Towards the rule of law: Judicial lawmaking in China

Research output: Contribution to journalArticleResearchpeer-review

Abstract

In a common law jurisdiction, such as Australia, judges may develop law in deciding cases. However, in China, judges, like their counterparts in civil law countries, are to apply, rather than interpret, the law. Although the Chinese Constitution and the Legislation Law vest the interpretive power in the NPC Standing Committee, the National People’s Congress has authorised the Supreme People’s Court to interpret laws and decrees relating to their specific application at trial. The Supreme People’s Court issues judicial interpretations to provide lower courts with guidance in their application of statutory norms. In issuing these interpretations, the Supreme People’s Court may create new legal norms beyond the mere application of law in adjudicating disputes. To facilitate the uniform application of law, the Supreme People’s Court has adopted the system of guiding cases, to which lower courts should ‘refer’ in adjudging similar cases. The introduction of the system of guiding cases has generated scholarly and professional interest in whether China will have case law as another source of law. This article examines judicial interpretations and the system of guiding cases and assesses the role of judicial lawmaking in China’s efforts to reform its legal system.
Original languageEnglish
Pages (from-to)149-168
Number of pages20
JournalBond Law Review
Volume28
Issue number2
Publication statusPublished - 2016

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constitutional state
China
legal usage
Law
interpretation
source of law
legal norm
civil law
statutary order
common law
case law
legal system
jurisdiction
constitution
legislation
reform

Cite this

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abstract = "In a common law jurisdiction, such as Australia, judges may develop law in deciding cases. However, in China, judges, like their counterparts in civil law countries, are to apply, rather than interpret, the law. Although the Chinese Constitution and the Legislation Law vest the interpretive power in the NPC Standing Committee, the National People’s Congress has authorised the Supreme People’s Court to interpret laws and decrees relating to their specific application at trial. The Supreme People’s Court issues judicial interpretations to provide lower courts with guidance in their application of statutory norms. In issuing these interpretations, the Supreme People’s Court may create new legal norms beyond the mere application of law in adjudicating disputes. To facilitate the uniform application of law, the Supreme People’s Court has adopted the system of guiding cases, to which lower courts should ‘refer’ in adjudging similar cases. The introduction of the system of guiding cases has generated scholarly and professional interest in whether China will have case law as another source of law. This article examines judicial interpretations and the system of guiding cases and assesses the role of judicial lawmaking in China’s efforts to reform its legal system.",
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Towards the rule of law : Judicial lawmaking in China. / Lo, Vai Io.

In: Bond Law Review, Vol. 28, No. 2, 2016, p. 149-168.

Research output: Contribution to journalArticleResearchpeer-review

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