国际条约在中国法院的适用
发布时间：2018-10-10 13:12
【摘要】： 条约是国际交往的重要工具。我们处在一个高度发达的国际社会中，任何一个国家都需要与他国进行往来，再封闭的国家也不能例外。当今国际社会交通便利，信息发达，经济相互依存，国际交往日益密切。哪里有国际交往，，哪里就有国际法。国家不仅需要交往，而且还需要合作，需要明确相互的权利和义务，而条约提供了这样的法律规则，确立了国家之间的权利和义务关系。遵守条约对于维护国际法律秩序，开展国际交往与合作，确保本国的利益，都有着重要的意义，国际法上有“条约必须遵守”的原则。按照这个原则，条约对缔约国有约束的效力，缔约国有责任遵守条约的规定，履行条约的义务。 从国际法与国内法的关系理论分析，存在着一元论(monism)与二元论(dualism)两大传统学派之间的争论。后来，有相继出现了协调说或联系说等新的理论观点。甚至还有更加务实的英美学者对欧陆学者一元论、二元论对立的不屑一颐。不管怎说，国际法和国内法产生和发展的社会基础、调整对象、效力基础、法律渊源、实施措施等均有不同，但二者也不是彼此孤立的，它们之间有着相互渗透、互相补充的密切联系。 国际条约不仅仅是静态的法律文本，更多的是条约的适用问题。我国对外交往的日益增多，人民法院受理涉外案件的数量也大幅度攀升，涉外案件的当事人也希望引用国际条约来确定自己的权利义务。对于我国参加或者缔结的民商事领域的国际条约，根据我国民商事基本法律中的原则规定，在根据该国际条约的规定属于条约适用的范围的情况下，我国法院即有义务在涉外民商事审判中将其作为直接的法律依据予以适用，这样人民法院在审理涉外民商事案件中不可避免地要依据国际条约来处理涉案纠纷。我国《民法通则》、《海商法》、《航空法》、《民事诉讼法》等法律法规规定了国际条约的适用原则，并且各级法院也有不少适用国际条约的判例。但由于国际条约在国内宪政上的制度缺位，加之国际条约种类的多样性、内容的复杂性，以及我国涉外法律法规不完善，使得国内法院对国际条约的适用构筑在经验主义的实证分析上，适用方式及侧重点各有不同，很难推导出一般性的适用规律。 加入世界贸易组织使中国在更大程度、更广范围、更深层次上参与国际竞争和合作。在“入世”的新形势下，中国的司法工作需要逐步与国际上通行的做法保持一致。法院是中国的涉外司法的重要窗口。涉外审判工作直接关系到中国的司法形象和国际地位。中国的司法走向世界已是大势所趋。这就需要我们加快改革步伐，要明确国际条约的宪法地位，遵守条约义务，维护国家主权，不断加强立法、司法解释工作，促进法院审判机构和方式改革，大力营造国际条约适用氛围，不断提升中国司法的权威和公信力。
[Abstract]:The treaty is an important tool for international communication. We are in a highly developed international community, and any country needs to interact with other countries. Nowadays, international communication is convenient, information is well developed, economy is interdependent, and international communication is getting closer and closer. Where there is international communication, there is international law. States not only need to interact, but also need to cooperate, need to clarify each other's rights and obligations, and treaties provide such legal rules, establish the relationship between rights and obligations of States. Compliance with treaties is of great significance for maintaining international legal order, carrying out international exchanges and cooperation, and ensuring the interests of our country. In international law, there is the principle that "treaties must be observed". According to this principle, the treaty shall have binding effect on the parties, and the States parties shall have the duty to comply with the provisions of the treaty and to fulfil its obligations. From the theoretical analysis of the relationship between international law and domestic law, there is a dispute between monism (monism) and dualism (dualism). Later, some new theoretical viewpoints, such as coordination theory or connection theory, emerged one after another. There are even more pragmatic British and American scholars on the monism of European scholars, dualism of the opposition disdain. In any case, the social basis, the object of adjustment, the basis of effectiveness, the source of law and the measures of implementation of international law and domestic law are different, but they are not isolated from each other, but they permeate each other. A close relationship that complements each other. International treaties are not only static legal texts, but also the application of treaties. With the increasing of our country's foreign exchanges, the number of foreign cases accepted by the people's courts is also increasing, and the parties to the foreign cases also hope to use international treaties to determine their rights and obligations. With regard to international treaties in the field of civil and commercial affairs to which China is a party or concluded, and in accordance with the principles of the basic civil and commercial laws of China, if the provisions of the international treaties fall within the scope of application of the treaties, The courts of our country have the obligation to apply it as the direct legal basis in the civil and commercial trials involving foreign affairs, so that the people's courts inevitably have to deal with disputes involved in foreign civil and commercial cases on the basis of international treaties. The general principles of civil law, maritime law, aviation law, civil procedure law and other laws and regulations of our country stipulate the applicable principles of international treaties, and courts at all levels also have many precedents to apply international treaties. However, due to the absence of the constitutional system of international treaties, the variety of international treaties, the complexity of contents, and the imperfection of laws and regulations concerning foreign affairs, The application of international treaties in domestic courts is based on empirical analysis, and its application methods and emphases are different, so it is difficult to deduce the general rules of application. China's accession to the World Trade Organization (WTO) has enabled China to participate in international competition and cooperation to a greater extent, in a wider range and at a deeper level. Under the new situation of WTO entry, China's judicial work needs to be consistent with the international practice. The court is an important window of foreign-related justice in China. Foreign-related trials are directly related to China's judicial image and international status. China's judicial trend towards the world has been the general trend. This requires us to speed up the pace of reform, to clarify the constitutional status of international treaties, to abide by treaty obligations, to safeguard national sovereignty, to continuously strengthen legislation and judicial interpretation, and to promote the reform of the judicial organs and methods of the courts. To create an atmosphere for the application of international treaties and to continuously enhance the authority and credibility of China's judiciary.
