1997-2007：一国两制法治实践的法理学观察

【作者】 陈友清；

【导师】 付子堂；

【作者基本信息】 西南政法大学 ， 法学理论， 2007， 博士

【摘要】 本文以一国两制在香港十年法治实践中的法制冲突为考察对象,借助比较、典型案例解析和社会学冲突理论等分析工具,①试图证明这样一个理论和实践论题:一国两制法治实践不但引发了国家结构模式的深刻变革,也为中国法律和中国法学的发展方向提供了价值和理论导引。循历史和逻辑发展规律的研究进路,以一国两制理论及其对法学理论的贡献为历史起点,以这一理论的实践载体和场域——香港法治——为逻辑起点,本文首先提出和论证法制冲突是一国两制香港十年法治实践的基本维度这一命题(第一章),进而通过典型案例冲突主题解析,力图多维度、多视角地展现这种冲突,并进一步证成此一命题(第二章)。对法制冲突的社会、制度、意识形态和法学方法等成因探究(第三章),不但说明了冲突的不可避免,更意在为减少或至少缓和冲突提供启示。对冲突的制度、社会和理论效应的价值评判(第四章),以及对一国两制下宪政体制整合与完善的“策论”(第五章),不仅是对本文论题的证明,也在一定程度上探讨了一国两制宪政体制及其法律载体《基本法》的整合空间。在此基础上,论文最后从现实、宪政和理论三个维度,对一国两制下法制冲突的向度进行了初浅的前瞻,并独创性地提出了全球化、国家完全统一、民族崛起和复兴大背景下的“中国法系”概念(第六章)。一国两制自上世纪七十年代末八十年代初提出以来,大体经历了从政治构想、外交政策到宪法原则、法律制度、社会秩序状态和法治现实的发展历程。在空间维度,一国两制在香港法治社会这一特定载体和场域中,在以冲突为基本维度,诉讼为基本平台,宪政冲突为核心的中央与特区的法制互动中,彰显出强盛的包容力及生命活力。一国两制法治实践中法制冲突的展开,在时间上,始于香港回归后的第一个工作日,并延续至今。空间上,法庭是主要平台,立法会次之,街头则是少数人乐此不疲之所在。形式上,“香港式”的司法审查和行政诉讼是基本方式。冲突主题几乎涵盖了基本法所确立法律制度的所有方面,如中央与特区的权力分界、基本法解释、中央派驻特区机关的法律地位、国家安全、特区的违宪审查制度、特区政府的刑事检控自由裁量权(prosecutorial discretion)、特区居民的基本权利(居留权、自由表达权、选举权、被选举权、旅游权、出入境权、性别平等权)、特区民主改革和民主化进程等。冲突主体上,中央最高权力和立法机关、中央行政机关、内地地方司法机关,特区行政、立法、司法机关,都涉于其中。因此,法制冲突结构了一国两制香港十年法治实践的基本维度,谱就了一国两制香港十年法治实践的主旋律。从法制运行的视角,中央与特区的宪政冲突始终位居中心,其核心是“一国两制、高度自治”下中央与特区的权力划分和权力行使界限。这些权力包括立法权、法律解释权、中央与特区各自管理事务的界定和界限、司法管辖权、中央立法在特区的实施等。法制冲突对一国两制理论自身及其物化了的法律制度形成了全方位、相当程度的冲击,反映了一国两制法治实践的曲折性,但也成就了对一国两制理论科学性、现实性、可行性和作为一项重要宪法和法律原则的证成,更使得曾经对一国两制理论和制度持观望、怀疑态度或期望一国两制失败的所有“预言”不攻自破。一国两制虽然经历了炼狱般的考验,但一国两制仍在有效地运行并将继续有效运行下去——虽然法制冲突仍在进行并将继续发生。更重要的在于,一国两制法治实践中的法制冲突,证明了一国两制作为宪法和法律原则对实现祖国完全统一的示范价值。导致法制冲突的成因是复杂的,但意识形态差异下的价值取向和价值判断以及受此影响的社会心理始终居于主导地位,法律技术、法律传统、法律方法差异下的技术性冲突往往成为冲突的表征。必须承认和面对的是,由于社会、经济、意识形态、法治状态、技术、传统和文化的差异,由于中央立法在特区的适用、中央司法机关适用香港法律等一国两制法治实践中的一些独特法制现象,同时也由于某些基本法制度设计和权力配置上的疏漏,“一国”与“两制”客观存在着固有冲突,一国两制法治实践也必然会面对一些“法理无解”的法制现象。因此,避免、缓和与解决冲突的路径和策略选择应是多样化的,立法、法律解释、中央和特区的自我约束、经由法制冲突中的互动形成的“宪法性惯例”,都可能成为选择。但“一国”和“两制”(包括体制内的机构和体制外的学界、法律界)推进相互间交流和了解,理性看待冲突,自我克制和自我约束,避免“泛政治化”、“泛意识形态化”十分重要。剧烈的法制冲突是否意味着一国两制理论失据或制度运行失控?本文透过现代社会学冲突理论为基本分析工具的探究,答案是否定的。法制冲突推进和整合了一国两制下两制的适应与磨合,为此而支付的代价也是值得的。法制冲突彰显了两制在一国两制下法制地位和功能的定位需求,并为这种定位提供了有益的例证。法制冲突和冲突过程中的法制互动还催生和创设了一国两制下宪制运行的宪政先例。法制冲突也进一步印证了两制法制地位和功能定位的容忍度或灵活性。最后,法制冲突加速了两制的相互了解、相互理解、自我调适和融合。剧烈的法制冲突同时说明,制度整合与完善是调控法制冲突的基本进路。首要的制度整合与完善目标应当是建立中央与特区冲突的裁判机制和程序。这与国家宪法改革的整体目标和进程密切相关并构成国家宪法改革的系统部分。在未来的国家违宪审查机构中设置特别机构是一种自然且成本较小的选择。目前的制度和体制下,可选择强化基本法委员会的职能,完善其工作程序,约束基本法委员会委员的行为,使其成为程序化、准司法化的具制度权威、获得广泛社会认同的“准司法性机构”和一国两制下法制冲突的“调整器”。这一制度和机制的建立或许还可以为国家宪法改革,建立违宪审查制度,实现所谓“宪法司法化”,提供有益的启示和经验。一国两制下的法制冲突表征了东西方法律文化的差异和“文明冲突”的现实,但冲突的依法、合理解决也同时证成了东西方法律文明共存、融合的可能性。一国两制法治实践为走向民族和国家完全统一的中国法律制度的走向提供了范式导引。在全球化的大背景下,伴随着国家的统一与和平崛起,中华民族的伟大复兴,建基于一国两制宪法和法律原则,以“一国、两制、三法(系)、三语(言)、四(法)域”为基本存在方式,包容不同社会制度、政治意识形态、生活方式,融合东西方法律制度和文化文明,兼备不同法系的法律传统、法律技术、法律方法的“中国法系”,可能成为未来中国法律发展的进路。从“规则适应者”到“规则制定者”和“规则输出者”的历史进路,“中国法系”将伴随中国的和平崛起、中国的完全统一、中华民族的伟大复兴,巍然屹立于世界的东方,实现史无前例的辉煌,为人类物质文明、制度文明和文化文明做出积极贡献。一国两制法治实践同时拓展了中国法学的视野和触角,冲突也揭示了中国法学对一国两制不应有的某些漠视和滞后。“一国两制法学”已经具备了作为一门独立学科或分支学科的证成理由,其理论对象的确定性,理论视野和触角的广泛性,法学方法、参与主体的多元性和国际性,研究成果的丰富和繁荣程度,丝毫不逊于中国法学在任何时期的贡献和当今中国任何一门法学学科。古老的“中华法系”曾经承载了辐射、影响、引领甚至主导地区法律文明的光辉历史,之于全球化和中国和平崛起的大背景,“世界结构”中的“中国法系”概念可能招致的不仅是学理诟病,更可能与强权、扩张、殖民等所谓“中国威胁论”人为地勾连。相当意义上,“中国法系”是本文的逻辑归宿和独创标识,也同时成为本文结论时所面临的理论和实践困惑。但作者坚信的是,今天的中国已非昔日任人宰割的羸弱之邦,全世界已然感受到了中国在国际舞台和世界事务上日益增强的影响力,世界也必然日益加深这种感受。别人是否视中国为威胁并不重要,重要的是我们将以和平崛起的行为向世界证明自己。至于理论的完善,不但是一个历史过程,还期待更多的关注和设入。更多还原

【Abstract】 This dissertation focuses on legal conflicts caused in the process of legal practice of the theory of One Country, Two systems (OCTS). Through comparison, typical case analysis and conflict theory of sociology, it tries to justify the thesis as such: legal practice of OCTS not only causes real change of state structure, but also leads a new value, theoretic tendency and direction of China law and China law theory.Following research path of the rules of historic and logic development, this dissertation makes the theory of OCTS and its contributions to law theory as historic start-point, and its practical carrier and territory ---- Hong Kong