Studies On Direct Application Of International Civil And Commercial Treaties In Chinese Courts

Judging from the past and current practice of direct application of international civil and commercial treaties in China,a complete system of rules for the application of international treaties has not yet been formed in China,showing many differences between rules and practices,and between practices and practices.Chinese courts are still facing many practical dilemmas in the process of direct application of international civil and commercial treaties in terms of legislation and judicial mechanisms.The applicability of international civil and commercial treaties in domestic courts takes "pacta sunt servanda" as legal basis and the acceptance of domestic law as basic premise.Theoretically,there are two basic ways for a treaty to acquire judicial status within a state,namely "integral incorporation" and "individual transformation".The specific practice of accepting treaties varies from state to state,shaped by its very own history,culture and legal traditions.Judging from the allocation of competence to conclude treaties,civil and commercial laws regulating the application of treaties,and the judicial interpretations of the Supreme People’s Court on the application of treaties,China adopts the "integral incorporation" approach to accept civil and commercial treaties,meaning the treaties become a part of China’s legal system as soon as they are in effect in China.However,the approach of treaty acceptance does not play a decisive role in the formation of treaty application system,and the ways of treaty application adopted by states are inconsistent,further judgment is still required in conjunction with domestic laws.The distinction between“Self-executing Treaty” and “Non-self-executing Treaty” has become a criterion for some national courts to determine whether a treaty can be directly applied or not.Although national courts have not formed a clear criterion to distinguish between the two in their long-term judicial practices,generally the concluding intention and the content of a treaty are relevant factors to be considered.In contrast,China adopts a case-by-case legislative approach to determine the way of application of international civil and commercial treaties in domestic courts.It can be concluded that in general,international civil and commercial treaties should be directly applied,but there are also some international civil and commercial treaties and norms that need to be transformed into domestic laws or be supplemented by domestic laws before application.However,as for the question of whether international civil and commercial treaties can be directly applied in cases without foreign-related factors,there is a temporary lack of relevant high-order legal provisions.We can only treat this issue with a more open attitude,from past judicial practices and the perspective of protecting national interests and private rights.After confirming the direct applicability of an international civil and commercial treaty,it is also necessary to pay special attention to the sequence of judicial application between treaties,rules of private international law and domestic laws.Rules of private international law and international civil and commercial treaties are two ways of adjusting international civil and commercial relations of law.Although at first glance,it seems that only one of them can be chose to use at one time,judging from current clause settings of international civil and commercial treaties and state practices,two ways of applying treaties,exclude rules of private international law and follow the guidance of rules of private international law coexists with each other.However,China’s judicial authorities still have some comprehending deviations of these two ways in practice.While four types of ranks of validity of international treaties and domestic laws exist in current legislative practice of various states,which are of great help in resolving conflicts between treaties and domestic laws,China has not yet made an overarching provision on this issue in the Constitution and constitutional laws.The priority in application between international civil and commercial treaties and domestic laws can only be determined through the analysis of other subordinate legal norms and judicial practices.In order to solve the practical dilemma in terms of legislative and judicial mechanisms in the direct application of international civil and commercial treaties in China,it is necessary to clarify the legal status of international civil and commercial treaties in the Constitution,construct a systematic system for the application of international civil and commercial treaties and give full play to the role of judicial authorities in the issue of direct application of treaties.