中国现行法律解释制度研究

法律解释制度是国家法律制度整体中具有辐射性和跨越性的重要制度。全国人大常委会行使首要的法律解释权 ,解释法律应当遵循五道程序 ,法律解释同法律具有同等效力 ,最高司法机关可以就司法中具体应用法律的问题进行解释 ,这些内容构成了中国现行法律解释的制度框架。这一制度框架中 ,立法法规定的法律解释制度在法律意义上是成立的 ,1981年全国人大常委会关于加强法律解释工作的决议是否合法则存在疑问。现今绝大多数国家一般都以司法机关为主要的法律解释主体。中国实际采行的则是全国人大常委会和最高司法机关都解释法律的二元化体制 ,前者是法律上的首要法律解释主体 ,后者则是实践中最主要的法律解释主体。几十年间 ,全国人大常委会所作的法律解释为数非常有限 ,倒是法律上处于其次地位的最高司法机关的法律解释为数甚多。在人民代表大会制度下 ,由全国人大常委会行使首要的和主要的法律解释权 ,在逻辑上是成立的。然而逻辑上成立未必能完全解决问题。全国人大常委会会期不足因而不能随时根据需要解释法律 ,它并不具体应用法律因而难以适时就法律应用特别是法律适用做出法律解释。转变这种状况 ,单用所谓立法解释、司法解释、行政解释这种颇具中国特色的分类方法是不敷需要的。在法治发达的环境下

On the Current System of Legal Interpretation of China

The system of legal interpretation is an important system in state legal systems and also has the characters of radiation and span. The most important legal interpretative power is exercised by the Standing Committee of the National People's Congress; to interpret law shall obey five procedures; the legal interpretation and law are equally authentic; the highest judicial office may interpret the questions concerned to the application of laws. These contents form the institutional frame of the current legal interpretation of China. In this institutional frame, the system of legal interpretation ruled by the Legislative Law is tenable by the means of law. However, the resolution about strengthening the works of legal interpretation that was made by the Standing Committee of the National People's Congress in 1981 is in doubt for its legality. Today most countries generally regard judicial organs as their principal bodies of legal interpretation. In China, the dual system that both the Standing Committee of the National People's Congress and the highest judicial office may interpret law is actually accepted. The former is the principal body of legal interpretation in laws and the latter is the most principal body of legal interpretation in practice. During the several decades, the Standing Committee of the National People's Congress has made few legal interpretations, but the highest judicial office that is legally lower than the Standing Committee of the National People's Congress has made a number of legal interpretations. Under the system of people's congress, it is logical that the power of legal interpretation is principally exercised by the Standing Committee of the National People's Congress. However, logical ways may not solve all the problems. The sessions of the Standing Committee of the National People's Congress are time limited, so the Standing Committee of the National People's Congress cannot interpret laws at any time according to the need. It doesn't apply laws, so it cannot make legal interpretation about the application of laws especially the justice. Only with the Chinese-character method of classification including legislative interpretation and judicial interpretation and administrative interpretation, it is insufficient to change this situation. Under the circumstance that the rule of law has been highly developed, it is difficult to read the notions such as legislative interpretation, judicial interpretation and administrative interpretation. The problems shall be solved from the visual angle of perfecting the system of legal interpretation that is ruled by the Legislative Law: the highest judicial office shall be given the status of the principal body of legal interpretation; the aspect that the legal status and actual function of the bodies of legal interpretation are separated shall disappear; the scope of interpretative power of the bodies of legal interpretation shall be clear; among legal interpretation, legal amendment and legal supplement, there shall be a clear distinction; the operative procedure of legal interpretation shall be improved so that the standardization of the forms of legal interpretation can be realized. From all of the above, we are able to improve the whole civilization of legal institution and the political civilization.