Adoption,Homosexuality and the European Convention on Human Rights: Gas and Dubois v France

On 15 March 2012 the European Court of Human Rights (the Court) issued its first judgment addressing the differential treatment of same‐sex and opposite‐sex couples in respect of the adoption of a child. 1 The Court held that excluding same‐sex couples in civil partnerships, who have no legal right to marry, from adoption provisions available to married opposite‐sex couples does not violate rights guaranteed by the European Convention on Human Rights (the Convention). I argue that the Court's reasoning in Gas and Dubois v France is unpersuasive and unsustainable in light of its wider case law.     

香港的海事审判管辖权

根据香港高等法院法令第12条的规定,介绍了香港海事法院的管辖事项的范围、管辖权的行使方式、提出管辖权异议的理由,以及香港海事法院的收费标准等。     

表达自由的理念与限度——香港特别行政区终审法院国旗案与美国最高法院焚烧国旗案比较研究

表达自由权是《香港特别行政区基本法》所确认的公民基本权利之一。该权利在香港特别行政区的司法实践中表现出与美国宪法上的表达自由权很强的可比性:香港特别行政区终审法院与美国联邦最高法院所秉承的表达自由基本理论以及所适用的法律解释方法和司法审查标准等都极为相似;与此同时,在个案处理上,两个法院又结合各自不同的社会背景保持了必要的差异性。香港特别行政区终审法院在基本法的框架下已经初步形成了比较鲜明和稳固的表达自由权的法理。     

維護内地舆香港當事人合法權益的有效制度

中國實行改革開放以來,内地舆香港的經濟往來日益频繁,涉及兩地的民商事爭議也越來越多。如何公正地處理這些爭議,切實維護内地舆香港當事人的合法權益是人民法院的重要職责。由於内地舆香港實行不同的法律制度,訴訟過程中的诸多問题都缺乏统一的程序和標凖,给爭議解決带來了许多困難。1981年,司法部經中央有關主管部門同意,     

2009年香港海商法判例综述

2009年期间,香港法院审理了一定数量的海商海事案件,案件领域包括提单运输、《汉堡规则》的解释、承运人在普通法下的责任、船舶碰撞和海上保险等。大部分案件在香港高等法院原诉法庭审结,部分上诉至香港高等法院上诉法庭,甚至香港终审法院。通过对若干代表性案件的描述和分析,一方面展现香港海商法判例的发展,另一方面有助于对中国内地海商法的比较研究。     

Wife Abuse in Hong Kong Chinese Families: A Community Survey

The present study aimed to explore the extent and pattern of wife abuse in Hong Kong Chinese families. The sample included 1,132 married women aged 18 or older randomly selected from the community. Results showed that 67.2% of the surveyed women reported at least one incident of verbal abuse, and 10% experienced at least one incident of physical abuse by their husbands during the surveyed year. Husband-to-wife minor physical violence was almost seven times more than husband-to-wife severe physical violence (9.8% vs 1.4%). Couples' age and their age differences were related to physical wife abuse but not verbal wife abuse. Specifically, physical wife abuse in the form of minor violence occurred most frequently among married men and women aged 30 or below; and both minor and severe physical violence to wife was found most frequently among couples whose ages were more than 20 years apart. Couples' education level, differences in education, occupation, family income, and number of children were not related to various forms of wife abuse; whereas the length of marriage and marital satisfaction were significant correlates of wife abuse. Results were discussed with regard to relevant local and Western studies.     

The treatment of Chinese customary law in British colonial Hong Kong

A struggle has been underway in Beijing, othering Hong Kong’s British common law legal system by rhetorically subordinating it as a foreign colonial relic. How did the British develop their Hong Kong governance policies for proper law, as they ruled Hong Kong? These policies developed without resort to all the available scholarship, so that they could other the Hong Kong people into a subaltern group. Hong Kong was already constituted as a township with its own continuing township liturgy, customary ritual and social structure. The colonial administration ignored this, creating a Hong Kong subaltern.     

