Keith Mack
Hong Kong and Macau are two Chinese territories that have continued to practice the English common law and Portuguese legal systems, respectively, even after their respective transfers of sovereignty. These special administrative regions maintain their legal systems from colonial times, with independent courts of final appeal, except on constitutional issues that fall under the jurisdiction of the People's Republic of China. The unique legal landscapes of Hong Kong and Macau have attracted foreign law firms, contributing to the growing sophistication of Chinese laws and the expansion of the rule of law in the regions.
| Characteristics | Values |
|---|---|
| Territory | Hong Kong |
| Continuation of Legal System | English common law |
| Legal Jurisdiction | Outside of the People's Republic of China except on constitutional issues |
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What You'll Learn
Hong Kong and Macau's legal systems
Hong Kong and Macau are special administrative regions (SARs) of China, with unique legal systems that set them apart from mainland China. Both regions were handed over to China under the principle of "One Country, Two Systems", which allows them to maintain their own legal frameworks.
Hong Kong was a British territory until 1997, when it was returned to China under the Sino-British Joint Declaration of 1984. It continues to practice English common law, with its own court of final appeal. Hong Kong has a separate legal jurisdiction from mainland China and maintains its own economic and political systems. The official languages in Hong Kong are English and Chinese, and it has its own currency, the Hong Kong Dollar (HKD).
Macau, on the other hand, was a Portuguese territory until 1999, when it was transferred to China under the Sino-Portuguese Joint Declaration of 1987. Macau follows the Portuguese legal system and has its own court of final appeal. Similar to Hong Kong, Macau lies outside the legal jurisdiction of mainland China, except on constitutional issues. Macau has an independent legal and financial system, which has contributed to its development as a global gambling hub. The official languages of Macau are Portuguese and Chinese, and it uses the Macanese Pataca (MOP) as its currency.
China's legal system, on the other hand, is largely a civil law system with roots in the Great Qing Code and historical systems. The current legal system was developed in the late 1970s after the Cultural Revolution, during which the existing court structure and statutes were discarded. The Chinese Communist Party (CCP) maintains effective control over the courts and their personnel, and the judiciary is not independent of the executive branch. China has a unified court system with four levels: the supreme court and three levels of local courts.
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Hong Kong's common law system
Hong Kong's legal system, developed under British governance, is based on the English common law system. Hong Kong's common law system is unique, a hybrid of civil law and common law, though similar arrangements can be found elsewhere. The Hong Kong Special Administrative Region (HKSAR) legal system is based on the principles of the rule of law and the independence of the judiciary.
Hong Kong's Basic Law, enacted by the National People's Congress of the People's Republic of China, provides the constitutional framework for the HKSAR legal system. Under the 'one country, two systems' principle, the HKSAR legal system differs from that of mainland China and is based on common law, supplemented by statutes. Hong Kong's legal system falls outside the legal jurisdiction of the People's Republic of China, except on constitutional issues.
Hong Kong's legal system was influenced by the British during colonial times. Since the transfer of sovereignty, Hong Kong has been able to maintain its legal system, though it must observe the constitution and basic laws of the People's Republic of China, as well as the power of the National People's Congress.
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Macau's Portuguese legal system
Macau, a Chinese special administrative region, has continued to practice the Portuguese legal system even after its transfer of sovereignty from Portugal to the People's Republic of China in 1999. Macau's legal code is written in Portuguese, and its major codes, including the Civil Code, Civil Procedure Code, Criminal Code, and Criminal Procedure Code, are drafted in the same language. The University of Macau's law students take their classes in Portuguese, and the university also offers law degrees and master's programs in the language.
Macau's legal system is based on the civil law tradition of continental European legal systems, with its roots in the Portuguese legal system. The apex of the legal system is the Basic Law of Macau, modelled on Hong Kong's Basic Law but also influenced by the Portuguese Constitution in some respects, such as norms concerning fundamental rights. The International Covenant on Civil and Political Rights also applies in Macau.
