最高人民法院裁判、司法解释的法律地位

摘要

The decisions and the legislative interpretations of judicial interpretations of the Supreme Court of China can be considered as a part of Mainland China's customary law,and carried by decisions and judicial interpretations.Customary law is the very source of its normal force and they are supposed to be an informal source of the law for they have the required characteristics for substantiating customary law.Accordingly,the legislative judicial interpretations and decisions of the Supreme Court that are qualified to be promulgated in the Gazette of the Supreme Court should be standardized by the requisites of customary law and have the quality supposed to be universally fair.%最高人民法院的裁判和司法解释中的立法型解释,可以构成中国以裁判和司法解释为载体的习惯法,它们的普遍效力来源于习惯法,并因具有习惯法的品格而成为法律的非正式渊源.基于此,最高人民法院"立法型"司法解释和刊登于公报上的裁判,应尽量以习惯法的构成要求为标准,具备"人们普遍认为它是正确的"品质.