Abstract
This essay entitled Codification in China: the special case of Macau is a result of a national report, or preferably a regional report, prepared by a team of four law professors of the University of Macau, to be presented at the IACL Conference held in Taiwan, in May 2012. Being the main issue the Codification of Private Law in Macau, Civil Law (or general Private Law) and Commercial Law are, for such reason, the main targets. Although non-codified, Labor Law and Consumer Law are also part of the theme. Family Law, even though not separately codified, is also highlighted, mainly due to its recognized “institutional” nature and susceptibility to transformations occurred within the society. Finally, the unique situation of Macau, as a Special Administrative Region of China, with its particular relevance in every field – namely political, economic, social, cultural and of course legal – is duly emphasized as well.
Authors: Augusto Teixeira Garcia, Dan Wei, Paula Nunes Correia and Tong Io Cheng. The report prepared for the Conference in Taiwan and subsequently the present essay also counted with the cooperation of Chan Ka Man and Yang Meng, post-graduate students of the Faculty of Law of the University of Macau.
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Notes
- 1.
Deng Xiaoping was the one who firstly coined the expression “one country, two systems”, in January 1982. Later, in December of the same year, “a new Constitution of the PRC was enacted” (Albert Chan, “The concept of ‘one country, two systems’ and its application to Hong Kong”, Boletim da Faculdade de Direito, Universidade de Macau, VI, no. 13, 2002, page 123). Article 31 of PRCC “contemplates the establishment of special administrative regions of the PRC, which may practice social systems different from other parts of China” (Albert Chan, “The concept”, page 123). The Sino-Portuguese Joint Declaration, signed in 1987, regulated the implementation of the principle to the future Special Administrative Region of Macau.
- 2.
Approved by the PNA in March 31, 1993, to be in force in December 20, 1999.
- 3.
Ieong Van Chong, “A Lei Básica da RAEM e a concretização do princípio ‘um país, dois sistemas’ ”, Boletim da Faculdade de Direito, Universidade de Macau, V, no. 12, 2001, page 98.
- 4.
The laws enacted by the Legislative Assembly of MSAR, as well as the regulations adopted by the Government of MSAR, shall not contradict the Basic Law.
- 5.
Paulo Cardinal, “A questão da continuidade dos instrumentos de Direito Internacional aplicáveis a Macau”, Boletim da Faculdade de Direito, Universidade de Macau, V, no. 11, 2001, page 94. Ieong Van Chong refers to this principle as the “principle of maintenance of stability and prosperity”, one of the five fundamental principles of the Basic Law, according to the author, being the other four the “principle of sovereignty”, the “principle of high degree of autonomy”, the “principle of progressive development of democracy” and the “combination of the principles of flexibility and standardization” (“A Lei Básica da RAEM”, 99–101).
- 6.
Counted from the moment when MBL came into force, of course.
- 7.
This legal status of Macau was recognized by the Portuguese Constitution of 1976 and stipulated by the Organic Statute of Macau.
- 8.
Albert Chan, “The concept”, 126–127, 133–134.
- 9.
Until the moment the previous Code of Civil Registry, approved by the Decree-Law 14/87/M, March 16, came into force.
- 10.
Article 5, paragraph 1 of the Decree-Law 59/99/M, October 18, which approved the Code of Civil Registry of Macau.
- 11.
Article 5, paragraph 2 of the Decree-Law 59/99/M. Provided that the matrimony in accordance with the Chinese usages and customs was celebrated until May 1, 1987, of course. Actually, such matrimonies are still being recognized by official dispatch, once no special law has yet been adopted. See Sou Kin Fong, “Casamento segundo os Usos e Costumes Chineses”, in Contribuições Jurídicas sobre a União de Facto e Direitos sobre a Terra em Macau e Moçambique, Universidade de Macau, 2011, 41–45.
- 12.
Approved by the Decree of 18 September of 1833 and entered in force on 14 January 1834. See António Menezes Cordeiro, Manual de Direito Comercial, 2nd ed. (Coimbra: Almedina, 2007), 88 ff.
- 13.
Menezes Cordeiro, Manual, 92 ff.
- 14.
The Code was approved by the (Carta de Lei) Law of 28 June 1888, and entered in force on 1 January 1889.
- 15.
Enacted by Decree-Law no. 40/99/M, of 3 August, published in BOM (Macau Official Gazette) 31/1999, of 3 August, to become in force on the 1st October 1999, which was deferred to the 1st November 1999 by Decree-Law no. 48/99/M, of 27 September, published in BOM 39/1999, of 27 September as amended by Law no. 6/2000, of 26 April, published in BOM 17/200, of 27 de April, and by Law no. 16/2009, of 28 July, published in BOM 32/2009, of 10 August.
- 16.
From now on LSQ.
- 17.
