一国两制、人大释法与香港新法治的生成
发布时间：2018-08-02 13:39
【摘要】：全国人大常委会对香港特别行政区基本法第五次释法以主动方式进行,再次打破了香港特别行政区基本法实施中的提请启动程序,对香港司法构成宪制性监督与指引。作为香港特别行政区基本法之"一国"相关条款与法益的制度性守护机制,人大释法权在澄清立法原意、矫正香港司法裁判法理学之地方性偏颇、维护香港特别行政区基本法整体秩序层面有着明显的法理正当性与积极的宪制功能。本次人大释法应对香港立法会宣誓带来的宪制危机,以法治思维与法治方式呈现香港特别行政区基本法第104条的规范内涵与规制功能,有效规制了香港基本法框架内的选举秩序与宣誓秩序,成为香港高等法院解释本地法例及作出司法判决的有效准据。人大释法权是活化"一国两制"宪制结构与法理关联、监督和矫正香港自治权内部"司法至上"带来的宪制权力失衡,以及更好保障香港特别行政区基本法完整准确实施和香港繁荣稳定的基础性宪制安排,其"适度常态化"有助于塑造香港新法治形态,平衡香港特别行政区基本法内部的多重权力与规范价值。人大释法权的合宪行使亦对内地依宪治国之制度设计与突破具有某种原理和经验之启示。
[Abstract]:The Fifth interpretation of the basic Law of the Hong Kong Special Administrative region by the standing Committee of the National people's Congress (NPC) has been carried out on its own initiative, breaking once again the procedure for the initiation of the request for the implementation of the basic Law of the Hong Kong Special Administrative region and providing constitutional supervision and guidance to the judiciary in Hong Kong. As an institutional guardian mechanism of "one country" and legal interest in the basic Law of the Hong Kong Special Administrative region, the interpretation power of the National people's Congress clarifies the legislative intent and corrects the local bias of judicial jurisprudence in Hong Kong. The maintenance of the basic Law of the Hong Kong Special Administrative region has a clear legal legitimacy and an active constitutional function. In response to the constitutional crisis brought about by the oath of the Hong Kong Legislative Council, the interpretation of the Law by the National people's Congress presents the normative connotation and regulatory function of Article 104 of the basic Law of the Hong Kong Special Administrative region by way of thinking and the rule of law. It has effectively regulated the order of elections and oaths within the framework of the basic Law of Hong Kong, and has become an effective and applicable basis for the High Court of Hong Kong to interpret local laws and make judicial decisions. The interpretation power of the National people's Congress is to activate the constitutional structure of "one country, two systems" and to monitor and correct the imbalance of constitutional power brought about by "judicial supremacy" within the autonomy of Hong Kong. And the basic constitutional arrangements to better ensure the complete and accurate implementation of the basic Law of the Hong Kong Special Administrative region and the prosperity and stability of Hong Kong. Its "moderate normalization" will help shape the new shape of the rule of law in Hong Kong. Balance the multiple powers and normative values within the basic Law of the Hong Kong Special Administrative region. The exercise of the people's Congress's right to interpret the law in accordance with the Constitution also has certain principles and experiences for the design and breakthrough of the system of ruling the country according to the constitution in the mainland.
【作者单位】： 北京航空航天大学法学院;
【分类号】：D921.9
，
本文编号：2159607
[Abstract]:The Fifth interpretation of the basic Law of the Hong Kong Special Administrative region by the standing Committee of the National people's Congress (NPC) has been carried out on its own initiative, breaking once again the procedure for the initiation of the request for the implementation of the basic Law of the Hong Kong Special Administrative region and providing constitutional supervision and guidance to the judiciary in Hong Kong. As an institutional guardian mechanism of "one country" and legal interest in the basic Law of the Hong Kong Special Administrative region, the interpretation power of the National people's Congress clarifies the legislative intent and corrects the local bias of judicial jurisprudence in Hong Kong. The maintenance of the basic Law of the Hong Kong Special Administrative region has a clear legal legitimacy and an active constitutional function. In response to the constitutional crisis brought about by the oath of the Hong Kong Legislative Council, the interpretation of the Law by the National people's Congress presents the normative connotation and regulatory function of Article 104 of the basic Law of the Hong Kong Special Administrative region by way of thinking and the rule of law. It has effectively regulated the order of elections and oaths within the framework of the basic Law of Hong Kong, and has become an effective and applicable basis for the High Court of Hong Kong to interpret local laws and make judicial decisions. The interpretation power of the National people's Congress is to activate the constitutional structure of "one country, two systems" and to monitor and correct the imbalance of constitutional power brought about by "judicial supremacy" within the autonomy of Hong Kong. And the basic constitutional arrangements to better ensure the complete and accurate implementation of the basic Law of the Hong Kong Special Administrative region and the prosperity and stability of Hong Kong. Its "moderate normalization" will help shape the new shape of the rule of law in Hong Kong. Balance the multiple powers and normative values within the basic Law of the Hong Kong Special Administrative region. The exercise of the people's Congress's right to interpret the law in accordance with the Constitution also has certain principles and experiences for the design and breakthrough of the system of ruling the country according to the constitution in the mainland.
【作者单位】： 北京航空航天大学法学院;
【分类号】：D921.9
，
本文编号：2159607
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