关于最高人民法院司法解释性文件效力的意见
02/02/01
(c) respectively,
Michael
Schlesinger /
Simon
Xi Zhang, 2001
下文共三份
Email
对最高人民法院发布的司法解释性文件进行简略讨论。包括：在中国法律系统内的地位、法律效力、修改与废除，以及全国人民代表大会（及其常务委员会）是否对司法解释拥有事前的批准权，并关于批准权是否可行的分析。Email
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=======================================
FROM:
Michael Schlesinger
TO: CLNet
SUBJECT: Supreme People's Court Interpretations of Intellectual Property Crimes
Provisions
TIME: 20:18 Feb. 2, 2002
Seeking
information and your advice:
1. I am looking for an English (preferably) or Chinese copy of the Supreme
People's Court Interpretations of the Provisions of the Criminal Law relating to
Intellectual Property Crimes (amended in 1997 I believe).
These Interpretations set the monetary thresholds for criminal liability for IP
crimes in China. Note that there were previous SPC Interpretations to the
NPC Decision on Punishing Copyright Violations (1994), and that we are not
looking for those.
2. My legal question is: what is the legal effect of the SPC Interpretations?
How can it be amended? Is there a difference between a SPC Interpretation
that has been issued by the court itself, without any
policy (or other) guidance or approval of the Standing Committee of the NPC? Is
there such a thing as a State-Council approved Interpretation of the Supreme
People's Court? If there is a Standing-Committee approved Interpretation
(or a State-Council approved Interpretation), what would be required to amend
such an Interpretation?
Sorry for the somewhat convoluted nature of my question, but I am trying to get
a hold of these concepts to know how to address an Interpretation that may need
to be amended. Thank you for any information you can provide.
Michael
Schlesinger
Smith & Metalitz, LLP
1747 Pennsylvania Ave., N.W.
Suite 825
Washington, DC 20006
(202) 833-4198 (202) 872-0546 (Fax)
schlesin@iipa.com www.iipa.com
=======================================
FROM:
Simon Xi Zhang
TO: CLNet
SUBJECT: Re: Supreme People's Court Interpretations of Intellectual Property
Crimes Provisions
TIME: 21:22 Feb. 2, 2002
Here
are some of my opinions on the general issues of SPC interpretations (SPC
int'p).
1) Governing Authorities.
Art. 33 of Organic Law of People's Court (rev. 09/02/83) delegates the
"interpretation power" to SPC, the power is to be exercised only
"with regard to the application of laws in adjudication of cases".
Art.2 of Legislation Law (03/15/00) precludes its application to SPC int'p
because interpretation is not legislative activity.
2) Enabling "Act"
On June 23, 1997, SPC itself issued "Some Rules Concerning the Judicial
Interpretations" (最高人民法院关于司法解释工作的若干规定
法发(1997)15号 http://www.chinalaw.com.cn/lawsdb.asp?DoAction=DispOne&law_id=1958
) and reserved the judicial interpretation power to itself. (Art.2). This rule
is effective from 07/01/97.
The rule effectively repealed many prior practice in Chinese judiciary system:
3) Legal Effect.
SPC int'p shall have the effect of "Law" (Art.4, 97' Rules). SPC Int'p
therefore are above State Council Regulations, Ministerial Rules and Local (N)PC
legislations.
Judicial judgments shall cite the SPC Int'p if they are used in formulating the
opinions. (Art.14, 97' Rules)
Compare these two with the last sentence of Reply dated on 10/28/86 ( http://www.chinalaw.com.cn/lawsdb.asp?DoAction=DispOne&law_id=993
)
97' Rules not only gave Int'p the effect of law, also meant to have one uniform
set of int'p inside the judiciary system.
Cf. http://www.chinalaw.com.cn/lawsdb.asp?DoAction=DispOne&law_id=1033
(title: "MAY not")
4) Amendment & Repeal
See Art. 12, 13 of '97 Rules.
z.B. Repeal: Int'p (2000) No.20 http://www.court.gov.cn/channel3/jieshi_20.htm
z.B. Amendment: Int'p (2000) No.34 http://www.cn99.com/cgi-bin/get_msg?id=159&listname=newlaw
5) No need get approval from NPC
After Legislation Law became effective, SPC have issued several Int'p and none
of them got any approval stamp from NPC or whatever gov't entity. Lower courts
are required to follow these Int'p, just as they did in pre-Legislation Law
times.
6) One Last Word:
NPC and Standing Committee of NPC have constitutional power to repeal any SPC
Int'p. This is not an issue governed by Legislation Law, but the PRC
Constitution. However, I guess if what NPC & NPCSC want to get is just a
modification to Int'p rather than repeal, they would ask SPC to do it, not by
themselves.
Hope it's helpful, and, correct.
Simon Xi Zhang
LL.B., Peking University Law School
J.D. cand., Univ. of Missouri-Kansas City School of Law
xze02@missouri.edu
=======================================
FROM:
Simon Xi Zhang
TO: CLNet
SUBJECT: Re: Supreme People's Court Interpretations of Intellectual Property
Crimes Provisions
TIME: 22:34 Feb. 2, 2002
An
after-thought supplement, see below after original reply.
----- Original Message -----
> 1) Governing Authorities.
> Art. 33 of Organic Law of People's Court (rev. 09/02/83) delegates the
"interpretation power" to SPC, the power is to be exercised only
"with regard to the application of laws in adjudication of cases".
>
> Art.2 of Legislation Law (03/15/00) precludes its application to SPC int'p
because interpretation is not legislative activity.
>
> 2) Enabling "Act"
> On June 23, 1997, SPC itself issued "Some Rules Concerning the
Judicial Interpretations" and reserved the judicial interpretation power to
itself. (Art.2). This rule is effective from 07/01/97.
> 3) Legal Effect.
> SPC int'p shall have the effect of "Law" (Art.4, 97' Rules). SPC
Int'p therefore are above State Council Regulations, Ministerial Rules and Local
(N)PC legislations.
Supplement:
It can be argued that SPC does not have constitutional power (PRC Const.) or
delegated power (Organic Law) to claim its interpretations have the effect of
"Law".
Reason:
97' Rule encroached upon the Legislative power (distributed among NPC and the
Administrative by Legislation Law) by a disguised exercise of the power "to
monitor adjudication works of lower people's courts and to issue judiciary
interpretations", which is delegated by Organic Law of People's Court.
But even under this argument, lower courts still need to honor the SPC Int'p.
i.e. courts should follow SPC Int'p but consider it to be lower than the
authority of laws. However, without an affirmative reprimand from
NPC/NPCSC, I don't think Chinese courts will think SPC Int'p is LOWER than the
law.
It's also making no sense for NPC to "recollect its power" to affix
approval stamp on every piece of SPC Int'p. Suppose SPC has to submit a draft
int'p to NPC for approval, either NPC will give an OK without any thoughtful
reading, thus keeps only a hollow "legal formality", or it will summon
NPC Commission for Legislative Affairs, General Office and General Office
Research Dept. to break the int'p into pieces and scrutinize (keep in mind that
the int'p of General Principle of Civil Law has 200 provisions, and the recent
int'p of Mortgage Law has 134 provisions). These offices are already highly
burdened struggling for drafting more and more new laws to meet the annual
legislation agenda, and might want to keep themselves out of this approval job.
An informal advice from NPC to SPC with regard to a particular important or
trouble-maker provision in Int'p might be a possible tool. But the first step is
to convince NPC of the importance of that muddy provision.
Simon Xi Zhang
LL.B., Peking University Law
School
J.D. cand., Univ. of Missouri-Kansas City School of Law
xze02@missouri.edu