A. Ferrer Correia, Lições de Direito Comercial, Reprint (Lisboa: Lex, 1994) page 34.
- 18.
It was also influenced by the Spanish Commercial Code of 1885 (Menezes Cordeiro, Manual, page 96). Nevertheless Spanish legal theory has no relevant influence in Portuguese legal theory and the authors kept their allegiance with the French and now also, and mostly, Italian legal theory. This last influence is quite obvious in one of the most important legal works on the Commercial Code of 1888, the Commentary on the Commercial Code by Luís da Cunha Gonçalves, Comentário ao Código Comercial Portuguez, 3 vols. (Lisboa, 1916, 1918).
- 19.
Erik Jayme, 100 Jahre BGB und die lusophonen Länder. Translated by M. Malheiros, Revista da Ordem dos Advogados 57, (vol. II, 1997).
- 20.
The Geneva Conventions on Bill of Exchange and Promissory Notes and on Checks has been entered into force in Macau in the late fifties after Portugal withdraw the reservation it has made to its enforcement in the then called Ultramarine Provinces, the former colonies. The discipline of these conventions has been transported to the new Commercial Code, as such, since the People’s Republic of China has informed the UN Secretary-General of the maintenance of their application in Macau, after 1999: that is after PRC resumed the administration of Macau.
- 21.
Karsten Schmidt, Handelsrecht, 5th ed. revised (Colónia/Berlim/ Bona/Munique: Carl Heymanns Verlag, 1999) page 46.
- 22.
“Il Codice Commerciale tedesco: dal declino alla ri-codificazione (riflessini sulla riforma del HGB)”, Rivista di Diritto Civile 711–724 (XLV, no. 6, 1999, Parte Prima). The expression re-codification comes as challenge to the opposite idea of decodificazione, of Natalino Irti [L’età della decodificazione, Milão, 1979; this A. (“L’età della decodificazione” vent’anni dopo, in Rivista e società, 1999, page 193) seems to have reformulated his ideas, according to Diego Corapi, “L’unificazione parziale del codice di commercio e del codice civile in Brazile”, Rivista di Diritto Commerciale, 802, footnote 1 (no. 11–12, 2002)]; this book di dimensioni piccole, ma di grande peso (idem, ibidem), has raised the reaction of Zweigert-Puttfarken, Allegemeines und Besonderes zur Kodifikation, in Festschrift Zajtay, 568 ff (1982), apud K. Schmidt, Handelsrecht, page 712, and footnote 4; and of K. Schmidt, Die Zukunft der Kodifikationsidee (1985).
- 23.
Commercial registry was contained in the Commercial Code of 1888, but in the late fifties it was revoked with the enactment of an independent law the Commercial Registry Code (Decree no. 42644) and the Commercial Registry Regulation (Decree n.º 42645), both of 1959, that have been extended to Macau by Order no. 22139, of 29 July 1966, and gazetted together with the extension Order in BO Macau no. 35, of 27 August 1966.
- 24.
Chou Kam Chon, “Consumer Protection Law of Macau” and Fan Jianhong, “Introduction to Macau Economic Law”, in New Commentary on Macau Law (in Chinese), Liu Gaolong and Zhao Guoqiang, eds., (Macau: Macau Foundation, 2005), 281–286 and 143–147.
- 25.
Zweigert, Konrad and Hein Kötz, An Introduction to Comparative Law, 3rd Edition, 1996, translated by Tony Weir, page 148; Reinhard Zimmermann, 2005, 161–1622, David W. Oughton, Consumer Law Texts, Cases & Materials, Blackstone Press Limited, 1991, 14–17.
- 26.
See, for instance, provisions in German BGB, Japanese Law of Consumer Contract (2000) and the Brazilian Consumer Protection Code (Law no. 8078/90).
- 27.
David W. Oughton, 1991, page 14, “The adviser only tells the consumer what he wants the consumer to hear and the other facts which might be relevant to a prudent shopping decision tend to be omitted”.
- 28.
European Law, as an example, is confronted with the question of coordinating general contract law and consumer contract law. See Christian Twigg-Flesner, ed., European Union Private Law, (Cambridge: Cambridge University Press, 2010), 131 ff.
- 29.
Unlike Chinese Family Law, where we can find a Marriage Law and an Adoption Law, along with a Law of Succession.
- 30.
This is a fundamental right. Therefore, the Chinese “one child policy” does not stand for Macau.
- 31.
See Lok Wai Kin, “One Country, Two Systems of the Chinese Constitution – Discussion to relations of power between the Central and Special Administrative Regions”, in One Country, Two Systems and Execution of the Macau SAR Basic Law, GuanDong Printing Press, 2009, 13–14.
- 32.
