A Taie of Two Légal Systems: The Interraction of Common Law and Civil Law in Hong Kong - article ; n°4 ; vol.51, pg 917-944
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A Taie of Two Légal Systems: The Interraction of Common Law and Civil Law in Hong Kong - article ; n°4 ; vol.51, pg 917-944

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Revue internationale de droit comparé - Année 1999 - Volume 51 - Numéro 4 - Pages 917-944
28 pages
Source : Persée ; Ministère de la jeunesse, de l’éducation nationale et de la recherche, Direction de l’enseignement supérieur, Sous-direction des bibliothèques et de la documentation.

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Publié le 01 janvier 1999
Nombre de lectures 38
Langue English
Poids de l'ouvrage 2 Mo

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M. Chenguang Wang
M. Guobin Zhu
A Taie of Two Légal Systems: The Interraction of Common Law
and Civil Law in Hong Kong
In: Revue internationale de droit comparé. Vol. 51 N°4, Octobre-décembre 1999. pp. 917-944.
Citer ce document / Cite this document :
Wang Chenguang, Zhu Guobin. A Taie of Two Légal Systems: The Interraction of Common Law and Civil Law in Hong Kong.
In: Revue internationale de droit comparé. Vol. 51 N°4, Octobre-décembre 1999. pp. 917-944.
doi : 10.3406/ridc.1999.18188
http://www.persee.fr/web/revues/home/prescript/article/ridc_0035-3337_1999_num_51_4_18188R.I.D.C. 4-1999
A TALE OF TWO LEGAL SYSTEMS
THE INTERACTION OF COMMON LAW AND CIVIL
LAW IN HONG KONG
Chenguang WANG & Guobin ZHU *
INTRODUCTION
On 1 July 1997, the People's Republic of China (the "PRC") reassu-
med the exercise of sovereignty over Hong Kong after it had been governed
as a colony by the British government for more than 150 years accounting
from the time of the cession of Hong Kong island from China l. On the
same date, the Basic Law of the Special Administrative Region
(the "Hong Kong SAR") came into effect. Nevertheless, the change of
sovereignty and the imposition of the new Basic Law came together with
a solemn assurance that, the common law system imported by the British
in Hong Kong, as well as other basic social systems, should be maintained
intact according to Article 8 of the Basic Law of the Hong Kong SAR.
This assurance is provided by article 8 which states that : "The laws
previously in force in Hong Kong, that is, the common law, rules of
equity, ordinances, subordinate legislation and customary law shall be
maintained, except for any that contravene this Law, and subject to any
amendment by the legislature of the Hong Kong SAR".
* WANG Chenguang, Associate Professor, School of Law of City University of Hong
Kong ; BA, LLM (Peking University, PRC), LLM (Harvard) and PhD (Peking University).
ZHU Guobin, Assistant Professor, School of Law of City University of Hong Kong ; BA,
MA (People's University, PRC), LLM (HKU, Hong Kong) and PhD (Aix-en-Provence,
France).
This 1 YASH report Ghai, reflects Hong the authors' Kong's New views Constitutional only. Comments Order, and criticism Hong Kong: are most Hong welcome. Kong
University Press, 1997, p. 4. REVUE INTERNATIONALE DE DROIT COMPARE 4-1999 918
The Basic Law also clearly prescribes that the socialist system policies
shall not be practised in the Hong Kong SAR, and the previous capitalist
system and way of life shall remain unchanged for 50 years (art. 5). The
maintenance of a separate common law system as well as the subsisting
China" framework are capsuli- social system and way of life within a "big
zed into a simple but much profound concept of "One Country Two
Systems", which was invented by Chinese leaders and will have great
impacts on reunification of China.
The report will be divided into two parts. The first part deals with
the general theoretical issues of comparative law in Hong Kong, in particu
lar the interface and interaction of Hong Kong common law and the
PRC's civil law traditions. The authors will examine these phenomena
from comparative law perspective. In the second part, the authors attempt
to explore and explain roots of legal controversies that have been or will
be generated by the interface of these two different legal as well as
political systems. In the process of such a preliminary examination of the
recent constitutional cases, the authors also critically analyse the relevant
judicial opinions, which demonstrate how difficult it is to solve the tension
and the dilemma (if not an impasse) that are brought about by the meeting
or association of two legal systems with different legal traditions and
nature.
I. A BATTLEFIELD OR A RENDEZ-VOUS
A. — Theoretical Observation and Analysis
1. The Hand-over of Hong Kong to China Renders Comparative Law a
Necessity in Hong Kong
The maintenance of a separate and different legal system within a
sovereign country purposes to provide an assurance to Hong Kong people
and the international community and to preserve the prosperity of Hong
