港澳法视界｜澳门法律制度介绍（一）——《基本法》以及基本司法制度

Preface

With the continuous strengthening and increasing cooperation and exchanges between Shandong and Hong Kong and Macao in various fields of economic and trade cooperation, as well as the smooth holding of activities such as the "Hong Kong Macao Shandong Week", there are more and more opportunities for cooperation between Shandong and Hong Kong and Macao. In the process of deepening economic and trade cooperation, understanding the legal system a nd business environment of Hong Kong and Macao has become crucial - the differences in legal systems between different jurisdictions, compliance requirements for cross-border transactions, and the choice of dispute resolution mechanisms all have a profound impact on the implementation and promotion of cooperation projects. To this end, the author will write a series of articles on the legal systems of Hong Kong and Macao, systematically sorting out the legal frameworks and practical rules of the two places, providing accurate legal references for Shandong enterprises to expand into the Hong Kong and Macao markets, and helping cross-border cooperation to steadily move forward on the compliance track.

Macao, a land that integrates diverse cultures, carries a profound historical heritage and unique development trajectory in its legal system. Since its return to the embrace of the motherland in 1999, under the guidance of the "One Country, Two Systems" policy, the legal system of Macao has not only retained its past characteristics, but also continuously adapted to the needs of the new era, undergoing profound changes and innovations, playing a key role in maintaining social stability and promoting economic prosperity in Macao. Exploring the legal system of Macao in depth not only helps us to have a comprehensive understanding of Macao's social governance model, but also provides valuable experience for regional legal and cultural exchange and integration. This article will first deeply analyze the basic legal system of Macao, starting from its historical evolution, elaborating on its process from feudal legal system to current autonomous legal system, as well as the core position and key role of the Basic Law of the Macao Special Administrative Region of the People's Republic of China (hereinafter referred to as the "Basic Law") under the "One Country, Two Systems" policy.

在早期封建法制阶段，澳门地区的司法组织随着朝代的更替而不断变化。彼时，行政与司法的职能尚未明确区分，地方行政长官往往同时兼任司法裁判者。法律体系主要以封建王朝的律例为基础，这些律例涵盖刑事、民事等多方面规范，以维护封建统治秩序、保障社会基本稳定为主要目的。在土地纠纷、契约争议等民事案件，以及盗窃、斗殴等刑事案件的处理上，遵循封建法律的原则与程序，注重礼教纲常与等级秩序在司法裁判中的体现。

In the early feudal legal system stage, the judicial organization in Macao constantly changed with the change of dynasties. At that time, the functions of administration and judiciary were not clearly distinguished, and local administrative officials often concurrently served as judicial adjudicators. The legal system is mainly based on the laws and regulations of feudal dynasties, which cover various aspects such as criminal and civil norms, with the main purpose of maintaining feudal order and ensuring basic social stability. In the handling of civil cases such as land disputes and contract disputes, as well as criminal cases such as theft and brawling, we follow the principles and procedures of feudal law, and pay attention to the embodiment of the principles of etiquette and hierarchical order in judicial judgments.

随着葡萄牙的逐步占领，澳门进入殖民法制时期。这一时期，澳门的法律和司法制度深受葡萄牙法律体系的影响，从法律条文到司法程序，都大量移植了葡萄牙的法律制度。检察官制度的引入，改变了以往司法裁判的单一模式，加强了对犯罪行为的追诉与监督；华人专有法庭的设立，则在一定程度上考虑到了澳门当地华人社会的特殊情况和传统习俗，是殖民统治下对本地实际情况的一种有限适应。然而，这种法律制度本质上是为了维护殖民统治利益，在法律适用和司法权力分配上存在明显的不平等与局限性。

With the gradual occupation of Portugal, Macao entered a period of colonial rule of law. During this period, Macao's legal and judicial system was deeply influenced by the Portuguese legal system, with a large number of legal provisions and judicial procedures transplanted from Portugal's legal system. The introduction of the prosecutor system has changed the single mode of judicial adjudication in the past and strengthened the prosecution and supervision of criminal acts; The establishment of Chinese exclusive courts to a certain extent takes into account the special situation and traditional customs of the local Chinese society in Macao, and is a limited adaptation to the local actual situation under colonial rule. However, this legal system is essentially aimed at safeguarding the interests of colonial rule, and there are obvious inequalities and limitations in the application of law and the distribution of judicial power.

