Understanding China, One Blog at a Time

An American in China

On Chinese Law and Their Weak Judiciary

Posted by w_thames_the_d on February 18, 2011

Here is a good excerpt from this page. The page is ssrn.com and is a great resource for research. The snippet below talks about the problem of laws and judicial interpretation in China. In essence the piece says that due to many factors both the laws and the judiciary’s ability to formulate and interpret them are pretty weak.

Judicial interpretations play an important role in the Chinese legal system; “written in response to a perceived need rather than to resolve a single case, judicial interpretations function almost as laws or regulations, filling gaps and answering questions. However, the status of judicial interpretations has long been problematic in China. Whilst it is apparent that the statutes themselves are written in such general and vague terms as to be virtually useless without further interpretation, statutory interpretation is somewhat of a grey area in Chinese jurisprudence. The PRC Constitution gives the power of statutory interpretation to the National People’s Congress, but is otherwise silent on the issue. Nevertheless, the Supreme People’s Court (SPC) is currently “the most important and active interpretation authority in China. ” As Chinese legislation is frequently based on imported models and foreign concepts, guidance from the SPC is necessary to aid lower courts to apply the legislation correctly, as they make lack sufficient knowledge of the historical background of such imported concepts.21 The SPC’s powers of interpretation are limited to cases of concrete application under the Organic Law of the People’s Courts, but in practice, it “has gone far beyond the limit and has performed interpretation that should more properly be described as ‘quasilegislation’. ”22

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