On The Interpretation Of Adminsitrative Law Norm

In this paper,a set of basic theory of legal interpretation,which is applicable to administrative litigation(judicial review),will be tentatively proposed in six chapters.Introduction will include the basic theory of interpretation of Law,the object of interpretation,the thinking of interpretation of Administraitve Law Norm and the methodology of interpretation of Administrative law Norm.In the meantime,the author will take the legal interpretative action of Supreme People's Court in the administrative trial as the typical example,to study the practices on legal interpretation of China based on "Chinese problem" consciousness.There will be an explanation and a generalization on the problem consciousness and theme of the paper in the parts of introduction and conclusion.Introduction part of this paper will focus on problem consciousness, researching status at home and abroad,framework and thinking of study. The problem consciousness of the paper is that to adjudicate according to the law is one of propriety requirements in administrative trial.Because of vagueness and uncertainty in laws and regulations,to adjudicate according to the law and to apply the laws and regulations to the cases will depend on accurate legal interpretation.Legal interpretation is a significant law-occupation action,which plays a very important role in promoting adjudicating according to the law in administrative trial.In order to enhance legal competence of judges,which is mainly reflected by the capability of legal interpretation,and make sure that judges will adjudicate according to the law,a set of comparative mature interpretation theory of administrative law(method of interpretation) is necessary.Such method of interpretation should not only keep consistent with basic theory of hermeneutics,but also should satisfy the particularity of administrative trial and legal norm.At the same time,the author will point out and prove that accurate legal interpretation not only can implement justice,which is the minimum program and basic requirement of administrative trial,but also undertakes significant political function and constitutionalism target: to construct political value of a administrative state in administrative trial. With respect to researching status at home and abroad,the author will review relevant background,knowledge and materials of hermeneutics of administrative law.Referring to framework and thinking of study,the paper will focus on clarification of two issues:definition of research scope and reasons for such definition;general content and internal connections of every chapter.Chapter one,to discuss interpretative basis of administrative law. At the beginning,the author will introduce basic theory of traditional hermeneutics of civil law on the basis of continental legal system tradition, which is considered as the source of hermeneutics of administrative law. Then,there will be a further study on interpretative basis of administrative law and clarification of its essence.On the basis of the discussion above, the author will discuss basic function of legal interpretation of administrative law.Chapter two will focus on interpretative object.To discuss the characteristics of legal norms of administrative law and how such characteristics take effect in the thinking course of legal interpretation.Chapter three will focus on interpretative thinking.The author will point out legal interpretation of administrative law is a norm-oriented interpretative thinking course,which is also restrained by both "fact" and "policy".According to different treatments on principle thinking and policy thinking by different judges,such course can be classified into three types:normative,pragmatism and political principle doctrine,which reflect judge's attitude of respecting and reviewing towards legal interpretation in separate cases and determine the adoption of different interpretative rules and interpretative methods.Chapter four and chapter five will focus on interpretative methodology of administrative law.To discuss the particularity of interpretative method of administrative law on the premise of discussions in the forgoing three chapters.The author will describe different interpretative rules and methods on three basic standpoints.Chapter six will focus on the study of Chinese problem.This chapter consists of the description,evaluation and reflection on the two significant interpretative actions of Supreme People's Court in the administrative trial: text-oriented judicial interpretation and specific interpretation in 56 typical cases,and the author will point out main thinking standpoints and methods in such two actions.With respect to text-oriented judicial interpretation, the author will analyze the typical interpretative provisions of judicial interpretations on administrative litigation law.At last,the author will take the administrative trial experiences of Supreme People's Court as an epitome to explore the tension and difference between text-oriented judicial interpretation and specific interpretation in cases of Chinese administrative law and search for roots of the thought,and draw a personal conclusion from such study.