The Rule of Law Series aims to bring geocachers to some of the Law Courts of Hong Kong and, perheps, helps geocachers understand ‘The Rule of Law’ in Hong Kong. To understand more about the Law Courts of Hong Kong (and where you will probably go following the Series, you may visit the Judiciary Website.
This cache can be found by viewing the Sources of Law in Hong Kong. =========================================================================
The following information are (mostly) copied from the website of Community Legal Information Centre.
1. What constitutes the Hong Kong Laws?
- Hong Kong Laws are generally composed of the Basic Law, Common Law, Rules of Equity and Statute Law.
2. What is the influence of the Basic Law on the Hong Kong Legal System?
- The Basic Law of the HKSAR was enacted by the National People's Congress in accordance with the Constitution of the People's Republic of China. It is similar to a mini-constitution for the HKSAR. It took effect on 1 July 1997 on the establishment of the HKSAR. The most prominent feature of the Basic Law is the underlying principle of "one country, two systems" whereby the socialist system and policies shall not be practised in the HKSAR and the previous capitalist system and way of life is to remain unchanged for 50 years
- Under the Basic Law, all the laws previously in force in Hong Kong (including common law and statues, etc.) shall be maintained except for any that contravene the Basic Law and subject to any amendment by the HKSAR legislature. National laws of the People's Republic of China shall not be applied in the HKSAR except for a number of such laws relating to defence and foreign affairs.
3. How are the Common Law and the Rules of Equity operating in Hong Kong?
- The most distinguishing feature of common law is the reliance on the doctrine of precedent when making court judgments. It is not restricted to judicial decisions generated within Hong Kong but case law from all jurisdictions throughout the common law world. Article 84 of the Basic Law provides that the Hong Kong courts may refer to case precedents from other countries under common law jurisdictions. In addition, the Court of Final Appeal and the Hong Kong Judiciary are given the power to invite judges from other common law jurisdictions to participate in the judicial processes.
- The major distinction between common law and the rules of equity is that common law remedies are available as of right, while remedies in equity are discretionary. The court does not have to grant an equitable remedy where it regards the behaviour of the party seeking such an equitable award does not deserve such an award. The usual equitable remedies include injunction (a court order requiring someone to stop doing something) and specific performance (a court order requiring one of the parties to a contract to perform his/her part of the contract).
4. Besides the Basic Law, Common Law and the Rules of Equity, what sort of laws exist in the Hong Kong Legal System?
- Statute law makes up a large component of the Hong Kong laws. It consists of written ordinances of which the majority are passed by legislative procedure in the Legislative Council of the HKSAR, and they eventually become the Laws of Hong Kong (for details of each ordinance, please refer to the "Hong Kong e-Legislation"). In addition, some legislations are made under delegated powers. This is called subsidiary legislation. For example, an ordinance may delegate to the Chief Executive in Council (the Chief Executive with the advice of the Executive Council) the power to make regulations to deal with the details of the implementation of a legislative scheme.
- However, some ordinances are not made locally such as:-
- Chinese customary law
- Some aspects of Chinese customary law apply in Hong Kong. For example, under section 13 of the New Territories Ordinance (Cap. 97) the courts may recognize and enforce Chinese customs or customary rights in relation to land in the New Territories.
- International law
- Over 200 international treaties and agreements have been applied to Hong Kong. A treaty does not constitute part of Hong Kong's domestic law until it is given effect by legislation. Nonetheless, it may affect the development of the common law. It may, for example, be resorted to by a court as an aid to interpret certain ordinance. The rapidly developing rules of customary international law can also become absorbed into the common law.
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