Empirical Study on Constitutional Interpretation in Judicial Field

DOI

10.2991/emle-17.2017.121How to use a DOI?

Keywords

constitutional interpretation; court practice; law meaning conversion; constitutional review system

Abstract

Although the Courts in China do not take the Constitution as the direct basis of judgment, the Court's pursuit of individual justice provides a considerable existential space for the interpretation of constitutionality. Legislation has generality and it is difficult to take the special features of social life into consideration, thus, when applicable, the occurrence of unfair judgment to individual cases is inevitable. Taking into consideration of individual justice, the Court will converse the law meaning in judgment, or abandon the usual explanation of the law and select an unusual explanation. This process is essentially a process of constitutional interpretation. Although the Supreme People's Court does not approve of the direct invoking of the Constitution in judicial judgment, the conversion of law meaning or the selection of interpretation scheme in the process of judgment objectively requires the Court to take the Constitution as the basis of argument. Resorting to the Constitution, after all, is better than the abstract idea of resorting to fairness and justice. By converting the question of judgment of individual justice into the question of whether the law is in conflict with the Constitution in its application process, the constitutional interpretation can not only provide constitutionally legitimate basis for judicial law-making, but also provide it with constitutionally control, which is conductive to the standardization of the judgment. Constitutional interpretation can also make up for the institutional gaps and omissions of constitutional review system of China.

Copyright

© 2017, the Authors. Published by Atlantis Press.

Open Access

This is an open access article distributed under the CC BY-NC license (http://creativecommons.org/licenses/by-nc/4.0/).

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TY  - CONF
AU  - Huafeng Lu
AU  - Jiayuan Zhang
PY  - 2017/12
DA  - 2017/12
TI  - Empirical Study on Constitutional Interpretation in Judicial Field
BT  - Proceedings of the 3rd International Conference on Economics, Management, Law and Education (EMLE 2017)
PB  - Atlantis Press
SP  - 577
EP  - 582
SN  - 2352-5428
UR  - https://doi.org/10.2991/emle-17.2017.121
DO  - 10.2991/emle-17.2017.121
ID  - Lu2017/12
ER  -