Macau's legal system was not significantly altered in 1999 due to the transfer of power, as there was a principle of continuity of the pre-existing legal system. Macau's judicial system was a sub-judiciary district of the Portuguese legal system before 1991, and it was affiliated with the Judiciary District of Lisbon. The territory's legal system has retained its liberal capitalism system inherited from the Portuguese, and it continues to maintain its legal system from colonial times, as per the Basic Law of the Macau SAR, a Chinese law approved in accordance with the Sino-Portuguese Joint Declaration on the Question of Macau.
The Public Prosecutions Office, led by a prosecutor general and assisted by an assistant prosecutor general, is the judicial authority in Macau. Day-to-day legal activities are carried out by general prosecutors.
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China's legal-services market
China's legal system has a unique structure influenced by its history and the role of the Communist Party. The country has a civil law system, with roots in the Great Qing Code and various historical systems, reflecting the influence of continental European legal systems, particularly German civil law.
The Chinese Communist Party (CCP) maintains control over the courts and their personnel, and the judiciary is not independent of the executive branch. The court system has four levels: the supreme court and three levels of local courts (high, intermediate, and basic).
The biggest companies in the Chinese attorneys market include Dacheng Law Firm, King & Wood Mallesons, and Yingke Law Firm. Most law firms are located in major cities like Beijing, Shanghai, Shenzhen, and Guangzhou, where many client businesses are established.
The growth of the legal-services market in China has been influenced by several factors. The country's economic development and the strengthening of people's legal awareness have contributed to the increasing demand for legal services. The influx of foreign law firms and the promulgation of new laws based on international norms, particularly in areas such as intellectual property and corporate and securities law, have also played a role. Additionally, the government's investment in infrastructure, medicine, and big data management has created new opportunities for legal services in these sectors.
China's legal market has also experienced challenges and uncertainties, including tensions with the US and Europe, which have led to cross-border service reduction. However, the surveyed law firms remain optimistic about the market's development, with many firms diversifying their services to meet a full range of client needs and enhance their resilience to risk.
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Influence of European legal systems
Hong Kong is the Chinese territory that continued its common law system. Hong Kong and Macau are special administrative regions that, while required to observe the constitution and basic laws and the power of the National People's Congress, largely maintain their legal systems from colonial times. Hong Kong's common law system is based on British common law. Multinational firms and banks have historically used Hong Kong as a gateway to do business in mainland China, owing in part to its reliable legal system.
The Chinese legal system has traditionally been a civil law system, with roots in the Great Qing Code and other historical systems. It has been strongly influenced by continental European legal systems, especially German civil law in the 19th and early 20th centuries. During the Qing dynasty, the Chinese government hired Japanese legal experts to modernise its legal system, which was also based on German civil law. This effort continued and was amplified in the republican period, resulting in the Provisional Criminal Code of 1911, which was largely based on the Japanese version of German civil law.
The influence of European legal systems on China increased under pressure from European powers and increasing commercial interactions. The First Opium War ended with the 1842 Treaty of Nanjing between China and the United Kingdom, which required the establishment of five treaty ports in Chinese cities. This was the first of the unequal treaties that forced China to open up to foreign influence.
During the Maoist period (1949-1978), the Chinese Communist Party (CCP) had a hostile attitude towards a formalised legal system, seeing it as a constraint on their power. The legal system was attacked as counter-revolutionary, and courts, law schools, and lawyers were targeted. From the start of the Anti-Rightist Campaign in 1957 to the end of the Cultural Revolution around 1976, the PRC lacked most of the features of a formal legal system. There was an attempt to import a socialist legal system based on the Soviet Union's during this time, but it was not successful.
After the Cultural Revolution, China began to rebuild its legal system, and its judiciary has since modernised rapidly. China's legal system continues to be influenced by European legal systems, especially in areas such as intellectual property, corporate, and securities law. The expansion of the rule of law and the influx of foreign law firms have contributed to the development of a legal-services market in China.
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Frequently asked questions
Hong Kong continued its practice of English common law after its transfer of sovereignty.
China's legal system is largely a civil law system, with roots in the Great Qing Code and continental European legal systems, especially the German civil law system.
Macau, a special administrative region along with Hong Kong, maintains its Portuguese legal system.
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