This article examines how Supreme People’s Court can perfect the judicial application of international treaties. The article aims to identify, describe, and resolve obstacles in the domestic treaty implementation process. First, this article describes the legal basis for and provides a background analysis of the domestic implementation process. The article emphasizes the importance of this process: namely, that judicial application of international treaties is not only significant in the effort to realize the legal effect of treaties domestically, but that this process is also important for China’s efforts in integrating into international society more broadly. Second, this article discusses problems that need to be resolved in the process of implementing treaties domestically: namely, that the status of international treaties within the national legal system is not yet defined. This article demonstrates that there exists ambiguity in the current constitution as to the status of treaties domestically, as well as within the laws and judicial interpretations relating to this issue. In addition, the newly established case guidance system has not paid enough attention to this question yet. Third, this article proposes solutions to help perfect the treaty implementation process. The article explains that judicial application of a treaty must be regulated by the constitution and by China’s laws. Nevertheless, China’s lack of practical experience in this realm and the absence of any theoretical explanation of this problem within the existing law, combined with China’s strict procedural requirements to amend the constitution and legislative process, together makes it difficult to complete this operation in a realistic time frame so as to meet the increasing requirements of judicial application of international treaties in socialist modernization and integration into the international society. Therefore, this article clarifies the advantages of judicial activities compared to the amendment of the constitution and legislative activities in solving this problem: namely, that the flexibility of the judicial process enables the judicial branch to address this gap in the law more efficiently and more effectively. In addition, this practice will enhance judicial certainty and predictability. In addition, the article also examines this issue from the perspective of court, which is the main body of judicial application of the treaty, and analyzes how can judicial activities define the treaty implementation process and how they may fill loopholes within the law with regards to legislative intent. Finally, this article discusses what measures the Supreme People's Court could take, based on the constitution and laws as well as the judicial practice after the founding of our country. Such measures could include issuing judicial interpretations, publishing guiding cases, establishing the system of reporting and setting up specialized departments within which to perfect the judicial application of treaty. These measures will prepare us to fix the judicial application of an international treaty in the constitution and laws when the time is right. The most innovative part of this article is that it focuses on perfecting the judicial application of the international treaties. The main thrust of the article is a discussion of the measures that the Supreme People’s Court could adopt, within the current constitution and laws, to fully perform its duties and perfect the judicial application of international treaties. This discussion is of great significance to both theory and practice. This article adopts the scientific research methods. It includes a literature survey, as well as comparative research methods. The authors have collected the laws, literature, and relevant cases of the subject, and have formed the framework of this article according to these materials.
赵骏 张丹丹. 最高人民法院与条约司法适用机制的完善[J]. 浙江大学学报(人文社会科学版), 2017, 3(2): 93-106.
Zhao Jun Zhang Dandan. The Supreme People's Court and Perfection of the Judicial Application of International Treaties. JOURNAL OF ZHEJIANG UNIVERSITY, 2017, 3(2): 93-106.