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UM E-Theses Collection (澳門大學電子學位論文庫)

Title

Research on issues of the implementation of international treaties in China

English Abstract

1.Introduction Legal background International treaty with China's participation is an important legal source for China. With the rapid growth of international communication cooperation, international treaties play an extraordinary role in the fields of China's politics, society, economics, cultural life and diplomacy. However, many international treaties shall be turned into concrete operational rules by way of domestic legislation and then function. Since the introduction of the reform and opening-up policy, multilateral treaties and international conventions and protocols that China participated in and adopted have increased drastically. In the year of 1977, China executed or claimed to acknowledge 45 multilateral treaties and international conventions and protocols, while till the end of 2008, this number soared up to more than 300. Just in the consecutive years of 2006 to 2008, China participated in, through execution, approval, adoption or otherwise, 48 multilateral treaties and international conventions and protocols, which is more than the total number before 1977.Since the number of intenational treaties, conventions and protocols has been, and still is increasing in a high speed, the urgency and necessity of implementation of these treaties, conventions and protocols are more and more clear. Significance of the research As there is even no stipulation in either present Constitution or constitutional documents, no clear provision in other laws and regulations, it is necessary to study on the fundamental theories of the implementation of international treaties. To be more specific, the significance of this study includes many aspects: Firstly, the study can cure the defects in our constitutional legislation. Secondly, the study can help to avoid the contradiction and disorder in judicial practice and thus change the disordered into well ordered. Thirdly, the study can promote the development of the theories on implementation of international treaties in China. Fourthly, the study has great practical significance. Finally, the study on the fundamental theories on implementation of international treaties is a basis for the study on the relevant specific problems in China and offers a guidance to resolve those problems. This thesis has about 30,000 words including the introduction and five other chapters and a conclusion chapter. Their specific contents are as follows: The introduction instructs the legal background of the thesis, the significance of the study, the thinking-way and construction of the study, the characteristics and innovations of the thesis. Chapter 2 gives a deep analysis on the main reasons of the treaties-implementation in China and points out that acceptance is the direct cause for the implementation of international treaties. Then chapter 1 makes a general statement of the definition, characteristics and classification of acceptance. Then this chapter discusses the reality of the acceptance of treaties in China's domestic laws, and continues to give some advice for perfecting the acceptance mechanism of treaties in domestic laws. Chapter 3 introduces the different practices about the legal status of treaties within domestic legal system. Meanwhile, it introduce and analyses the standpoints and reasons concerning the legal status of treaties within domestic legal system by some domestic scholars, and points out the tendency of “treaties are prior to laws” which reflected in the stipulations. On the basis of jurisprudence, it defines the legal status of treaties within China's legal system. Chapter 4 analyses the China's regulations, the judicial interpretations and the cases concerning treaties-implementing methods whatever directly or indirectly or mixture during the lasting 20 years. It points out that there are many defects within the legal documents of direct treaties-implementation, and the shortage of legal documents of indirect treaties-implementation as well as the confusion of standards concerning the implementation of treaties directly or indirectly, which resulting to the confusion of system of treaties-implementation in China. To change such condition, China shall establish the system of “self-executing treaties” and “non-self-executing treaties” to rule the implementation of the treaties. Chapter 5 introduces the methods of prevention and solution of conflicts between treaties and domestic laws of China, analyses the defects of those methods, and brings out perfecting suggestions. Chapter 6 discusses the perfection of implementation system of treaties from aspects of legislation system and judicial system. In aspect of legislation system, we shall use the terms of treaties normatively, compactly and unified in domestic law, and shall amend the constitution law as well as the law of procedure of the conclusion of treaties. In aspect of judicial system, we shall reform the judicial system to improve its independence, shall innovate the judicial idea as well as the thought of law implementation, shall train the judicial professionals who are familiar with both international treaties and law of treaties, shall perfect the judicial international and improve the transparency as well as applicability of such judicial interpretation. Chapter 7 is the conclusion chapter. It is a summary of the above chapter. Methodologies The paper studies the problems of treaty-application in China from macroscopic perspective, and then shows the general regularities and principles of the treaty-application in China. The author makes a deep study on the fundamental theories on treaty-application in China in evidential analytic, comparative analytic statistical analytic and historical analytic approaches. Through deep research this thesis reveals the defects in the treaty-application in China, analyzes the reasons and makes effort to perfect the application mechanism of treaties. Scope & Limitation This thesis focuses on the fundamental theories specifically related to Mainland China, and not involves that of Hong Kong Special Administrative Region and Macau Special Administrative Region.

Issue date

2010.

Author

Du, Ya Xiong

Faculty

Faculty of Law

Degree

LL.M.

Subject

Treaties

China -- Foreign relations -- Treaties

Supervisor

劉高龍

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Location
1/F Zone C
Library URL
991005191519706306