1.
Legal system: The legal framework in the HKSAR region comprises of two primary legislative systems. The two legislative systems are known as the Rule of the law and the Sources of the Law. These two laws define and govern the legal entities within the region of HKSAR. The evaluation of the legal framework has been portrayed in the following:
The Rule of the law: The rule of law is one of the most looked upon and basic pieces of the legal governing structure of the country of Hong Kong. This law is better known as the power law in the country. This law highlights that no one in the country irrespective of their authority or power is indispensible in the country and can be punishable under in case of guilty. Furthermore, the rule of the law states that the every people within parameters of HKSAR is equal and in front of the law. The aspect power, wealth and prominence in the stature in the living is disregarded to a major extent by the rule of the law (Cao, 2010). This is the basic and the prime principle of this legal framework.
The rule of the law facilitates the equality in the judgments in an independent manner and is not reliant on the Legislative Council of the HKSAR. The judgments are provided by the independent courts within the jurisdiction of the country. By the assistance of the rule of law the loopholes is of utmost importance in case of lack of competency by the government (Bhatia, 2010). As the rule of the law is devoid of any forms of partiality it is considered highly in the judicial system of the HKSAR.
The Sources of the law: The sources of law is the basically a compilation of the all necessary forms of legislations which is abided by the HKSAR to carry out the governance in an impeccable manner. The operation of the HKSAR is enhanced with the supplementation of the different types of incorporated laws.
Critical reflection:
Considerable amount of flaws have been noticed in the legal system of the HKSAR region. In has been seemed apparent that there has been greater influence of the political pressure and the laws have been mended. Few of the recent cases have are major evidences which has pointed out the flaws in the legal system of this region. The “Oath Controversy” is one of such instance which has highlighted the issues in the legal system (Feilong, 2019). The controversy showcases the incompetency of the Basic Law as it was easily mended by the ruling government by the virtue of their political prowess. Four of the main legal members of the opposition party were disqualified for taking false oaths by the court. Allegations form the oppositions have forged this incident which have clearly indicated that the line of margin for the primary law to that of the political powers is very thin and a distant boundary should be maintained. Moreover, abandonment of the four of the political legal members asserts the strength of the rule of the law. As per the rule of the law all the powers power of the people are neutralized and the interest of the country is taken into utmost priority. The disqualification of the law makers with invalid oaths also emphasizes the efficacy and the improvement of the common law which is slowly and steadily incorporated within the legal jurisdiction of the China.
2.
The sources of the law in the HKSAR region is basically consist of six legal laws. The six laws are The National law, the international law, The Customary Law, the Basic law, the common law and the rule of equity, Legislation and subsidiary legislation.
Common law and the rule of Equity in the region of the HKSAR: In course of providing judgements the common law is highly dependent on the doctrine of precedent. These two laws are deemed as two of the most essential pieces of law which is abided by the higher courts of the Hong Kong. The judgements drafted in the past are majorly looked upon on the basis of the common law for the eradication of the issues of the local people within HKSAR. The previous cases of the past have built the initial framework of the common law and highlight the legal grounds of co-operation within the citizens and the government (Ip, 2016).
The Customary law: The customary law or the Chinese customary law is part of the jurisdiction of Chinese government in which is highly applicable in across the regions of Hong Kong. In course of disputes in the property claims and acquisition of new territories the implementation of the customary law of China is deemed to be appropriate by the government of Hong Kong. The section of 13 within the act of New Territories Ordinance in the customary law is highly abided by the courts of the HKSAR (Mason, 2011).
National law: With the implementation of the section 18 of the Basic Law many of the legal framework of the Chinese Constitution is asserted within the structure of the HKSAR. The national law is also abided by the courts of the HKSAR predominantly because of the implementation of the article 158 which has been defined in the Basic Law. The article 158 has been primarily formed by National People Congress’s standing committee.
Basic Law: The Basic law was implemented on the first of July in the year of 1997 when the HKSAR was formed. The formation of the law was primarily was a result of the agreement developed between the Chinese constitution and the National People’s Congress. The Basic Law of the HKSAR emphasizes on the aspect of having two different types of system for a particular country (Ip, 2016). The concept of two systems for a single country reflects on the systems of the socialist system and the capitalist system.