香港法律下对中国内地“船舶挂靠”现象中船舶所有人的识别

考察了中国"船舶挂靠"现象所导致的船舶的登记船东与实际船东不一致的问题,以及这样的登记船东和实际船东在香港的对物诉讼中会遇到的法律问题,结合2000年至2006年分别涉及香港的高等法院海事庭、上诉法院及终审法院的几个判例,分析香港不同等级的法院及不同的法官如何认定"船东"一词所指为谁及他们有否及如何考虑在涉及"船舶挂靠"关系时登记船东与实际船东究竟谁是香港法律中所称的船东,并提出香港的法院应根据事实而非登记册认定真正船舶所有人的观点。     

2010年香港海商法判例综述

2010年香港海商法判例,包括海事和商事案件,来自香港高等法院原诉法庭和上诉法庭。案件主要涉及再保险人诉讼法律地位、官方法律程序及豁免、香港和内地法院管辖争议及法院对仲裁裁决的认可。作为香港普通法,2010年的判例涉及范围广泛,案件比较复杂,涉及实务中的常见问题,案件的判决结果值得实务界参考和借鉴。     

全球化与香港法律服务

借着上海主办世博会的良机，香港律政司联同香港贸易发展局、香港大律师公会、香港律师会、香港国际仲裁中心以及国际商会国际仲裁院举办此次以“香港法律服务——环球视野”为主题的“论坛”，目的是希望向内地的企业和法律界介绍香港的法律和仲裁专业的优势及最新情况，与内地同行分享我们的经验，以及共同探索进一步加强合作的途径。     

论香港与内地法院间对判决的相互承认及执行

在香港回归以前,由于国内判决只享有"外国判决"的地位,因此在香港只能按照普通程序执行。香港回归以后,根据《外地判决(交互强制执行)条例》所订登记制度的规定,却不能适用于内地判决。基于此,讨论了在大陆和香港两套法律体制并存的情况下,怎样承认及执行双方的民事判决,以及由此所遇到的困难和产生的问题。深入研究了最高人民法院的《关于内地与香港特别行政区法院相互委托送达民商事司法文书的安排》以及最高人民法院与香港律政司签署的《关于内地与香港特别行政区相互执行仲裁裁决的安排》两份文件,并通过与其他国家处理国内区际司法协助的做法以及香港回归以前所适用的国际条款作比较,推导和分析了回归后国内与香港特区之间在司法协助问题上所应遵循的一般原则。     

Internet intermediaries: The liability for defamatory postings in China and Hong Kong

The debate between protecting the freedom of expression on the one hand and the right to an individual privacy on the other is not new. Certainly with the introduction of the Internet, the debate has moved onto a whole new level. While no-one disputes that the Internet has significantly transformed lives by allowing netizens to create, share, and communicate within the global village, the Internet has also provided the means to publish and disseminate false information and derogatory remarks callously and expediently. The aim of this paper is to provide a brief comparative study of the approaches in China and in Hong Kong with respect to Internet intermediary liability for defamatory postings and whether the approaches taken provide the necessary balance between the right of free expression and the right to protect one’s reputation. The paper starts by dealing with the position in China pre and post Tort Liability Law. The paper then continues by examining the position in Hong Kong focusing particularly on the recent Court of Appeal decision in Oriental Press Group Ltd v Fevaworks Solutions Ltd. In comparing the position in China and Hong Kong, the paper provides a conclusion as a possible way forward for Internet intermediary liability in China and Hong Kong.     

