課程名稱︰國際公法
課程性質︰法學組必修
課程教師︰黃昭元
開課學院：法律
開課系所︰法律
考試日期（年月日）︰2007.6.25
考試時限（分鐘）：110分鐘
是否需發放獎勵金：是
試題 :
第一題(50分)
假設我國政府授權「台北經濟文化代表處」與美國之「美國在台協會」簽訂協議，
約定台灣應立法禁止人民持有、使用、買賣、進出口「虎鞭、熊掌、熊心、豹子膽」等
稀有動物器官，並對違反者科處刑責。事後立法院認為該協議只片面課與台灣義務，干
預人民吃之自由，實屬不平等條約，主張上述協議無效，並拒絕立法配合。美國政府以
台灣違反上述協議為由，下令禁止泰迪熊和頑皮豹等玩具銷往台灣，以為報復；並宣佈
將禁止吃了熊心豹子膽的台灣立法委員入境美國，直到立法院通過立法為止。
請附理由回答下列問題：(每小題10分)
1.這項協議是否為國際法上的條約？還是民間協議？
2.依我國現行規定，這項協議是否應送立法院批准？
3.立法院主張這項協議是不平等條約且無效，在國際法上是否成立？
4.我國法院是否應受這項協議的拘束，並得直接適用之？
5.美國主張我國違約，能否成立？
第二題(50分)
On February 21, 2002, the Government of the People's Republic of China(PRC)
issued a White Paper entitled "The One-China Principle and the Taiwan Issue."
In this Paper, the Chinese government summarized its position on the legal
status of Taiwan as follows:
“I. The basis for one China, de facto and de jure
The One-China principle has been envolved in the course of the Chinese
people's just struggle to safeguard China's sovereignty and territorial
integrity, and its basis, both de facto and de jure, is unshakable.
Taiwan is an inalienable part of China. All the facts and laws about
Taiwan prove that Taiwan is an inalienable part of Chinese territory. In
April 1895, through a war of aggression against China, Japan forced the Qing
government to sign the unequal Treaty of Shimonoseki, and forcibly occupied
Taiwan. In July 1937, Japan launched an all-out war of aggression against
China. In December 1941, the Chinese government issued the Proclamation of
China's Declaration of War Against Japan, announcing to the world that all
teraties, agreements and contracts concerning Sino-Japanese relations,
including the Treaty of Shimonoseki, had been abrogated, and that China
would recover Taiwan. In December 1943, the Cairo Declaration was issued
by the Chinese, US and British governments, stipulating that Japan should
return to China all the territories it has stolen from the Chinese,
includind northeast China, Taiwan and the Penghu Archipelago. The Postdam
Proclamation signed by China, the United States and Britain in 1945(later
adhered to by the Soviet Union) stipulated that "The terms of the Cairo
Declaration shall be carried out." In August ofthat year, Japan declared
surrender and promised in its instrument of surrender that it would
faithfully fulfill the obligations laid down in the Postdam Proclamation.
On 25th October, 1945, the Chinese government recovered Taiwan and
Penghu Archipelago, resuming the exercise of sovereignty over Taiwan.
On 1st October, 1949, the central people's government of the PRC was
proclaimed, replacing the government of the Republic of China to become
the only legal government of the whole of China and its sole legal
representative in the international arena, thereby bringing the hisorical
status of the Republic of China to an end. This is a replacement of old
regime by a new one in a situation where the main bodies of the same
international laws have not changed and China's sovereignty and inherent
territory have not changed therefrom, and so the government of the PRC
naturally should fully enjoy and exercise China's sovereignty, including
its sovereignty over Taiwan.
Since the KMT ruling clique retreated to Taiwan, ...it...has always
remained only a local authority in Chinese territory. ... ...”
Question:
Please write a legal opinion, from the perspective of international law,
analyzing and commenting on the above position taken by the Chinese
government. Your opinion could be written in either Mandarin Chinese or
English.
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◆ From: 140.112.211.44
※ 編輯: graydiscover 來自: 140.112.211.44 (06/25 21:31)