The implementation of the Basic Law will be mandatory within the jurisdiction of the HKSAR and the previously implemented laws won’t be altercated without and has to be kept on proper regard. Abiding to the framework provided by the Basic law, any forms of progression on the legal framework of the country will lead into the alterations of the previous laws. The Basic law states that the primary governing regulation and the judicial law won’t be implied within the borders of Hong Kong apart from the sector of foreign affairs and defense related issues (Mason,2011).
International law: The International Law is majorly inculcated within the jurisdiction of the Hong Kong as it has been bound with treaties and pact over the last few decades. In order to make the make the international agreement valid within the common legislation of the country the application of the international law is majorly taken into the account by the government of the HKSAR. With the application of the international law within the boundaries of the HKSAR, the progression of the common law will get hindered in the process. Moreover the international law assist the newly forged and developed agreement and treaties to get incorporated within the common law with ease and utmost efficacy
3.
In course of explanation of the legal structure of the HKSAR the discussion of the political framework should be highly regarded. This is mainly because the implementation of much important legislation are based on the grounds of politics and the people having pre defined power in the political landscape of the country. The government of Hong Kong is predominantly operated by the Chief Executive who is the supreme figure and the head of HKSAR. The Chief Executive also conducts the operation of the government of the Central People along with that of the HKSAR. The development of the new policies and regulation is primarily is also overseen by the Chief Executive and is supplemented by the HKSAR’s executive council. The appointment of the members of the executive council is carried out by him along with the governance (Marion and Oliver, 2012). Apart from this, indifferent operation behind running of the government is also spearheaded by the Chief Executive, such as generation of new policies, creation of budgets and lastly monitoring of the issues in the administration.
On the other hand the foundation of the legislation of the HKSAR is done on the basis of the Basic Law and documentation provided by the legislative council, where the suggestion for the creation of the council is carried out predominantly by the Basic Law. The functions of the council of legislation of HKSAR are conducted by the Basic Law. There are different type of functions which are mainly developed by the Legislative council HKSAR such as designing of the budgetary program, creation of legislation, expenses made by people annually within the country, measurement of the work and the progress made by the national government within the public sector.
Operation of the Common law: The judicial verdicts are passed on by the virtue of all the case study form the different courts of Hong Kong along with the global case laws. With the common law the Article 84 is one of the prominent forms of legislation in which it has been stated that the courts within the area of HKSAR can take further references form the style of judgement and their decisions can be considered for the enhancement of their decisions. Furthermore, the Common law empowers the judicial system of Hong Kong to invite judges from different respective similar jurisdiction to get involved in their procedures of passing the judgement and other process associated with their judicial system. The Court of Final Appeal which is also another part of the jurisdiction of the HKSAR is also boosted by the law to make further amendment based abiding the same policies (MacCormick et al., 2016). It can be also stated that the common law is implemented to dictate terms of on the grounds of freedom of speech, issues of imprisonment, assembly freedom.
Operations and the Application of the statutory law:
The laws which are mostly used are categorised under the Statute law. The statute law are mainly developed and are passed in the form of ordinance in a written format by the council of legislation of HKSAR. The aid of all kinds of legal processes is followed by the legislative council for the application of the law in HKSAR. The development of secondary or subsidiary pieces of legislation is also looked upon HKSAR which is categories under the statute law. This types of law are mainly formulated by people hoc have been delegated by the government (Marion and Oliver, 2012). In this regard the Chief in the legislative council is the primary example of the person having delegated powers to implement new rules of new regulatory framework.
The application of the statutory law is highly regarded within the justice courts of the HKSAR region, mainly because of it greater utility and greater depth in the legal proximity. As the statutory law is formulated with the incorporation of many indifferent legal processes the mitigation of the issues and the cases with greater complexities is eliminated in the courts with its potent application. It has greater use in the criminal courts where it is used for the solving of the serious cases. For the solution of the serious offence the application of the law is looked upon and the imprisonment sentence is provided. The courts by the virtue of the statutory solve the serious issues like that of murder, rape and violence. Furthermore for ensuring greater privacy in the protection of the personal information is also looked upon by the courts of the HKSAR region with the implementation of the statutory. The ordinance for the protection of the personal data was carried out in the year of 1996 which has been kept under proficient surveillance of the statutory law. With the application of the law investigation on the offenders has been carried out with utmost diligence by the jurisdiction courts of Hong Kong..
