香港基本法第158条与立法解释 (Art 158 of the Basic Law of Hong Kong and Legislative Interpretation)

法学研究(Chinese Journal of Law), No. 2, pp. 3-26, 2008

24 Pages Posted: 30 Apr 2012 Last revised: 24 Jan 2014

See all articles by Guobin Zhu

Guobin Zhu

School of Law, City University of Hong Kong

Date Written: April 30, 2008

Abstract

Chinese Abstract: 有关香港基本法解释权的所有争议均源于基本法的混合特性。基本法第158条设计的制度安排不仅能够区分“一国”之下大陆法和普通法之特质,且可以保留两种法律及司法制度的基石。不过,由于基本法第158条“是两种法律制度妥协的产物”,它是导致基本法解释混乱和冲突的根源。总体上说,第158条蕴含着一种有待巩固确立的宪法秩序。

English Abstract: Due to the specificity of status of the Basic Law, its mechanism and procedure regarding amendment and interpretation differ greatly from that of other laws. According to Art 158 of the Basic Law, the power of interpretation of the Basic Law shall be vested in the Standing Committee of the National People’s Congress (NPCSC). In the meanwhile, the Law authorizes the courts of the Hong Kong to interpret on their own. This Article is the marriage licence of this interpretative system of hybrid nature.

This paper specifically deals with the system of legislative interpretation of the Basic Law by the NPCSC and related theoretical and practical issues. First, it discusses the hybrid nature of the interpretation system in Hong Kong deriving from common law and Chinese continental law. I assert that all the disputes over the interpretation of the Basic Law stems from the hybrid nature of the Basic Law. Not only does this new system differ from Hong Kong legal system as well as from the mainland one, but also it retains the cornerstone of both legal and judicial systems. Art 158 is the expression of such philosophy. Then, the paper analyzes the distribution of interpretative power and its framework under the Basic Law. The discussion focuses specially on the source and specificity of this power,and on the legitimacy of the interpretation by the NPCSC from a perspective of comparative constitutional law. To further understand the distribution of interpretative power, the paper conducts a specific comparison of the interpretation of the Basic Law by the NPCSC and the one by the courts of Hong Kong respectively, and sorts out their major differences. It concludes that the interpretation by these two institutions is fundamentally different in nature, in procedure as well as in practice. Finally it points out that Art 158 has institutional loopholes and the procedural flaws; it does create internal conflict over the power of interpretation. The authors believes that as an outcome of compromise of two legal/law systems, Art 158 is the cause of confusion and conflict of interpretative practice in relation to the implementation of the Basic Law. Art 158 is establishing a new constitutional order which still needs theoretical clarification and institutional consolidation.

Note: Downloadable document is in Chinese.

Keywords: Basic Law of Hon Kong; Legislative Interpretation; Statutory Interpretation; Constitutional Order / 香港基本法;立法解释;宪法秩序

Suggested Citation

Zhu, Guobin, 香港基本法第158条与立法解释 (Art 158 of the Basic Law of Hong Kong and Legislative Interpretation) (April 30, 2008). 法学研究(Chinese Journal of Law), No. 2, pp. 3-26, 2008, Available at SSRN: https://ssrn.com/abstract=2048123

Guobin Zhu (Contact Author)

School of Law, City University of Hong Kong ( email )

Tat Chee Avenue
Kowloon Tong, Kowloon 00000
Hong Kong
(852)34427288 (Phone)

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