CODE OF CIVIL PROCEDURE IN CHINA MACAO
This article will provide guidance on the Code of Civil Procedure in China Macao. The Basic Law of the Macao Special Administrative Region is the highest in the region. The statute itself is a Chinese law approved in accordance with article 31 of the Constitution of the People's Republic of China and the Sino-Portuguese Joint Declaration on the Question of Macao (an international treaty deposited with the United Nations).
The Basic Law is essentially a constitution for Macao and draws inspiration from Hong Kong's but differs in several respects, including its incorporation of Portuguese constitutional rules on basic rights. Macao is a signatory to the International Covenant on Civil and Political Rights.
The transfer of sovereignty from Portugal to the PRC in 1999 did not significantly alter Macao's legal system due to the principle of continuity of the pre-existing legal system, under which all sources in force prior to the transfer of sovereignty continued to apply with some minor exceptions that were specified in December 1999.
Macao Special Administrative Region (SAR) courts are hierarchical, with the highest court having an ultimate say save in extremely limited circumstances. There are three judges in the Court of Final Appeal and five in the Court of Second Instance. The law permits trials with a jury, but no one uses them. Macao's court system was subordinate to the Judiciary District of Lisbon under the Portuguese legal framework prior to 1991.
The Court of Appeal for the Judiciary District of Lisbon has been superseded by the Superior Court of Justice of Macao. In 1999, the Court of Appeal took over as the highest court, replacing the previous Supreme Court.
MACAO’S LEGAL SYSTEM
Macao's legal system is based on civil law. Legal norms in Macao are generally consistent with those of a civil law system, in which statutes rather than case law serve as the primary basis for the law. Macao's legal framework consists of the ‘basic’ five: [A.] the Civil Code, [B.] the Commercial Code, [C.] the Civil Procedure Code, [D.] the Penal Code, and [E.] the Criminal Procedure Code. Several additional, less comprehensive codes exist (e.g., administrative law). The Civil Code of 1999 and the Commercial Code of 1999 form the backbone of Macao's private law framework. Other laws, such as those establishing default contract provisions, are also significant.
Macao's legal system is headed by the Public Prosecutors Office ( Ministério Pblico). A prosecutor general and an assistant prosecutor general administer the office. General prosecutors handle the day-to-day operations of the law. Since its inception, the Macao SAR has enjoyed fast-growing economic and social development, as never before, due to its gaming industry and growing position as a connection hub for Portuguese-speaking countries.
The Macao Civil Procedure Code, the most significant law governing private litigation, has had a few updates to reflect these changes (MCPC). Decree-Law 55/99/M, published on 8 October 1999 and enacted on 1 November 1999, was the first legal document to establish the MCPC.
CIVIL LAW IN MACAO
Macao is a special administrative territory of China with Mandarin Chinese (in the Cantonese variety) and Portuguese as its official languages. All government institutions, such as the local courts and the Legislative Assembly, and all official papers are bilingual. Macao has always been distinguished by the unique blend of Chinese, Portuguese, and native Macanese traditions that it has attracted.
For fifty years after the handover (until 2049), Macao will have a high degree of autonomy except in foreign and defense affairs (matters of responsibility of the Central People's Government) per the Joint Declaration of the government of the PRC and the government of the Republic of Portugal on the question of Macao, signed on April 13, 1987. This implies that Macao has full autonomy in all government areas, including the ability to make binding decisions in its courts. Macao's major codes were originally drafted in Portuguese and are equivalent to their counterparts in Portugal, indicating that the legal system in Macao is largely based on Portuguese law and thus belongs to the civil law tradition. However, the code is a hybrid for business law since it uses certain common law devices.
The Government of Macao is the Region's executive authority, headed by a Chief Administrative (Chefe do Executivo), who has considerable policymaking and executive powers but is ultimately responsible to the Central People's Government and the MSAR. The Central People's Government appoints a three-hundred-person Election Committee to choose the Chief Executive. These members come from industry, commerce, finance, education, labor, society, and religion.
The Chief Executive must be a Chinese national who has lived in Macao as their principal place of residence for at least the last twenty years (Article 46 of the Macao Basic Law). There is a two-term limit on service, meaning that no one may stay in office for more than five years at a time (Article 48 of the Macao Basic Law).
CIVIL LITIGATION IN MACAO
First, it is important to note that various forms of civil litigation are handled differently. Even so, the parties are subject to laws governing how much they must pay the victorious party in court and attorneys fees (‘procuradoria’). It is important to remember that under the domestic legal environment of the Macao SAR, ‘court costs’ may refer to a wide range of monetary awards, including reimbursements, transportation charges, and other types of compensation.
According to the CCR's unique distribution procedures, the loser is generally responsible for covering the winner's expenses. There are, however, notable exceptions, including some private and labor law conflicts between state authorities, official organizations and government departments or comparable bodies (e.g., municipalities), or victims of a work accident, for which the parties do not have to pay a fee. Moreover, there are distinct policies for dealing with specific exceptions. In the event that the plaintiff wins but the case is dismissed because the suit is moot, the plaintiff may be responsible for all litigation costs, even if the suit was meritless (unless the defendant is at fault, as in the case where the obligation is not yet enforceable due to a future maturity date). If the matter is resolved via arbitration, the parties will split the expenses equally.
Whenever the law does not explicitly state who is responsible for covering costs, the court will make a determination based on a number of key concepts, including ‘dar causa à acço’ (meaning to produce an unnecessary lawsuit), ‘ficar vencido na acço,’ and ‘tirar proveito da acço’. As a result, several factors are context-dependent, including the specific procedures, the nature of the dispute, the behavior of the parties, etc. The court's decision is case-specific, and the victor may not always be awarded full reimbursement of their fees and expenses.
