Essay Example on Hong Kong-China Divide: Clash of Legal Systems

Introduction

Hong Kong and China continue to experience inter-regional disagreements over the belief of "one country, two systems” (Zhu, 2002) There exist distinctions between mainland China and Hong Kong in terms of the lawful principles and their theories and also their legal practices. Issues arise basically on China operating on a Civil Law system and Hong Kong on the Common Law system (Zhu, 2002). Legal systems are meant to act as a reflection of the forms of control over social and economic events. The Common Law in Hong Kong aims to support private and market capabilities while the civil law in China aims to support the desired outcome. Recently in China, foreign-related legal provisions have been applied in cases that regard the people in Hong Kong since there are several practical considerations. Chinese foreign investment and trade laws are operational in Hong Kong, Taiwan, and Macau, as manifested in the Regulations Concerning Encouragement of Foreign Investment. Although the authorities in China are distinct between Hong Kong related cases also (shegang anijian) and foreign-related cases, (Shewai anijian), theoretically, the difference remains superficial and lacks any substantial essence in judicial practice (Zhu, 2002). This paper surveys comparative law in Hong Kong and China, specifically the theory of inter-regional Conflict of Laws based on the Common Law and Civil Law. Also, the paper proposes some solutions to the problems arising from these conflicts.

Is your time best spent reading someone else’s essay? Get a 100% original essay FROM A CERTIFIED WRITER!

Save 25%

Conflict of Laws

Conflict of laws originates from two legal authorities or districts or from distinct legal systems that hold jurisdiction over classes of citizens or two or more legal authorities or communities. To identify conflicts of law within states, there has to exist several judicial authorities, each of which has distinct legal systems (Zhu, 2002). The exchange of these civil relations in nature among people from these legal authorities results from multiple external civil juristic associations. The legal territories identify each of the civil juristic statuses of natural individuals and authorized individuals of foreign grounds in their areas. Also, the legal boundaries determine each extraterritorial impact of laws of overseas territories in their territories. In all of these, the significant applicable aspect in the conflict of law is the existence of distinct legal systems.

The Origin of Inter-Regional Conflict of Laws in China and Hong Kong

Civil Law originated from France and focused on implementing policies of embracing of the societal conditioned private contracting (Ng & He, 2017). Common law, on the other hand, can be dated back to England through the resolution of disputes and support of unconditioned private contracting. The distinctions in the two laws are visible in their influences in the development of the financial market. Studies indicate that Paris still fails to be a global financier even after two centuries of modernization, while London is. This fact speaks loudly concerning the distinctions in the French Civil Law and British Common Law and why there is a persistence in the legal origins (Zhu, 2002). The Distinctions in Civil Law and Common Law in both China and Hong Kong are deeply founded in their different formations of autonomy.

The French Civil Law was founded in the 1789 revolution, where the judiciary agreed with the defeated side of the monarchists, and the revolutionaries remained keen on the dampening independence of judges and powers involved in making laws (Zhu, 2002). There was a necessity of the drafting of codes without gaps by the legislature and avoidance of any conflicting provisions where the code needed to be transparent in all aspects. Common Law, on the other hand, emerged in England after the 17th-century revolution, where lawyers remained positioned side by side with the triumphant owners (Zhu, 2002). English judges obtained a significant extent of autonomy from the Crown and gained the authority of reviewing managerial actions and interpreting contracts without a referencing on the citizens interests. Out of these two conceptions, the legal institutions of Hong Kong and China has evolved, and their historical contexts concerning the birth of modern Europe is a source of critical differences.

Conflicts in Distinctions of Civil Law and Common Law

The Common Law has inbuilt judicial independence in cases of administrative acts impacting citizens; hence, it has to remain attentive of the contracts and private property within the Civil Law (Ng & He, 2017). Common Law stresses that the judiciary should solve private issues and societal problems while the legislation suggest that private contracts have a greater emphasis on government regulation, giving orderings less attention (Ng & He, 2017). Also, Common Law adapts easily to altering situations due to its respect on the jurisprudence as a source of law. Based on these aspects, the officials within the government of China continue to be surprised that people in Hong Kong can hardly embrace the idea of "one country," given that the Chinese National People's Congress (CNPC) is the one that propagated the Basic Law and held it as sacred in "two systems” (Ng & He, 2017). CNPC also ensures a promise of democratic elections after the denial by the British government of these during their ruling that took 150 years (Ng & He, 2017).

