C to E 香港法制不可能五十年不變

I hate to put this boring article here, in addition to its stiff "Hong Kong Chinese" , but this is an excercise of mine and I sincerely want some advices.


香港法制不可能五十年不變                                                                  

對香港基本法的解釋，其實是大陸法與普通法的衝突及溶合。

基本法的訂立，我覺得是以大陸法為基礎的(從草擬的形式及雙方的人數可以看到)，但卻在香港普通法為本的法院中實施，中間產生衝突，可以說是不能避免的。在這些衝突中，兩者有勝有負，事實顯示出，我們不能期望香港法律制度五十年不變，抱著這些想法衹是妄想﹔在一些法律領域中，大陸法的元素會不時加入。

中國政法大學廉希聖教授的看法，可以說是大陸方面闡釋「一國兩制」的代表﹕兩制衹適用於社會經濟制度方面，而不是在政治方面，而且兩地也不是對等的。換句話說，在政治上，香港的制度是伏膺於大陸的制度的。法律與政治是脫不了關係的，特別在憲法方面﹔於是，在牽涉政法的案件，如果香港容許，大陸法會毫不猶疑的進入香港普通法系統。

基本法本身是獨一無二的，而在實施上也是獨一無二，因為這是大陸法與普通法的融合。雖然法官在考慮判決時不會考慮大陸法，但大陸法對基本法的解釋，已經融入了終審庭及上訴庭的案例中，以至法官在審判案件時不得不作考慮。

Hong Kong legal system can not possibly remain unchanged for 50 years

The interpretation of the basic law of Hong Kong, in essence, embodies the conflict and integration of continental law and common law.

It is my personal opinion that the basic law is made on continental principles, which is indicated by the way it is drafted and the number of participating persons from mainland and HK. To practice such continental-principled law in the KH courts that have their origins in the common law, conflicts are simply unavoidable, during which both orientations have seen their own winnings and defeats. Many facts have proved that we can not expect the laws of HK to remain unchanged for 50 years. Adhering to that belief is simply wishful thinking. Continental law factors will blend in some legal areas all the time.

The opinion of Xisheng Lian, professor of University of Politics and Laws of China, represents mainland』s interpretation of 「One Country, Two Systems」, that two-system applies only socially and economically rather than politically and that mainland and HK are not on equal footing. In other words, politically HK』s system has to bend to that of the mainland. Laws can never be isolated from politics, particularly in regards to constitution. For cases relating to laws of political nature, subject to HK』s permission, there won』t be any hesitation for continental law to enter the common law system of HK.

Being a mixture of continental law and common law, the basic law is singular both in its making and in its enforcement. Though a judge won』t refer to continental law in his or her ruling, the interpretation of the basic law from a continental perspective has set its ground in the cases of high court and appeal courts, leaving the judge no alternative but to consider accordingly in hearing a case.