港澳法视界｜澳门法律制度介绍（二）——澳门民法典架构及实务

1999年，《澳门民法典》正式颁布实施，标志着澳门民法进入新的发展阶段，这部法典既保留了欧陆法系的特色，又结合澳门实际情况进行了完善，成为澳门民法的核心规范。

《澳门民法典》采用五编制结构，与传统大陆法系民法典相似，包括总则、债法、物权法、亲属法和继承法。总则编确立了民法的基本原则、法律渊源、法律解释与适用规则，以及民事主体的相关制度，为整个民法体系奠定基础；债法编规定了债的通则、各种合同以及债权债务的移转等内容，调整财产流转关系；物权法编规范了物的占有、所有权及其他物权制度，明确物的归属与利用规则；亲属法编调整因血缘和婚姻产生的人身关系，对结婚、亲子关系、收养、扶养等方面进行规定；继承法编则针对继承相关的法律关系，如遗产范围、继承人顺序、遗嘱继承等作出规范。这种结构体系严谨，各编相互配合，全面涵盖了民事法律的各个领域。

In 1999, the Macao Civil Code was officially promulgated and implemented, marking a new stage of development for Macao's civil law. This code retains the characteristics of the continental legal system and has been improved in conjunction with Macao's actual situation, becoming the core norm of Macao's civil law.

The Macao Civil Code adopts a five part structure, similar to the traditional civil code of the mainland legal system, including general provisions, debt law, property law, kinship law, and inheritance law. The General Provisions establish the basic principles, legal sources, legal interpretation and application rules of civil law, as well as the relevant systems of civil subjects, laying the foundation for the entire civil law system; The Debt Law stipulates the general rules of debt, various contracts, and the transfer of creditor's rights and debts, and adjusts the relationship of property transfer; The Property Law regulates the possession, ownership, and other property rights systems of goods, clarifying the rules for the ownership and utilization of goods; The Family Law regulates personal relationships arising from blood ties and marriage, and regulates aspects such as marriage, parent-child relationships, adoption, and support; The Inheritance Law regulates the legal relationships related to inheritance, such as the scope of inheritance, the order of heirs, and testamentary inheritance. This structural system is rigorous, with each section cooperating with each other, comprehensively covering various fields of civil law.

权利能力与行为能力：根据《澳门民法典》，自然人的权利能力始于完全出生且有生命之时，终于死亡。在行为能力方面，澳门民法将自然人分为完全行为能力人、未成年人、禁治产人和准禁治产人。年满十八岁的自然人具有完全行为能力，能够独立实施民事法律行为；未成年人通常无行为能力，但在某些特定情况下，如十六岁以上的未成年人对因其工作而取得的财产所作的管理或处分行为等，具有一定的行为能力。禁治产人因精神失常、聋哑或失明等原因被宣告为禁治产人，其行为能力受到限制，等同未成年人的相关规定；准禁治产人则是长期性精神失常等但未达禁治产程度的人，由保佐人辅助，其生前财产处分等行为需经保佐人许可。

此外，澳门民法对人格权给予全面保护，涵盖生命权、身心完整权、自由权、名誉权等多种权利。

Legal capacity and behavioral capacity: According to the Macao Civil Code, the legal capacity of a natural person begins at full birth and life, and ends at death. In terms of legal capacity, the Macao Civil Code divides natural persons into individuals with full legal capacity, minors, prohibited persons, and quasi prohibited persons. Natural persons who have reached the age of eighteen have full legal capacity and are able to independently carry out civil legal acts; Minors usually lack legal capacity, but in certain specific circumstances, such as when minors over the age of sixteen manage or dispose of property acquired through their work, they have a certain level of legal capacity. Individuals who are prohibited from undergoing medical treatment due to mental disorders, deafness, or blindness are declared as such, and their ability to act is restricted, which is equivalent to the relevant provisions for minors; A person who is subject to a ban on childbirth is a person who has long-term mental disorders or other conditions but has not reached the level of a ban on childbirth. They are assisted by a guardian, and their disposal of property during their lifetime requires permission from the guardian.

In addition, the Macao Civil Code provides comprehensive protection for personality rights, covering various rights such as the right to life, physical and mental integrity, freedom, reputation, etc.