5.
Contract Law: A basic piece of contract is generally looked upon as a part of agreement which is effectively carried out by two parties. This is termed as a legal agreement in which compulsion is asserted between the parties and is enforced by the law. The contracts are highly useful when the some particular items are purchased and there is larger amount of monetary involvement. Within the sector of the HKSAR, there is lack of obligation to the contract of the consumers provided in a written format. The laws have greater impact in the contract system of the as the creation of the contracts and the terms entitled within the contract bodies is highly defined by the laws. Moreover the termination of the contract and providing of the solution to the contracts is determined by the laws. In course of formation of the contracts major aspects of the law is abided by the Legislative Council of the HKSAR. The factors of creation, offers, and that of acceptance are carried out on the basis of the legal grounds. The factors of terms which are implied are presently evident within the contracts (Singer, 2018). The termination depicts the end of the contract which are depicted by different method such as termination, frustration and others. As Hong Kong follows the doctrine of precedent therefore the contract law is established under the common law. The problems related to contracts are dealt under the common law provisions and the doctrine of precedent. However there are certain ordinances which guide the contractual issues in the HKSAR. For example the Unconscionable Contract Ordinance Cap 458 L.N. 476 of 1995, in which the regulations related to the unconscionable contract are dealt with. For establishing the rights of the third parties in contract the Contracts (Rights of the Third Parties) Ordinance Cap 623 L.N. 118 of 2015.
Employment Law: In Hong Kong Special Administration Region the employment law is governed by the Employment Ordinance (Cap 57). The legal framework which is abided in course of recruitment and selection of the employees in the working environ of the HKSAR is determined by the Employment Law. In the HKSAR the ordinance of employment describes the rights of the employees within the country. The guidelines of the pay scale of the employees, working hours and the approval of the leaves and holidays are depicted by the virtue of the Employment Law. The Ordinance in regards to the compensation of the employees and their minimum wages is showcased with the help of the legal framework within the HKSAR. With the greater influence of the legislative framework the employees is empowered with the equal and fair treatment and the lack of discrimination in the working environment. The safety standards of the employees working within premises are enhanced with the application of the law.
As in this case of the idea of opening of a new restaurant has been looked upon by Chan within the business environment of HKSAR region. Thus for establishing proficient set up of the business without any sort of complicacies the legal frame work should be inculcated by Chan. The contract law and the employment law and their characteristics should be proficiently accumulated by to comprehend the business processes. In course of opening a restaurant in the contract law of the Hong Kong should be looked upon in the utmost regard. The consideration of the contract law will be done in course of renting a place for restaurant creation. With the aid of the contract law proper agreement with be made with the owner of the land so that no further disputes are caused in the place of work. The contract should also be made with the suppliers of the raw material of the business and the term of the contract will be asserted. On the other hand the employment law should be considered by Chan while acquisition of the resource and the human capital for meeting their objectives in the business. The paying of the proper salary and the minimum amount of wage will be taken into the consideration with the application of the employment law. With the inculcation of the employment law proper and appropriate people having the desired amount of skills will be looked upon which will enhance the business operation of the firm. Employees and staffs will be recruited on the basis of the law and the payment structure and working timings will be formed by the Chan. The rule for the termination of the human resources will also be made on the basis of the employment law in course of setting up of the restaurant in accordance.
Classification of business organizations in Hong Kong
If Chan is willing to open up a new business with his friend, it is essential that he should have an effective understanding about certain factors. It includes the different types of the business organization. Beside this, they should also classify the business organization in Hong Kong. With the aid of a proper knowledge they can make sure that their business operations can help in increasing the profit (Cho and Chan., 2015). The classification of the business helps in understanding the different business structures. Some of the ownership structures in the work include:
Partnership:
General Partnership: it is the form of business structure where minimum of two people is required in order to formulate the business operations. as per the case study provided, for Chan and his friend, this partnership business is much effective and can be implemented (Osei-Kyeiand Chan., 2017). Here the partners bring capital into the business according to their will and financial abilities and enjoys the profits or faces the loss according to their ownership in the business.
