This article reviews the line of authorities laid down by the English, Singaporean and Hong Kong courts concerning the approach to stay or dismiss an insolvency petition where exhibit logically inconsistencies with its policy preferences by requiring parties to take steps to arbitrate (ie the third Lasmos requirement) before the court's discretion to stay insolvency proceedings is triggered, the English Approach is overly restrictive with excessive emphasis on the doctrinal mechanism of insolvency law. Accordingly, this article shows preference for the Singaporean Approach, which strikes a fair balance in integrating the policy and doctrinal concerns in relation to arbitration law in the insolvency context, as the basis for Hong Kong's legal reform. This article concludes by suggesting that the court's discretion to stay insolvency petitions should generally be exercised unless in so doing an abuse of process would be resulted. Meanwhile, it would be best practice for the parties to spell out in the arbitration clause whether they intend the clause to cover insolvency proceedings in any event.
The duty to protect human and constitutional rights binds all branches of government, including the judiciary. Ordinary courts in charge of civil cases can and should discharge this duty through their adjudicative practices, and the constitutionalisation process of a civil code is both invited and expected. Civil court judges in South Korea have pursued this process by adopting the jurisprudence of the "indirect effect" of constitutional rights in private law relations, proactively construing general provisions under the Civil Act as a normative bridge to bring constitutional values into various domains of civil law. The practices of civil law's constitutional engagement reveal relative roles of the legislature, the Constitutional Court, and ordinary courts, rooms for improvement in courts' adjudication standards, as well as the public-private law binary still retained by courts but constantly challenged by individual rights holders. Through the constitutionalisation processes of civil law that not only incorporate constitutional values but more broadly internalise international human rights norms, civil law adjudication can be reconsidered as an effective venue that the state performs its duty to protect human and constitutional rights and where these rights attain their concrete meanings and enforceability.
This article explores the phenomenon of constitutionalisation of the civil code the doctrine of horizontal effect of constitutional rights (referred to as the "HECR doctrine") from Germany and (2) the practices of recognising the HECR doctrine in ordinary courts. The evolution of the HECR doctrine within Taiwan's legal system highlights a nuanced interplay between the Taiwan Constitutional Court and ordinary courts. This article demonstrates the significant yet inconsistent impact of the HECR doctrine in shaping legal interpretations and judicial practices in the realm of civil law. The empirical findings in this article showed that the low frequency of HECR doctrine citations in court decisions suggests an ongoing reluctance or cautious attitude towards applying the HECR doctrine in civil adjudications, viewing it as supplementary or even as a last resort.
A legal phenomenon known as "constitutionalisation of civil law" has been observed in both the West and Asia. This Article will sketch various aspects of the interaction between constitutional law and civil law, including constitutionalisation of civil law, in the context of Japanese law. In Part 1, we review the historical development of Japanese civil law. The earliest Japanese civil codes were strongly influenced by the Code civil/droit civil of French origin. The classical idea of the French Code civil had its character as the law of modern civil society, guaranteeing the basic rights of civil society similar to constitutional rights. In this sense, the Constitution and the Civil Code shared common concerns, and it can be said that constitutionalisation was internalised in the Civil Code in its original position. However, later, the Japanese comparative law discipline was forced to undergo a major political shift, increasing the influence of German law and public/private law dualism came to be a typical mode of legal thinking. Against this background, how can the legal phenomenon of constitutionalisation of civil law be identified in Japanese law today? In Part 2, the indirect effects theory of the constitution is discussed. Part 3 refers to the "constitutionalisation" of the Civil Code through the concept of "modernity". Part 4 sketches the "constitutionalisation" of the Civil Code through institutionalising the content of constitutional rights by the Civil Code. These modes and trends are not mere theoretical proposals, but also are endorsed in case law as judicial practice.
