How do Chinese judges invoke the constitution? Analysis based on 1907 decisions
-
Jun Yu
Jun Yu is a Full Professor and Doctoral Supervisor at Guanghua Law School, Zhejiang University. He also serves as the Executive Vice-President of the Institute of Legislation, Deputy Director of the Chinese Studies Centre for Local Governance and Rule of Law, Zhejiang University. His research interests include constitutional law, administrative law, public law theory, and methodology of law. He is the Principal Investigator of several research projects of China’s National Social Science Foundation.
,
Jingxiong Cao
Jingxiong Cao is currently a doctoral candidate in Constitutional Law at Guanghua Law School, Zhejiang University. She received the M.S. Degree in Civil and Commercial Law from Nanjing Normal University, Nanjing, China, in 2012. Her research interests are oriented to Fundamental Rights and the relationship between Constitutional law and branch law.
und
Le Cheng
Le Cheng is a Chair Professor of Law and a concurrent Professor of Cyber Studies at Zhejiang University. He serves as the Executive Dean of Zhejiang University’s Academy of International Strategy and Law, Executive Dean of Zhejiang University’s Institute of International Cyberspace Governance, Editor-in-Chief of International Journal of Legal Discourse (De Gruyter Mouton), and Co-Editor of Social Semiotics (Francis & Taylor). His research interests and publications are in the areas of international law, cyber studies, discourse studies, semiotics, terminology, and legal discourse and translation.
Abstract
The abolition of the judicial interpretation issued by the Supreme People’s Court of the People’s Republic of China in Qi Yuling’s case marks the end of the trend of developing a judicial constitutional review system in China, but issues of courts invoking constitutional norms in judicial decisions continue to arise. This essay investigates the actual situation of the Constitution in judicial decisions by categorizing 1907 court decisions that invoked the Constitution as the reasoning basis and the court decisions which invoked the Constitution as the decision-making basis and by exploring the logic of the use of the Constitution by Chinese judges. In the absence of a constitutional review system, the primary sense of Chinese judges invoking constitutional norms is characterized by “simplistic reasoning”, “politicized enforcement” and the “parent law” concept. The insufficient judgment reason is a universal feature of judicial adjudication in Chinese courts. However, due to the lack of a constitutional review system, the poor perception of the interpretation and application of the constitution may exacerbate the lack of legal arguments invoked by the Constitution. The political model of Constitution enforcement in China makes judges invoke the Constitution in judicial decisions by “asserting the prestige of the Constitution”, which leads to numerous errors in legal argumentation in judicial decisions. This also reflects the tendency of “political enforcement” to take precedence over the legal enforcement of the Constitution. The influence of the old “parent law” concept is that judges can arbitrarily apply constitutional norms directly to civil cases, including fundamental rights norms. By summarizing and describing the above three features, we can depict the activities of current Chinese courts in invoking the Constitution.
About the authors
Jun Yu is a Full Professor and Doctoral Supervisor at Guanghua Law School, Zhejiang University. He also serves as the Executive Vice-President of the Institute of Legislation, Deputy Director of the Chinese Studies Centre for Local Governance and Rule of Law, Zhejiang University. His research interests include constitutional law, administrative law, public law theory, and methodology of law. He is the Principal Investigator of several research projects of China’s National Social Science Foundation.
Jingxiong Cao is currently a doctoral candidate in Constitutional Law at Guanghua Law School, Zhejiang University. She received the M.S. Degree in Civil and Commercial Law from Nanjing Normal University, Nanjing, China, in 2012. Her research interests are oriented to Fundamental Rights and the relationship between Constitutional law and branch law.
Le Cheng is a Chair Professor of Law and a concurrent Professor of Cyber Studies at Zhejiang University. He serves as the Executive Dean of Zhejiang University’s Academy of International Strategy and Law, Executive Dean of Zhejiang University’s Institute of International Cyberspace Governance, Editor-in-Chief of International Journal of Legal Discourse (De Gruyter Mouton), and Co-Editor of Social Semiotics (Francis & Taylor). His research interests and publications are in the areas of international law, cyber studies, discourse studies, semiotics, terminology, and legal discourse and translation.
-
Research funding: This work was the phased research progress and supported in part by the Key Projects of the National Social Science Foundation under Grant 20AFX11, and in part by the Key Projects of Zhejiang Social Science Planning under Grant 21WZQH06Z.
-
Conflict of interest statement: The authors declare no conflicts of interest regarding this article.
-
Author contribution: All the authors have accepted responsibility for the entire content of this submitted manuscript and approved submission.