Limited Partnership: the limited partnership includes both the limited and general partnerships. The liability of the limited partners’ is totally conserved because of the unpaid share capital. With the help of this, Chan and his partner can enhance their operations in order to achieve higher growth (Berry, 2019).
There are certain advantages and disadvantages with the help of which the business operations can be enhanced and this can help Chan and his friend about the entire concept in more critical manner.
Advantages:
Disadvantages:
Limited liability Company:
Private limited company: one of the most popular vehicles of running and performing the business is through the limited liability company. This particular company helps in providing a protection to all the personal assets after the business risks. If Chan wants to conduct the business operations and make safe their personal assets, he should opt this legal form (Jelsma and Nollkamper., 2017). With the help of this, smooth operations can be conducted with his friend and beside this, due to the legal structure; the business will turn to a separate entity. Some advantages and disadvantages are there which can help Chan and his friend to understand the concept in depth.
Advantages:
Disadvantages:
The funding can be raised through the certain process and this can lead to the easy management of the company. it includes the retained earnings, equity capital, debt capital which allows the business to raise funds and will enable in increasing the performances of the business (Volden, 2019). Through this, the investments are more appropriate and enable Chan and his friend to enhance the business operations in an effective manner.
For the setting up of the private company for Chan within the sector of the HKSAR the organization all the necessary legal obligations should be looked upon in the utmost regard. The detail on the company name, the number of the share holders associated and the details and the description of the types of business shall be comprehended by the owner of the desire. The acquisition of the legal documents is mandatory for setting up of the business in accordance. With the greater obligation to the legal framework of the HKSAR region the registration of the organization will be made. Registration of the companies as per the legal frame work will make the organization valid and legal to carry out carry out their activities in accordance. For the setting up of the business in a meticulous manner the essential documents will be published by Chan for the development of their business processes. In this case the document associated with the name and the address of the organization will be published by the potential owner of the business. The document showcasing the activities and the description of the procedure for the completion of the business will also be published. The most important document which will be taken into the account will be the Memorandum and the Articles of Association which states the authenticity of the organization. Furthermore the name and the valid identification proof of the associated partners and the shareholders of the organization will also be published. Another key document which will be published by Chan will portray the liability of the partners associated for the restaurant business. Furthermore, the owner will have to fill up a form for the registering his company on a duly manner. The example of the form used for the registration purpose of the organization has been reflected in the appendix section.
Problem B:
(i) Apart from your law firm, where could Fanny obtain legal advice? Compare and contrast the different sources of legal advice.
Apart from the law firms there are many government departments, legal aid clinics, social justice organizations and pro bono services that provide legal advice to the individuals needing legal aid. In the HKSAR the organizations such as the Legal Aid Department provide free legal advice to the individuals who require legal aid. The department of legal aid provides free legal aid to the clients for the proceedings that take place in the District Court or the courts above the committal proceedings of the Magistrates’ Court. The Labor Relations Department provides consultation service in-person to both employers and employees on problems related to employment conditions and the obligations and rights they have under the Employment Ordinance. The Labor Relations Department further provides voluntary services of conciliation to the employees and the employers for settling their claims and disputes. Therefore for legal advice for her employment related queries Fanny would consult the Legal Aid Department or the Labor Relations Department. Apart from the legal aid department Fanny can also contact the employee unions which represent the rights and interests of the employees. There are certain similarities as well as dissimilarities between the sources of legal advice. The similarity between the law firms and the government legal aid services such as the employee unions are that they both provide legal aid to the clients. The difference between the two is that the legal aid from government departments is less costly than the law firms. Another difference is that the resolution under the government legal aid is slower than the private law firms.
(ii) Advise Fanny of her rights as an employee. Apply the law and justify your legal solution.
