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PART I - THE NATURE OF THE PROBLEM
A. THE CIVIL JUSTICE SYSTEM
| 4. | Access to the courts by Hong Kong residents for enforcement of their rights is constitutionally protected by the Basic Law. (Note 1) Substantive legal rights only have meaning if they can be enforced. Someone seeking to give effect to his rights against another person must be able to bring his claim before a court which will find the facts, apply the law to those facts, and, if liability is established, grant relief enforceable by a process of legal execution. |
| 5. | Claims may, however, be unmeritorious. The system must therefore ensure that the defendant has a fair opportunity to refute such claims. Principles of procedural fairness must be applied between the parties. A defendant must be given proper notice of the allegations against him and of their evidential basis. This will enable him to assemble contrary evidence and arguments if available. Equally, the plaintiff must be given notice of all aspects of the defendant's case in order to have a fair chance of meeting it. The competing allegations must then be exposed in a manner which permits effective adjudication by the court. |
| 6. | The civil justice system discussed in this Report is the system of procedural rules and machinery designed to give effect to the processes described above. |
| 7. | In any legal system, only a small percentage of justiciable disputes result in the commencement of legal proceedings. Even fewer cases make it all the way to judgment. However, where the civil justice system is accessible and effective, it has an importance reaching far beyond the cases which it actually processes. |
| 7.1 | Every time an individual or a corporation enters into a transaction, whether to buy a flat, take on an employee or invest in a business, the underlying assumption is that the rights and obligations mutually undertaken can effectively be enforced. |
| 7.2 | Settlements of disputes are reached, whether between insurance companies and accident victims, between government agencies and residents or among quarrelling shareholders in the knowledge that failure to settle may lead to legal proceedings. (Note 2) |
| 8. | Conversely, where a civil justice system does not adequately perform its functions, the adverse effects are felt not merely by participants in legal proceedings but throughout society. The effectiveness of rights recognized by law becomes subject to question and the underpinnings of investment, commercial and domestic transactions may be seriously weakened. Where the system becomes inaccessible to segments of society, whether because of expense, delays, incomprehensibility or otherwise, such persons are deprived of access to justice. |
Notes
| 1 | Article 35: "Hong Kong residents shall have the right to confidential legal advice, access to the courts, choice of lawyers for timely protection of their lawful rights and interests or for representation in the courts, and to judicial remedies. Hong Kong residents shall have the right to institute legal proceedings in the courts against the acts of the executive authorities and their personnel." <back> |
| 2 | This does not apply to those transactions and disputes which involve parties who are ignorant of their legal rights and duties and give no consideration to getting legal advice or to the possibility of legal proceedings. Studies in other jurisdictions indicate that such parties are likely to be relatively few: see e.g., Hazel Genn: "Paths to Justice, What People Do and Think about Going to Law" (Hart Publishing, 1999), Chap 3. <back> |
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