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A Study of the Certainty of Judiciary Interpretation

Author: LiWei
Tutor: XuXianMing
School: Shandong University
Course: Legal Theory
Keywords: Legal interpretation Judiciary interpretation Certainty
CLC: D916.2
Type: PhD thesis
Year: 2007
Downloads: 688
Quote: 5
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As the saying goes that the law cans never runs alone. We can hardly beware of the existence and function of law in real life if there is no application and interpretation and execution of law by judicial procedure in specific cases. Rule of law is a social practice but not a fancy. Because legal rules and legal texts can establish a series of clear-cut, stable and concrete regulations in the society and guide the behaviors of people. The prerequisite of rule of law is that the judge must engage for the certainty of judiciary interpretation of law in practice. The thesis focuses on the study of certainty of judiciary interpretation. According to the needs of rule of law, the certainty of interpretation required unique in form and correct in essence, or "unique and correct answer" for short. The thesis tries to answer two questions. The first one is that whether the judiciary interpretation has certainty? The second one is that how to realize the certainty of judiciary interpretation? The conclusion of the thesis is that there does have a objective and correct answer for the interpretation of law according to the current mainstream values in society. What the judge should do is to seek after the answer and realize the certainty of interpretation. The author also suggests that we should count on procedural justice to acquire the "unique and correct answer", that is to say, we will free from the quarrel about what the "unique and correct answer" should be and take the interpretation which was reduced under perfect judicial institution as the correct answer, or the unique spokesman of law in real life. The perfect judicial institution includes three aspects. They are high-quality profession community of judge, rational procedure and ample argument during the course of interpretation.The first part of the thesis introduces the basic category of judiciary interpretation and try to explain the definition, character, object , target and history of judiciary interpretation, and so on. Judiciary interpretation is such a course that the judges research the legal text and try to find out determinate adjudication rules in order to solve specific case. It can also be regarded as a course of the connection of case and law. The character of judiciary interpretation is legality, objectivity, periodicity, creativity and materiality. The object of judiciary interpretation includes legal text and facts, and the logical relationship of them is more important. The target of judiciary interpretation is to confirm the determinate adjudication rules for specific case.The Anglo-American law system and continental law system adopted different ways of judiciary interpretation. The latter took the code as the object of interpretation; pay much attention to the precision of legal definition and strictness of legal system. The former took precedents as their origin source and made decisions according to the precedents..The second part discusses the reasons of hindering certainty of judiciary interpretation. The doctrine of strict rule does not think the judge needs the help of subjective judgment in the course of interpretation. There is a unique answer. The inherent limitations of substantive law makes the judge confronted multiple selections during the course of legal interpretation. He has to fall back on discretion and come to a conclusion. Judiciary interpretation contains subjectivity. The result of interpretation has many possibilities because of the diversity of selection. How to deal with multiple selections and come to a correct conclusion in the course of interpretation? This is the difficulty in reaching the certainty of judiciary interpretation. This part will answer what the certainty of judiciary interpretation is and suggest that we need the kind of certainty which will acquire the "unique and correct answer" stably and continually in practice.The third part discusses the methods of judiciary interpretation, analyses two positions of judiciary interpretation and compares the difference between them. After analyzing the inherent reasons of the existence of multiple possibilities in judiciary interpretation, the author argued that there is objective and correct answer in judiciary interpretation. The judge’s ways of thinking in course of judiciary interpretation is method of interpretation. Different method leads to different conclusion. Generally speaking, the methods of judiciary interpretation includes literature interpretation, systematic interpretation, historical interpretation, objective interpretation, constitutional interpretation, and so on. The academic community used to seek for the correct answer of judiciary interpretation in a substantive way and tries to control the process of selection in the course of judiciary interpretation through controlling the order of method selection. But the more we want to definite the value orientation of law, the more serious we lose the certainty of it. We have to transform our viewing angle and fish for more operable and stably method. The fourth part studies the function of procedural justice in achieving the certainty of judiciary interpretation. The author argues that we should perfect the system of choosing and appointing judges and procedure in order to control the judge’s discretion. When the final decision comes out, we should regard it as the "unique and correct answer" as long as decision fall in with two conditions mentioned above. What kind of institutions is necessary to sustain such a judicial system also be discussed in this part.The fifth part focus on the challenges and responses of rule of law in contemporary society, then come up with the new idea on the certainty of judiciary interpretation. The rule skepticism challenged to the legitimacy of judiciary interpretation incisively. However, legal argumentation theory developed the doctrine of procedure, reformed the traditional idea on the certainty of judiciary interpretation, and emphasized the function of argumentation, dialogical and consultation in the course of interpretation. The legal argumentation theory save the legitimacy of law from the crisis. It affects nearly every school of jurisprudence at present, including some schools that insisted substantive viewing angle and they also admitted the positive role of dialogical and argument in finding the correct answer.The last part analyses the Chinese judiciary interpretation institution and the current situation, blemish, and improvement of quality of interpretation. In China, people do not pay enough attention to the political and legal position of judiciary interpretation. Due to a serious shortage of institutional guarantee to the judiciary interpretation, our judicial system can not provide the legal correct answer for society stably and continually. We should renew our ideas on the certainty of judiciary interpretation, strengthen the control systems and guarantee system under the guidance of procedure, and further intensify the communication between the academic community and the practical group, improve the overall level of legal interpretation.

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CLC: > Political, legal > Legal > UNIVERSITY > Justice system > The court
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