Reluctant Bedfellows: Want of Authority and Knowing Receipt

The case note examines the recent decision of the Hong Kong Court of Final Appeal in Thanakharn Kasikorn Thai Chamkat (Mahachon) v Akai Holdings Ltd, where Lord Neuberger of Abbotsbury adopted the test of irrationality in determining whether a defaulting agent had apparent authority to act on behalf of his principal to confer benefits on a third party. His Lordship further held that a concurrent claim in knowing receipt arose against the third party, and the test of unconscionability is substantially the same as that of irrationality. The present note argues that symmetry of the two tests is not necessary, for knowing receipt and apparent authority deal with issues that are categorically different and serve different purposes. It also examines, in the context of benefits conferred upon an underlying agreement that is void, the oft‐overlooked issue as to what amounts to receipt for the purpose of knowing receipt.     

Kwok Cheuk Kin v Lam Cheng Yuet Ngor: Government Chastisement of Dissidents and Judicial Review That Never Was?

The Hong Kong Government issued a strongly-worded official statement, subsequently adopted by the Chief Executive, to publicly condemn an outspoken constitutional law scholar for expressing views which the Government considered unconstitutional. Leave to judicially review the statement was refused by the Court of First Instance of the High Court of Hong Kong on the grounds, inter alia, that a statement lacking in direct legal consequences was outside the ambit of judicial review and, further, the Chief Executive was in any event entitled to comment on public affairs. This note argues that, on a proper understanding of the supervisory jurisdiction of the Court and the theory of the ‘third source’ of governmental power, neither ground should have precluded judicial review.     

Interpreting the Basic Law and the Adjudication of Politically Sensitive Questions

In this paper, I shall essentially lay out five interpretiveprinciples that the Hong Kong judiciary should observe. First,the Hong Kong judiciary can disable themselves from giving effectto National People's Congress (NPC) Acts that are inconsistentwith the Basic Law. Second, the Court of Final Appeal has aduty to make a reference to the NPC's Standing Committee (NPCSC)when it needs to adjudicate over two conflicting Basic Law provisions,one whose affairs fall within the Central Government's concernsand the other which falls within the limits of Hong Kong's autonomy.Third, in reading the text of the NPCSC Interpretation narrowlywhile observing its central tenor, the Court would be respectingthe plenary interpretive mandate conferred on the NPCSC whileretaining its role as the primary interpreter of the Basic Law.Fourth, so far as a Mainland National Law has been formallyincorporated into the Basic Law, it cannot be deemed in violationof another constitutional clause. Finally, I would argue thatnot all constitutional affairs falling within the limits ofHong Kong's autonomy are automatically justiciable; where thereis a textual commitment to a coordinate branch of government,the Court may only interfere with the decisions made by thepolitical branches on traditional grounds of judicial review,i.e. illegality, irrationality or procedural impropriety.     

Legislation

On Sunday, 6 August 2006, at 2.30 a.m., the Hong Kong Legislative Council, after a prolonged and at times litigious debate, passed the Interception of Communications Surveillance Ordinance (ICO) in Hong Kong with a vote of 32–0. The ICO is the first successful attempt to regulate the interception of citizens' private communications by the Hong Kong government. A review of the literature shows that there has been no comprehensive, systematic and critical assessment of the IOC since its passage. This article provides a critical assessment of ICO, with a twist. Instead of evaluating the ICO based on preconceived and conventional Western jurisprudential principles and foreign legal practices, the article assesses ICO with reference to prevailing (Chinese‐Hong Kong) cultural standards from within, i.e. that of Qing‐Li‐Fa (QLF).     

