香港基本法司法适用中的争议——从基本法与普通法关系的角度

Controversy in the Applicaition of Basic Law of Hong Kong——Viewed from the Relationship in-between the Basic Law and Common Law

香港回归以来,基本法在实行普通法传统的香港法院的司法适用中,出现了以普通法方法适用基本法及以普通法解释基本法的现象,突出体现在香港法院违反基本法审查权和基本法解释权的行使上。造成这一现象的原因包括基本法与普通法法律推理和法律思维方式的差异,全国人大常委会与香港法院立法解释、司法解释的分歧,基本法有关制度和制度执行的缺失。应正确处理普通法和基本法的关系,推动普通法事后审查制度的常态化,维护全国人大常委会的审查权等方面规范基本法的司法适用。

Hong Kong courts have applied and interpreted the Basic Law in the tradition of common law since Hong Kong＇ s return, conspicuously embodied by the right of judicial review of Hong Kong Courts and the right of interpreting the Basic Law. What account for the phenomena include： differences between reasoning ,judicial and meditating method used by Basic Law and common law, differences between the legislative interpretation of the National People＇ s Congress and judicial interpretation of Hong Kong Courts, and limitation in the respects of institution and institution administration of the Basic Law. Essentially, it is a wrong understanding of the relationship in - between the Basic Law and common law. To regulate the application of the Basic Law,we are required to handle properly the relationship in - between the Basic Law and common law, to make the post - review of common law normalized and to defend the right of judicial review etc of the National People＇s Congress.