頁籤選單縮合
| 題 名 | 續論澳門特別行政區法律淵源位階中協定國際法優先說=Still on the Primacy of the Principle of International Conventional Law in the Hierarchy of the Sources of Law of the MSAR |
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| 作 者 | Ilda Cristina Ferreira; | 書刊名 | 行政：澳門公共行政雜誌 |
| 卷 期 | 37:1=143 2024.03[民113.03] |
| 頁 次 | 頁69-106+509-510 |
| 分類號 | 575.2 |
| 關鍵詞 | 澳門特別行政區; 法律淵源; 協定國際法; 位階; |
| 語 文 | 中文(Chinese) |
| 英文摘要 | The legal basis that determines the position of international treaty law (or positive international law) in the hierarchy of sources of law of the Macao Special Administrative Region (MSAR) continues to be a controversial topic within the legal community, given the absence of a constitutional norm expressly recognizing its value and hierarchical position. The Judgment of 2 June 2004 of the Court of Final Appeal on Case No. 2/2004 contributes to this doctrinal debate by producing a different reasoning from that rendered in the Judgments of the Court of Appeal despite the fact that both courts reach the same conclusion: the “supremacy of international law over domestic law”. The chosen theme is not new. In fact, the Court of Final Appeal ruling has already been scrutinized in a previous article, in which we argued, among other arguments, that the primacy of international treaty law over ordinary law is, in the light of the principle of continuity, a general and structuring principle of the MSAR’s legal system, forming part of its ius identitatis. This Article explains the relationship between the principle of continuity - a pillar principle of the Basic Law and the MSAR’s internal order, intrinsic in the principle of “One Country, Two Systems” - and the principle of the primacy of international conventional law. It critically analysis some doctrinal works that endorse the Court of Final Appeal’s understanding, highlighting fundamental concepts and principles of international public law on this subject, and from a civil law perspective, as well of the MSAR. The Article is divided into five parts. In the first, a brief reference to the value and hierarchical position of international law before and after the establishment of the MSAR is undertaken, in the second, this topic is addressed in terms of legislative praxis, jurisprudence and doctrine, in the third, the official positions of the People’s Republic of China and the MSAR in international fora are noted, in the fourth, some observations are provided, followed by a conclusion in the fifth part. |
本系統中英文摘要資訊取自各篇刊載內容。