澳门民法规定的法人类型包括社团、财团和合营组织。社团是以人为基础且非以社员经济利益为宗旨的法人，其设立需具备法定形式，以书面设立文件明确社员提供的资产或劳务、法人名称、宗旨及住所等内容，并在《澳门政府公报》上公布后对第三人产生效力。财团则是以财产为基础且以社会利益为宗旨的法人，通过认可取得法律人格，认可需由有权限的行政当局进行，创立财团的行为需符合法定条件。合营组织是指两个或两个以上的自然人或法人为实现特定目的而共同出资、共同经营的组织，其设立和运作需遵循《澳门民法典》及相关法律的规定。

The legal person types stipulated in Macao Civil Law include associations, foundations, and joint venture organizations. A club is a legal entity based on human beings and not aimed at the economic interests of its members. Its establishment must have a legal form, and a written establishment document must specify the assets or services provided by its members, the name, purpose, and residence of the legal entity. After being published in the Macao Government Gazette, it shall have effect on third parties. A foundation is a legal entity based on property and aimed at social interests. It obtains legal personality through recognition, which must be carried out by an authorized administrative authority. The act of establishing a foundation must comply with legal conditions. A joint venture organization refers to an organization in which two or more natural or legal persons jointly invest and operate for a specific purpose, and its establishment and operation must comply with the provisions of the Macao Civil Code and relevant laws.

所有权是物权的核心，澳门民法对所有权的取得、变更和消灭进行了详细规定。所有权的取得方式包括原始取得和继受取得。原始取得是指通过生产、先占、添附、时效取得等方式直接取得所有权；继受取得则是通过买卖、赠与、继承等方式从原所有人处取得所有权。例如，在 “甲与乙不动产时效取得案”（终审法院第 87/2021 号案）中，甲及其子女占有涉案单位超过38年，并以真实及唯一所有人的方式使用该单位，最终通过时效取得了所有权。根据《澳门民法典》第1221条，对不动产的占有满15年便可透过时效取得成为所有人。

Ownership is the core of property rights, and the Macao Civil Code provides detailed regulations on the acquisition, modification, and termination of ownership. The acquisition methods of ownership include original acquisition and inheritance acquisition. Original acquisition refers to the direct acquisition of ownership through production, prior occupation, attachment, time limited acquisition, and other means; Inheritance is the acquisition of ownership from the original owner through means such as sale, gift, inheritance, etc. For example, in the case of "A and B Real Estate Time Limited Acquisition" (Court of Final Appeal Case No. 87/2021), A and their children occupied the unit in question for more than 38 years and used the unit as the true and sole owner, ultimately obtaining ownership through the time limit. According to Article 1221 of the Macao Civil Code, ownership of immovable property can be acquired through statute of limitations after 15 years of possession.

用益物权是指对他人所有的物享有使用和收益的权利，包括地上权、地役权、永佃权等。地上权是指在他人土地上建造建筑物或其他工作物的权利；地役权是指为自己土地的便利而使用他人土地的权利；永佃权是指支付租金而永久使用他人土地的权利。

Usufructuary right refers to the right to use and benefit from the property owned by others, including land rights, servitude rights, perpetual tenancy rights, etc. Ground rights refer to the right to construct buildings or other works on someone else's land; Easement refers to the right to use someone else's land for the convenience of one's own land; Permanent tenancy right refers to the right to permanently use someone else's land by paying rent.

担保物权是指为确保债权的实现而设立的物权，包括抵押权、质权和留置权。抵押权是指债务人或第三人不转移对财产的占有，将该财产作为债权的担保；质权是指债务人或第三人将其动产或权利移交债权人占有，将该动产或权利作为债权的担保；留置权是指债权人按照合同约定占有债务人的动产，债务人不按照合同约定的期限履行债务的，债权人有权留置该动产，并以该动产折价或者以拍卖、变卖该动产的价款优先受偿。

Security interest refers to the property rights established to ensure the realization of creditor's rights, including mortgage, pledge, and lien. Mortgage right refers to the debtor or a third party not transferring possession of property and using the property as collateral for the creditor's rights; Pledge refers to the transfer of movable property or rights by a debtor or third party to the possession of a creditor, using the movable property or rights as collateral for the creditor's rights; The right of retention refers to the creditor's possession of the debtor's movable property in accordance with the contract. If the debtor fails to fulfill the debt within the agreed period in the contract, the creditor has the right to retain the movable property and receive priority compensation with the proceeds of the sale or auction of the movable property.

