Judicial Interpretation of China's Supreme People's Court as “Secondary Law” with Special Reference to Criminal Law

Abstract

The analysis of the profile and role of China's Supreme People's Court needs updating. The Court is actively developing new interpretative formats that concern its relations with sister organizations and the National People's Congress. This article contextualizes these formats within China's changing institutional dynamics. China does not have a separation of powers; however, the Chinese system of justice does have its own separation of functions. The Court is playing a pivotal role from within the changing separation of functions, but the extent and quality of its independence from other organizations are open to question. In the context of deepening legal reform, the law is still incomplete and imperfect, and Court interpretation has often served as “secondary law.” In short, pragmatic judicial interpretations have sometimes preceded legislation by Congress. Remedy such as secondary law might be justified as absolute administrative necessity given the outstanding structural problems that characterize China's criminal justice system, but it has attracted internal criticism that argues for narrowing the function of the Court to a more tightly disciplined judicial role as well as for plugging the holes in legal process and structure by creating guiding case law and supporting the “freedom of judge's decision making.”