國(guó)際條約在中國(guó)法院的適用
發(fā)布時(shí)間：2018-10-10 13:12
【摘要】： 條約是國(guó)際交往的重要工具。我們處在一個(gè)高度發(fā)達(dá)的國(guó)際社會(huì)中，任何一個(gè)國(guó)家都需要與他國(guó)進(jìn)行往來(lái)，再封閉的國(guó)家也不能例外。當(dāng)今國(guó)際社會(huì)交通便利，信息發(fā)達(dá)，經(jīng)濟(jì)相互依存，國(guó)際交往日益密切。哪里有國(guó)際交往，，哪里就有國(guó)際法。國(guó)家不僅需要交往，而且還需要合作，需要明確相互的權(quán)利和義務(wù)，而條約提供了這樣的法律規(guī)則，確立了國(guó)家之間的權(quán)利和義務(wù)關(guān)系。遵守條約對(duì)于維護(hù)國(guó)際法律秩序，開(kāi)展國(guó)際交往與合作，確保本國(guó)的利益，都有著重要的意義，國(guó)際法上有“條約必須遵守”的原則。按照這個(gè)原則，條約對(duì)締約國(guó)有約束的效力，締約國(guó)有責(zé)任遵守條約的規(guī)定，履行條約的義務(wù)。 從國(guó)際法與國(guó)內(nèi)法的關(guān)系理論分析，存在著一元論(monism)與二元論(dualism)兩大傳統(tǒng)學(xué)派之間的爭(zhēng)論。后來(lái)，有相繼出現(xiàn)了協(xié)調(diào)說(shuō)或聯(lián)系說(shuō)等新的理論觀點(diǎn)。甚至還有更加務(wù)實(shí)的英美學(xué)者對(duì)歐陸學(xué)者一元論、二元論對(duì)立的不屑一頤。不管怎說(shuō)，國(guó)際法和國(guó)內(nèi)法產(chǎn)生和發(fā)展的社會(huì)基礎(chǔ)、調(diào)整對(duì)象、效力基礎(chǔ)、法律淵源、實(shí)施措施等均有不同，但二者也不是彼此孤立的，它們之間有著相互滲透、互相補(bǔ)充的密切聯(lián)系。 國(guó)際條約不僅僅是靜態(tài)的法律文本，更多的是條約的適用問(wèn)題。我國(guó)對(duì)外交往的日益增多，人民法院受理涉外案件的數(shù)量也大幅度攀升，涉外案件的當(dāng)事人也希望引用國(guó)際條約來(lái)確定自己的權(quán)利義務(wù)。對(duì)于我國(guó)參加或者締結(jié)的民商事領(lǐng)域的國(guó)際條約，根據(jù)我國(guó)民商事基本法律中的原則規(guī)定，在根據(jù)該國(guó)際條約的規(guī)定屬于條約適用的范圍的情況下，我國(guó)法院即有義務(wù)在涉外民商事審判中將其作為直接的法律依據(jù)予以適用，這樣人民法院在審理涉外民商事案件中不可避免地要依據(jù)國(guó)際條約來(lái)處理涉案糾紛。我國(guó)《民法通則》、《海商法》、《航空法》、《民事訴訟法》等法律法規(guī)規(guī)定了國(guó)際條約的適用原則，并且各級(jí)法院也有不少適用國(guó)際條約的判例。但由于國(guó)際條約在國(guó)內(nèi)憲政上的制度缺位，加之國(guó)際條約種類的多樣性、內(nèi)容的復(fù)雜性，以及我國(guó)涉外法律法規(guī)不完善，使得國(guó)內(nèi)法院對(duì)國(guó)際條約的適用構(gòu)筑在經(jīng)驗(yàn)主義的實(shí)證分析上，適用方式及側(cè)重點(diǎn)各有不同，很難推導(dǎo)出一般性的適用規(guī)律。 加入世界貿(mào)易組織使中國(guó)在更大程度、更廣范圍、更深層次上參與國(guó)際競(jìng)爭(zhēng)和合作。在“入世”的新形勢(shì)下，中國(guó)的司法工作需要逐步與國(guó)際上通行的做法保持一致。法院是中國(guó)的涉外司法的重要窗口。涉外審判工作直接關(guān)系到中國(guó)的司法形象和國(guó)際地位。中國(guó)的司法走向世界已是大勢(shì)所趨。這就需要我們加快改革步伐，要明確國(guó)際條約的憲法地位，遵守條約義務(wù)，維護(hù)國(guó)家主權(quán)，不斷加強(qiáng)立法、司法解釋工作，促進(jìn)法院審判機(jī)構(gòu)和方式改革，大力營(yíng)造國(guó)際條約適用氛圍，不斷提升中國(guó)司法的權(quán)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.
【學(xué)位授予單位】：鄭州大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2007
【分類號(hào)】：D993.8
本文編號(hào)：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.
【學(xué)位授予單位】：鄭州大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2007
【分類號(hào)】：D993.8
【引證文獻(xiàn)】
相關(guān)碩士學(xué)位論文 前2條
1 龍瑩;條約在國(guó)內(nèi)的適用問(wèn)題研究[D];中國(guó)政法大學(xué);2011年
2 施俊杰;國(guó)際民商事條約在中國(guó)適用問(wèn)題研究[D];復(fù)旦大學(xué);2010年
本文編號(hào)：2261903
本文鏈接：http://sikaile.net/falvlunwen/sflw/2261903.html
最近更新
教材專著