债的发生原因包括合同、侵权行为、无因管理和不当得利。合同是债的最主要发生原因，当事人通过订立合同约定彼此的权利和义务。侵权行为是指侵害他人合法权益的行为，行为人需承担损害赔偿责任。无因管理是指没有法定或约定的义务，为避免他人利益受损失而进行管理或服务的行为，管理人有权要求受益人偿还必要费用。不当得利是指没有合法根据，取得不当利益，造成他人损失的，应当将取得的不当利益返还受损失的人。

The causes of debt include contracts, infringement, management without cause, and unjust enrichment. Contract is the main cause of debt, and the parties agree on each other's rights and obligations through the formation of a contract. Infringement refers to the act of infringing upon the legitimate rights and interests of others, and the perpetrator shall bear the responsibility for compensation for damages. Non causal management refers to the act of managing or providing services without legal or contractual obligations, in order to avoid losses to the interests of others. The manager has the right to demand that the beneficiary repay necessary expenses. Unreasonable enrichment refers to the act of obtaining undue benefits without legal basis, causing losses to others, and the obtained undue benefits should be returned to the person who suffered the loss.

合同是澳门民法中最重要的法律行为之一，《澳门民法典》对合同的订立、效力、履行、变更和解除等方面进行了全面规定。合同的订立需经过要约和承诺两个阶段，要约是希望和他人订立合同的意思表示，承诺是受要约人同意要约的意思表示。合同的效力取决于其是否符合法律规定的生效要件，包括当事人具有相应的行为能力、意思表示真实、合同内容合法等。

Contract is one of the most important legal acts in Macao civil law, and the Macao Civil Code comprehensively regulates the formation, validity, performance, modification, and termination of contracts. The formation of a contract requires two stages: offer and acceptance. Offer is the expression of intention to enter into a contract with others, while acceptance is the expression of intention of the offeree to agree to the offer. The effectiveness of a contract depends on whether it meets the legal requirements for effectiveness, including the parties having the corresponding capacity to act, the truthfulness of their expression of intent, and the legality of the contract content.

侵权责任是指行为人因侵害他人合法权益而应承担的民事责任。《澳门民法典》对侵权责任的构成要件、责任形式和赔偿范围等进行了规定。侵权责任的构成要件包括加害行为、损害后果、因果关系和过错。责任形式包括停止侵害、排除妨碍、消除危险、返还财产、恢复原状、赔偿损失等。赔偿范围包括财产损失和精神损害赔偿。

Tort liability refers to the civil liability that the perpetrator should bear for infringing on the legitimate rights and interests of others. The Macao Civil Code stipulates the constituent elements, forms of liability, and scope of compensation for tort liability. The constituent elements of tort liability include the tortious act, the consequences of the damage, causality, and fault. The forms of responsibility include stopping infringement, removing obstacles, eliminating danger, returning property, restoring the original state, compensating for losses, etc. The scope of compensation includes property damage and mental damage compensation.

亲属制度是调整因血缘和婚姻产生的人身关系的法律规范，包括结婚、离婚、亲子关系、收养、扶养等方面。《澳门民法典》对结婚的条件、程序、效力以及离婚的条件和后果等进行了规定。例如，结婚需双方当事人自愿，并符合法定的年龄和其他条件；离婚需符合法定的理由，如感情破裂等。在亲子关系方面，父母对子女有抚养教育的义务，子女对父母有赡养扶助的义务。收养是指通过法律程序将他人的子女收为自己的子女，建立拟制的亲子关系。扶养是指在一定亲属间有相互扶养的义务。

The kinship system is a legal norm that regulates personal relationships arising from blood ties and marriage, including marriage, divorce, parent-child relationships, adoption, and support. The Macao Civil Code stipulates the conditions, procedures, effects of marriage, as well as the conditions and consequences of divorce. For example, marriage requires both parties to be voluntary and meet the legal age and other conditions; Divorce must meet legal reasons, such as emotional breakdown. In terms of parent-child relationships, parents have the obligation to raise and educate their children, and children have the obligation to support and assist their parents. Adoption refers to the legal process of taking someone else's child as one's own and establishing a simulated parent-child relationship. Support refers to the obligation of mutual support among certain relatives.

继承制度是调整因自然人死亡而发生的财产转移关系的法律规范，包括法定继承、遗嘱继承和遗赠等。法定继承是指在没有遗嘱的情况下，按照法律规定的继承人顺序和份额进行继承。遗嘱继承是指被继承人通过订立遗嘱指定继承人继承其遗产。遗赠是指被继承人通过订立遗嘱将其财产赠与国家、集体或法定继承人以外的人。

The inheritance system is a legal norm that regulates property transfer relationships that occur due to the death of a natural person, including statutory inheritance, testamentary inheritance, and bequest. Statutory inheritance refers to the process of inheriting without a will, in accordance with the order and share of heirs as stipulated by law. Testamentary inheritance refers to the act of the testator designating an heir to inherit their estate through the creation of a will. Legacy refers to the act of the deceased making a will to give their property to a person other than the state, collective, or legal heirs.