See Article 31 of the National Constitution of People’s Republic of China, this article reads: The State may establish special administrative regions when necessary. The systems to be instituted in special administrative regions shall be prescribed by law enacted by the National People’s Congress in the light of specific conditions. From official website of the National People’s Congress: http://www.npc.gov.cn/englishnpc/Constitution/2007-11/15/content_1372963.htm. Also see Article 8, no. 3 of the Legislation Law of the People’s Republic of China, this article reads: only national law can be enacted in respect of matters relating to autonomy system of ethnic regions, system of special administrative region, and system of autonomy at the basic level. From official website of the Central People’s Government of the people’s republic of China: http://www.gov.cn/test/2005-08/13/content_22423.htm
- 33.
See Commentaries on Contemporary Macau Law, Vol. 1, Macau Foundation, 2005, page 51. It discussed further on the Basic Law’s supreme power of authority in the Macau Special Administrative Region, and in two aspects pointing out the Basic Law is a national law and also the supreme in Macau SAR.
- 34.
See João de Castro Mendes, Introdução ao estudo do Direito, Lisboa, 1984, 95 ff.
- 35.
Just take the examples of Macau and China. In Macau, there is the “Regime juridíco de enquadramento das fontes normativas internas”, Lei no. 13/2009 , that is the legislation law stating on the contents to be regulated by law, independent administrative regulations and complement administrative regulations, approved on 14th July of 2009 by the Macau SAR Legislative Council; also see the Legislation Law of the People’s Republic of China that is approved by the 3rd Congress of the National People’s Congress on 15th March of 2000, and it also aims at similar functions like the above.
- 36.
See Tong Io Cheng, “The origin of Dominium and the Legitimacy of the Continuity of its System: an Interpretation of the Individual Property Protection in the Macau basic Law”, Academic Journal of One Country Two Systems, no. 4, 2010, page 57.
- 37.
See Wang Tez Chien, General Theory of Civil Law, Series of Study in Civil Law, Peking University Press, 2009, page 39.
- 38.
Here includes both categories of natural person (pessoa singular) and legal person (pessoa colectiva).
- 39.
See Karl Larenz, General Theory of German Civil Law, translated in Chinese version, Law Press, China, 2007, page 9.
- 40.
There are so many examples in the Continental Family, especially after codification, some regulations or laws are not suitable to add into the code which may disturb or even destroy logics of system. In Macau, it has labor law (some scholars say that part of it belongs to private law, other part is public law), commercial law and many other legislations.
- 41.
See Annex concerning on reform of the Civil Code – Initial Planning, official website of the Legislative Council: http://al.gov.mo/lei/codigo/civil/po/4.htm
- 42.
Internal legislations of members of European Union (EU) have to obey the directives issued by the EU as they have some common and mutual systems which have to be regulated by the EU, but not individual country.
- 43.
See the Constitution of the Republic of Portugal, concerning the international law, reads:
Artigo 8.º
(Direito internacional)
-
1. As normas e os princípios de direito internacional geral ou comum fazem parte integrante do direito português.
-
2. As normas constantes de convenções internacionais regularmente ratificadas ou aprovadas vigoram na ordem interna após a sua publicação oficial e enquanto vincularem internacionalmente o Estado Português.
-
3. As normas emanadas dos órgãos competentes das organizações internacionais de que Portugal seja parte vigoram directamente na ordem interna, desde que tal se encontre estabelecido nos respectivos tratados constitutivos.
-
4. As disposições dos tratados que regem a União Europeia e as normas emanadas das suas instituições, no exercício das respectivas competências, são aplicáveis na ordem interna, nos termos definidos pelo direito da União, com respeito pelos princípios fundamentais do Estado de direito democrático.
-
- 44.
Stated Article 26, Section 1 observance of Treaties, Part 3 of Vienna Convention on the Law of Treaties, done at Vienna on 23 May 1969, reads: every treaty in force is binding upon the parties to it and must be performed by them in good faith.
- 45.
See the Administrative Order, no. 29/2006, promulgated on 6th July, 2006 which repealed the previous administrative order, no. 9/2002 and increased the legal interest rate from 6 to 9.75 %.
- 46.
See Tong Io Cheng and Wu Yanni, “Legal Culture and Legal Transplants”, ISAIDAT Law Review, Volume 1, Issue 2, 633–637. Detailed exposition of the process of legal transplant of Portuguese law in Macau can be seen in this paper, especially how the Portuguese law “rooted” to form a unique legal order after eventual combination with the original existing traditional legal culture in its colonized cities.
- 47.
See the Macau Civil Code, Portuguese version, Macau Government Printing Bureau, 1999, VIII–IX.
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Garcia, A.T., Wei, D., Correia, P.N., Cheng, T.I. (2013). Codification in China: The Special Case of Macau. In: Rivera, J. (eds) The Scope and Structure of Civil Codes. Ius Gentium: Comparative Perspectives on Law and Justice, vol 32. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-7942-6_4
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