For Cicerone -- legal question

Apr 3rd, 2008, 05:25 PM
  #1  
Original Poster
 
Join Date: Jun 2006
Posts: 105
For Cicerone -- legal question

I think I remember you saying in one post that you are a lawyer. I was wondering if the PRC and Hong Kong operate under the same legal systems. Thanks!
elysag is offline  
Apr 3rd, 2008, 09:48 PM
  #2  
 
Join Date: Feb 2003
Posts: 7,689
No, they have completely different legal systems. You cannot go to a Hong Kong court to have it resolve a dispute you are having with a PRC person or company, for instance. You have to go to a PRC court (and good luck with that).

Conversely, the laws of the PRC have no application in Hong Kong, so as an example you could bring into Hong Kong publications which are banned in the PRC (assuming Hong Kong law did not also ban them).

As you probably also know, their immigration systems are completely separate. You cannot get PRC citizenship by virtue of having Hong Kong citizenship, and vice versa.

Hong Kong uses a common-law system derived from English law. It's an extremely mature legal system. The PRC proper is still evolving (or reviving) most of it's law, esp with regard to commercial law. (Criminal law has been around for a while of course...) It was only in the last few years that the concept of private property was recognized as a legal right. Much of it is still untested. It is also somewhat more civil-law based, which means everything is codified and courts are not bound by decisions of previous courts. (That is a quite simple explanation, but there is a large difference between a common law and civil law system, esp when it comes to pursuing a claim in court; the rules of evidence and how judges make their decisions are vastly different.)

It is quite difficult to pursue legal actions within China, and it is also difficult to enforce awards for damages granted by courts or arbitrators outside China. (For example if you sued the US branch of a PRC manufacturer, which you could do in the US, and won and award, but all the companies assets were in the PRC, you would have to go to the PRC to collect your money, and that is where you would run into difficulties.)

In another 39 years, the two systems are supposed to merge, but it will be quite interesting to see how that all works out. (I want to know how they are going to resolve the driving issue, as Hong Kong drives on the left, and the rest of the PRC drives on the right, let alone merging two different legal systems. However Louisiana (a civil law state using the Napoleonic code) and the rest of the US legal system seem to get along OK, so perhaps it will work out.)

Is that the kind of information you were looking for?
Cicerone is offline  
Apr 3rd, 2008, 10:25 PM
  #3  
 
Join Date: Jan 2003
Posts: 12,537
Don't know if it is what elysag wanted, but thank you! I never knew LA had a different legal system!

lcuy is offline  
Apr 4th, 2008, 06:56 AM
  #4  
 
Join Date: Feb 2004
Posts: 23,074
Yes, the legal systems are separate, but I believe there can be some grey areas, or exceptions.

By exceptions, I mean for treason or national security stuff. Hong Kong citizens enjoy freedom of speech mostly, and even Falung Gong can preach in HK; but if a case involve actual Chinese government or military secret, I'm not sure what might happen. I don't think there has been such a case in the past 11 years, but Cicerone may elaborate.

By grey areas, I am referring to serious crime committed in Hong Kong, but the person is captured in China. There has been some of these cases where Chinese authority will try them inside China under Chinese laws - I believe they'll say they plan the crime inside China or something, giving them jurisdiction.

And of course, the chance of them being declared not guilty is much lower in a China court. And there's capital punishment in China, while not in HK. In the past, suspects of serious crime would fled HK and hide in China. Nowadays, they'd be very foolish to do so.
rkkwan is offline  
Apr 7th, 2008, 08:19 AM
  #5  
Original Poster
 
Join Date: Jun 2006
Posts: 105
Thank you for the responses. You have been very helpful. I have been doing some research about matrimonial/family law and was hoping that Hong Kong had a separate legal system than the PRC. This is good to know. Thanks again.
elysag is offline  
Apr 7th, 2008, 09:42 AM
  #6  
 
Join Date: Feb 2003
Posts: 7,689
OK, I was going to go into a big treatise on national defense and foreign affairs law in which PRC law would supersede Hong Kong law, but in matters involving marriage, divorce, child custody, Hong Kong law should in most cases prevail. If you are referring to at least one Hong Kong resident, of any nationality, married anywhere, but living in Hong Kong and who want to divorce or allocate child custody, a decree from a Hong Kong court should be enforceable in most all countries in the world. (There are some countries, like the Philippines, that may not recognize a divorce granted outside of the Philippines, and you have to get an annulment from a church, but that is really only if you want to marry someone else in the Philippines. A child custody order should be enforceable in the Philippines; they tend to ignore the reality that children can be produced from an annulled marriage.)

If the people involved are US citizens, there may be some advantage to the person wishing to divorce, or the person who may need support after divorce, to re-establish residency in a US state in order to obtain a divorce in a US state which may offer a more favorable allocation of assets to a divorcing couple (e.g., California). In my very, very limited experience with divorce in Asian countries, they do not necessarily provide for a 50/50 split of assets as you may expect if you were divorcing in a US state. This should be considered carefully before filing in Hong Kong for divorce. You do not have to divorce in Hong Kong if residency in another country can be established. (I am ruling out countries where one person can get a divorce without the consent of the other, i.e. a Mexican “quickie divorce”, which many countries would not recognize as a valid divorce.) . You do not have to divorce in the same US state in which you were married. It is not usually difficult to establish residency in a US state for purposes of divorce, it is usually just physical presence for a set number of days. (A US citizen living abroad does not normally have US residency in any US state; if that person owns a home in US state, that may be easier to establish, but physical presence in any state for a certain number of days is usually enough to establish residency, note that then income tax is then payable in that state if that state has an income tax.) Even if the people involved were not married in the US they could divorce in the US, although being eligible for residency is more difficult to obtain if they are not citizens.

I cannot emphasize enough that I have no experience with family law matters in Hong Kong and am writing only on a general basis gleaned over a number of years here. (I have done some in Singapore which has a roughly similar common law basis of law.) I really strongly suggest that you contact a Hong Kong family lawyer to get advice, and also a divorce lawyer in a US state to compare results. Try to recommendations suggest in the website of the US Consulate in Hong Kong at http://hongkong.usconsulate.gov/acs_divorceinhk.html
Cicerone is offline  
Related Topics
Thread
Original Poster
Forum
Replies
Last Post
bluesphee
Asia
6
Jul 27th, 2008 11:46 PM
eyeski
Asia
4
Mar 19th, 2008 04:56 AM
travelgo7
Asia
6
Jun 13th, 2007 06:21 AM
Lia
Asia
4
Jul 20th, 2004 05:22 AM

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off
Trackbacks are Off
Pingbacks are Off
Refbacks are On


Thread Tools
Search this Thread

Contact Us - Archive - Advertising - Cookie Policy -

FODOR'S VIDEO

All times are GMT -8. The time now is 10:26 PM.