Difficulties and Countermeasures of the Application of Treaties by Chinese Court in Non-Foreign-Related Cases
There is no consensus on the application of treaties by Chinese court in non-foreign-related cases.Three theories have been proposed.The affirmative theory supports the application of treaties in non-foreign-related cases,while the negative theory opposes the application of treaties in non-foreign-related cases.In addition,the compromised theory affirms the legal effect of treaties in China,but it denies the application of treaties when they are consistent with domestic law of China.The application of treaties in non-foreign-related cases has a profound theoretical basis.We should have a positive attitude towards the application of treaties in non-foreign-related cases.However,not all treaties can be applied,since certain preconditions need to be met for the application of treaties in non-foreign-related cases.Now the practice of applying treaties in non-foreign-related cases by Chinese courts is still in its infancy.The legal basis is not perfect,which is mainly reflected in the inconsistency of regulations in domestic laws guiding the application of treaties and the inconsistency of legal basis for the application of the same treaty.It is thus necessary to improve the legal basis for the application of treaties in non-foreign-related cases,explore the way of applying treaties in such cases,clarify the measuring factors,continuously increase the number of treaties that can be applied,and explore the new path of explanatory application.
Chinese courttreaty applicationnon-foreign-related casesdirect applicationexplanatory application
万方数据
维普