rule of law ---- logic start-point. At first, it puts forward and proves the proposition that legal conflicts is the basic dimension of the practice of OCTS in the past ten years in Hong Kong(chapter one). It then, by typical cases research, demonstrates the conflicts from multiple dimensions and angles, and further proves the proposition (chapter two). The causes of legal conflicts such as social, systematic, ideological and juristic differences (chapter three), not only reflects irreversibility of legal conflicts, but also makes some inspirations as how to reduce or at least mitigate the conflicts. The value judgment of systematic, social and theoretic effects of legal conflicts (chapter four), and the countermeasures put forward in the dissertation as how to conform and improve constitutional system under the principle of OCTS (chapter five), illustrates the thesis of the dissertation, and also, in some way, examines the needs and possibilities of improvement of constitutional system under the doctrine of OCTS and the Basic law of Hong Kong Special Administrative Region of the People’s Republic of China (the Basic Law). At last, it, from the point of view of reality, consititutionalism and jurisprudence, makes some predictions of the tendency of legal conflicts under the doctrine of OCTS, and also, in the background of globalization, complete unification of ethnic and state, peaceful rising and the great renaissance of Chinese ethnics, uniquely puts forward the concept of China Law Family (chapter six).In time, OCTS, since it was put forward at the end of 1970s and the beginning of 1980s, basically underwent the process from political thought to diplomatic policy, to constitutional principle, to legal system, to social order and to the reality of rule of law. In space,during the process of legal conflicts and legal interaction between the central authority and the Hong Kong Special Administrative Region (SAR), and in the specific society of rule of law, OCTS has demonstrated its special ability of amalgamation and vitality.The legal conflicts in the practical process of OCTS started from the first working day after the establishment of the SAR and have been continuing up to now. In space, the conflicts made the courts main stage, and then the hall of Legislative Council. Some people seemed preferring to street protest. In forms, the Hong Kong style judiciary review and administrative litigations appeared to be the basic one. The issues of the conflicts almost included all aspects in the legal system established by the Basic Law, such as separation and limits of powers between the Central People’s Government (CPG) and the SAR, interpretation of the Basic Law, legal status of organizations assigned by the CPG in the SAR, national security, judicial review system of the SAR, the prosecutorial discretion of the SAR, basic right of residents in the SAR including right of abode, right of express, right of election, right to be elected, right of travel, right to enter and leave Hong Kong, right of equality between genders, democratic reform and progress of democratic reform, etc. As to the parts of the conflicts, the highest power and legislative organs of the central authority, judiciaries of the central legal region, executive, legislative and judiciary of the SAR have been involved. Hence, it was the legal conflicts that have structured the main dimension and composed principal rhythm of the ten years legal practice of OCTS.From the point of view of functioning of legal system, the conflicts between the central authority and the SAR have always been the core. The most important issue is power separation and power limit between the central authority and the SAR under OCTS and high autonomy, which includes power of legislation, power of interpretation of laws, what are affairs belong to the administration of the central authority and what are those belong to the