국제법의 국내 적용에 관한 중국법체계 (Chinese Legal System on Domestic Application of International Law)

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· 저자명 : 유예리

초록

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.

영어초록

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.

참고자료

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