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《香港基本法》第158条对终审法院提请全国人大常委会解释基本法作出制度规定,这是中央与特区关系在司法方面的重要内容。但条文只规定了基本原则,没有详细的执行安排。经过回归后多年来的审判实践,终审法院逐步建立提请释法的判定标准,即对争议内容是否属于“范围外条款”的前置判断。具体包括思考案件的“类别条件”、“有需要条件”以及“有关理据是否是‘可争辩的’而非‘明显地拙劣’”。在提请程序上,终审法院通过刚果(金)案,尝试对提请程序和提请内容进行规范化建构。而全国人大常委会则在吴嘉玲案以后,以《立法法》为依据,形成行政长官提交报告、相关主体提案、人大作出解释的3次释法实践,逐渐发展出有别于法院提请的释法制度。
Article 158 of the Basic Law of Hong Kong sets forth the rules and regulations for the Court of Final Appeal to draw up the NPCSC’s interpretation of the Basic Law. This is an important part of the judiciary in the relations between the Central Government and the SAR. However, the provisions only stipulate the basic principles and there is no detailed implementation arrangement. After many years of trial practice after returning to China, the Court of Final Appeal gradually established the standard for judging the court of appeal, that is, whether the contents of the dispute belong to the pre-judgment of “the out-of-scope clause”. Specifically, there are “category conditions”, “conditions of need”, and “what is the basis for thinking of the case?” Is arguable rather than “apparently clumsy.” In referring to the procedure, the Court of Final Appeal passed the case of the Democratic Republic of Congo, trying to standardize the procedure for filing and submitting the content. However, following the case of Ng Ka Ling, the NPC Standing Committee established the Chief Executive’s submission of the report, the proposal of the relevant main body and the interpretation of the NPC three times after the Ng Ka Ling case and gradually developed a method of interpretation that is different from that brought by the court system.