administration of the SAR, jurisdiction, law enacted by the central authority but also applied in the SAR, and so on. The impact of the conflicts on OCTS itself and the legal system materialized from it are considerable and in almost all dimensions. They prove, on the one hand, the hard way of legal practice of OCTS, but also prove it scientific, realistically exercisable as an important constitutional and legal principle on the other. They completely failed predicts made by those who waited and saw, doubted or even wished the failure of the theory and practice of OCTS. Although OCTS has experienced so hard trial, it is still functioning and will continue to function even if conflicts are ongoing at the same time and will be inevitable in the future. More importantly, the conflicts in the process of legal practice of OCTS evidences the model merits to unification of our country as a constitutional and legal principle.The causes of conflicts are complicate. The leading one should be value and social psychology affected by it under different ideology. The usual presentation of conflicts is technical under different legal techniques, legal traditions and legal approaches. What we have to face and admit is that, because of those unique legal phenomenon in the process of legal practice of OCTS like social, economic, ideological technical, traditional and cultural differences, the application of laws enacted by the central authority in the SAR, the application of Hong Kong laws in the central jurisdiction, there are inherent conflicts between“the one country”and“the two system”, and therefore, OCTS has to encounter some so-called no-answer legal questions. Hence, the choice of approaches for avoiding, mitigating and resolving conflicts should be multiple, including legislation, interpretation of laws, self-constrain of both central authority and the SAR, constitutional conventions formed and accepted by both sides in the process of legal conflicts and interactions. However, it is always important for both“the one country”and“the two system”(including both organs within systems, scholars and practitioners outside systems) to communicate and understand each other, to treat conflicts rationally, to constrain or self-restrict, void pan-politics and pan-ideology.Do serious legal conflicts negative the theory and system of OCTS? Based on conflict theory of sociology, the answer of this dissertation is negative. In contrast, the conclusion to the question is as follow. First, legal conflicts promote and conform mutual adaptation and accommodation of the two systems. It is worthy of paying prices for that. Secondly, legal conflicts reflect the two system’s needs of legal positioning and functioning under the doctrine of OCTS, and offer worthful precedents. Thirdly, legal conflicts and interaction in the process of the conflicts create constitutional conventions for the running of the system based on OCTS. Fourthly, legal conflicts further corroborate the tolerance and flexibility of legal positioning and functioning. At last, legal conflicts speed mutual acquaintance, understanding, self-accommodation and amalgamation of the two systems.Although conflicts do not mean social or systematic sickness, we should not ignore the existence of so-called inherent conflicts and those no-answer questions. Some constitutional conventions, formed in the process of legal interactions and admitted by both sides, may play a part to adjust and control conflicts as a regulator or balancer. However, the fundamental approach to control conflicts should be improvement and reform of systems. The priority of such improvement and reform is to set up adjudicating system with proper procedure for conflicts between central authority and the SAR. This system is also closely relative to nationally constitutional reform and constitutes part of the reform. It would be reasonable to set up special organ when