2019-06
对话的力量

“ 我相信澳门回归 50 年时,粤港澳大湾区内各地的法 律制度应无大的分别,而方向将是更加国际化。” 在南通商 …

对话的力量 2019 Year

“ 我相信澳门回归 50 年时,粤港澳大湾区内各地的法 律制度应无大的分别,而方向将是更加国际化。”

在南通商业大厦 20 层律师楼内接受我的采 访时,欧安利大律师踱到窗边面向斜阳,缓缓地阐述他的观点 :“ 我们须要理清的 是 ’where to go(到何处去)’,和 ’how to go(怎么到达)’。”

背影清癯的他像个学者,语调平静略为低沉。 今年两会,欧安利和全国政协委员钟小健、温能汉联 署提案,希望加快澳门接入内地高铁网,推动澳门更好地融入粤港澳大湾区交通网络。 这位两年前放弃立法会公职的大律师一向是新闻话题人物 :不仅是专业口碑,还有横跨澳门回归前后的资深从 政经历 :27 岁踏入政坛,曾任立法会议员、行政会委员, 澳门基本法咨询委员会委员、全国人大澳门特区筹委会委 员,特区首届政府推选委员会委员,澳门区全国政协委员, 等等,对于澳门特区立法及法律制度完善,功不可没。而 他的土生葡人身份、和敏锐犀利的言辞,更是常被舆论热 情关注。

Q: 澳门回归以来,您如何评价法律本地化和制度 完善的进程,有哪些是亟待改善?

回归以来,“ 一国两制 ” 实践取得伟大进程,中央政 府以 20 年时间落实政策,推动了澳门迅猛发展。澳门的 法律完善,经历了漫长的提升过程,取得了进展,且延续 发展了澳门法例的优秀基因,如物权保障、商业登记制度、 合约保障、司法独立等,这是澳门在大湾区范围内的特色 经验。

但必须正视的是,澳门的许多重要法例仍缺乏有力度的改变,对经济形成制约。简单举例:银行法是延续 1993 年,酒店法例是延续八十年代。而澳门现行买卖不动产制度的 问题 :持未婚证件的 “ 配偶 ” 写入买卖合约,他日被指交 易无效带出纠纷,这样的案例每年都有几单。澳门已不是 一条村,大家互相认识、简单化解决问题;作为国际化城市, 应有明确的法例规范。

澳门遗产制度是延续葡国方式,其基因是南欧天主教 文化:保障家庭为先,配偶和子女有遗产权;香港法例则 是基督教文化,遗产分配按遗嘱生效,这就为遗产信托业 务奠定基础。那么,究竟保障家庭为先的遗产制度是不是 适合澳门人呢?谁来主导这一法律本地化的研讨?现在澳 门推动Lo特re色m金ip融su的m发展,但与之配套的法律却有空白或滞 后,如信托法例至今未有建立。

Q: 您认为,解决这些法律问题的途径是什么?可否 描述合理解决后的澳门法律体系蓝图?

法律改进的前提,其实是不关法律的事。法律就是一 面镜子,当你没有走到镜子前,你怎么知道问题在哪里?

法律修改的前提是对社会经济发展有贡献。澳门首先 要理清的是 ‘where to go(到何处去)’,然后让法律专业 人士解决 ‘how to go(怎么到达)’。澳门的律师界、司法 界应与政府、学界一起,与内地、香港、和世界其他国家 交流,澳门要学习、认识,和展开对话(dialogue)。我们 要学习中国立法系统的改革经验,学习香港法律的成熟体 系,学习欧盟的制度改进。作为和欧洲大陆及中国内地同样有着密切联系的地方,澳门是个绝佳的做研究中心的位 置,我们可以在与各方对话的基础上,研究、发展特区成 立五十年后的法律制度体系。我相信届时(2049 年),粤 港澳大湾区内各城市的法律制度应无大的分别,而方向将 是更加国际化,相信未来澳门会在有利于投资、物业产权、 及保障国际资产方面的立法,有卓越的改观。

但是第一步,澳门人要尽快学习大湾区法律体系和政 策。我们的核数师、会计师、律师需要熟悉大湾区的运作, 在与湾区城市的对话中交流和互相认知,在业务上能达到 无缝接驳。澳门作为平台和桥梁,不仅要引介商机,更要 提供法律和政策的资讯服务,投资者才有信心,澳门的桥 梁平台作用才能实现。以往有不少案例,将葡萄牙、巴西、 安哥拉的投资商引到横琴、内地城市,最终因遇政策、法 律问题 “ 不知去哪里拍门 ”,半途而归。这方面,特区政府 应起到引导作用。

此外,当今跨区域的大型投资涉及的法律事务,往往 不是法院,而是国际仲裁,澳门在这方面优势不足,但也 应勉力争取有一席之地。

新的时代,澳门将要去哪里(Where to go),还有一个重要取决因素,就是人才。法律的改善面临一个社会声 音 :万一改错,不如不改。法律相关的人才培训要跟上, 人才的国际化引进亦是当务之急。

澳门是一个小城市,最重要的是教育培训和引进人才。 希望澳门将来多一些好的教授、医生和律师,希望澳门可 以建起全国前五名的大学和医院,这不仅对澳门融入大湾 区有重要作用,更具有全球化的意义。

Q: 澳门回归后,土生葡人经历了怎样的变迁,如 何评价他们的发展空间?

