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- 자료유형
- 학술저널
- 저자정보
- 발행연도
- 2005.12
- 수록면
- 145 - 166 (22page)
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This document highlights chinese one country-two systems, it would be topic of the current research directions of china law study region. The aim of this study is to discover the existence form of chinese one country-two systems model with comparative legal researching china inland and Hongkong Special Administrative Region(HKSAR).
In a broad sense, "China law" should comprise four components: (1) the laws of the People's Republic of China (PRC); (2) the laws of the Hong Kong Special Administrative Region (HKSAR), a former British colony handed back to PRC in 1997, but still employs the common law system; (3) the laws of the Macao Special Administrative Region (Macao SAR), a former Portugal colony which was returned to China in 1999, but has kept the original legal system; and (4) the laws of Taiwan which, as the remaining part of the former Republic of China, has developed a distinct legal system different from that of the mainland after the Nationalists lost the civil war to the Communists in 1949. However, "China law" is commonly referred to as the laws of the PRC, which was constituted in 1949 when the new government was founded. This article will mainly review the legal resources of the laws of the PRC and the laws of HKSAR. Then, the legal resources of the laws of Taiwan and Macao SAR won't be discussed in this document.
Legal family and structure: When Rene David was reviewing the Chinese codification of the 1930s in his Major Legal System in the World Today: An Introduction to the Comparative Study of Law, he concluded that "Chinese law can be ranked within the family of laws deriving from the Romanist tradition". Today, the laws of the PRC at large degree still share the characteristics of the civil law system rather than those of the common law. As David pointed out, this can be partly attributed to the Europeanization of China during the end of the 19th century and beginning of the 20th century. In addition, this also owes to the fact that the PRC has inherited the Chinese legal tradition: the statutes or codes (written law) were highly valued even back to the Qin Dynasty in 221-207 BC.
Though the Chinese legal system is claimed to be distinct from all other legal systems, jurists of the PRC follow rules of the civil law family. The legislation of the PRC reflects a structural similarity to countries in the Romano-Germanic family, German and France, for instance. Moreover, the Chinese jurists value legal doctrines and hold written law in high esteem; concrete judicial decisions are not officially considered as a source of law.
Source of the laws of the PRC: In retrospective review, the formation and progression of the modern legal system in mainland China had been disturbed by a series of successive political movements from 1949 to 1976. Before the Criminal Code was enacted in 1979, the Constitution Law passed in 1954 was the only statute for 25 years. The governmental operation largely relied on the policies and orders of the Party. The rule of law was not constructed until the massive legislation enactment from the late 1980s, after the Party decided to adopt the "opening-up policy" to develop the market economic system in the late 1970s. Since then, the skyrocketing development of the economy has led to substantial legislative activities that have laid the foundation of the modern legal system. Now, China has established a comprehensive scheme of legislation, including national laws, administrative regulations, and local laws.
Among the sources of the laws of the PRC, the statutes enacted by the National People's Congress (NPC, China's Congress), which includes the constitutional laws, civil codes, and criminal codes, have the highest authority. Administrative regulations by the State Council (China's cabinet) can not be in conflict with the statutes. The decided cases by various levels of judicial institutions are not official sources of law, though decisions of the Supreme People's Court are factually used as a guideline in the practice of lower courts when the provision of law is in obscurity. Local laws and regulations are enacted by provincial legislatures and governments.
However, the Hong Kong Special Administrative Region (HKSAR) is the exceptions from the legal framework in the PRC. Those two special regions were sec up directly under (he theory of one country, two systems by Mr. Deng Xiaoping, the former President of the PRC and the giant of the Parry. Right before the PRC resumed the exercise of sovereignty over Hong Kong, the NPC of the PRC enacted the Basic Law of the HKSAR (adopted on April 1990, in order to keep the scare sovereignty bur to remain the special economic position of those two regions. From their position and nature, those two laws are national laws, nor local laws, therefore, no laws, ordinances, administrative regulations and ocher normative documents of the HKSAR shall violate the Basic Law. At the same time, the Basic Law of the both regions scares clearly that the existing capitalist system and the way of life in the regions shall remain unchanged for 50 years, the laws previously in force in these two regions shall be maintained. Hence, the legal system in the regions became a combination of the traditions of both civil law and the common law, and the political scheme turned our to be a mixture of the capitalist system and socialist system.
