Judicial interpretation is a series of binding rules formulated by the Supreme People’s Court (SPC) and the Supreme People’s Procuratorate (SPP).
I. What is judicial interpretation?
Judicial interpretation is the official interpretation made by the SPC and the SPP on the application of certain laws, and, therefore, has legal binding force.
The power of the SPC and the SPP to formulate judicial interpretation derives from the provisions of China’s Legislation Law (立法法). According to the Legislation Law, the judicial interpretation of the SPC and the SPP should be made for specific legal provisions, and it should conform to the legislative purpose, principle and original intention of the legal provisions in question.
In order to make it clear how to formulate judicial interpretation, the SPC promulgated the Provisions of the Supreme People’s Court on Judicial Interpretation (最高人民法院关于司法解释工作的规定) in 2007. Likewise, the SPP also promulgated the Provisions of the Supreme People’s Procuratorate on Judicial Interpretation (最高人民检察院司法解释工作规定) in 2006, as amended in 2015 and 2019.
The SPC’s judicial interpretation covers matters in civil and commercial law, criminal law and administrative law, while the SPP’s judicial interpretation mainly focuses on criminal cases. As for foreign parties, civil and commercial disputes are of their utmost concern in their contacts with China, so we will mainly introduce how the SPC formulate the judicial interpretation.
In addition, it should be noted that once the SPC’s judicial interpretation being implemented, all courts nationwide are bound by it. If a court makes a judgment based on the judicial interpretation, it shall invoke the judicial interpretation in the judgment.
II. What are the types of judicial interpretation?
The SPC’s judicial interpretation can be divided into “interpretation”(解释), “regulation”(规定), “reply”(批复) and “decision”(决定).
Interpretation: the SPC issues interpretation to explain how to apply a specific law or how to apply the law in a certain kind of case and issue during the case trial. Generally speaking, “interpretation” is about the application of substantive law.
Regulation: the SPC issues regulation to interpret norms and opinions about how to promote adjudication work pursuant to the legislative purpose. In general, “regulation” is about the application of procedural law.
Reply: the SPC gives replies on the legal issues submitted by high people’s courts and the PLA Military Court during the case trial. Generally speaking, each “reply”, which in fact constitutes a rule per se, is the SPC’s opinions addressed to all courts nationwide on how to handle a specific case.
For the differences between “reply” and “response” (答复) of the SPC, please read the article “No, You Can't Ignore Responses of China’s Supreme People’s Court”.
Decision: the SPC adopts “decision” to modify or repeal certain judicial interpretation.
III. How is judicial interpretation formulated?
The SPC’s research office is responsible for drafting judicial interpretation, and the organization, coordination, compilation, etc.; the SPC’s adjudication committee decides whether to adopt the draft judicial interpretation submitted by the research office through voting.
The specific formulation process of judicial interpretation is as follows:
1. Soliciting needs
The research office solicits the needs for judicial interpretation submitted by various parties, such as the SPC’s adjudication committee, the SPC’s trial divisions, high people’s courts, representatives to the National People’s Congress (NPC) and members of the National Committee of the Chinese People’s Political Consultative Conference (CPPCC), other government authorities, social organizations, and citizens.
2. Planning
After summarizing the needs, the research office makes the annual project plan of judicial interpretation, and then the SPC’s adjudication committee decides whether to approve the same or not.
3. Drafting
The SPC’s trial divisions, which specialize in hearing specific types of cases, are responsible for drafting the judicial interpretation in their respective fields.
4. Soliciting the NPC’s opinions
After the research office finalizes the draft of judicial interpretation and before it is submitted to the SPC’s adjudication committee for voting, the SPC will ask the NPC for its opinions on the draft.
5. Voting by the SPC’s adjudication committee
The SPC’s adjudication committee will discuss and vote on the draft judicial interpretation.
6. Issuance and announcement
If the SPC’s adjudication committee votes for the judicial interpretation, then it will be signed by the president or vice president of the SPC and issued in the form of the SPC’s announcement.
7. Filing with the NPC
The SPC shall submit the judicial interpretation to the NPC Standing Committee for filing within 30 days as of the date of promulgation.
Cover Photo by tong zhou(https://unsplash.com/@zt1970) on Unsplash.
Contributors: Guodong Du 杜国栋
