Direct Application Of Treaty In The Era Of Civil Code

International treaties can be considered in a sense as the most extensive source of law of contemporary international law and play an important role in many fields.National treaties have promoted cooperation among the countries of the world on various issues and have generally had the effect of promoting the common welfare of all mankind.However,the power of international treaties alone has its limits,and the achievement of the goals set by international treaties is often inseparable from the internal behavior of the countries participating in their conclusion.Therefore,studying the domestic application of treaties is of considerable significance in promoting an understanding of how treaties work,and thus in developing more efficient treaties.As a rising force in the international community,our country will play a more constructive and good role in international affairs.Therefore,it is one of our long-term goals to actively participate in international cooperation,promote the flourishing of a community of human destiny,and build a more open,equal and friendly international community.In order to achieve this ideal,broader participation in the conclusion of treaties is the inevitable path.Traditionally,China’s provisions on direct application of treaties could be found in Article 142 of the General Principles of Civil Law,but the formal entry into force of the Civil Code led to the abolition of this provision,which brought about the fragmentation of the normative system of direct application of treaties,the loss of the legal basis of direct application of some treaties,and the blurring of the status of treaties in domestic law.This has further aggravated the confusion in the theory and practice of direct application of treaties in China.Specifically,the study of this issue has the following significance: first,to further make up for the shortcomings and improve the deficiencies when the legislation in the relevant fields in China is not sufficient to achieve comprehensive regulation of this issue;second,to adjust the existing judicial model of direct application of treaties in China and inject more reasonable practices into this practice;third,to stimulate the possibility of theoretical innovation from a new perspective and create a catalyst for academic development.Third,to stimulate the possibility of theoretical innovation from a new perspective and create a catalyst for academic development.This thesis will examine the reasons behind and the problems brought about by the relevant amendments to the Civil Code,as well as how to solve the relevant problems,starting from the practical situation of treaty application in China after the entry into force of the Civil Code.The deletion of the provisions of Article 142,paragraph 2 of the General Principles of Civil Law from the Civil Code has led to disputes over the legality and even constitutionality of the direct application of treaty provisions by our courts in trial activities.This problem has not yet received sufficient attention,and the specific reasons may include several aspects: firstly,the relevant provisions of the direct application of treaties are still retained in some of the unilateral laws,and such treaties include maritime conventions,civil aviation conventions,arbitration conventions,etc.,which occupy the vast majority of the cases of direct application of treaties by our courts,and generally speaking,the impact on judicial trial activities has not yet been immediately visible;secondly,the relationship between treaties and domestic laws,and the impact of treaties on The relationship between treaties and domestic law,the status and effect of treaties in domestic law,and the direct invocability of treaties in domestic courts,there is still a theoretical ambiguity,which affects the academic and judicial trial practice;finally,the Civil Code has deliberately avoided the relevant issues in the legislative process,which to some extent has led to the creation of this situation.Domestic law,when directly applying treaties,should have sufficient legal basis and not violate the relevant provisions in the Constitution,and should never be applied blindly without the relevant jurisprudential basis in order to achieve the effect of the treaty,which is a disguised abandonment of our judicial sovereignty.The relationship between treaties and domestic laws is not specifically provided for in our Constitution,and the attention to this issue in constitutional laws is also insufficient.The customary practice formed by the long-standing legislative practice is to leave this issue to the individual legislation of each ministry,but the choice of this path is not without problems,which has objectively affected our judicial practice and brought about some misunderstandings.In order to fully clarify the controversies on related issues,it is necessary to clarify some basic concepts of the theory of direct domestic application of treaties at different levels of theory,legislation and justice,distinguish between the acceptance of treaties in domestic law and the direct application of treaties in domestic law,revise the improprieties in the relevant legislation,add important provisions that are missing,and improve the adjustment mechanism of the interactive activities between international law and domestic law in our legal system,which will be a transit point conducive to linking the two places of domestic rule of law and foreign-related rule of law.