The Judicial Explanation in Chinese Criminal Law

Abstract

As we know, when law has been made by legislators, it will remain as law on paper, if it is not implemented by judicial officials,' especially by Judges. The of the law by Judges is law in action and therefore plays a very important role in legal systems. In the United States and the Federal Republic of Germany, as well as other western countries, this kind of understanding of Judges, i.e., law in action, is displayed in the form of the case reports or Gerichtsentscheidungen. In the Chinese Criminal Justice System, however, it appears as the judicial explanation. Judicial explanation has a long history in Chinese legal systems. The famous Tang Lu Shu yi2 is a good example of this kind of explanation in ancient time. After 1949 when the People's Republic of China was founded, the People's Supreme Court had given many judicial explanations, although they were substantively fragmented and generally confidential.3 However, the Chinese judicial explanation today is fundamentally different from the former ones. Since 1979, when the Chinese Criminal Code and Criminal Procedure were published, the Chinese judicial explanation has been progressively developed in a declaratory and systematic way.4 Today, the judicial explanation has been playing a more and more important role in bringing the established frame of the socialist legal system to perfection and in keeping good implementation of the laws. The judicial explanation has become indispensable for scholars to get a complete picture of the Chinese legal system and for practitioners to apply Chinese laws.