【学位授予单位】：郑州大学
【学位级别】：硕士
【学位授予年份】：2007
【分类号】：D993.8
本文编号：2261903
[Abstract]:The treaty is an important tool for international communication. We are in a highly developed international community, and any country needs to interact with other countries. Nowadays, international communication is convenient, information is well developed, economy is interdependent, and international communication is getting closer and closer. Where there is international communication, there is international law. States not only need to interact, but also need to cooperate, need to clarify each other's rights and obligations, and treaties provide such legal rules, establish the relationship between rights and obligations of States. Compliance with treaties is of great significance for maintaining international legal order, carrying out international exchanges and cooperation, and ensuring the interests of our country. In international law, there is the principle that "treaties must be observed". According to this principle, the treaty shall have binding effect on the parties, and the States parties shall have the duty to comply with the provisions of the treaty and to fulfil its obligations. From the theoretical analysis of the relationship between international law and domestic law, there is a dispute between monism (monism) and dualism (dualism). Later, some new theoretical viewpoints, such as coordination theory or connection theory, emerged one after another. There are even more pragmatic British and American scholars on the monism of European scholars, dualism of the opposition disdain. In any case, the social basis, the object of adjustment, the basis of effectiveness, the source of law and the measures of implementation of international law and domestic law are different, but they are not isolated from each other, but they permeate each other. A close relationship that complements each other. International treaties are not only static legal texts, but also the application of treaties. With the increasing of our country's foreign exchanges, the number of foreign cases accepted by the people's courts is also increasing, and the parties to the foreign cases also hope to use international treaties to determine their rights and obligations. With regard to international treaties in the field of civil and commercial affairs to which China is a party or concluded, and in accordance with the principles of the basic civil and commercial laws of China, if the provisions of the international treaties fall within the scope of application of the treaties, The courts of our country have the obligation to apply it as the direct legal basis in the civil and commercial trials involving foreign affairs, so that the people's courts inevitably have to deal with disputes involved in foreign civil and commercial cases on the basis of international treaties. The general principles of civil law, maritime law, aviation law, civil procedure law and other laws and regulations of our country stipulate the applicable principles of international treaties, and courts at all levels also have many precedents to apply international treaties. However, due to the absence of the constitutional system of international treaties, the variety of international treaties, the complexity of contents, and the imperfection of laws and regulations concerning foreign affairs, The application of international treaties in domestic courts is based on empirical analysis, and its application methods and emphases are different, so it is difficult to deduce the general rules of application. China's accession to the World Trade Organization (WTO) has enabled China to participate in international competition and cooperation to a greater extent, in a wider range and at a deeper level. Under the new situation of WTO entry, China's judicial work needs to be consistent with the international practice. The court is an important window of foreign-related justice in China. Foreign-related trials are directly related to China's judicial image and international status. China's judicial trend towards the world has been the general trend. This requires us to speed up the pace of reform, to clarify the constitutional status of international treaties, to abide by treaty obligations, to safeguard national sovereignty, to continuously strengthen legislation and judicial interpretation, and to promote the reform of the judicial organs and methods of the courts. To create an atmosphere for the application of international treaties and to continuously enhance the authority and credibility of China's judiciary.
【学位授予单位】：郑州大学
【学位级别】：硕士
【学位授予年份】：2007
【分类号】：D993.8
【引证文献】
相关硕士学位论文 前2条
1 龙莹;条约在国内的适用问题研究[D];中国政法大学;2011年
2 施俊杰;国际民商事条约在中国适用问题研究[D];复旦大学;2010年
本文编号：2261903
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