How Hong Kong Was Influenced by Chinese Law - Research Paper Example

Common Law Table of Contents Introduction 3 Discussion 4 Hong Kong rule before colonization 4 Hong Kong colonized by United Kingdom 5 The common law in Hong Kong 6 Chinese Law 9 China influencing Chinese law to Hong Kong 9 Macro differences on application of the Common Law in Hong Kong and UK 11 Micro differences on application of the Common Law in Hong Kong and UK 12 Conclusion 12 References 14 Introduction According to many critics, Hong Kong is described and characterized as difference of post-colonialist. GU Zhao-Sen is a playwright, journal editor and viewed as the pivotal part of Ming Pao Monthly. The primary purpose of the author is to provide vivid explanation about the change of identity of Hong Kong and emergence of post-colonialism. Hong Kong came in to prominence over the period of two decades in the 19th century. Furthermore, it is also identified as the Pearl of the Orient. Both Shanghai and Hong Kong are viewed as two of the most pivotal economic centers that considerably link West and East. The earlier British colony was one of the focal point of attention to the world. In the year 1997, the sovereignty of Hong Kong was transferred to the People’s Republic of China. The traditional and simplified Chinese is considered to be a one-party state which is likewise governed by the Chinese Communist Party. Common law or case law is resembled as the law which is primarily established through verdicts of tribunals and courts and developed by judges. Additionally, this law agrees individual cases which are approved though the legislative guidelines and practices. At the time of middle ages, it is believed that Common law is initiated in England. Moreover, it is transmitted and proliferated to various societies of the British Empire which includes Hong Kong, Burma, Malaysia, United States, Cameroon, Ireland, South Africa, Australia, etc. Amongst the period of 1800 and 1930, the British Empire dominated the Hong Kong. During the time of Opium War, the series of unequal treaties helped British to gain land. Earlier, there were occurrence of several severe dissimilarities between the Western and Eastern culture and philosophy. The principal purpose of the paper is to focus on Hong Kong and how it was influenced by Chinese law. Likewise, how Hong Kong was colonized by United Kingdom has been effectively presented in the paper. Discussion This part of the essay will discuss on the following aspects. Hong Kong rule before colonization According to Endacott, at the end of 17th century, the real history of Hong Kong began by the start of trading relationship between the West and China. Furthermore, this trading relation was centered chiefly at Canton. Endacott also states that after the beginning of trading, several people inhibited in the land which is now named as Hong Kong. Until the time of 19th century, Hong Kong became sporadically inhabited which comprised of small villages maintained by cultivation and fishing. The primary industry has seen a complete overhaul in Hong Kong preceding the World War II. These dramatic alterations changed trading industry to manufacturing industry. After the 17th century, there has been more organized and high volume of trade between China and Britain. Hong Kong is located in southern part of China Sea and southern coast of China at the gateway of the Pearl River Delta. According to the perspective of Imperial Court of China, Hong Kong is viewed to be as barren and peripheral residences which are largely inhabited by illiterate fisherman, unruly pirates and barbarians. This location of Hong Kong is primarily governed and administered by the British colonial empires. According to China, these lands are perceived to be as strategic importance and economic potential which availability of fertile land1. The colonial powers brought Hong Kong in to the world of capitalist structure. Moreover, these resulted in to rapid transformations and alteration from rural in to contemporary capitalist establishments. This location is also severely affected by conflict between the Communists and Nationalists. Additionally, the population of Hong Kong is tripled by the arrival of refugees at the time of conflict on the Chinese Mainland. Hong Kong colonized by United Kingdom In the year 1836, the government of China has undertaken drastic evaluation of policy of the opium trade. The task of overpowering opium was accepted by Lin Zexu. In the beginning of year 1839, Lin became specialized Imperial Officer and administrator. The opium stocks were ordered to be surrendered by foreign investors. Furthermore, Lin cut of their supplies by confining with the British. The demand of Lin Zexu was agreed by the Charles Elliot. The demand of Imperial he British trade community commissioner was to create a safe departure. In the year 1841, Charles Elliot discussed with the successor of Lin Zexu. The assumption of preliminary preparations was