National and International Law in the People’s Republic of China

Abstract

There are two general approaches to relationship between national and international law: monism and dualism. Under monism, national and international law are integral parts of one legal system, so the issue which law shall prevail in case of discrepancies can be resolved by using common rules of conflict of laws (lex specialis derogat generali, lex posterior derogat priori etc.) Under dualism, national and international law are two separate legal systems, so when the question which law shall prevail arises, one should refer to special rules (usually specified in constitutions).The Constitution of the PRC doesn’t provide for any special ruling on the issue of conflict between national and international law. The absence of the ruling in question can be explained by numerous factors, e.g., historical background, the influence of the USSR Constitutions, etc. Furthermore, under traditional legal doctrine in China, national and international law are in “natural consistency” with each other if the state duly performs its international obligations, so usually there’s no need for specific ruling on the issue of conflict between national and international law.However, after China joined WTO the question about the legal force of international treaties on China territory arises again, this is why Chinese current legislation, governmental acts and court practice provide for specific rules resolving the issue of conflict between national and international law. The examples of these provisions can be found in civil, criminal, administrative laws, etc. The above said rulings (all of the same wording) provide that in case of any discrepancies between the provisions of the law in question and an international treaty China has concluded or participates, the rules of international treaty shall prevail. Based on these regulations Supreme People’s Court made some further clarifications. It is noteworthy that as long as this ruling is not included into the Constitution of China, it can’t be deemed as general principle of Chinese legal system (as, e.g., in Russia) – now we would consider it as a trend in Chinese legal system development.