回忆澳门回归前,土生葡人分为两派 :信任派和质疑 派。很多家庭离开澳门去葡国或其他国家。本月即将庆祝 四百年运作的澳门非牟利社团仁慈堂,上世纪九十年代就 面临过这样的抉择,部分会员主张将仁慈堂搬走,变卖资 产回葡萄牙发展,而另一部分会员坚决反对。 1997 年仁慈 堂进行了一次民主选举,结果以压倒性多数的选举结果, 决定了仁慈堂继续留在澳门运作。

我们组织了 “ 根在澳门 ”、“ 土生社团 ” 等社团,在土 生葡人中开展了很多活动,传递对澳门未来的信心。当时 土生葡人的中青年绝大多数看好澳门的发展,相信澳门基 本法 50 年不变,将保障人权、和自由出入澳门等权利。 事实证明,澳门做到了。澳门回归以后,许多离开澳门的 土生家庭又回来,特别是工程师、律师、技师、双语翻译等, 在澳门得到了更加优越的发展空间。

2005 年,我有幸进入特区政府行政会,后又当选澳 门区全国政协委员。当初选择中国国籍,也引发了激烈的两种声音:支持和反对。但反观今天,80%的土生葡人都 选择了中国国籍,领取了回乡证,这反映了土生葡人对澳 门回归 20 年发展成果的信心。我是第一个走进中国内地 的澳门土生葡人,现在更多的土生葡人与内地有着紧密的 交流合作。

我很看好土生葡人在澳门的未来 20 年发展机会,相 信在酒店、旅游、和葡语国家联系等很多方面,将有长足 的发展机会。但澳门空间放入粤港澳大湾区而言,又是较 小的空间。一部分土生葡人还是有局限于 “ 政府工 ” 的观念, 未来随着澳门融入大湾区发展,土生葡人相信会面临更多机遇。

AFTER 20 YEARS, LEONEL ALVES LOOKS AHEAD

“I believe that by the 50th anniversary of Macau’s return, the legal systems in different parts of the Greater Bay Area will have largely converged, and the general direction will be toward increased internationalization.”

As our interview begins at the offices of his law firm, on the 20th floor of Commercial Nam Tung Building, advogado Leonel Alberto Alves walks over to the window facing the set- ting sun. In a low, calm voice, he articulates his views carefully. “The questions we need to straighten out are: ‘Where are we going’ and ‘How will we get there’,” he says.

His choice of words is rich in symbolism, as it is well- known that Alves, as a leading legal and political figure of Macau, has recently been focused on issues of where Macau is going, and how it can get there, literally. At this year’s National People’s Congress and the Chinese People’s Political Consultative Conference in Beijing, Alves and two of his fellow CPPCC National Committee members, Chong Sio Kin and Wan Nang Hon co-signed a proposal to speed up Macau’s access to the mainland’s high-speed rail network, which should enable its closer integration into the transport network of the Greater Bay Area.

The Portuguese-qualified advogado, a native of Macau born to Chinese-Portuguese parentage, has a rich experi- ence to draw upon. He went into politics at the age of 27, and has served as member of both the Legislative Assembly and the Executive Council. He was a key figure in the drafting of Macau’s foundational documents 20 years ago, as a member of the Consultative Committee for the Basic Law, and the NPC Preparatory Committee. Moreover, he was a member of the city’s first Election Committee and became a Macau representative on the CPPCC National Committee.

With views that are keenly analytical and much sought-after by the local community, Alves is seldom out of the public limelight, although he has been somewhat low- er-key since stepping down from the Legislative Council two years ago.

Q: How do you see the localization of Macau’s legal system having progressed since the SAR’s return to China 20 years ago? Which parts still need improvement?

Alves: Since Macau’s return to China, great progress has been made in the implementation of the “one country, two systems” principle. Macau has achieved rapid development thanks to the central government’s efforts, and has passed through a long process of improving its laws. The current legal system has inherited a good DNA – such as property rights protection, business registration system, contract protection, judicial independence, etc. – and has further grown it, which has provided the unique experience of Macau in the Greater Bay Area.

However, we must face up to the fact that many import- ant laws are in urgent need of change, and this has been restricting our economic development potential. Simple examples include: the Banking Law dates from 1993, and the Hospitality Law from the 1980s. Another is the problem with the current real estate trading system, whereby a “spouse” can be recognized without a marriage certificate and be written into the purchase and sale contract, which later leads to dis- putes – there are several such cases that come up every year. Macau is no longer a village where people know each other and can solve problems quite simply; instead, as an international city, Macau should more clearly define its laws and regulations.

