1In July 1997, Hong Kong returned to China, the Special Administrative Region was established, and "one country, two systems" was truly implemented. Over the past two years or so, generally speaking, there are different views on the definition of "one country, two systems" and the corresponding two special constitutional laws, namely, the Basic Law of Hong Kong and the Basic Law of Macao Special Administrative Region. Most scholars believe that the two basic laws are constitutional laws and belong to the basic laws. But I don't think this is enough to describe the particularity of the two basic laws, so I initially characterized them as "special constitutional laws" When editing this article, Mr. Tong Zhiwei suggested that it is best to call it "special law of the constitution". I think this characterization is very appropriate. The operation of "one country, two systems" is very successful, but of course there are also some constitutional and legal problems. This paper will discuss this topic, and discuss some problems and solutions raised by "one country, two systems" to the theory and practice of China's constitution, mainly the legal interpretation, unconstitutional review and the application of the constitution in the SAR under "one country, two systems", in order to provide dinner for academic colleagues.
I. Implementing the Constitutional and Legal Interpretation of "One Country, Two Systems"
Under the implementation of "one country, two systems", it should be said that all kinds of problems encountered by China's Constitution are not difficult to deal with as long as an exception is made for the special administrative region or the special administrative region can handle them on its own. However, on the issue of legal interpretation, China's Constitution has encountered a real challenge. How to combine "one country" and "two systems" organically is a real test of the professional skills of the legal profession in both places.
(A) the different legal interpretation systems in the two places
China's Constitution gives the National People's Congress Standing Committee (NPCSC) the right to interpret the Constitution and laws, while the mainland of China implements the system of legislative interpretation of the Constitution and laws, that is, the "legislative interpretation" system. The interpretation of the legislature is the final authoritative interpretation. Not only must all administrative organs and social organizations abide by and implement it, but judicial organs must also make judgments according to relevant explanations when dealing with specific cases. In addition, when trying a case, the people's court can ask the Supreme People's Court for an explanation if it is in doubt about how to specifically apply laws and decrees, which is effective. This judicial interpretation made by the Supreme People's Court is limited to the specific application of laws and decrees in the trial work, and this interpretation shall not go against the original intention of laws and decrees. Compared with legislative interpretation, judicial interpretation is auxiliary, while the former is main. (Note: See Zhang Zhiming's System of Legal Interpretation in China, in Liang Zhiping's Legal Interpretation, Law Press, 1998, p. 165. Nevertheless, legislative interpretation is not common in China, and constitutional interpretation is even rarer. However, under "one country, two systems", constitutional interpretation is frequently used. This is a great development of China's constitutional system.
Under the common law system, the power of legal interpretation belongs to the court. Under this system, after the law is enacted, the legislature no longer has the right to speak, and the fate of the law is in the hands of the court. Due to the strict judicial independence, the judiciary will not seek the opinions of the legislature and the administrative organ if it needs to interpret the law when handling cases. If the legislature has problems with the interpretation of the court, it can amend or even abolish or re-enact the relevant laws without explanation. This is the legal interpretation system under the common law. Although under British rule, Hong Kong courts enjoy limited power of legal interpretation, but their basic spirit is the same as that of other common law jurisdictions. Based on the special situation of Hong Kong, this legal interpretation system was retained after the reunification. Let's discuss the interpretation of the Basic Law of the SAR.
Legal interpretation system under "one country, two systems"
The Basic Law of the Special Administrative Region is formulated by the National People's Congress, and China has a tradition of continental law. However, the Basic Law is implemented in the Hong Kong Special Administrative Region where the common law is practised. When dealing with the interpretation of the Basic Law, legislators are faced with a dilemma, considering both the legal interpretation system in Chinese mainland and the legal interpretation system under the common law system in Hong Kong. The final compromise result is the stipulation in Article 158 of the Basic Law, that is, according to the Constitution, like all other laws in China, the power of interpretation of the Basic Law of the SAR belongs to the NPC Standing Committee, which is unified with the legal interpretation system in the Mainland and embodies the requirement of "one country". At the same time, the legal interpretation system under the common law of Hong Kong will be retained, and the courts of the Hong Kong Special Administrative Region will be authorized by the National People's Congress Standing Committee (NPCSC) to interpret the provisions of the Basic Law when trying cases. However, if the provisions to be interpreted involve matters managed by the Central People's Government or the relationship between the Central People's Government and the Hong Kong Special Administrative Region, the Court of Final Appeal of the Hong Kong Special Administrative Region shall request the NPC Standing Committee (the Standing Committee of the National People's Congress) to interpret the relevant provisions before the Court of Final Appeal. In applying this clause, the courts of the Hong Kong Special Administrative Region will take the NPC Standing Committee's interpretation as the standard. However, judgments made before this date will not be affected. It can be seen that this is a very special legal interpretation system, which combines the legislative interpretation system in the mainland with the court interpretation system in Hong Kong, thus meeting the requirements of "one country" and "two systems" at the same time.
