50
Y. Jin
When it comes to the status of international law especially a treaty in Chinese law,
the Constitution of China (adopted on December 4, 1982, five revisions afterwards
respectively on April 12, 1988, March 29, 1993, March 15, 1999, March 14, 2004 and
March 11, 2018)
30 does not directly set forth the status of an international treaty in
the Chinese legal system, but it has provisions on powers and procedures of entering
into a treaty, for example, Paragraph 9 of Article 89 of the Constitution states that the
State Council has the power to enter into a treaty or agreement with foreign countries;
the Standing Committee of the National People’s Congress decides the approval and
repeal of a treaty and important agreements with foreign countries Paragraph 15 of
Article 67; the President approves and repeals a treaty and important agreements
with foreign countries according to the decision of the Standing Committee of the
National People’s Congress (Article 81). While the law is made and amended by the
Standing Committee of the National People’s Congress (Paragraph 2 of Article 67)
and promulgated by the President of the People’s Republic of China according to the
decision of the Standing Committee of the National People’s Congress (Article 80),
according to the aforesaid provisions of the Constitution, the power and procedure
of entering into a treaty and the power and procedure of making a law are to a great
extent the same.
Now that the Constitution does not clearly set forth the status of international law
in Chinese legal system, it is necessary to make an analysis of provisions regarding
international law in general laws of China. The provisions relating to international
treaty may be classified into the following three categories. Firstly, domestic law
clearly states that an international treaty shall apply directly, for example, Article 19
of Trademark Law of 1982, Article 19 of Inheritance Law of 1985, Article 239 and
Article 247 of Civil Procedure Law of 1986, Article 18 of Patent Law. Secondly,
domestic law clearly states that an international treaty prevails when it conflicts
with domestic law, for example, Article 142 of the General Provisions of Civil Law
of 1986.
31 Thirdly, domestic law does not clearly set forth the direct application
of an international treaty but makes it applicable internally through amending or
supplementing a domestic law.
32
In order to implement a treaty internally, it is necessary to endow it with internal
effectiveness. There are two ways to incorporate a treaty into domestic law: acceptance or direct application (i.e. recognizing the effectiveness of a treaty internally by
promulgating it) and the mode of transformation (i.e. transforming provisions of a
treaty into domestic law through legislative procedures). That is to say, international
30 See Constitution of the People’s Republic of China, Law Press, 2018, pp. 1–56.
31 There is no such provision as Article 142 of the General Provisions in the General Principles
of the Civil Law (entered into force on October 1, 2017) adopted at the Fifth Session of the 12th
National People’s Congress on March 15, 2017.
32 See Lingliang and Rao (2005).
Y. Jin
When it comes to the status of international law especially a treaty in Chinese law,
the Constitution of China (adopted on December 4, 1982, five revisions afterwards
respectively on April 12, 1988, March 29, 1993, March 15, 1999, March 14, 2004 and
March 11, 2018)
30 does not directly set forth the status of an international treaty in
the Chinese legal system, but it has provisions on powers and procedures of entering
into a treaty, for example, Paragraph 9 of Article 89 of the Constitution states that the
State Council has the power to enter into a treaty or agreement with foreign countries;
the Standing Committee of the National People’s Congress decides the approval and
repeal of a treaty and important agreements with foreign countries Paragraph 15 of
Article 67; the President approves and repeals a treaty and important agreements
with foreign countries according to the decision of the Standing Committee of the
National People’s Congress (Article 81). While the law is made and amended by the
Standing Committee of the National People’s Congress (Paragraph 2 of Article 67)
and promulgated by the President of the People’s Republic of China according to the
decision of the Standing Committee of the National People’s Congress (Article 80),
according to the aforesaid provisions of the Constitution, the power and procedure
of entering into a treaty and the power and procedure of making a law are to a great
extent the same.
Now that the Constitution does not clearly set forth the status of international law
in Chinese legal system, it is necessary to make an analysis of provisions regarding
international law in general laws of China. The provisions relating to international
treaty may be classified into the following three categories. Firstly, domestic law
clearly states that an international treaty shall apply directly, for example, Article 19
of Trademark Law of 1982, Article 19 of Inheritance Law of 1985, Article 239 and
Article 247 of Civil Procedure Law of 1986, Article 18 of Patent Law. Secondly,
domestic law clearly states that an international treaty prevails when it conflicts
with domestic law, for example, Article 142 of the General Provisions of Civil Law
of 1986.
31 Thirdly, domestic law does not clearly set forth the direct application
of an international treaty but makes it applicable internally through amending or
supplementing a domestic law.
32
In order to implement a treaty internally, it is necessary to endow it with internal
effectiveness. There are two ways to incorporate a treaty into domestic law: acceptance or direct application (i.e. recognizing the effectiveness of a treaty internally by
promulgating it) and the mode of transformation (i.e. transforming provisions of a
treaty into domestic law through legislative procedures). That is to say, international
30 See Constitution of the People’s Republic of China, Law Press, 2018, pp. 1–56.
31 There is no such provision as Article 142 of the General Provisions in the General Principles
of the Civil Law (entered into force on October 1, 2017) adopted at the Fifth Session of the 12th
National People’s Congress on March 15, 2017.
32 See Lingliang and Rao (2005).