designing nationally judicial review system. And the price of the reform would not be so high if it is put in the process of national reform. On the basis of the present system, it would be prudent and desirable to strengthen the function of the Basic Law Committee, to improve its working procedure, to regulate committeemen’s action, and to make the Committee a quasi-judiciary with systematic authority and wide recognition. This reform may also contribute some inspirations and experiences to national constitutional reform, to setting up national judiciary review system and to making our constitution judiciable.Conflicts under OCTS reflect the differences between western and eastern legal culture. It also reflects the reality of so-called civilization conflicts. It, on the other side, proves possibilities of co-existence and amalgamation of western and eastern legal culture by legally and rationally resolving conflicts. Legal practice of OCTS has offered guidance for unified Chinese legal system in the process to complete unification of ethnic and state. In company of unification of the state, peaceful rising of the state, the great renaissance of Chinese ethnic, the China Law Family, which is based on constitutional and legal principle of OCTS, takes“one country, two social systems, three legal systems, three legal languages and four legal jurisdictions as its general form, embraces different social systems, ideologies, legal techniques, fuses western and eastern civilization of legal system and legal culture, and absorbs different legal traditions, techniques and methods from different Law Systems, may be an trend in the process of China law development in the future. From the historic approach of complier of rules, maker of rules and exporter of rules, China Law Family, in company with peaceful rising, complete unification and great renaissance of our ethnic and country, will stand loftily in the east of the world, realize an unprecedented resplendence, and make active contribution to physical, systematic and cultural civilization of human beings.Legal practice of OCTS, at the same time, enlarges view angles and touch points of China law theory. It also reveals the fact that the theory has ignored legal practice of OCTS for long times when structure or restructure its theoretic system, and the fact that the theory has been dropped behind by practice.“The law theory of OCTS”should be entitled to have a status of independent branch of study or, at least, a sub-branch in China jurisprudence. It has its own definite subject matter, wide theoretic view angles and view points, multiple and international researchers and plenty theoretic products, which is comparable to any branch of legal theory at any time.The old Chinese Law Family had her glorious history of radiating, influencing, leading and even dominating the development of regional legal civilization. In the background of globalization and China’s peaceful rising, the concept of China Law Family may not only result in theoretic criticize, may also be purposely related with power, expansion or even colonization, and so-called“China’s threat”. China Law Family, in some way, is the logic reach and mark of unique of this dissertation, and also theoretic and practical puzzlement faced by the conclusion of it. Perhaps from the point of view, this dissertation, in some way, has raised more questions than it has resolved. However, what the writer absolutely believes in is the fact that today’s China is not a country which was weak and frail, and was bullied by any others any more. The world has felt China’s influence in the field of international affairs day by day. The world will feel that more and more. It is not important whether others take rising China as a threat. What is important is that we will prove ourselves by peaceful rising. As to perfect the theory, it takes time, and expects more concern and inputs.更多还原