국제법의 국내 적용에 관한 중국법체계

Abstract

The Constitution of People’s Republic of China does not clearly regulate the relations between international law and domestic law. However, Chinese Civil Law and some other laws stipulate that direct implementation of international law to a national legal system and treaty which China concluded with precedes national laws. After entering into WTO, how China applies WTO, as a treaty, has been an issue not only in China but also in other members of WTO. The paper shows how treaty is classified in Chinese Constitution and laws, and what is its effect grade. The paper tries to correct understanding that treaty China concluded with always precedes domestic laws grounded on Article 142 of Civil law. That is because first, Civil law is just particular regulations as an individual law. Second, treaty on the article 142 of Civil law only includes treaties ratified by the Standing Committee of the National People’s Congress. Third, Constitution, Law on Legislation of the People’s Republic of China and Law of the people’s Republic of China on the Procedure of the Conclusion of Treaties do not stipulate the relationship between international law and domestic law. The paper also analyzes Chinese legal system on domestic application of treaty. China has treated domestic application of treaty case by case, and taken different application theory in different situations. Based upon Chinese current legislation and judicial system, it takes two different modes which are direct and indirect application when they apply treaty. The Chinese court keeps its attitude that WTO agreement can not be applied directly. In other words, private individual cannot litigate to the court using the WTO rules, and the court cannot use WTO rules as a ground of trial, either. It is also important to know how to apply custom law in China. Custom law can be applied only when domestic law and international treaty do not exist.