Dragon brothers and tiger sisters: A conceptual typology of counter-cultural actors and activities of American Chinatowns, China, Hong Kong, and Taiwan, 1912–2004

In the past 20 years, criminal activities directed by Chinese, Hong Kongese, and/or Taiwanese have increasingly become a mainstream topic in criminology and criminal justice. Despite the fact that many books, reports, articles, and monographs on the Chinese, Hong Kongese, or Taiwanese organized crime enterprises (as well as gangs) have been published, a comprehensive conceptual framework which would assist criminologists and criminal justice professionals in examining the political, religious, social and other aspects of structured counter-cultural activities and major players in China, Hong Kong, Taiwan, and American Chinatowns seems not to have been proposed yet. The purpose of this paper is to advance a typology that would help academics and law enforcement agents to identify and evaluate the diversities of underworlds of China, Hong Kong, Taiwan, and American Chinatowns. This taxonomy consists of three factors: organizational structure, participation in politics or revolutionary movements, and ideology. Each of these variables is further divided into complicated/loose, frequent/infrequent/, and distinctive/indistinctive levels. Based on such a categorization, the counter-cultural elements of China, Hong Kong, and Taiwan during the period of 1912 to 2004 are classified as CFD, LFD, CFI, LID, CID, CII, LFI, and LII types, as can be characterized respectively by Republican Revolution-involved Triads and tongs; ultra-nationalists; the Shanghai Green Gangs of the 1920s and 1930s; modern Green Gangs; organized Chinese refugee gangs; Chinese-controlled pirate groups; jiaotou brothers of Taiwan; and ordinary Chinese/Taiwanese street gangs.Hua-Lun Huang (hxh0555@louisiana.edu edu) is Assistant Professor of Sociology at the University of Louisiana, Lafayette. His specialized areas include Chinese and Japanese secret societies, Chinese and Japanese organized crime, and pirates of East Asia.     

Gay Visibility and the Law in Hong Kong

This article draws on the ‘visual turn’ in legal studies to argue for the centrality of visibility in the analysis of the regulation of gay and lesbian identities, with a specific focus on Hong Kong. Part I gives an overview of the ways in which gay visibility operates within the cityscape of Hong Kong. Parts II and III then focus on the case of Cho Man Kit v. Broadcasting Authority to examine the ways in which questions of visibility emerge in the courtroom.

     

沦"儿童最大利益优先原则"在中国的确立——兼论《婚姻法》等相关法律的不足及其完善

International documents like the Declaration of the Rights of the Child (1959) and the Convention on the Rights of the Child (1989) propose that in mediating on children issues, the best interests of the child should be the primary consideration. In China, the Constitution and the Law on the Protection of Minors have already set out the terms in principle for the protection of minors, however, it has not been defined in the Marriage Law (2001). In order to enforce the commitment of respecting and safeguarding human rights, the child’s best interest principle should be established in marriage and family law, along with amending related provisions. Chen Wei is a professor of law, and director of the Research Center for Foreign Family Law and Women Theories in the China Southwest University of Political Science and Law. She is in the teachings of civil law, family law, law of succession, the history of civil law and comparative family law for years. During 2003–2004, Prof. Chen, being a visiting scholar, studied foreign family laws in the Faculty of Law, Sydney University. In academic field, she has published over 50 research articles in China and abroad; and her monograph is Research on the Legislations of Marriage and Family Law of China (2000). Further, she has taken charge of editing over 10 books, for instance, A Comparative Study of Family Laws between the Mainland and Hong Kong, Macao and Taiwan of China (2002), A Comparative Study of Foreign Marriage and Family Law (2006) and A Comparative Study of Succession Laws among the Mainland, Hong Kong, Macao and Taiwan of China (2007).     

Consent to Treatment for Transgender Youth: The Next Chapter – Bell & Anor v The Tavistock and Portman NHS Foundation Trust & Ors

In September 2021, the Court of Appeal reversed the controversial decision of Quincy Bell v Tavistock and Portman NHS Trust in a victory for transgender rights. At first instance, the Divisional Court had set a high legal threshold for transgender children to attain Gillick competence to consent to treatment with puberty blockers – effectively restricting access to treatment for many. On appeal, the Court of Appeal held that children are capable in law of giving valid consent to treatment for gender dysphoria, and court authorisation would not be routinely required before children could access such treatment. This note considers the implications of the Court of Appeal decision for the law on minors and consent to medical treatment in the transgender health context.