This article explores the phenomenon of civil law constitutionalisation as reflected in Japanese law. Japan's experience conforms to international patterns in that constitutional provisions are given "indirect horizontal effect" in civil adjudication. However, Japan lacks the institutional conditions that have marked out "civil law constitutionalisation" as a novel and distinct phenomenon for analysis. In Japan, constitutional provisions have been selectively incorporated into civil law reasoning largely on the civil law's own terms, not at the behest of constitutional pressure. In this way it protects the relative autonomy of private law reasoning, unlike the notion of the "total constitution" implied by the L & uuml;th jurisprudence of the German Federal Constitutional Court. Informed by Japan's more autonomist position concerning the interaction between civil and constitutional law, the article concludes that "civil law constitutionalisation" properly describes not a universal phenomenon but a particular way civil and constitutional law may come to interact in response to certain institutional conditions, which however are absent in the Japanese context.
This article examines the phenomenon of "Constitution Talk" (CT) - explicit references to China's Constitution in civil court proceedings - to analyze its role in the constitutionalization of the Civil Code. Drawing on empirical data from 2018 civil cases (2017-2024) across three provinces, the study explores how judges and litigants invoke constitutional norms to interpret ambiguous provisions, resolve jurisdictional conflicts and conduct informal judicial reviews. Findings reveal that CT is intensifying, particularly in expropriation and environmental cases, serving as a governance tool to align civil law with constitutional principles. However, its impact is constrained in politically sensitive domains, such as reproductive rights, where courts prioritise policy over constitutional arguments. The study argues that CT reflects a dynamic interplay between legal innovation and state control, offering insights into China's evolving legal governance under the Civil Code. While CT enhances judicial legitimacy and rights protection, its boundaries underscore the enduring influence of Party policy on constitutional discourse.
The concept of a super-statute refers to an ordinary statutory law with constitutional characteristics, distinguished by its function, normative framework and far-reaching impact. Comparative constitutional experiences highlight the global prevalence of super-statutes as a crucial vehicle for constitutional development. This article examines the role of the entrenching constitutional norms through constitutionalisation of private law, particularly in light of the absent judicial enforceability of the country's formal constitution. The Civil Code serves as an important legal instrument for governance, fulfilling key constitutional roles in regulating governmental behaviour, safeguarding rights, balancing social interests, upholding fundamental values and navigating societal advancement. Through its established co-ordination mechanisms for judicial application, the Civil Code wields a broad and profound influence across China's political, legal and societal spheres.
As a strategic industry critical for national security and economic development, the semiconductor industry has consistently been a focal point in the technological and economic competition among nations. In the context of the semiconductor competition between China and the United States, fiscal and tax policies have emerged as important tools for competition. The United States and its allies have implemented a series of "chip choke" fiscal and tax policies. In response, China has also enacted a series of fiscal and tax incentives aimed at achieving self-reliance in the semiconductor industry. This article will attempt to answer the question of whether China's fiscal and tax policies can effectively break through technological blockades. This article highlights that within the current Chinese policy landscape, there is a notable emphasis on the flexibility and generosity of semiconductor fiscal and tax policies. However, it underscores that the effectiveness of these policies is not solely contingent upon these aspects. Consequently, this article constructs a more comprehensive analytical framework for assessing effectiveness and identifies the limitations of current fiscal and tax policies for semiconductors in China, focusing on legislative models, policy design and policy implementation. These shortcomings, combined, will reduce the effectiveness of China's semiconductor fiscal and tax policies. To solve these problems, this article recommends that China further refine its semiconductor fiscal and tax policies to overcome the "chip choke" imposed by the United States.
Section 20 of the Hong Kong Coroners Ordinance (Cap 504) empowers the Secretary for Justice and any other properly interested persons to apply to the Court of First Instance for an order that a death inquest be held if "a coroner has failed to hold an inquest which ought to be held". In Leung Shuk Ling and others v Coroner [2023] 4 HKLRD 264, the Court of Appeal for the first time outlined the proper approach to a s 20 application whereby the "public interest" is implicated. This article presents a critical analysis of the reasoning in Leung Shuk Ling, focusing on the legal and statutory basis of the "public interest" factor as well as the necessary limits that should be placed upon it.
