| Summary: | 碩士 === 國立臺北大學 === 法律學系一般生組 === 98 === After July 1, 1997, the reunification of Hong Kong and Mainland China commence the trial of “One Country, Two Systems” experimental system. That leads to Hong Kong and the Mainland of their respective implementation of the legal systems resulting interregional conflict of laws between Hong Kong and Mainland China laws. The conflict of laws is quite different from characteristics of interregional conflict of laws among multi-state jurisdiction countries. The conflict enhances degree of difficulty and complexity to adjust on both sides of the conflict of laws. The identity and right of Hong Kong residents had been constantly changed due to British Nationality Act revised constantly under Hong Kong’s historical background about British colonization. Moreover, Mainland China always regards Hong Kong residents as Chinese citizen and does not recognize dual nationality. Under this principle, discarding the nationality and applying Right of Abode in Hong Kong as the criteria to define Hong Kong resident’s identity as well as right becomes the only bailout program.
Comparing the concepts between Right of Abode in Hong Kong and the General and permanent residency, the former includes and focuses both the nationality and the residency. This feature allows the citizens of different nationalities have different channels to become Hong Kong permanent resident. Whether Hong Kong resident’s Mainland Children is entitled to the Right of Abode in Hong Kong is one of the most important issue which is involving issues about freedom of movement and interregional conflict of laws.
On 29 January 1999, The Court of Final Appeal of Hong Kong decided the first case of the Right of Abode in Hong Kong. This could be viewed as the inception between Hong Kong and the Mainland about personal law in conflict of laws field as well as the historical point for substantial examination on how the Hong Kong Court deal with this kind of cases. First of all, Hong Kong and Mainland China jurisdictional conflicts shall be clarified. Since both courts still ”directly” apply applicable rules under their own conflict of laws to decide the cases in question, Article 95 of The Basic Law of The Hong Kong Special Administrative Region is applied as a bridge to fabricate mutual judicial assistance in the way of interregional agreement for the comprise to conflict of laws, and becomes the most dynamic and comprehensive sector in conflict of laws field.
As a result, this article, based on the inspection on the issue of interregional conflict of laws between Hong Kong and Mainland China laws, suggests we shall use three issues regarding conflict of jurisdiction, personal law conflict and the mutual legal assistance as latitude and the change of Nationality of Hong Kong resident as well as the formation of Right of Abode in Hong Kong as longitude to analyze and review the decisions of judicial authority of two sides. Of course, there is no answer to this thorny problem between Hong Kong and the Mainland China for this conflict of law issue under “One Country, Two Systems, this article expects to remind the public to reflect on the struggle and collision between “ one nation in politics” and “two systems in legal”.
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