The losing party is often responsible for covering the expenditures of gathering evidence, including the fees associated with (expert and other) witnesses. Again, there are always exceptions; for example, if the court finds the winning party's evidence irrelevant. The winner pays all costs associated with the situation. It depends on the case's specifics, particularly the kind of evidence obtained and its location, and whether these expenditures substantially contribute to the total litigation costs.
Chinese and Portuguese are used in Macao SAR's legal documents since these are the most commonly spoken languages. Any version in English that may be found is an unauthorized translation.
PRE-LITIGATION PROCEDURES IN MACAo
Pre-litigation methods, such as mediation, are not often required by law in Macao SAR civil procedure. However, the Macao CPC mandates conciliation attempts before the court in certain situations and stages of the process. If the parties can reach an agreement via conciliation, the fees, and expenditures are normally split evenly unless the parties agree to an alternative arrangement.
The Macao CPC stipulates that self-representation may be permitted depending on the nature of the proceedings and the value at stake. The legal jurisdiction, or ‘alçada,’ of the courts of first instance,19 in appeal procedures, and the area of judgment enforcement are 50,000.00 patacas (about USD 6,000), at which point legal representation by an attorney is essential. On the other hand, self-representation is unusual in actual practice.
Depending on the kind of action and the amount at stake, such fees may be necessary for the Macao Special Administrative Region of China. Retained fees for legal services are permissible and are governed by the Macao Lawyers' Association's Rules on Legal Opinion. The amount at issue, among other things, plays a significant role in establishing the specific amounts that must be paid. Because it does not seem widespread, the practice is unlikely to have much of an impact as a deterrent.
Court expenses depend on a number of variables, including the nature of the dispute (e.g., family, commercial, or labor issues), the amount at stake, whether the case is being heard at the trial or appeal level, and the nature and number of the procedural actions required by the parties. The specific amount granted to the party or parties is at the court's discretion. The case's specific facts, including the parties' behavior throughout the litigation, will inform the court's discretionary decision. In this case, the ruling is essential to the final verdict. Fees contingent on a case's outcome is prohibited in the Macao Special Administrative Region (SAR) court system, whether they are agreed to between the client and attorney or are imposed by the court.
Current law allows the initial responder to file a counterclaim and motion against the original petitioner or petitioners within specified (wide) parameters. However, under the proposed changes, the respondent would be able to ask the court to allow a third party to join the proceeding (provoked intervention) whenever doing so is necessary for the third party to exercise a right to present a counterclaim (the intervenor would become a party associated with them) or a cross-counterclaim (the intervenor would become a party associated with the petitioner or petitioners).
SPECIAL PROCEDURES UNDER MACAo LAW
Default by the tenant is cause for special procedures, which streamline the eviction process. Until the landlord obtains an enforceable order and the court restores ownership of the building to the landlord, they may incur significant damages if the eviction is based on the tenant's failure. To streamline the process, it has been suggested that a signed lease agreement and proof of delivery of a letter of default sent by the landlord to the tenant with the number of rents due would be sufficient for the landlord to be awarded an enforceable title that they may execute and so get the rented building back in their possession if they so choose.
Since the LBOJ's original passage, it has undergone many revisions. While numerous attorneys have brought the need for more TUI judges to the attention of the Macao government over the last decade, the TUI has not responded to these concerns.
ELECTRONIC SYSTEMS IN THE COURT
Using telematics or electronic media connected to the electronic systems of the courts, several nations have already allowed for the submission, processing, and review of judicial papers and other evidence-related media, as well as those of questioned witnesses or experts. The MCPC has not yet introduced an online solution for any procedural issues.
This has been repeatedly brought to light, notably during the last two years, when the courts and all other public services in Macao have been sporadically closed because of the COVID-19 outbreak. It has been over two years since the Macao SAR's borders were closed to non-residents. As a result, numerous representatives, witnesses, and experts could not attend scheduled hearings. Most judicial proceedings have been delayed because of postponements of hearings. However, courts have recently begun opting for alternate methods to keep processes continuing, such as questioning witnesses and experts via written statements in compliance with Articles 540 and 541 of the MCPC.
Many non-urgent hearings were postponed because the courts' suspensions could have taken place remotely using the requisite electronic court system. The urgent ones could have been handled more safely, preventing delays in justice being done.
Macao's highest court is the Last Instance Court (Tribunal de Ultima Instância, or TUI). Since its inception in 1999, this court has always had the same three justices. Each ‘chamber’ of the superior courts of Macao consists of three judges, as required by Article 25 of Law No. 9/1999 (Basis of the Judiciary Organisation Law, or LBOJ). Every matter brought before the TUI is decided by all three of its judges, with the exception of the judge tasked with writing the verdict (the ‘rapporteur’), who may change.
Current MCPC law still places substantial discretion on the shoulders of the judge at every stage of the enforcement process. Since the judge must order every demarche necessary for such inquiry, investigating the debtor's assets may halt numerous processes for a long time, depending on the court's docket.
It may be avoided if, once the judge has given the order to subpoena the debtor, the phase of researching assets to be confiscated during the proceedings took place outside of court. The debtor's assets would thereafter be subject to a search, arrest, and liquidation by an enforcement agency authorized by the creditor or the court. Members of the Macao Lawyers Association who express interest in serving as enforcement agents should be selected. The legislation should establish and specify the requisite legal authorities to be entrusted to them to ensure their position as enforcers are properly defined and legally protected.
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