2000年11月30日，嫌犯甲因电单车停放问题与杂货店东主乙发生争执，乙踢了电单车后，甲持头盔攻击乙的头、脸部，造成创伤。甲系初犯，自认事实，需照顾家人；乙主张医疗费用及精神损害赔偿，但脸部永久破相、收入损失等事实未获证实。

澳门初级法院认定甲构成简单伤害罪，判9个月徒刑缓期2年执行，赔偿乙财产损失8317.4澳门元及精神损害1.5万澳门元。澳门中级法院（上诉审）维持原判其他部分，改判精神损害赔偿增至8万澳门元，理由为应依《民法典》第489条第1款及第3款，结合乙的脸部疤痕、甲故意行为及双方经济状况等情节，按衡平原则调整。

判决书原文：

https://www.court.gov.mo/sentence/zh-53590d38b8265.pdf

On November 30, 2000, suspect A had a dispute with grocery store owner B over the parking of his electric bike. After B kicked the bike, suspect A attacked B's head and face with a helmet, causing injuries. First time offender of type A, admitted to the facts, needs to take care of family members; B claims compensation for medical expenses and mental damages, but the facts of permanent facial disfigurement and income loss have not been confirmed.

The Macau Basic Court found that A committed the crime of simple injury and sentenced A to 9 months' imprisonment with a 2-year reprieve. B was compensated with property losses of MOP 8317.4 and mental damages of MOP 15000.

The Intermediate Court of Macau (appellate trial) upheld the other parts of the original judgment and revised the compensation for mental damages to MOP 80000, on the grounds that it should be adjusted in accordance with Article 489 (1) and (3) of the Civil Code, taking into account the facial scars of Party B, intentional behavior of Party A, and the economic situation of both parties, based on the principle of equity.

1998年，被告B与其前夫C实际出资购买涉案房屋，为享受政策优惠，将名义购买人登记为C的女儿D（D 未出资、未入住）。B和C 自1998年7月起持续占有该房屋，支付全部费用（房贷、水电等），亲友及物业均认可其为实际权利人。2015年，D将房屋卖给原告F和 G，F、G 要求B搬离并索赔，B反诉主张通过时效取得所有权。A银行作为F、G的抵押权人参与诉讼，主张抵押权应受保护。

法院认为，B和C的占有为善意。虽购买时存在虚伪登记行为，但二人作为实际出资人，主观上不知占有侵害他人权利，符合《民法典》第1184条 “善意占有” 认定。B和C持续公开占有房屋超15年，满足善意占有时效取得条件（《民法典》第1221条），依法取得房屋所有权，效力追溯至1998年7月。原告F、G的所有权因与B、C的时效取得权冲突而消灭，A银行的抵押权随原告所有权消灭而失效。原告明知D非实际权利人仍购买并起诉，构成《民事诉訟法典》第385条恶意诉讼，被判罚款。

判决原文：

https://www.court.gov.mo/sentence/zh-95268207ff179927.pdf

In 1998, defendant B and his ex husband C actually invested in purchasing the property in question. In order to enjoy policy benefits, they registered the nominal purchaser as C's daughter D (D did not invest or move in). B and C have been continuously occupying the house since July 1998, paying all fees (mortgage, utilities, etc.), and are recognized by their relatives, friends, and property management as the actual rights holders. In 2015, D sold the house to plaintiffs F and G, who demanded that B move out and claim compensation. B counterclaimed and claimed ownership through statute of limitations. Bank A, as the mortgagee of F and G, participated in the lawsuit and claimed that the mortgage rights should be protected.

The court held that the possession of B and C was in good faith. Although there was false registration behavior during the purchase, the two individuals, as actual investors, subjectively did not know that possession infringed upon the rights of others, which is in line with the recognition of "good faith possession" in Article 1184 of the Civil Code. B and C have been publicly occupying the house for more than 15 years, meeting the conditions for obtaining good faith possession (Article 1221 of the Civil Code), and legally obtaining ownership of the house, with retroactive effect until July 1998. The ownership of Plaintiffs F and G is extinguished due to a conflict with the time limited acquisition rights of B and C, and the mortgage right of Bank A becomes invalid with the extinction of Plaintiff's ownership. The plaintiff knowingly purchased and sued D, which constitutes malicious litigation under Article 385 of the Civil Procedure Code, and was fined.