Kong after the hand-over. Albeit it deserves plaudits for its political
creativeness and courageousness, it leaves many legal and practical issues
unanswered or concealed, due to the novelty of these issues, diplomatic
rows between the Chinese and the British governments, antagonism among
different political factions in Hong Kong and, more importantly, the diffi
culty in establishing an umbilicus between the common law of Hong
Kong and the civil/continental law of the Mainland. The legal inadequacy
or lacunas imbedded in the Basic Law have caused many serious debates
and controversies over issues of constitutional nature, not only within the
legal profession but also in all spectrums of the whole society. Some of
these are such as to be described as constitutional crises 2
2 "Controversy over the Jurisdiction of the Court of Final Appeal", in Ming Pao, 9 Feb.
1999, A9, Hong Kong. WANG C. ET ZHU G. : HONG-KONG 919
or a make-or-break time 3 (The relevant cases will be discussed in Part
II of this report.)
From comparative law perspective, Hong Kong after the hand-over
presents a rare and, perhaps, a unique case for comparative study and
practice. While comparative law scholars elsewhere are arguing whether
comparative law is a method or a distinct field of knowledge or science 4,
Hong Kong legal scholars and practitioners have, consciously or
unconsciously, been applying comparative methodology and knowledge
to shape the evolving and changing legal system of Hong Kong. To them,
comparative law is a more practicable and indispensable instrument for
both legal research and practice5. In this sense, comparative law in
Hong Kong transients the traditional pure academic domain and scholastic
forum, and becomes a functional practice for re-institutionalisation and
social engineering. Why is there such a case in Hong Kong? The answer
we provide is that, practically, the lawyers in Kong need to use
comparative law to solve real problems and legal issues, which have been
and will continue to be brought about by the hand-over and the transition
from a British colony to a new legal framework labelled "One country
Two systems". These problems and issues are particularly perplexed by
the fact that the two systems are of drastically different legal traditions
and political nature. At the macro level, Hong Kong needs to construct
a new constitutional framework that is based on the Basic Law of the
Hong Kong SAR and that, through the Basic Law, is posited within the
Chinese structure. The role and function of the Court of
Final Appeal (the "CFA") of the Hong Kong SAR, the relation between
the Central Authorities and SAR governments and their respective powers,
the interpretation of the Basic Law, the effects of legal rules of the
Mainland in Hong Kong, etc. are issues of contraversies triggered by such
reinstitutionalization and tensions between two legal traditions. At the
micro level, legal practitioners and judges in Hong Kong in dealing with
cross-border business transactions and other matters, have to use constantly
not only Hong Kong legal terms and rules, but also those pertinent to the
mainland legal system. It is of no exaggeration that most of lawyers and
judges in Hong Kong should know how to deal with and live with the
legal rules and systems that are foreign to them. In short, the hand-over
offers rich opportunities to boost comparative law study and practice in
Hong Kong.
2. A Common Law Enclave within A Civil Law Environment
As its formal and institutional ties with the British common law
being severed, Hong Kong legal system now has become a law
3 "SAR Faces Make-or-Break Time", in South China Morning Post, 9 Feb. 1999,
Hong 4 Kong. Jerome HALL, Comparative Law and Social Theory, Binghamton, New York : Loui
siana State University Press, 1983, pp. 7-11.
5 The authors by no means intend to create a false picture that most of Hong Kong
legal scholars and practitioners are comparative jurists. Nevertheless, they are probably the
most frequent users of comparative law methods and knowledge in their research and practice
even they are doing so unintentionally or unawarely. REVUE INTERNATIONALE DE DROIT COMPARE 4-1999 920
enclave within a civil law system. What will be the fate of this small
enclave? Could it continue along the track of the common law tradition?
Before answering this question, we may look at some similar situations
in other countries.
The legal enclave of Louisiana in the United States and that of
Quebec in Canada are in similar and comparable situations. Hong Kong,
after its return to China, joins this unique group. Nevertheless, there are
certain distinct features that make Hong Kong case different from its
counterparts.
First of all, Hong Kong adopts fundamentally different political, legal,
economic and social systems from that of the mainland of China, while
in other countries, the enclaves adopt social systems of the sa

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