Macau’s inheritance system is derived from southern European Catholic culture, which puts home protection first and confers right of inheritance equally on spouse and chil- dren. By contrast, Hong Kong laws are based on Protestant culture, in which distribution of an estate takes effect accord- ing to a will, thereby providing a foundation for the estate trust business. So, is the family-oriented inheritance system suitable for Macau people? Who will lead the discussion on the localization of this law?

Here is another example of laws in need of update: at present, Macau is endeavoring to promote the development of “featured finance”, but the supporting laws are either non-existent or lagging behind. For example, the Trust Law has not been established yet.

Q: What do you think is the right way to solve these legal challenges? What could Macau’s legal blue-print look like as it evolves to solve them?

Alves: The premise of legal improvement is actually not related to the law itself. The law is merely a mirror: when you do not bother to look into the mirror, how can you know what the problem is?

Laws should contribute to social and economic devel- opment. This is why Macau should first clarify the question of “Where are we going?” and then allow legal professionals to work out how to get there. Macau’s legal and judicial circles should work together with the government and academia to communicate with the mainland, Hong Kong and other coun- tries in the world.

Macau should learn from and understand others, by engaging in wider dialogue. We should learn from the reform experience of China’s legislative system, the mature legal system of Hong Kong and the institutional improvements of the European Union. As a place connected with both continen- tal Europe and the Chinese mainland, Macau is an excellent place to do research. We can study and develop a legal system suitable for the SAR even 50 years after its establishment on the basis of dialogue with all relevant parties. I believe that by then (2049), there should be no major difference in the legal systems of cities in the Greater Bay Area, and the direction

will be toward increased internationalization. I further believe that in the future, Macau will make remarkable progress in enacting legislation favoring investment, property rights, and protection of international assets.

But the first step is for Macau’s people to learn the legal systems and policies of the Greater Bay Area, as soon as possible. Our auditors, accountants and lawyers need to famil- iarize themselves with the Greater Bay Area, communicate with and get to know others in the cities nearby, and establish seamless business connections. As a platform and bridge, Macau should not only introduce business opportunities to potential investors, but also provide legal and policy informa- tion services. Only by doing so, can investors have confidence and Macau’s role as a bridge and platform be realized.

There were many cases in the past where investors from Portugal, Brazil and Angola were introduced to Hengqin and other mainland cities, but they returned halfway due to policy and legal problems for which they did not know where to seek regulatory advice. In this regard, the SAR government should play a guiding role.

In addition, the legal affairs involved in today’s large- scale trans-regional investments are often related not to the courts but to international arbitration. Macau has very few advantages in this respect, but it should nonetheless strive for a place.

Today, for Macau, our future also depends on how we can cultivate and attract talent. Our legal system often is confronted by voices from within society arguing against change, because they do not properly understand the risk. The training of legal talent should keep abreast of society’s needs. It should be a top priority to introduce talent from the inter- national community.

Macau is a small city, where training and recruiting talent is vital. I hope there will be more excellent professors, doctors and lawyers in Macau in the future. I also hope that Macau can host universities and hospitals that rank in the country’s top five, which will not only play an important role in Macau’s integration into the Greater Bay Area, but also have global significance.

Q: What changes have native Macanese experienced since the return of Macau? How do you see them further developing?

Alves: I recall that prior to Macau’s return, native Macanese were divided between supporters and skeptics. Many families left Macau for Portugal or other countries. Holy House of Mercy, a non-profit organization in Macau that will celebrate its 400th anniversary this month, faced this choice in the 1990s: some members advocated relo- cation to Portugal and disposal of assets, while others strongly opposed this. In 1997, Holy House of Mercy held a democratic election, and as a result an overwhelming majority voted for the organization continuing to operate in Macau.

At that time, we organized associations such as “Rooted in Macau” and “Native Community”, and conducted many activities among Macanese to convey our confidence in the future of Macau. The vast majority of young and middle-aged Macanese were optimistic about the development of Macau and believed that the Basic Law would remain unchanged for 50 years and would guarantee many rights for its citizens. As it turned out, Macau made it. Since 1999, many native fam- ilies that left Macau have come back, especially engineers, lawyers, technicians and bilingual translators, many of whom were offered even better opportunities.

In 2005, I was honored to be elected to the Executive Council and was later elected as a Macau member of the CPPCC National Committee. When I chose Chinese nationality, it elicited strong reactions from the public. However, today, up to 80 percent of the Macanese have adopted Chinese nation- ality and received the Home Return Permit. This reflected their confidence in the achievements of Macau’s 20 years of development since its return to the motherland. I was among the first Macanese to visit the mainland after the SAR’s return. Now more and more Macanese have close exchanges and cooperation with the mainland.

I am very optimistic about development opportunities for native Macanese in the next 20 years, especially in areas such as hospitality, tourism and contacts with Portuguese- speaking countries. However, within the Greater Bay Area, Macau is still a small place and some native Macanese still carry the mindset of “government workers”. In the future, with the integration of Macau into the Greater Bay Area, native Macanese will be presented with even more opportunities, which will be theirs to grasp.

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