arranged by Elliot. Moreover, these arrangements include port to the British Crown and Hong Kong. The British trading community selected the harbor of Hong Kong as the valuable base for trading in Canton. Between the year 1839 and 1842 lead to the occurrence of First Opium War. The conflict was mainly fought between China and Britain2. The pivotal reason behind the cause of conflict was due to disagreeing perspectives on the direction of justice, trade and diplomatic affairs. In the year 1841, the government of British colonized Hong Kong. There was great demand of Chinese products like tea. The Great Britain, United Kingdom was claimed to have valuable products like tea from China. Likewise, there were minimal rate of desire for production of Tea3. The demand of products in China was escalated by the British East India Company. The company had greater hold over the resource of opium. China was forced not to deploy any laws against the control of opium. This happened after first opium war fought by British. As a result of victory, Hong Kong was ceded and surrendered to Great Britain. At the time of colonization, the Hong Kong Island was sparsely populated. There were two stages which vividly presents the formation of colonization in Hong Kong by United Kingdom. The first stage is the era of pre-Opium War. The China-Britain bilateral trade was monopolized effectively by East India Company. Moreover, the government of British valued the net silver receipt and volume of trade. This era of occurrence of monopolization has been throughout the entire sub-period. The opium trade has become so crucial that it effectively altered the deficit of British trade in to excess. The second stage is the era of post-Opium War. This era was after the colonization of Hong Kong and Opium Wars. It is believed that the event of colonization in Hong Kong have been vital for the development of British. The post era of Opium War made opium trade legal4. According to Robinson, Johnson and Acemoglu, the traders of Atlantic grew faster and suitable manner than that of other non-traders. This resembles the fact that the colonization of Hong Kong has been crucial for the economic advancement of the United Kingdom. This became the prime reason for the colonization of Hong Kong5. The common law in Hong Kong There has been major alteration in the structure of society of China by colonization of Hong Kong. This process of colonization by British marked a place in the historical background by rapid upsurge of development of Chinese society6. The population of Hong Kong has been stabilized in perspective to social and economic revolution by introduction of common law. Moreover, this created a necessary benchmark for becoming modern developed city.The introduction of common law has effectively influenced the legal improvements and development in the legal system of Hong Kong. The dominated legal culture i.e. common law, is viewed to be as effective theory and philosophy which affected and contributed towards the alteration in cultural and social background. The common law was forced in to Hong Kong is viewed as the rules of subordinate legislation, ordinances, customary law and equity. This rules and regulation are required to be maintained. The utmost notable development and improvement that can be notified is the corruption avoidance legislation. In the year 1971, the prime beneficial legislation was adopted to promote confidence of international investors and meet current economic improvement. It is believed that even before the claim of United Kingdom; the common law has been introduced by Chinese. In the year 1833, act to control trade between India and China authorized to pass Order in Council7. Furthermore, the prime objective of the act is to create Admiralty Jurisdiction and a Court of Justice. It is understood that Hong Kong was pivotal part of China with authority over the population of British people. The import of opium is declared as illegal in the year 1731. Furthermore in the year 1839, the Imperial Commissioner, Lin-Tsu removed and seized opium and trafficked to Canton8. This step leads to the rise of military hostility and conflict between China and Great Britain. This occurrence of conflict leads to the start of several battles. Several battles have been lost and lack of lawful authority creates a sense of turmoil on the mind set of Imperial Commissioner. This forced Chi-shan to provide signal to sign Convention of Chuan-pi. This act of convection was signed with the Captain Charles Elliot. In the year 1844, the Ordinance that was enacted provided clear detailed indication that the law of England would be effectively adopted and implemented in the colony of Honk Kong. This created rapid upsurge of cultural improvement and technological advancements. This is viewed to be as foremost statuary indication of the common law. This application of common law in Hong Kong created rapid alteration of the country. In the year 1844, it is noticed