This article examines the copyrightability of individual musical elements through a critical analysis of judicial approaches in China and the United States, leveraging the doctrinal lenses of originality and the idea-expression dichotomy. The research interrogates how courts navigate the protectability of melody, harmony, rhythm, orchestration, and tonality in musical compositions, revealing complex patterns of judicial interpretation across both jurisdictions. While the study acknowledges melody's historically privileged position in copyright protection, it challenges the traditional binary approach to musical element protection, advancing a more nuanced framework that recognizes the potential copyrightability of sophisticated harmonic structures and innovative orchestration techniques. Through extensive case law analysis, the study illuminates a significant divergence between Chinese and American judicial methodologies: US courts demonstrate a more systematic application of the idea-expression dichotomy, whereas Chinese courts employ a more holistic but less theoretically grounded approach. Building on the comparative analysis, this research advocates for a more nuanced doctrinal approach that takes into account the complexities of musical creation, while adhering to the core principles of copyright law. By offering a refined framework for evaluating the copyrightability of musical elements, this research aims to contribute to both the theoretical discourse and practical adjudication, addressing the challenges posed by the growing intricacy of music and advancements in technology.
At present, Hong Kong and Macao have established food safety incident prevention mechanisms comprising an imported food inspection and quarantine mechanism and a food safety notification mechanism. However, the existing imported food inspection and quarantine mechanisms suffer from the deficiencies of narrow and leakage-prone sampling coverage, lack of hierarchical and reasonable screening, and lack of scientific certification of third-party testing results; on the other hand, the existing food safety notification mechanisms suffer from the deficiencies of a single and passive source of information, and an over-generalisation of notification content. This study proposes the introduction of hierarchical inspection and control systems based on risk assessment, early warning notification mechanisms based on risk classification, and other complementary improvement measures in Hong Kong and Macao, with a view to further enhancing the preventive capability against food safety incidents in Hong Kong and Macao through mainly comparative, literature and empirical research methods.
Using judicial decisions, original legislative records and interview data, this article explores to issue administrative regulations. Yet, the distinction between this authority and the Legislative Assembly's (LA) legislative jurisdiction is ambiguous. When the issue became hotly contested among scholars, courts, the government and legislators, a constitutional crisis arose due to the non-appearance of the Central Authorities and the inability of the Tribunal de & Uacute;ltima Inst & acirc;ncia to end the contestation owing to the incomplete constitutional review system. The burden of settling the constitutional crisis then rested on the MSAR's LA, which supposedly has no constituent power. After two years of negotiations between the government and the LA, a new statute, known as the legislation law, was passed, but certain critical constitutional controversies remain unaddressed. These findings highlight the power dynamics and interacting styles of all the political authorities in lute constitution of this region. This study also contributes to the future improvement of Macau's constitutional review mechanism and a comparative constitutional change study with Hong Kong and other subnational hybrid regimes.
This article examines the Hong Kong Mental Health Review Tribunal's powers in relation to the imposition of conditional discharge orders under s 59E(2) of the Mental Health Ordinance (Cap 136). The wording of s 59E(2) refers back to s 42B of the Mental Health Ordinance, the primary legislative provision governing the conditional discharge regime. There remains ambiguity, however, regarding the scope of the Tribunal's powers in relation to such matters as the factors that the Tribunal is to consider when deciding whether to impose a conditional discharge order. Section 59E(3) of the Mental Health Ordinance, for example, provides additional factors beyond those contained in s 42B for the Tribunal to consider. In this article, we examine this ambiguity, presenting three different options as to how the interaction between ss 42B and 59E(3) might be interpreted. We then argue that the first of these options is the correct interpretation. We also examine the role that the s 59E(3) factors play within this interpretation, and in particular the implications that the s 59E(3) factors may in turn have for s 42B.