(C) "Interpretation on June 26th" case analysis
1On June 26th, 999, at the suggestion of the State Council, the National People's Congress Standing Committee (NPCSC) explained the relevant provisions of the Hong Kong Basic Law for the first time. The reason is that1the judgment of the Court of Final Appeal of the Hong Kong Special Administrative Region on the case of the right of abode of children born to Hong Kong residents in the Mainland on 29 October is different from the understanding of the relevant provisions of the Basic Law by the Government of the Hong Kong Special Administrative Region. The SAR Government believes that since the relevant judgment of the Court of Final Appeal involves how to understand the principles of the Basic Law, and the measures for the administration of mainland residents entering Hong Kong also involve the relationship between the central authorities and the Hong Kong SAR, it requests the State Council to ask the National People's Congress Standing Committee (NPCSC) to interpret the relevant provisions of the Basic Law in accordance with the relevant provisions of the Constitution and the Basic Law. The National People's Congress Standing Committee (NPCSC)'s interpretation of the Basic Law has finally solved the right of abode problem of children born to Hong Kong people in the Mainland. The NPC Standing Committee's interpretation shall prevail when the courts of the Hong Kong Special Administrative Region try relevant cases in the future. (Note: See Legal Daily1June 27, 999. )
It should be pointed out in particular that the National People's Congress Standing Committee (NPCSC)'s interpretation does not affect the right of abode in the Hong Kong Special Administrative Region (SAR) obtained by the litigants involved in the judgment of the Court of Final Appeal of the SAR on June 5438+09965438+1October 29. That is, this interpretation does not affect the rights and obligations of the parties to the case according to the judgment, nor does it have retrospective effect, but is only effective for what happens later. Therefore, it cannot be said that the National People's Congress Standing Committee (NPCSC) overturned the judgment of the Court of Final Appeal of the HKSAR.
Under the common law system, the court's judgment can be a precedent, and the court should follow the previous judgment when dealing with similar cases in the future, which is the principle of "following precedent". However, if the legislature has enacted or amended laws on the issues involved in the case and changed the institutional principles set by the court on related issues through its own judgment, the court must abide by the laws enacted or amended by the legislature when handling similar cases in the future. This is also the principle of common law, that is, the principle that "written law is superior to case law". In any common law area and country, legislation can replace case law. (Note: Peter and Wesley-Smith: The Source of Hong Kong, Law, Hong Kong University Press. 1994, p. 33) Therefore, the National People's Congress Standing Committee (NPCSC)'s interpretation of the Basic Law at the request of the State Council this time should be regarded as a normal phenomenon in both the civil law system and the common law system.
(d) Analyze the nature of the NPC Standing Committee's interpretation of the Basic Law.
Some people may say that the Standing Committee of the National People's Congress is not legislating or amending laws here, but interpreting laws. However, common law areas are not familiar with the legislature's interpretation of the law, and people living under common law do not understand it. In fact, the explanations given by the National People's Congress Standing Committee (NPCSC) in 1996 and 1998 on the implementation of nationality laws in Hong Kong and Macao Special Administrative Regions are good examples of legislative interpretation in the Mainland, but no one has raised any objection to the contents and methods of this legislative interpretation. (Note:1On May 5, 1996, the NPC Standing Committee of the Eighth National People's Congress adopted the Interpretation on Several Issues Concerning the Implementation of the Nationality Law of the People's Republic of China in the Hong Kong Special Administrative Region. Considering the historical background and reality of Hong Kong, the interpretation adopted a flexible approach and successfully solved the problems brought about by the application of the China Nationality Law in the Hong Kong Special Administrative Region. 1998 65438+On February 29th, the Sixth Session of the Ninth NPC Standing Committee explained some issues concerning the implementation of the Nationality Law of the People's Republic of China in the Macao Special Administrative Region, and made similar special arrangements for the nationality of Macao residents after the return of Macao. )
Published in kuwen. com- Paper Download Center/HB/news/2010/04-01/2202824.shtml.