicial interpretation of laws in China helps in improving the certainty and uniformity of laws as well as fills any gaps in them. However, at the moment, it is still a subject matter of criticism, conservativism, and groundless and political partisanship.
Liu, Jianlong, Associate Professor in Constitutional and Administrative Law at University of Chinese Academy of Social Sciences Politics and Law School, Beijing, China; Visiting Research Scholar, the West Bengal National University of Juridical Sciences, Kolkata, India; Guest at MPI for Comparative Public Law and International Law, Heidelberg, Germany; Visiting Scholar at Humboldt University-Berlin Law School.
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Notes
- 1.
From the day of the establishment of the People’s Republic of China on, it has adopted four constitutions. The controversies over the relationship among the four constitutions are a little intensive. The leading scholars that follow Carl Schmitt or Sieyies’ doctrine of decisionism argued that there is only one constitution for the State, namely the Constitution of 1954, the successive ones could only be regarded as the revisions therefore. However, generally, the constitutions will be separately named as the Constitution of 1954, the Constitution of 1975, the Constitution of 1978, and the Constitution of 1982.
- 2.
Section 45, Law on Legislation of the People’s Republic of China of 2000 and its amended edition in 2015.
- 3.
Huang 2014. However, Dr. Huang is critic of the very argument.
- 4.
For example, the Former Chief Justice of China Wang Shengjun labelled such proposition as a measure overturning the socialist system of China and spared no effort to reiterate his opinions in various cases.
- 5.
Chen 2003b.
- 6.
He 2004.
- 7.
Liu 2001.
- 8.
Chen 2003b.
- 9.
- 10.
Dong 2009a.
- 11.
No. 12 [2007] of the Supreme People’s Court March 23, 2007.
- 12.
Section 6 of the Provisions of the Supreme People’s Court on the Judicial Interpretation Work of 2007.
- 13.
- 14.
He 2004.
- 15.
Yuan 2003.
- 16.
- 17.
Nowadays, some lawyers are of the view that the model cases published in the Supreme People’s Court Report or the cases selection books edited thereby should be regarded as some kind of judicial interpretation. Ma 2010. Certainly, the cases reported will indentify the preference of the Supreme People’s Court on the reading of certain laws. However, the Supreme People’s Court herself is not bounded by such cases while most of them are decided by its inferior courts and she is free to overrule such cases. In this regard, the cases reported may not be deemed as judicial interpretation of the Supreme People’s Court. Moreover, the principle of precedent is deeply rooted in the common law tradition but not the civil law one, as a country with such a long history of written law tradition, such a suggestion is self evidently doubtful.
- 18.
Chen 2003a.
- 19.
Article 53 of the Administrative Procedural Law of the People’s Republic of China, 1989.
- 20.
- 21.
Article 129 of the Constitution, 1982.
- 22.
Article 131, ibid.
- 23.
Han 2005.
- 24.
Article 23 of the Organic Law of the People’s Procuratorate of the People’s Republic of China, 1979, amended in 1983.
- 25.
Article 31(3), the Constitution, 1954.
- 26.
Article 18, the Constitution, 1975.
- 27.
Article 25, the Constitution, 1978.
- 28.
Footnote 1 in Liu 2007.
- 29.
Yang 2008.
- 30.
Compared with Article 79 of the German Basic Law.
- 31.
Chen 2003b.
- 32.
Ibid.
- 33.
Article 42(2) of the Legislation Law, 2000.
- 34.
Jiang Bixin, Scholars Should Care For Legislations, Legal Daily, March 9, 2000, in Liu 2009.
- 35.
Liu, ibid.
- 36.
- 37.
http://press-pubs.uchicago.edu/founders/documents/v1ch17s9.html. (August 9, 2010).
- 38.
Dworkin 1982.
- 39.
Chen 2003.
- 40.
Yu 2002.
- 41.
Yuan 2003.
- 42.
He 2004.
- 43.
Huang 2005.
- 44.
Liu 2005.
- 45.
- 46.
Maxeiner, ibid., at 30–31.
- 47.
Wellman 1994.
- 48.
Bell 1995.
- 49.
Chemerinsky 1987.
- 50.
Li Weizhen v. Public Security Bureau of Qinzhou City, Gui (Admin.) 1999, No. 04.
- 51.
Fang and Bi 2004.
- 52.
Li Weizhen v. Public Security Bureau of Qinzhou City, Gui (Admin.) 1999, No. 04.
- 53.
Dong 2009b.
- 54.
Peczenik 2008.
- 55.
Some assistant justice of the Court expressly agreed with the idea. See, Footnote 5 in Fan 2009.
- 56.
Judicial Interpretation 4 (2003).
- 57.
For example, the Supreme People’s Court established the so-called doctrine of “Three Supremes”, the supremacy of the CPC’s causes, of the people’s interests and of the Constitution and the laws, which was firstly presented by President Hu Jintao on the National Working Conference of Politics and Laws of 2007 and then prorogated by the Chief Justice of China Wang, Shengjun.
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Liu, J. (2019). Judicial Interpretation in China. In: Singh, M., Kumar, N. (eds) The Indian Yearbook of Comparative Law 2018. The Indian Yearbook of Comparative Law. Springer, Singapore. https://doi.org/10.1007/978-981-13-7052-6_9
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