在特定的历史阶段，澳门拥有了立法自治权，由此进入双重法制时期。虽然在一定程度上可以根据本地需求制定一些法律，但司法体系依旧深受葡萄牙的影响。这一时期，澳门法律制度呈现出一种复杂的状态，既有本地立法机关制定的法律，又有葡萄牙法律的延续适用。在法律适用过程中，时常出现不同法律渊源之间的冲突与协调问题，需要通过特殊的法律解释和适用规则来解决，这也对澳门的司法实践带来了一定的挑战。

At a specific historical stage, Macao gained legislative autonomy, thus entering a period of dual legal system. Although some laws can be formulated according to local needs to a certain extent, the judicial system is still deeply influenced by Portugal. During this period, the legal system in Macao presented a complex state, with both laws enacted by local legislative bodies and the continued application of Portuguese law. In the process of legal application, conflicts and coordination issues between different legal sources often arise, which require special legal interpretations and application rules to be resolved. This also poses certain challenges to the judicial practice in Macao.

在回归前的过渡法制时期，澳门朝着司法独立迈出了重要步伐，逐渐建立起自身的司法组织体系。通过一系列法律改革和制度建设，澳门在司法人员的选拔、任用，以及司法程序的规范等方面，都在摆脱对葡萄牙司法体系的过度依赖，为回归后的司法自治奠定了基础。这一时期，澳门开始积极参与法律本地化进程，将一些国际通行的法律原则和理念融入本地法律体系，为适应回归后的新体制进行准备。

During the transitional legal period before the return, Macao took important steps towards judicial independence and gradually established its own judicial organizational system. Through a series of legal reforms and institutional construction, Macao has been able to break free from excessive dependence on the Portuguese judicial system in terms of the selection and appointment of judicial personnel, as well as the standardization of judicial procedures, laying the foundation for judicial autonomy after its return. During this period, Macao began to actively participate in the process of legal localization, integrating some internationally recognized legal principles and concepts into the local legal system, in preparation for adapting to the new system after the return.

回归后，澳门特别行政区进入自治法制时期。依据《基本法》，澳门享有高度自治权，包括独立的司法权和终审权。这一时期，澳门的法律制度在保留原有欧陆法系特色的基础上，根据澳门的实际情况和发展需求，不断进行调整和完善。澳门特别行政区立法会积极行使立法权，制定了一系列符合本地社会经济发展的法律，在民商事、刑事、行政等各个法律领域，构建起具有澳门特色的法律体系。

After the return, the Macao Special Administrative Region entered a period of autonomous legal system. According to the Basic Law, Macao enjoys a high degree of autonomy, including independent judicial power and the power of final appeal. During this period, the legal system in Macao was continuously adjusted and improved based on the actual situation and development needs of Macao, while retaining the characteristics of the original European legal system. The Legislative Council of the Macao Special Administrative Region actively exercises its legislative power and has formulated a series of laws that are in line with the local socio-economic development. It has built a legal system with Macao characteristics in various legal fields such as civil and commercial, criminal, and administrative.

1987年，中葡两国政府签署了关于澳门问题的联合声明，确认中华人民共和国政府于1999年12月20日恢复对澳门行使主权。为保障澳门回归后的稳定与发展，根据《中华人民共和国宪法》第三十一条规定，全国人民代表大会着手制定《中华人民共和国澳门特别行政区基本法》（以下简称“《基本法》”）。在制定过程中，广泛征求了澳门各界人士的意见，充分考虑了澳门的历史、文化、社会和经济等多方面因素，历经多年的研究、讨论与修改，最终于1993年3月31日由第八届全国人民代表大会第一次会议通过，自1999年12月20日起正式实施。

In 1987, the governments of China and Portugal signed a joint statement on the issue of Macao, confirming that the government of the People's Republic of China resumed sovereignty over Macao on December 20, 1999. In order to ensure the stability and development of Macao after its return, in accordance with the provisions of Article 31 of the Constitution of the People's Republic of China, the National People's Congress began to formulate the Basic Law of the Macao Special Administrative Region of the People's Republic of China (hereinafter referred to as the "Basic Law"). During the formulation process, the opinions of people from all walks of life in Macao were widely solicited, and various factors such as Macao's history, culture, society and economy were fully considered. After years of research, discussion and revision, it was finally adopted at the first session of the Eighth National People's Congress on March 31, 1993, and officially implemented on December 20, 1999.

《基本法》共九章一百四十五条，涵盖总则、中央和澳门特别行政区的关系、居民的基本权利和义务、政治体制、经济、文化和社会事务等多个方面。其核心原则体现为“一国两制”“高度自治”和“澳人治澳” 。“一国两制”确保澳门在回归祖国后，保持原有的资本主义制度和生活方式五十年不变，在维护国家统一的前提下，享有高度的自治权；“高度自治”赋予澳门特别行政区广泛的行政管理权、立法权、独立的司法权和终审权，使其能够根据本地实际情况自主管理内部事务；“澳人治澳”则强调由澳门永久性居民依法组成行政机关和立法机关，参与澳门的治理，充分体现了对澳门居民当家作主权利的尊重。

The Basic Law consists of nine chapters and 145 articles, covering various aspects such as general provisions, the relationship between the Central Government and the Macao Special Administrative Region, the basic rights and obligations of residents, political system, economy, culture, and social affairs. Its core principles are reflected in "One Country, Two Systems", "High Degree of Autonomy", and "Australians Governing Australia". The "high degree of autonomy" grants the Macao Special Administrative Region extensive administrative, legislative, independent judicial, and final adjudication powers, enabling it to independently manage internal affairs based on local conditions; The concept of 'Australians governing Macao' emphasizes that permanent residents of Macao shall form administrative and legislative bodies in accordance with the law, participate in the governance of Macao, and fully demonstrate respect for the right of Macao residents to be the masters of their own affairs.