Under the Employment Ordinance an employer cannot terminate an employee without giving proper notice of termination. However, there are certain exceptions to this rule as well.
Any employee can be terminated without proper notice of termination on the following grounds:
As Fanny has not done any of the aforementioned misconducts therefore she has the right to get the termination notice. As she has been an employee for more than 3 years therefore as per the employment legislation she is entitled for a notice period of at least one month. If the employer does not serve her with the notice period she will be entitled to receive payment in lieu of her notice.
There are certain rights of the employee which can be availed by Fanny. Laws which can be implemented in the entire process include the common law (John et al., 2015). To be more specific, according to the employment law, the legal solutions can be provided. Some of the rights as an employee includes:
Legal solutions which can be provided are:
The Employment Ordinance (Cap 57) in HKSAR provides Fanny with the rights for receiving her due and outstanding wages, for the pro-rata annual leave payments or any of the outstanding payments that are mentioned by way of her contract of the employment. In the case study it can be observed that Fanny had neglected her duties of watering the plants, henceforth, Grace can dismiss Fanny following the Employment legislation without proper notice. Though, Grace would be liable to pay any dues to Fanny that are unpaid. In case of dispute, the final interpretation shall rest with the court (Labour.gov.hk, 2020).
Problem C:
(i) Assess three different ways to resolve the dispute including alternative dispute resolution. Evaluate the effectiveness of these three legal solutions.
There are three different ways which can help in resolving the disputes. It includes the mediation, arbitration and litigation. These are discussed below.
Mediation: the main objective of the mediation is towards the third party who acts as a neutral one. It provides a help to the disputants to come to an agreement (Singer, 2018).
Arbitration: in the process of arbitration, a third-party act actively as neutral manner in the form of a judge in order to resolve the dispute.
Litigation: it is the commonly used process for resolving the disputes before the judge or the jury.
(ii) Advise Ms Law of her rights, if any, under the contract. Apply the law and justify your legal solution.
The problem can be solved of Ms Law using the contract law. The contract may be terminated or dissolved through a systematic manner. The legal solution can be provided through the process of resolving the disputes. Mediation can be a part through which the disputes can be resolved. Through this process, the contract should be read carefully and various issues can be raised before the parties and a required solution can be generated (Singer, 2018). If here the issue of Ms Law does not get solution, the arbitration can be considered where the banks central authority can be included and can act as a judge in order to solve the issue. This is done in a systematic manner and if the solution is not provided then Ms Law can opt the litigation process in order to resolve the issue.
Abiding the Unconscionable Contract Ordinance Cap 458 L.N. 476 of 1995 the effective solutions can be provided to the Ms Law. As the legislation documenting the Contract Law states that under the contract law the contracted people are obligated to claim their rights equally. As Ms Law previously opened an account and subscribed to the services of the bank. She was properly contracted with the bank which was based in the sector of Hong Kong. Thus the term and the agreement policies documented in the structure of the Contract law shall be looked upon for the mitigation of the issues faced by Ms Law. As the description of the term was not made evident by the bank the proper obligation to the Contract law was not made which led to the formation of disputes. On the basis of the evident dispute Ms Law will be empowered in properly claiming her rights of refund back from the bank. As the contract law states that the termination of the contract was possible under any grievances of any of the parties associated, effective solution will be provide and Ms Law will be empowered as her refund will be initiated. The law also suggests that under any dispute or the generation of the frustration of any of the involved parties, the termination of the contract is made possible. As in the given scenario the bank invited the Ms Law to consider one of the financial services which was duly obligated by her. In this regard the term of the financial product or the service was not made clear by the bank. The termination of the contract is furthermore not independent of a circumstance and the providing the solution and the clearing of the disputes is one of the primary objectives which have been stated under the contract law. Thus the proper consideration of the legal framework of the Contract Law, effective solution will be provided to Ms Law and her money will be refunded by the bank.
However, following the doctrine of precedent in this scenario it can be seen that Ms Law had subscribed to an insurance plan that had fixed investment tenurity. This can be considered as an express term in the contract. The definition of express terms in a contract has been provided by the judges in their judgment in the landmark case of L’Estrange v Graucob [1934] 2 KB 394 as the terms and conditions expressly mentioned in the contract which both the parties are bound to be acknowledging and following. Henceforth, following this judgment Ms Law would be bound by the fixed investment tenurity term of her investment.