that Hong Kong and Great Britain are legally ceded. In the year 1841, Captain Charles Elliot claimed under the Common Law rule is that Hong Kong is an occupied colony.9 Later, the Common Law rule governs the law in force which is concerned about the ceded and conquered colonies. It is believed that operation of law cannot help to implement Common Law in Hong Kong. The exercise of Royal prerogative is viewed to be as only way to show up Common Law in Hong Kong. A double prospective system of law has been recognized by the proclamations of Charles Elliot. These dual prospective laws are Common Law for the British people and Chinese law. This proclamation is primarily based on the authority of power of Elliot. This authority of power is based on exercising the power of prerogative legislative. The British common law was adopted by the community of Hong Kong at the end of nineteenth century. In the 1960s and 1970s, there has been drastic alteration on socio-cultural. At the time of 1980s, there was a discussion between the Sino-British and China over the future of Hong Kong. The Common Law of British displaced the Chinese law from Hong Kong with the help of social and economic changes10. Moreover, some of the people revel that this introduction of new approach would not have altered the indigenous inhabitants of China in Hong Kong in to developed society. Chinese Law In 21st century, Chinese Law is viewed to be as composite mixture of traditional Western influences and approaches of China. It is regarded as one of the oldest legal ethnicities and customs. The legal system of China is primarily based on Confucian philosophy of societal control. Moreover, it emphasize on criminal sanction and codified law. The two utmost classical legal philosophies and theories are legalism and Confucianism. China influencing Chinese law to Hong Kong The time of colonization has been pivotal period of interest for China and Great Britain to keep both China law and Common Law. After handing over to China, it is believed that Hong Kong has retained and recollected the features of being a free enterprise economy. The government of China notified that their commitment level is on higher level to preserve the social systems, political systems and capitalist economy of Hong Kong11. The formula of China is based on Two systems in one country provides enough justification about the commitment level. Furthermore, this permittedto continue the capitalist economy of Hong Kong with the collectivist economy. Now-a-days, there have been considerable amount of interest from China to indirectly influence the tax system of Hong Kong. This can be implemented by introduction of Chinese law on to the tax system. It is stated that there is a constant exchange of information between China and Hong Kong which effectively leads to the alteration in the accounting industry and accounting standards in the China. According to former leader of Hong Kong, Tung Chee-hwa, the national security laws of China can be introduced in to the colony of Hong Kong. There is a considerable amount of fear that China can tighten the control of financial hub of China. It is believed that Hong Kong enjoys widespread freedom after returning in to the rule of China in the year 199712. The arrangement of two systems in one country has been one of the primary facts to the cause of relishing wide-ranging freedom. In certain aspect of elementary law, the dominant government of China has power to introduce laws of China in to Hong Kong. Since the time of colonization, the operation of law has primary source for application of Chinese custom and law in Hong Kong. In the year 1844, the Ordinance number 15 has provided the statutory authority for implementation of custom and laws of China. In the year 1971, the Ordinance 58 was eventually replaced by Ordinance number 2. The requirement and qualification is viewed to be local circumstances for application of customs and laws of China in Hong Kong. In the year 1966, the Section 3 of ordinance positions that the rules of equity and the common law should be forced in the community of Hong Kong13. Furthermore, this implementation of Chinese customs and law can be valid to the conditions and situations of the inhabitants and Hong Kong. At the situation of English law being unsuitableand irrelevant to the nativesituations of the inhabitants and Hong Kong, the customs and laws of Chin is applied. It was held by Lui Yuk-ping that laws and customs of China is a pivotal part of the common law that is being initiated in Hong Kong by United Kingdom. The Hong Kong courts have incorporated customs and laws of China in Common law. Moreover, this application of common law in Hong Kong is primarily based on case-by-case foundation. The traditional legal system of China has dissimilarnotions and own dialect. The influence of Chinese laws on judicial process is minimal. Macro differences on application of the Common Law in Hong Kong and UK There are certain