条约入宪基本问题研究
The Essential Issues on the Status of Treaties Should be Introduced in the Constitution
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摘要: 条约入宪,是指我国在宪法中就条约与国内法的关系作出明确的规定。关于条约被接受为国内法的方式,“条约入宪”等同于纳入式,而现有的“自动临时纳入”应提升为“自动永久纳入”。此外,需要正视“自动永久纳入”之后可能面临的问题,并运用区分自执行与非执行条约、国内法在国内效力最高等一系列方法,使立法机关仍然切实掌握条约在国内适用的自主决定权。Abstract: After nearly 30 years of evolution,“the status of treaties should be introduced into the constitution” theory has been established. With regard to the modes by which the status of treaties would be prescribed in Chinese constitution,both transformation approach and compromise approach are undesirable,while adoption approach still needs to be further studied. The issues about classifying self-executing and non-self-executing treaties shall be determined on the basis of the intents of relevant domestic agencies. There exist flaws in both “overall supremacy” doctrine and “classification supremacy” doctrine,which describe the rank of treaties in Chinese legal system. It is necessary to enhance and improve the research on “the status of treaties should be introduced into the constitution” theory.
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