China remains in despair of the thought of Hong Kong judges failing to understand the Basic Law. This situation can be well understood from the fact that Hong Kong can hardly realize that their economic and social life is organized based on the tradition of Common Law that is distinct from the culture of Civil Law in Mainland China. In Common law systems, economies and societies remain organized from bottom to top while in Civil Law systems, economies and societies are arranged from top to down (Hong Kong Economic Journal, 2015). It seems that the people in Hong Kong can hardly grasp or appreciate the habits of thought and traditions of Civil Law in China, as is the same case with Beijing continuously misunderstanding Hong Kong.

The situation regarding the legal systems in Hong Kong and China has become more complicated since the sovereignty over Macau resumed in late December 1999 (Ng & He, 2017). Studies that took into account the Taiwan status have suggested that there might be "one country, two systems, and distinct legal territories" (Zhu, 2002). The entire landscape legal system of China, the Special Administrative Region of Hong Kong and Macau Special Administrative Region and Taiwan can be characterized in terms of one country particularly the two systems in China, that include three legal systems including Common Law, the capitalist and legal systems, Civil Law and the Chinese Socialist Law and four legal territories represented by four parties (Zhu, 2002). A solution to the existing issues could be an excellent example between China and Hong Kong for the other individuals involved.

There lack no existing judicial organs in China with a supreme authority or power over all jurisdictions. The law requires that each jurisdiction contains its final appeal or court that is independent from others (Hong Kong Economic Journal, 2015). Several questions have been raised regarding this. One instance is that whenever a constitutional case occurs, there are issues regarding the court or institutions that can be empowered to adjudicate. This has resulted in most Law cases taking place in Hong Kong. The Basic Law of the two Special Administrative Regions ascertains that legislative power needs to be incorporated in the respective legislative councils (Zhu, 2002). Central regimes have less power in making laws or applying national laws to the Special Administrative Regions (SARs) (Hong Kong Economic Journal, 2015). This form of association is similar to the federal government that has a state government under it. The only distinction in China and Hong Kong regarding this is that not all provisions in the Chinese constitution apply to the SARs, and only a number of them have forces that bind in these regions. Basic laws grant a great extent of freedom to the SARs that is impacted by the complicated nature of conflicting circumstances that involve distinct parties, especially on grasping the level of degree that freedom should be exercised.

Possible Solutions

Among the solutions available for solving China and Hong Kong inter-regional conflict of laws is making a uniform national law of conflict laws by the state of composite legal systems. This is mainly based on the fact that this kind of law will have a static function and will encompass a spirit of stability and balance (Ng & He, 2017). This type of law might play a dynamic role in the unification of the national legal systems. The uniform federal law can assist in avoiding conflicts of laws among districts and also in particular issues, meaning that the procedure of identification of laws will be minimized.

Under the uniform rule of conflict laws, there will be consistency in judgment and decision making since cases will be predictable form distinct regional courts of laws that are supposed to be applicable on common ground (Hong Kong Economic Journal, 2015). To implement such a uniform law of inter-regional conflicts by China and Hong Kong, there needs to be a set of objectives identified which operate on a composite legal system in solving conflicts between regions based on law differences.

Conclusion

China and Hong Kong are separated by distinctions in the lawful traditions in the Common Law and the Civil Law. To ensure settling of differences regarding distinctions in their legal systems, both Hong Kong and China need to emphasize their common interests and, also, maintain the distinctions in Common Law and Civil Law. The two must have a mutual grasp of the theory that concerns conflict laws since the limited progress in the inter-regional judicial aid is due to the existence of the discrepancies in theory. The distinctions between the two legal systems can hardly be solved under one country, two systems since both China and Hong Kong include distinct systems of areas of laws. The difficulties in the definition of jurisdiction are due to the lack of understanding between China and Hong Kong of the form of matters at hand and possible approaches and solutions. The legal issues are more complicated, based on the controversies in theories.

References

Zhu, G. (2002). Inter-Regional Conflict of Laws under One Country, Two Systems: Revisiting Chinese Legal Theories and Chinese and Hong Kong Law, with Special Reference to Judicial Assistance. Hong Kong LJ, 32, 615. https://heinonline.org/HOL/LandingPage?handle=hein.journals/honkon32&div=37&id=&page=

Ng, K. H., & He, X. (2017). Embedded Courts: Judicial Decision-Making in China. Cambridge University Press. https://books.google.co.ke/books?hl=en&lr=&id=Ww44DwAAQBAJ&oi=fnd&pg=PR7&dq=Comparative+law+Hong+Kong+and+China&ots=L5FqFkqRGR&sig=I7mUpf950B-K1Jp3w4Cbjg0gS7g&redir_esc=y#v=onepage&q=Comparative%20law%20Hong%20Kong%20and%20China&f=false

Hong Kong Economic Journal. (2015, October 7). Civil Law, Common Law, and Social Control. http://wangyujian.hku.hk/?p=6309&lang=en