In a broad sense, "China law" should comprise four components: (1) the laws of the People's Republic of China (PRC); (2) the laws of the Hong Kong Special Administrative Region (HKSAR), a former British colony handed back to PRC in 1997, but still employs the common law system; (3) the laws of the Macao Special Administrative Region (Macao SAR), a former Portugal colony which was returned to China in 1999, but has kept the original legal system; and (4) the laws of Taiwan which, as the remaining part of the former Republic of China, has developed a distinct legal system different from that of the mainland after the Nationalists lost the civil war to the Communists in 1949. However, "China law" is commonly referred to as the laws of the PRC, which was constituted in 1949 when the new government was founded. This article will mainly review the legal resources of the laws of the PRC and the laws of HKSAR. Then, the legal resources of the laws of Taiwan and Macao SAR won't be discussed in this document.
Legal family and structure: When Rene David was reviewing the Chinese codification of the 1930s in his Major Legal System in the World Today: An Introduction to the Comparative Study of Law, he concluded that "Chinese law can be ranked within the family of laws deriving from the Romanist tradition". Today, the laws of the PRC at large degree still share the characteristics of the civil law system rather than those of the common law. As David pointed out, this can be partly attributed to the Europeanization of China during the end of the 19th century and beginning of the 20th century. In addition, this also owes to the fact that the PRC has inherited the Chinese legal tradition: the statutes or codes (written law) were highly valued even back to the Qin Dynasty in 221-207 BC.
Though the Chinese legal system is claimed to be distinct from all other legal systems, jurists of the PRC follow rules of the civil law family. The legislation of the PRC reflects a structural similarity to countries in the Romano-Germanic family, German and France, for instance. Moreover, the Chinese jurists value legal doctrines and hold written law in high esteem; concrete judicial decisions are not officially considered as a source of law.
Source of the laws of the PRC: In retrospective review, the formation and progression of the modern legal system in mainland China had been disturbed by a series of successive political movements from 1949 to 1976. Before the Criminal Code was enacted in 1979, the Constitution Law passed in 1954 was the only statute for 25 years. The governmental operation largely relied on the policies and orders of the Party. The rule of law was not constructed until the massive legislation enactment from the late 1980s, after the Party decided to adopt the "opening-up policy" to develop the market economic system in the late 1970s. Since then, the skyrocketing development of the economy has led to substantial legislative activities that have laid the foundation of the modern legal system. Now, China has established a comprehensive scheme of legislation, including national laws, administrative regulations, and local laws.
Among the sources of the laws of the PRC, the statutes enacted by the National People's Congress (NPC, China's Congress), which includes the constitutional laws, civil codes, and criminal codes, have the highest authority. Administrative regulations by the State Council (China's cabinet) can not be in conflict with the statutes. The decided cases by various levels of judicial institutions are not official sources of law, though decisions of the Supreme People's Court are factually used as a guideline in the practice of lower courts when the provision of law is in obscurity. Local laws and regulations are enacted by provincial legislatures and governments.
However, the Hong Kong Special Administrative Region (HKSAR) is the exceptions from the legal framework in the PRC. Those two special regions were sec up directly under (he theory of one country, two systems by Mr. Deng Xiaoping, the former President of the PRC and the giant of the Parry. Right before the PRC resumed the exercise of sovereignty over Hong Kong, the NPC of the PRC enacted the Basic Law of the HKSAR (adopted on April 1990, in order to keep the scare sovereignty bur to remain the special economic position of those two regions. From their position and nature, those two laws are national laws, nor local laws, therefore, no laws, ordinances, administrative regulations and ocher normative documents of the HKSAR shall violate the Basic Law. At the same time, the Basic Law of the both regions scares clearly that the existing capitalist system and the way of life in the regions shall remain unchanged for 50 years, the laws previously in force in these two regions shall be maintained. Hence, the legal system in the regions became a combination of the traditions of both civil law and the common law, and the political scheme turned our to be a mixture of the capitalist system and socialist system.
목차
Ⅰ. 법률분류상의 차이
Ⅱ. 법률의 연원에 의한 차이
Ⅲ. 사법조직상의 차이
Ⅳ. 소송제도상의 차이
Ⅴ. 법률해석상의 차이
Ⅵ. 결어
〈Abstract〉
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