aspects which determine the differences of introduction of Common Law in UK and Hong Kong such as political, social and economic. The application of reception statute in Hong Kong described as statutory law. This is one of the political differences that have been applied to Hong Kong. The functions of Common law in UK defined as the adversarial system. In case of social perspective, the application of Common Law in UK is based on the responsibility of parents is to take protect and care about their children. Parents are regarded as the guardians by nature’s law. In case of educational settings, there are some portions of Common Law that continues to exist. Some aspects include education authorities owes the duty of care regarding the supervision and care of the students in educational sector. In Hong Kong, the rules of ordinances, customary law, subordinates and equity are required to be maintained after the introduction of Common Law14. Most of the awards and judgments of Hong Kong High Court are enforced in the jurisdiction of Common Law in Hong Kong. This is based on enhancing arrangements and agreements of international co-operations. Hong Kong is viewed as one of the prominent center for dispute resolution and international arbitration. The monetary situation of Hong Kong was on rise. On the other hand, the fiscal and monetary situation in United Kingdom was using instinctreaction of the fiscal policy on level of consumption and investment. Micro differences on application of the Common Law in Hong Kong and UK The Common Law in Hong Kong helped population for social and economic revolution. Common Law was inherited by Hong Kong so that they can rely on guides and practices from the United Kingdom. Non-legislative court made law of Hong Kong effectively relies on precedent. The government of Hong Kong has not adopted narrow approach as it is revealed that the freedom of speech is vital for the civil society of Hong Kong15. The Common Law in United Kingdom has a characteristic feature which express in legal verdict to epitomize the law of the courts. Earlier the application of Common Law was inflexible. But over the period of time, field of code reforms were adopted in UK to nullify the issue of flexibility. Conclusion This can be concluded that the implementation of Common Law in Hong Kong has been one of the historical events that occurred in the soil of China. At the time of colonization, the application of system of Common law followed and observed closely to the policy of United Kingdom. Furthermore, the primary concept of adhering is not to interfere towards the matter of local usage and customs. The customs and laws of China have been applied in Hong Kong in the part of succession and family concerns. The application of diversified and separate legal system has provided sense of assurance towards the people of Hong Kong to preserve the affluence and success of Hong Kong. The Hong Kong played a distinctive and unique role towards the facilitation of China and British trade. Despite of having immense monetary historical background, there are large numbers of things that are still unexplored over the period of past 3 centuries. There is a commencement of essential alteration of the structure of native society of China by introduction of colonization of Hong Kong by UK. Over the period of time, there have been rapid upsurge in the development and technological advancement in Hong Kong. Hong Kong established an economy which is a free-enterprise. Besides, this establishment changed Hong Kong in to one of the pivotal trading center in Asia. Over the period of time, Common Law helped the community of Hong Kong to evolve. But there were certain hindrance that continues to act as concerning element for Hong Kong is under the sovereignty of China. There is a fear that Hong Kong might lose some of the legal liberation which can further result in to reduction of foreign investors. References Anne Wagner. Images in law. 8th edn. Routledge, 2013. Berry Hsu. The Common Law system. 1st edn. GRIN Verlag, 2001. David Donald. A financial centre for two empires. 3rd edn. Springer, 2014. Doreen Weisenhaus. Hong Kong law. 2nd edn. Kogan Page, 2014. Graham Greenleaf. Asian data privacy laws. 2nd edn. Springer, 2014. Huang Jie. Interregional recognition and enforcement. 3rd edn. Stamford, 2014. Jing Bian. China’s security market. 2nd edn. Pearson, 2014. Mark Williams. Secured Law. 6th edn. Pearson, 2010. Ming Chan. The Hong Kong Basic Law. 1st edn. Springer, 2001. Minkang Gu. Understanding Chinese Law. 4th edn. Kogan Page, 2010. Oliveria Jorge. One country, two systems, three legal orders. 5th edn. Sage, 2009. Robert Ash. Hong Kong in Transition. 2nd edn. Routledge, 2003. Suin Senton. Briefing of business guide. 6th edn. Kogan Page, 2004. Vijay Bhatia. Discourse and practice in international commercial relations. 5th edn. McGraw-Hill, 2013. Zhao Suisheng. Debating Political Reform in China. 2nd edn. Routledge, 2014. Read More