摘要
从中国缔结和履行国际条约的实际情况来看,对中国有效的国际条约实际上已经成为中国法律体系的组成部分;国际条约在中国的适用有直接适用和间接适用两种情况;国际条约在中国法律体系中具有低于宪法高于法律的效力地位。国际条约应当是我国法律体系的一个层级。明确国际条约在中国法律体系中的地位对于完善中国特色社会主义法律体系和全面实施依法治国基本方略具有重要意义。
At present, jurisprudential circle at large holds that a constitution--based socialist legal system with Chinese characteristics has initially taken form, mainly consists of seven branches and three levels. The seven branches include the constitution and the constitution--related laws, civil and commercial laws, administrative laws, economic laws, laws on society, criminal laws, and litigation and non--litigation procedural laws. And laws, administrative regulations, and local, autonomous and separate regulations are its three levels. However, international treaty has not been contained in the legal system. China is a state party to Vienna Convention on the Law of Treaties. Article 26 of the convention prescribes Pacta sunt servanda, that is, every treaty in force is binding upon the parties to it and must be performed by them in good faith. Thus international treaty is an indispensable part of Chinese legal system with socialist characteristics. It is necessary to define its status in Chinese legal system. From the perspective of the actual conditions of China＇s concluding and implementing international treaties, international treaties binding China have actually constituted one part of Chinese legal system, which can be applied directly and indirectly. They have a status which is lower than the constitutional law and higher than laws. The foreign relations law should be a branch and international treaty should be one hierarchy of Chinese legal system. It will be of great significance to clarify such a status of international treaties in Chinese legal system to improve the socialist legal system with Chinese characteristics, implement in an all--round way the basic strategy of rule of law and achieve the great target of establishing a harmonious world. Therefore, it is essential to define the status of international treaties in the Chinese Constitution and establish the principle of resolving the conflict between international treaties and Chinese laws in the Legislation Law.
出处
《法学研究》
CSSCI
北大核心
2010年第6期190-206,共17页
Chinese Journal of Law
关键词
国际条约
法律体系
国际法
international treaty, legal system, international law
