香港特别行政区法院的违反基本法审查权  

Power to Review Legislation of the Hong Kong Special Administrative Region Inconsistent with the Basic Law

作　　者：董立坤[1] 张淑钿[2] 

机构地区：[1]深圳大学港澳基本法研究中心 [2]深圳大学法学院

出　　处：《法学研究》2010年第3期3-25,共23页Chinese Journal of Law

摘　　要：基本法不是香港的宪法,根据基本法的规定审查香港立法机关制定的法律是否违反基本法并确定被审查法律的效力的权力,应称之为违反基本法审查权。无论从基本法的规定、香港原有法律传统还是其他法律理论或实践来看,香港法院行使违反基本法审查权均缺乏法律根据。香港法院自我设定违反基本法审查权,混淆了中央与地方权力关系、偏离了基本法设立的香港政治体制、扭曲了基本法与普通法之间的关系。香港特区终审法院自行纠正错误先例,由全国人大常委会解释基本法第17条,并根据基本法第20条授予香港特区终审法院对违反基本法的香港立法机关制定的有关法律的审查权,是解决违反基本法审查权问题的理想方案。It is referred as ＂power of constitutionality review＂ to examine whether legislations enacted by the legislature of the Hong Kong Special Administrative Region are consistent with the Basic Law or not and to hold them invalid if found to be inconsistent. But the Basic Law is not the constitution of Hong Kong, so it should be called as ＂power to review legislation of Hong Kong inconsistent with the Basic law＂, or simply as ＂power to review legislation according to the Basic Law＂. The Basic Law has no express provision that the Hong Kong courts have the power to review legislation of Hong Kong inconsistent with the Basic law, for such power belongs to the Standing Committee of the National People＇s Congress. According to the legal system and principles previ- ously in force in Hong Kong, the Hong Kong courts have no such power either. According to Ar- ticle 84 of the Basic Law, the Hong Kong courts may refer to precedents of other common law ju- risdictions, but they still cannot acquire such power by reference to the U. S. case of Marbury v. Madison. There are several factors which drive the Hong Kong courts to exercise the power to review legislation according to the Basic Law without authorization. The fact that several articles of the Basic Law are not very clear and the objective need of the Hong Kong society to review legisla- tions according to the Basic Law have provided opportunities for such practice. It has also made such practice possible that the Standing Committee of the National People＇s Congress has not ex- ercised its power to review legislation of Hong Kong inconsistent with the Basic law timely and ef- fectively. Such practice has confused the nature of the power relationship between the central and local authorities, deviated from the executive--dominated political structure of Hong Kong estab- lished by the Basic Law, and distorted the relationship between the Basic Law and the common law. It will be an ideal arrangement to solve the problem of the power to review legislation

关 键 词：香港基本法 违反基本法审查权 违宪审查权 

分 类 号：D926.22[政治法律—法学]