References
Ahl, Björn. 2019. Judicialization in authoritarian regimes: The expansion of powers of the Chinese supreme people’s court. International Journal of Constitutional Law 17(1). 252–277. https://doi.org/10.1093/icon/moz003.Suche in Google Scholar
Chen, Linlin. 2006. Judgment based on legal principles. Chinese Journal of Law 3(3). 3–15.Suche in Google Scholar
Cheng, Le. 2019. Gauging court adjudication: Qualification and quantification. International Journal of Legal Discourse 4(2). 123–141. https://doi.org/10.1515/ijld-2019-2019.Suche in Google Scholar
Feng, Jianpeng. 2017. Constitutional invocation and its function in judicial decisions in China – an empirical study based on publicly available judgment instruments. Legal Studies 39(3). 44–59.Suche in Google Scholar
Han, Dayuan. 2016. The evolution of the relationship between constitutional law and civil law in China – a sort of doctrinal history. Tsinghua Law 6. 151–167.Suche in Google Scholar
Huang, Hui. 2014. Constitutional interpretation and its theoretical Review. Chinese Law 1(1). 295.Suche in Google Scholar
Huang, Mingtao. 2014. The conceptual distinction between two kinds of “constitutional interpretation” and the possibility of constitutional interpretation. Chinese Legal Science 182(6). 281–298.Suche in Google Scholar
Lin, Laifan. 2001. From constitutional norms to normative constitutions – a kind of preface to normative constitutionalism. Beijing: Law Press.Suche in Google Scholar
Lin, Laifan. 2017. From constitutional norms to normative constitution. Beijing: Law Press.Suche in Google Scholar
Lin, Xiaowen. 2015. An empirical study on the citation of constitutional norms in judicial judgments in China. Legal Science (Journal of Northwestern University of Political Science and Law) 33(4). 181–190.Suche in Google Scholar
Ling, Bin. 2015. How the judges reason: Chinese experience and universal principles. China Legal Science 187(5). 99–117.Suche in Google Scholar
Loper, Kelley. 2018. Book review of human rights in China: A social practice in the shadows of authoritarianism. International Journal of Constitutional Law 16(2). 730–733. https://doi.org/10.1093/icon/moy048.Suche in Google Scholar
Ma, Ling. 2009. The “reasons” for the annulment of the “approval” in Qi Yuling’s case. Jurisprudence 329(4). 20–22.Suche in Google Scholar
Shui, Bing. 2018. Constitutional norms in civil adjudication: 1995–2015. Journal of the East China University of Politics and Law 116(1). 112–123.Suche in Google Scholar
Virginia, Mattioli & Karen McAuliffe. 2021. A corpus-based study on opinions of advocates general of the court of justice of the European Union: Changes in language and style. International Journal of Legal Discourse 6(1). 87–111. https://doi.org/10.1515/ijld-2021-2047.Suche in Google Scholar
Wang, Kai. 2015. Reflections on the interpretation of constitutionality. The Jurist 148(1). 45–47.Suche in Google Scholar
Wagner, Anne, Aleksandra Matulewska & Le Cheng. 2020. Law as a culturally constituted sign-system – a space for interpretation. International Journal of Legal Discourse 5(2). 239–267. https://doi.org/10.1515/ijld-2020-2035.Suche in Google Scholar
Wu, Zhaoxiang. 2009. The understanding and application of “the provisions of laws, regulations and other normative legal documents cited in adjudication documents”. The People’s Judicature 586(23). 29–33.Suche in Google Scholar
Xing, Binwen. 2015. How courts invoke the Constitution-centering on judicial practice after the repeal of Qi case approval. China Law Review 6(1). 127–157.Suche in Google Scholar
Xu, Shuang. 2016. Human rights in the constitutional law of China in transition, Human rights and good governance. International Journal of Constitutional Law 16(2). 655–663.Suche in Google Scholar
Xu, Yudian. 2009. The constitution, 3rd ed. Taibei: Yuanzhao Press.Suche in Google Scholar
Yu, Jun. 2017a. An empirical study on the judicial application of the Chinese constitution. Beijing: China University of Political Science and Law Press.Suche in Google Scholar
Yu, Jun. 2017b. Unenumerated constitutional rights: Arguments, norms and methods. Beijing: China University of Political Science and Law Press.Suche in Google Scholar
Zhai, Guoqiang. 2014. Dual-track system of constitutional enforcement in China. Chinese Journal of Law 212(3). 85–94.Suche in Google Scholar
Zhang, Qianfan. 2010. A constitution without constitutionalism? The paths of constitutional development in China. International Journal of Constitutional Law 8(4). 950. https://doi.org/10.1093/icon/mor003.Suche in Google Scholar
Zheng, Lei. 2021. Research report on filing review. Beijing: China Democratic Legal Publishing House.Suche in Google Scholar
© 2022 Walter de Gruyter GmbH, Berlin/Boston
Artikel in diesem Heft
- Frontmatter
- Research Articles
- The TuneIn case or communication to the public in the UK after Brexit: the status quo with targeting as a governance tool
- Politics behind the law: unveiling the discursive strategies in extradition hearings on Meng Wanzhou
- Dissenting with conviction: boosting in challenging the majority opinion
- How do Chinese judges invoke the constitution? Analysis based on 1907 decisions
- Stancetaking in the U.S. Supreme Court’s abortion jurisprudence (1973-present): epistemic (im)probability and evidential (dis)belief
- Extraterritorial experiences and China’s decision to curb extortion of confessions through torture
- Review
- Le Cheng, Jiamin Pei and Jian Li: “Belt & Road” digital and cyber governance system
- Book Review
- Clayton, Ó Néill, Charles Foster, Jonathan Herring, John Tingle: Routledge handbook of global health rights
Artikel in diesem Heft
- Frontmatter
- Research Articles
- The TuneIn case or communication to the public in the UK after Brexit: the status quo with targeting as a governance tool
- Politics behind the law: unveiling the discursive strategies in extradition hearings on Meng Wanzhou
- Dissenting with conviction: boosting in challenging the majority opinion
- How do Chinese judges invoke the constitution? Analysis based on 1907 decisions
- Stancetaking in the U.S. Supreme Court’s abortion jurisprudence (1973-present): epistemic (im)probability and evidential (dis)belief
- Extraterritorial experiences and China’s decision to curb extortion of confessions through torture
- Review
- Le Cheng, Jiamin Pei and Jian Li: “Belt & Road” digital and cyber governance system
- Book Review
- Clayton, Ó Néill, Charles Foster, Jonathan Herring, John Tingle: Routledge handbook of global health rights
