How to improve the application of international law in China?

I. Status quo of application of treaties in China

China's Constitution and the Treaty-making Procedure Law only stipulate the authority and procedures of our power organs to conclude treaties, but do not stipulate the general principles of domestic application of treaties. Provisions on the application of treaties in China are scattered in the laws of various departments. According to relevant regulations and practices, there are two main ways to apply treaties in China, namely, direct application and conversion application.

The concept and practice of direct application of treaties in China

1. The concept of direct application of treaties in China

The direct application of the treaty in China means that the treaty can be applied as a domestic law in China without any subsequent legislative procedures, and the parties can claim their rights directly to the specialized agency for law application according to the provisions of the treaty.

2. The practice of direct application of treaties in China.

(1) legal provisions

1 provides for the direct application of treaties in related matters.

It is stipulated that the provisions of the treaty shall apply only when there are no provisions on related matters in domestic law.

Where the domestic laws are inconsistent with the provisions of international treaties or the treaties have other provisions, the provisions of the treaties shall apply, unless China has declared reservations.

It is stipulated that the provisions of the treaty should be observed in related affairs.

(2) Judicial interpretation

There are two kinds of judicial interpretations on the application of treaties in China: one is general rules; The other is the special provisions for specific treaties.

(2) The concept and practice of treaty transformation and application in China.

1._ On the concept of transformation and its application in China

The application for transformation refers to the need for supplementary legislation after the entry into force of the treaty for China. Only by translating the relevant provisions of the treaty into domestic legislation can it be applied in China and claim rights to the specialized agencies where the law is applicable.

2. The practice of treaty transformation and application in China.

China does not specifically stipulate the types and procedures of treaty application transformation, but in practice, some treaties are transformed and applied in China:

1 The provisions of the treaty are principled and not operable.

2. If the domestic law lacks the contents stipulated in the treaty, the relevant domestic law should be amended and supplemented.

The treaty explicitly requires the contracting parties to apply the treaty through legislation.

Second, China's international treaties applicable legal system problems

(A) the application of international treaties in China is not clear. The laws directly applicable to treaties are limited to the civil and commercial fields, and are not extensive and representative compared with China's huge legal system. This clause mainly deals with the question of who takes precedence in case of conflict between domestic laws and international treaties. Moreover, relevant clauses usually appear in "foreign clauses" or "rules". "Foreign-related clauses" are not applicable to the situation that all parties are domestic subjects, and "Ze" is only a supplementary way of application, which limits the scope of direct application of international treaties in China. The way of transformation and application increases the workload of the legislature and poses too great a challenge to its work efficiency. Although the application of treaties in China can be summarized as mixed application, there are no specific rules, and such a conclusion is not * * *. Therefore, it is necessary to fix this application in a standardized way and bring it into the track of legalization.

(2) The solution to the conflict between international treaties and domestic laws is not clear. When there is a conflict between international treaties and China's domestic laws, there is no systematic solution in China, but it is stipulated separately in the law, which is also applicable to specific situations in practice, and there are no rules to speak of. Compared with the common law system in the United States, the rule that "the latter law is superior to the former law" has been formed. As a statutory country, China should formulate relevant rules to solve this conflict. Of course, China's judicial organs can also explain in specific cases and clarify the relevant reconciliation norms.

(3) Treaties lack status in China's legal system. Although the General Principles of the Civil Law, the Civil Procedure Law and other important laws all mention that "the provisions of international treaties concluded or acceded to by China are different from those of our laws, the provisions of international treaties shall apply", but the relevant laws such as the Constitution and the Legislative Law of our country have not clearly defined the status of treaties in our legal system. Therefore, it cannot be concluded that treaties enjoy a generally superior status to domestic laws in China.

Three. Suggestions on Perfecting the Legal System of International Treaties in China

(1) Establish a treaty application system that combines direct application with transformation application. In legislation, China needs to formulate standards for when to apply what applicable methods. Different treaties adopt different application modes, and the most important provisions are legislated in China. Treaties with vague provisions and no operability shall not be directly applicable.

(2) Resolution of conflicts between international treaties and domestic laws. As for the conflict between international treaties and domestic laws, the most important and even the most important issue is not to solve it, but to prevent it. Therefore, in order to cooperate with the application of the treaty in China, China's domestic laws should be revised and improved in advance before the treaty is ratified, so as to actively and effectively implement the treaty.

(3) Solve the lack of status of international treaties in China's legal system. Since the current constitution of our country does not mention the legal status of treaties, it should be expressly stipulated in the constitution that "treaties shall not contravene the constitution", thus clarifying the effect of the constitution in the fundamental law of our country again. Put treaties and laws in the same position, but in the absence of special provisions on the application of international treaties, even if there are laws and international treaties for dispute settlement at the same time, and there is no conflict between them, domestic laws should be applied. Only when there is no provision in domestic law or it is inconsistent with the provisions of international treaties, international treaties have priority. Therefore, international treaties can only play a role in the domestic law system.

Since the founding of New China, China has concluded and participated in a large number of international treaties, adhered to the principle of "abiding by the treaty" and earnestly fulfilled its treaty obligations, thus winning a high reputation in the international arena. However, there are still some problems in the application of international treaties in China, which hinder China from fulfilling its treaty obligations and maintaining its international image. Therefore, it is necessary to take active measures to establish a perfect legal application system, make up for the lack of treaty status, and effectively prevent conflicts between international treaties and domestic laws. Only in this way can China actively integrate into the tide of internationalization and go further and further on the road of internationalization.