Conclusion:
In the aforementioned assignment the business law within the sector of the Hong Kong Special Administrative Region has been documented with proficiency. Greater emphasis has been given on the important rules and the legislative framework which govern the businesses in the region. Three case scenarios have also been documented in the assignment with significant business issues. The solutions to the business problems have been provided in a diligent manner in the given assignment.
References
Adorjan, M., 2019. Perceptions of Policing and Security Among Hong Kong Migrant Sex Workers—a Research Note. Asian Journal of Criminology, 14(2), pp.103-111.
Berry, E., 2019. Limited partnership law and private equity: an instance of legislative capture?. Journal of Corporate Law Studies, 19(1), pp.105-135.
Bhatia, V.K., 2010. Legal writing: specificity. The Routledge handbook of forensic linguistics, p.37.
Cao, D., 2010. Judicial interpretation of bilingual and multilingual laws: A European and Hong Kong comparison. In Interpretation of law in the global world: From particularism to a universal approach (pp. 71-86). Springer, Berlin, Heidelberg.
Cho, V. and Chan, A., 2015. An integrative framework of comparing SaaS adoption for core and non-core business operations: An empirical study on Hong Kong industries. Information systems frontiers, 17(3), pp.629-644.
Contracts (Rights of the Third Parties) Ordinance Cap 623 L.N. 118 of 2015
Employment Ordinance (Cap 57)
Feilong, T. (2019). Hong Kong’s opposition camp must wake up to national reality. [online] South China Morning Post. Available at: https://www.scmp.com/comment/insight-opinion/article/2103971/hong-kongs-legal-system-undergoing-nationalisation-and [Accessed 2 Nov. 2019].
Harris, R., 2019. A New Understanding of the History of Limited Liability: An Invitation for Theoretical Reframing. Available at SSRN 3441083.
Ip, E.C., 2016. The Politics of Constitutional Common Law in Hong Kong Under Chinese Sovereignty. Pac. Rim L. & Pol’y J., 25, p.565.
Jelsma, P.L. and Nollkamper, P.E., 2017. The limited liability company. LexisNexis.
John, K, Knyazeva, A. and Knyazeva, D., 2015. Employee rights and acquisitions. Journal of Financial Economics, 118(1), pp.49-69.
Kumar, V., 2016. One Person Company: Concept, Issues and Suggestions. Corporate Law Adviser, 132, pp.67-76.
L’Estrange v Graucob [1934] 2 KB 394
Labour.gov.hk (2020). Labour Department – Frequently Asked Questions. [online] Labour.gov.hk. Available at: https://www.labour.gov.hk/eng/faq/cap57d_whole.htm [Accessed 30 Jan. 2020].
MacCormick, D.N., Summers, R.S. and Goodhart, A.L., 2016. Interpreting precedents: a comparative study. Routledge.
Marion, N.E. and Oliver, W.M., 2012. The public policy of crime and criminal justice. Upper Saddle River, NJ: Prentice Hall.
Mason, A., 2011. The rule of law in the shadow of the giant: The Hong Kong experience. Sydney L. Rev., 33, p.623.
Osei-Kyei, R. and Chan, A.P., 2017. Empirical comparison of critical success factors for public-private partnerships in developing and developed countries: A case of Ghana and Hong Kong. Engineering, Construction and Architectural Management, 24(6), pp.1222-1245.
Singer, L., 2018. Settling disputes: Conflict resolution in business, families, and the legal system. Routledge.
Unconscionable Contract Ordinance Cap 458 L.N. 476 of 1995
Volden, G.H., 2019. Public funding, perverse incentives, and counterproductive outcomes. International Journal of Managing Projects in Business, 12(2), pp.466-486.
Voordijk, H., Sarmento, J.M. and Renneboog, L., 2016. Anatomy of public-private partnerships: their creation, financing and renegotiations. International Journal of Managing Projects in Business.
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