The Critique Of The Arbitrariness Of Constitutionality Interpretation In Judicial Application

Constitutionality interpretation,as a method of legal interpretation,has been introduced into Chinese academic circles from outside the territory for nearly 30 years.It once became the focus of constitutional studies and triggered heated academic discussions.However,by contrast,the constitutionality interpretation rarely applied in judicial decisions.Due to the inaccurate grasp of the concept itself and the characteristics of the case,the past empirical research on constitutionality interpretation have many shortcomings in the setting of retrieval conditions and the selection of sample judgment documents.Relevant empirical research fails to truly and comprehensively demonstrate the application of constitutionality interpretation in judicial decisions.Furthermore,the summary and reflection of the problem is not comprehensive and in-depth,lack of systematic and constructive advice to improve the application of constitutionality interpretation.By scientifically setting retrieval conditions,39 constitutionality interpretation judgment documents were retrieved,which surpassed previous empirical research in terms of the quantity and accuracy of documents.After examining the form and essence of the sample judgment documents,we can get the status quo of the application of constitutionality interpretation in the following dimensions of judicial decisions.In terms of refereeing time,since 2014,constitutionality interpretation has been used more and more fluently.In addition,in terms of the nature of the document,37 judgments constitute an absolute majority,while only 2 written verdicts.In terms of the types of judgment documents,civil cases accounted for nearly 90%,followed by administrative cases,and criminal cases are the least.The hierarchical distribution of document production courts is consistent with the “pyramid” distribution in which the number of online judgment documents gradually decreases from the basic courts to the higher courts,covering half of the provincial administrative regions in the mainland of China with regard to geographical.The number and frequency of citing constitutional provisions in Chapter II “Basic Rights and Duties of Citizens” in the application accounted for approximately 64% and 88% of the total,reflecting the important role of basic rights clauses in the application of constitutionality interpretation.The function of specification determination of constitutionality interpretation is realized by simple interpretation function,selection function,as well as selection and exclusion function.Besides,constitutionality interpretation exerts the functions of indirect third-party effectiveness of basic rights,filling of the connotation of provisions and norms,and confirmation of constitutionality when it comes to the effectiveness of judicial decisions.Through reflection,we could conclude that the judicial application of constitutionality interpretation has the phenomenon of the arbitrariness,which is manifested in the following four aspects.The first is the misunderstanding of the concept of constitutionality interpretation,which still insists on the definition when the concept of constitutionality interpretation was first introduced into Chinese academic circles in the 1990 s,thus mistaking the system interpretation as the constitutionality interpretation.Secondly,the application of constitutionality interpretation is used arbitrarily.Through the selection of sample referees for case retrieval,we found that there are cases in which the application of constitutionality interpretation is inconsistent.It has been proved that the application of constitutionality interpretation in individual decisions could lead to diametrically opposite referee results.Thirdly,the extensive application form of constitutionality interpretation is manifested in the failure to properly consider the particularity of the method in the application,not taking into account the order of application in the narrow legal interpretation method,and not clarifying the application conditions and the reasons for the application of the case.Last but not least,there is a serious imbalance in the types of cases in the sample adjudication documents.The proportion of civil,administrative and criminal cases is about 89.7%,7.7% and 2.6% respectively.To certain extent,although it is related to the fact that the proportion of civil cases in online judicial documents has reached more than 60%,whether the low proportion of criminal and administrative cases is due to the application of constitutionality interpretation in judicial practice is worth asking.The root causes of the arbitrariness of constitutionality interpretation in judicial application mainly lie in the following three aspects.First of all,the constitutionality review system and mechanism can bring institutional power to the application of constitutionality interpretation in judicial decisions,but this institutional power is in a lack state.Secondly,the Supreme People’s court’s existing rules on the making of judgment documents and the specific provisions on interpretation and reasoning have never made clear the application form of constitutionality interpretation judgment.Also,it havs not stipulated the application conditions and specific demonstration process of constitutionality interpretation.As the supreme judicial organ,there is a lack of work guidance.Finally,the relevant academic research itself is relatively weak and conservative,and there is little interaction between theory and practice.To some extent,the existing empirical research fails to truly and comprehensively demonstrate the application of constitutionality interpretation,which leads to insufficient theoretical guidance in academic fields.In order to improve the application of constitutionality interpretation in judicial decisions,firstly,it is necessary to construct two sets of mechanisms connected with constitutionality review during and after litigation,so as to unblock the institutional motivation for the application of constitutionality interpretation.Secondly,we should strengthen the work guidance of the supreme judicial organ by improving the production standard of judicial documents,refining the specific provisions of judicial reasoning and promulgating the guiding cases of constitutionality interpretation.At the same time,the relevant research of constitutionality interpretation in academic circles should establish the research orientation of localization,refinement and practice,pay attention to the internal relationship between the application of constitutionality interpretation and the implementation of the constitution,and establish the theoretical consciousness needed for the implementation and transformation of the Constitution in the transitional period.It is expected that the above suggestions can promote the application of constitutionality interpretation in judicial decisions,and effectively improve the status quo of void constitutional effect in China.