On The Relationship Between Guiding Cases And Judicial Interpretations

As two different mechanisms for unifying the application of law in China,judicial interpretation has been questioned for its "legislativeization",while the guiding case system established afterwards has suffered from poor application in practice,and may even become a "subordinate" of judicial interpretation.In order to change this situation,different ideas have been put forward by the academic community.However,the"complementary theory" exacerbates the unequal status of guidance cases and judicial interpretations,and the "replacement theory" is neither suitable for China’s national conditions nor China’s legal system where statutory law is supreme.Although scholars who advocate the "co-existence theory" acknowledge that guiding cases and judicial interpretations each enjoy unique value,they rarely propose to adjust the effectiveness and competence of the two,and fail to pay sufficient attention to the law-making phenomenon in guiding cases.Therefore,this article analyses and examines the better relationship between guiding cases and judicial interpretations from the perspective of sorting out the imbalance in practice between them in the context of the overall legal interpretation system.In the first part,the interaction between guiding cases and judicial interpretations in practice is analysed,pointing out that although they are substantially similar in terms of the mechanism of their generation,they are given very different effects,and thus exhibit a one-way complementary relationship in terms of content:guiding cases are sometimes only a demonstration or "reinterpretation" of judicial interpretations,and the law-making contents of these cases may also be merely a "preparatory judicial interpretation".The second part analyses the reason of the imbalance between guiding cases and judicial interpretations,and points out that in order to reconstruct the relationship between them,two questions must be answered:the attribution of the right and the limits of legal interpretation.The third part analyses the different approaches to these two issues from mainstream domestic doctrines and the two major overseas law systems and their inherent commonalities.In the fourth part,a new solution is proposed for the construction of the relationship between guiding cases and judicial interpretation,which suggests that in the future,the power of legal interpretation should be shared between judges and the supreme people’s court,and legal renewal in a certain degree should be allowed.And the judicial interpretation can only provide a narrow interpretation of a specific legal provision.In the fifth part,some suggestions are made for the improvement of the current system in order to reconstruct the relationship between guiding cases and judicial interpretations.Judicial interpretations in the form of"approvals" and "regulations" should be abolished;the effect of guiding cases should be clarified and the effect of law-making content should be elevated to the status of"quasi-legal source".In addition,it is necessary to further strengthen the ability of supplying rules by guiding cases,and to improve the application and restraint mechanism for guiding cases.