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JURISPRUDENTIAL BASIS FOR THE NEW CONSTITUTIONAL ORDER OF HONG KONG:SEPARATION OF POWERS OR DELEGATION OF POWERS

香港新宪制秩序的法理基础:分权还是授权(英文)

作     者:Cheng Jie 程洁;Hu Jinhua

作者机构:Tsinghua University School of Law 

出 版 物:《China Legal Science》 (中国法学(英文版))

年 卷 期:2017年第5卷第5期

页      面:57-83页

学科分类:0301[法学-法学] 03[法学] 030103[法学-宪法学与行政法学] 

基  金:Associate Professor at Tsinghua University School of Law. This article is completed on the basis of the paper that the author submitted to the Symposium to Commemorate the 20th Anniversary of Implementing the Basic Law of Hong Kong Special Administrative Region (May 27  2017). Relevant content has also been reported at the forum of experts and scholars of the Central Coordination Group for Hong Kong and Macau Affairs. Thanks are given to the leaders and experts participating in the forum for their suggestions 

主  题:授权关系 香港回归 分权论 宪制 秩序 法理基础 特别行政区制度 《中英联合声明》 

摘      要:Of the various ideas about the basis of the new constitutional order of Hong Kong, the doctrine of separation of powers and the doctrine of delegation of powers are most representative. On the basis of the theory of local autonomy and the Sino-British Joint Declaration, the doctrine of separation of powers interprets the relationship between the Central government and the Special Administrative Region as confrontational and mutual restriction. Breaking away from the presumptions of the Basic Law in basis of norms and theory prototype, the doctrine of separation of powers originates mostly from the subjective imagination of its upholders and involves misunderstanding of the Basic Law and the system of Special Administrative Region. On the basis of "One Country, Two Systems "and the Basic Law, the doctrine of delegation of powers interprets the relationship between the Central government and the Special Administrative Region as delegation relation or principal-agent relation. The doctrine of delegation of powers is raised to illustrate the source and fundamental attribute of the system of the Special Administrative Region rather than to suppress the high degree of autonomy of the Special Administrative Region. The doctrine of delegation of powers conforms to the Constitution of China and the consistent logic of the national governance of China in terms of its understanding of the Basic Law and the system of the Special Administrative Region. Hong Kong is an administrative unit at local level in China and its constitutional order is a component of the constitutional order of China. Therefore, the basis of the new constitutional order of Hong Kong after its return to China can only be the Constitution and laws of China.

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