两岸授权民间团体的协议行为研究

两岸协议行为是国家统一前,两岸特定民间团体接受官方授权或者委托,就解决两岸交往中衍生的具体问题进行商谈,达成相关协议的法律行为。两岸协议行为的产生有其内在逻辑——它源于秩序建构之需要,基于一中原则之确立,成于双向需求之均衡,在形式上具有民间性、事务性、功能性的特点。两岸法制的差异在很大程度上决定了两岸对协议行为的主体、授权及效力等的不同定位。现阶段,在祖国大陆,两岸协议无论采取何种方式加以实施,都只具有相当于部委规章或最高法院司法解释的效力。台湾当局将两岸协议定位为“准国际条约”、“准行政协定”,是其将两岸关系等同于“准国际关系”的必然结果,这种有悖一个中国原则的政策立场是台湾当局迄今拒绝回归“九二共识”的一个重要原因。

Studies on Consultations between the Authorized Cross-straits Nongovernmental Bodies

Consultations between the two sides of the Taiwan Straits is legal acts that aim to resolve questions arising from contacts between the two sides by the authorized nongoveramental bodies before the country's reunification. Agreements concluded by the authorized cross-straits nongovernmental bodies result from the need of order constructing. The practice of reaching such agreements by cross-straits nongovernmental bodies is based on the one-China principle and the equilibrium of demands of each side. It is non-governmental, practical and functional in nature. The differences of the legal systems of the two sides decide the differences of subject, authorization and effect of the consultations and agreements concluded thereof. Whatever way they are enforced, the effect of such agreements in Mainland of China at present is about that of regulations made by a ministry or commission under the State Council, or judicial interpretations by the Supreme People's Court. In Taiwan, as a result of the Taiwan authorities' secessionism policy, the cross-straits relationship is regarded as quasi-international relationship; therefore, the said agreement is defined as quasi-treaty or quasi-administrative agreement. Such policy position which deviates from the one-China principle, constitutes one important reason why the Taiwan authorities refuse to return to the "1992 Consensus".