Legislatures reflect the democratic will. Judiciaries protect minority interests. While focusing on minority rights, it is necessary to see them in the context of human rights as a whole. Especially where judicial power extends to striking down primary legislation, the judiciary has generally been more disposed and effectively composed than the legislature to protect individual rights against excessive assertions of political power. There is a famous exception to this. The Court of Exchequer Chamber held by a majority in The Case of Ship Money (1647) 3 State Trials 825 that the King had power to levy ship money from individuals. Parliament, by the Bill of Rights 1668, prohibited the levying of money for the use of the Crown without grant of Parliament. The delivery of rights, including minority rights, is the business of the judicial and the political branches of government. Treaty protection of minorities is directed in particular to persons belonging to national or ethnic, religious and linguistic minorities. But the law also protects other minorities. And it was in a case concerning the minority formed by persons who had undergone gender reassignment that it was said in W v Registrar of Marriages (2013) 16 HKCFAR 112 at para 220 that "[o[ne of the functions-perhaps the most important one-of constitutionally guaranteed human rights is to protect minorities". The Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities was proclaimed by the General Assembly of the United Nations on 18 December 1992. It spells out the detailed measures needed to carry into effect the architectonic generalities of article 27 of the International Covenant on Civil and Political Rights. That article is domesticated in Hong Kong as article 22 of the Hong Kong Bill of Rights and entrenched here, originally by article VI(3) of the Hong Kong Letters Patent 1917-1992 and now by article 39 of the Basic Law). Legislators debate such detailed measures and perhaps domesticate them by way of local legislation. Judges interpret and apply such legislation and, even in the absence thereof absent thereof, are guided by the provisions of the 1992 Declaration when interpreting and applying article 22 of our Bill of Rights. Unity evolves out of diversity. Sameness supports equality. But the various communities in multi-cultural society are similar in being different.
Apart from the schedular income taxes imposed under the Inland Revenue Ordinance (Cap 112), stamp duty stands out as the only other major type of tax levied in Hong Kong. Although the current Stamp Duty Ordinance (Cap 117) (SDO) was enacted in 1981, stamp duty is indeed the oldest of the taxes administered by the Inland Revenue Department. It holds significant importance in terms of fiscal revenue generation. Initially and largely modelled on the Stamp Act 1891 (UK), the SDO was less complicated until recent extensive revisions since 2010, particularly concerning real estate transactions in Hong Kong. This article examines the evolution of stamp duty in Hong Kong, focusing on its application to real estate transactions, starting from the inception of the SDO to date. The history of land-related stamp duty has seen changes in the stages of transactions subject to duty and the duty rates, as well as the introduction of new stamp duty categories. "One step forward, one step sideways and one step back" is arguably an apt description of those changes. It also raises the question of how far those changes have effectively achieved their intended goals in the wider context of regulating housing affordability in the real estate market. In the wake of recent social unrest in Hong Kong and the impact of the COVID-19, there is a call for the government to explore outside the box for fresh approaches and perspectives to address current challenges.
The principle of equal authenticity seeks to give equal status to Chinese and English legislative texts in Hong Kong. However, challenges arise due to discrepancies between the languages, leading to criticisms of this principle as a legal fiction. Are Hong Kong judges able to maintain equal authority for both language versions of the law? A study of Hong since 1987 finds that while the courts were able to reconcile the two language versions in the majority of cases, the English text was often prioritized in cases of irreconcilable differences since it was enacted first in time. Notably, the Court of Final Appeal's decision in of law and fairness. The authors propose to repeal and re-enact all authenticated Chinese provisions, or those problematic provisions denounced by the court. At the very least, the public should be alerted that they are reading subsequently authenticated translated texts. Addressing these issues is vital for maintaining the integrity and clarity of legal interpretations in bilingual jurisdictions such as Hong Kong.
The initiation of a police inquiry into the "Metaverse Sexual Assault Incident" has rekindled discussions on the delineation of criminality within the confines of the metaverse. The inherently decentralised technological architecture of the metaverse suggests a state of governance akin to anarchy. Yet, the scarcity of certain resources within this virtual realm necessitates the presence of malevolent actions during acquisition processes, which ought to be subject to preventive and regulatory measures. Theoretical frameworks such as spatial theory and risk theory fall short in substantiating the proposition of legal regulation within the metaverse. The crux of the issue lies in whether virtual conduct within the metaverse infringes upon interests that warrant protection, thus constituting a crime. The recognition of such interests is fraught with complexities and challenges. The Metaverse Sexual Assault Incident offers valuable insights into the determination of criminality and non-criminality within the metaverse. Regulating malicious behaviors within virtual spaces like the metaverse necessitates a multifaceted approach, one that involves the establishment of agile governance mechanisms and the creation of autonomous organizations.
