Höchstrichterliche Interpretationen als Mittel der Rechtsfortbildung in der Volksrepublik China

The Role of the Supreme People's Court in Law-Making by Means of Judicial Interpretations in the People's Republic of ChinaFrom a comparative perspective, judicial interpretations issued by the Chinese Supreme People's Court (SPC) represent a form of law-making that is characterized by several exceptional elements and particularities. Chinese legislation established the legal device of judicial interpretations in the 1979 Organizational Law of the People's Courts, but they are only vaguely described as »an interpretation of questions on how to specifically apply laws and orders in adjudication proceedings«. In a first phase, the SPC was inconsistent in how it used this authorisation to interpret laws. This phase ended with the SPC's issuance of rules in 1997 introducing separate categories and unifying the procedure and promulgation of judicial interpretations. According to a functional approach, there are two categories of judicial interpretations in China: concrete-individual judicial interpretations, in which the SPC is issuing a reply to requests from lower-level courts in a specific case, and abstract-general judicial interpretations, which contain rules for general application. After 1997 the number of abstract-general judicial interpretations quickly surpassed the number of concrete-individual judicial interpretations. The former interpretations are of particular interest from several standpoints: First of all, they are of much greater relevance in practice. This is not only confirmed by statistical evidence but also because such abstract-general judicial interpretations are by their nature applied to pending cases far more repeatedly. Secondly, such interpretations are exceptional from a comparative perception because only a few jurisdictions feature a similar legal device and the SPC interpretations raise questions as to the delimitation of legislation and adjudication. Due to their lesser importance in practice, the paper only briefly explains concrete-individual judicial interpretations and instead focuses in more detail on abstract-general judicial interpretations. It is argued that from a functional perspective these interpretations perform the role of laws. They are promulgated in order to make adjudication a uniform process and to contribute to a more comprehensive legal framework. The resulting conflicts in the allocation of competence between the SPC and the legislature are analyzed in a subsequent section of the paper. Thereafter, the article explains why this legal device holds great relevance in the current Chinese political and economic situation. The paper closes with some conclusions suggested by the findings.