《基本法》是澳门特别行政区的宪制性法律，在澳门法律体系中处于核心与基石地位。它是澳门其他法律制定的依据和准则，澳门特别行政区的任何法律、法令、行政法规和其他规范性文件均不得与《基本法》相抵触。《基本法》不仅保障了澳门的高度自治，维护了澳门居民的基本权利和自由，还为澳门的政治稳定、经济发展、社会和谐提供了坚实的法律保障，是澳门长治久安和繁荣发展的根本大法。

The Basic Law is the constitutional law of the Macao Special Administrative Region and occupies a core and cornerstone position in the Macao legal system. It is the basis and guideline for the formulation of other laws in Macao, and any laws, decrees, administrative regulations, and other normative documents of the Macao Special Administrative Region shall not conflict with the Basic Law. The Basic Law not only guarantees a high degree of autonomy for Macao and safeguards the basic rights and freedoms of Macao residents, but also provides solid legal protection for Macao's political stability, economic development, and social harmony. It is the fundamental law for Macao's long-term stability, prosperity, and development.

澳门特别行政区的法院组织体系包括初级法院、中级法院、行政法院和终审法院。

初级法院作为初审法院，承担着大量的一审案件审理工作，可根据实际需要设立刑事、民事、经济等专门法庭，通常由一名法官组成独任庭审理简单案件，对于复杂案件则组成合议庭进行审理。

中级法院行使回归前高等法院的部分职权，负责审理对初级法院判决不服的上诉案件，以及一些特定类型的一审案件，在审理案件时以评议会及听证的方式运作。

行政法院是专门受理行政诉讼、税务诉讼和海关诉讼的法院，在审级上属初级法院，不服其判决可上诉至中级法院 。

终审法院则行使特别行政区的终审权，是澳门司法体系中的最高审判机关，对各类案件的终审判决具有最终的法律效力。

The court organization system of the Macao Special Administrative Region includes primary courts, intermediate courts, administrative courts, and final courts. As the first instance court, the primary court undertakes a large amount of trial work for first instance cases. It can establish specialized courts for criminal, civil, economic, etc. according to actual needs. Usually, a single judge forms a sole court to hear simple cases, and for complex cases, a collegiate bench is formed to hear them. The Intermediate Court exercises some of the powers of the High Court before the return, responsible for hearing appeal cases against the judgments of the lower courts, as well as some specific types of first instance cases, and operates in the form of review committees and hearings during the trial of cases. The Administrative Court is a court specialized in handling administrative litigation, tax litigation, and customs litigation. At the trial level, it belongs to the primary court, and if dissatisfied with its judgment, it can appeal to the intermediate court. The Court of Final Appeal exercises the power of final appeal of the Special Administrative Region and is the highest judicial body in the Macao judicial system, with final legal effect on the final judgments of various cases.

澳门特别行政区设立检察院，其职权广泛。检察院代表澳门地区、澳门货币暨汇兑监理处、市政府、无行为能力人参与诉讼，在刑事诉讼中提起公诉并出庭支持公诉，领导刑事侦查工作并对警察机关的工作予以监督，维护司法独立，保证法院判决的执行，依法为劳工及其家属担任诉讼代理，预防犯罪活动，参与破产及所有涉及公共利益的诉讼，为行政长官提供法律咨询，并对法院的不当判决提起抗诉等。与内地检察机关不同，澳门特别行政区检察院的检察长由行政长官提名、报中央人民政府任命，检察官由行政长官任命，其工作在一定程度上受行政长官的指挥和监督。

The Macao Special Administrative Region has established a prosecutor's office with broad powers. The prosecutor's office represents the Macao region, the Macao Currency and Exchange Supervision Office, the municipal government, and persons without legal capacity to participate in litigation, initiate public prosecution and appear in court to support the prosecution in criminal proceedings, lead criminal investigation work and supervise the work of police agencies, maintain judicial independence, ensure the execution of court judgments, act as litigation agents for workers and their families in accordance with the law, prevent criminal activities, participate in bankruptcy and all litigation involving public interests, provide legal advice to the Chief Executive, and file protests against improper court judgments. Unlike the mainland procuratorial organs, the procurator general of the Macao Special Administrative Region Procuratorate is nominated by the Chief Executive and appointed by the Central People's Government, while prosecutors are appointed by the Chief Executive, and their work is to some extent under the command and supervision of the Chief Executive.

