清末法律解释制度:中国法律解释制度近代化的初步尝试

The Law Interpretation System of Late Qing Dynasty:the Initial Modernization of Law Interpretation System of China

清末变法改制过程中形成了由中央主管机关解答下级机关法律疑问的问答式法律解释制度。此种制度具有解释权力集中而解释主体多元、行政指示色彩浓厚、倾向于立法以及实用主义等特征,适应了当时法制变革的需要,有其独特性及现实合理性,但也存在以解释代行立法、指挥行政及审判活动、解释前后不一等种种问题。清末法律解释制度承上启下,既带有中国传统法律解释实践的影子,又为民国法律解释制度的确立及发达做了准备,是中国法律解释制度近代化的初步尝试,具有重要的历史地位。

In the legal reformation of Late Qing Dynasty, the law interpretation system was constructed initially. The central au- thorities explained law by way of answering the questions of law asked by the subordinate organs. The power of law interpretation was controlled by the central authorities, used like the power of administrative, and had the function of legislation to adapt to the need of the legal reformation. Also, there were many problems with it, like the interpretation organs legislation by way of inter- pretation, commanding the administrative and judicial actions of the subordinate organs, and inconsistency between the interpre- tations. As the initial modernization of law interpretation system of China, the law interpretation system of Late Qing Dynasty was very important in the history, for it inherited the law interpretation tradition and prepared for the construction of law interpretation system of the Republic China.