澳门司法人员的选拔与任用有着严格的程序和标准。法官的选拔通常要求候选人具备良好的法律专业素养、丰富的法律实践经验以及高尚的职业道德。一般需要通过公开的招聘和选拔程序，经过严格的资格审查、笔试、面试等环节，选拔出优秀的法律人才。检察官的任用也遵循类似的严格程序，注重候选人的专业能力和职业操守。此外，为了保证司法人员的独立性和公正性，在其任职期间，享有相应的司法豁免权和职业保障，非经法定程序，不得随意免职或调动。

The selection and appointment of judicial personnel in Macao have strict procedures and standards. The selection of judges usually requires candidates to possess good legal professional qualities, rich legal practice experience, and noble professional ethics. Generally, excellent legal talents need to be selected through open recruitment and selection procedures, rigorous qualification review, written exams, interviews, and other processes. The appointment of prosecutors also follows a similar strict procedure, emphasizing the professional competence and ethics of candidates. In addition, in order to ensure the independence and impartiality of judicial personnel, they shall enjoy corresponding judicial immunity and professional security during their tenure, and shall not be arbitrarily dismissed or transferred without legal procedures.

澳门法律制度在历史发展过程中，融合了中国传统法律文化、葡萄牙法律文化以及国际通行的法律原则和理念，形成了独特的法律文化景观。这种多元法律文化的融合，使得澳门法律制度在解决实际问题时，能够兼收并蓄，综合运用不同法律文化的优势，为澳门社会的和谐发展提供了丰富的法律资源。在处理一些涉及家庭伦理的纠纷时，既可以借鉴中国传统法律文化中重视家庭和谐、尊老爱幼的价值观念，又可以运用现代法律制度中的权利义务规范，实现法律效果与社会效果的统一。

In the historical development process, the legal system of Macao has integrated traditional Chinese legal culture, Portuguese legal culture, and internationally recognized legal principles and concepts, forming a unique legal cultural landscape. The integration of diverse legal cultures enables the Macao legal system to embrace and integrate the advantages of different legal cultures when solving practical problems, providing abundant legal resources for the harmonious development of Macao society. When dealing with disputes involving family ethics, we can draw on the values of valuing family harmony and respecting the elderly and loving the young in traditional Chinese legal culture, as well as apply the rights and obligations norms in modern legal systems to achieve the unity of legal and social effects.

澳门法律制度紧密围绕澳门地区的经济社会发展需求进行构建和完善。在经济领域，针对澳门以博彩业、旅游业、服务业等为主导产业的特点，制定了相应的法律规范，促进了产业的健康发展，保障了市场秩序。在社会民生领域，通过法律手段保障居民的教育、医疗、住房、社会保障等基本权利，为社会的稳定和谐提供了法律保障。例如，在博彩业监管方面，制定了严格的法律法规，规范博彩经营活动，防止过度投机和不良社会影响，同时促进博彩业与其他产业的协同发展。

The legal system of Macao is closely built and improved around the economic and social development needs of the Macao region. In the economic field, corresponding legal norms have been formulated in response to the characteristics of Macao's dominant industries such as gambling, tourism, and services, promoting the healthy development of industries and ensuring market order. In the field of social livelihood, the basic rights of residents such as education, healthcare, housing, and social security are guaranteed through legal means, providing legal protection for social stability and harmony. For example, in terms of regulating the gambling industry, strict laws and regulations have been formulated to regulate gambling operations, prevent excessive speculation and negative social impacts, while promoting the coordinated development of the gambling industry with other industries.

《基本法》以及其他相关法律对澳门居民的权利和自由作出了全面而详细的保障。居民在法律面前一律平等，享有言论、出版、集会、结社、游行、示威的自由，宗教信仰自由，人身自由不受侵犯，人格尊严不受侵犯，住宅和通信秘密受法律保护等多项权利。在司法实践中，严格遵循法律程序，保障当事人的诉讼权利，确保法律面前人人平等，为居民创造了一个自由、公正、法治的社会环境。

The Basic Law and other relevant laws provide comprehensive and detailed protection for the rights and freedoms of Macao residents. Residents are equal before the law and enjoy various rights such as freedom of speech, publication, assembly, association, procession, and demonstration, freedom of religious belief, personal freedom from infringement, personal dignity from infringement, and legal protection of residential and communication secrets. In judicial practice, strict adherence to legal procedures, safeguarding the litigation rights of parties, ensuring equality before the law, and creating a free, fair, and rule of law social environment for residents.