原告原为澳门某商业单位的登记权利人，2016年2月8日向甲签署授权书，委托其处理该单位出售事宜。随后，甲以原告代理人身份与第一至第四被告签订预约买卖合同及买卖公证书，被告支付了价款，该单位登记至被告名下并办理抵押。原告主张授权书因形式瑕疵无效、公证书对其不生效力等，提起诉讼要求确认权利、返还单位或支付价款及赔偿。

法院认为授权书虽存在形式瑕疵，但原告通过授权书作出的出售授权意思表示真实存在，被告基于该授权书产生的代理表象善意行事。

根据《商法典》第 644 条及《民法典》第261条第2款，保护善意第三人及禁止权利滥用，相关法律行为对原告有效。此外，原告先授权出售，后以形式瑕疵否认代理行为，构成出尔反尔，属权利滥用。最终法院驳回原告上诉，诉讼费用由原告承担。

判决原文：

https://www.court.gov.mo/sentence/zh-3afed14218ca3446.pdf

The plaintiff was originally the registered owner of a commercial unit in Macau. On February 8, 2016, they signed an authorization letter with Party A, entrusting them to handle the sale of the unit. Subsequently, Party A, as the plaintiff's agent, signed an appointment sales contract and sales notarization with the first to fourth defendants. The defendant paid the price, and the unit was registered under the defendant's name and mortgaged. The plaintiff claims that the authorization letter is invalid due to formal defects, and the notarized certificate has no effect on it. They have filed a lawsuit to confirm their rights, return the unit, or pay the price and compensation.

The court held that although there were formal flaws in the authorization letter, the plaintiff's expression of intention to sell authorization made through the authorization letter was genuine, and the defendant acted in good faith based on the appearance of agency generated by the authorization letter. According to Article 644 of the Commercial Code and Article 261 (2) of the Civil Code, the protection of third parties in good faith and the prohibition of abuse of rights are effective for the plaintiff. In addition, the plaintiff first authorized the sale and then denied the agency's behavior due to formal defects, which constitutes a reversal of words and an abuse of rights. The final court rejected the plaintiff's appeal and the litigation costs were borne by the plaintiff.

上诉人A及B（已故，由继承人代表）就被继承人F的遗产继承纠纷提起上诉，主张应适用《中华人民共和国继承法》。其理由包括：1. 此前生效判决已认定被继承人常居地为内地，应适用内地法律；2. 适用澳门法律会剥夺父母的法定继承权，损害内地社会公共利益；3. 继承人身份属于“身份状况”，根据澳门《民法典》第17条应排除反致，优先适用内地法律。被上诉E（待分割财产管理人）持反对意见。

法院认为，此前判决未确定被继承人常居地为内地，亦未审理继承法律适用及继承人资格，不具有既判力，上诉人主张不成立。遗产继承属私人利益，与社会公共利益无关。即使适用澳门法律可能与内地规定冲突，基于“一国两制”，澳门有权适用本地法律，不受内地公共利益条款约束（《中华人民共和国涉外民事关系法律适用法》第5条不适用于澳门）。继承人身份不属“身份状况”。身份状况需影响行为能力及法律地位且不可放弃，而继承人身份仅涉及财产继承权利，可通过放弃遗产丧失，故不适用澳门《民法典》第17条关于身份状况排除反致的规定。综上，驳回上诉，维持原审适用澳门法律的决定。

判决原文：

https://www.court.gov.mo/sentence/zh-1061c5ad72d45f6a.pdf

Appellants A and B (deceased, represented by the heir) filed an appeal regarding the inheritance dispute of the deceased F's estate, claiming that the Inheritance Law of the People's Republic of China should be applied. The reasons include: 1 The previous effective judgment has determined that the habitual residence of the deceased is in mainland, and mainland laws should be applied; 2. Applying Macau law would deprive parents of their statutory inheritance rights and harm the public interests of mainland society; 3. The identity of the heir belongs to the "status of identity", and according to Article 17 of the Macau Civil Code, reciprocity should be excluded, and mainland laws should be given priority. The appellant E (the property manager to be divided) holds a dissenting opinion.

The court held that the previous judgment did not determine that the deceased's habitual residence was in mainland, nor did it review the application of inheritance laws and the eligibility of heirs, and therefore did not have res judicata. The appellant's claim is unfounded. Inheritance belongs to private interests and has nothing to do with the public interest. Even if the application of Macau laws may conflict with mainland regulations, based on the principle of "one country, two systems", Macau has the right to apply local laws and is not bound by the provisions of the mainland's public interest (Article 5 of the Law of the People's Republic of China on the Application of Law in Foreign related Civil Relations does not apply to Macau). The identity of the heir does not belong to the "status of identity". The identity status needs to affect the ability to act and legal status, and cannot be relinquished. However, the identity of an heir only involves property inheritance rights, which can be lost by renouncing the estate. Therefore, Article 17 of the Macau Civil Code regarding the exclusion of renvoi based on identity status does not apply. In summary, the appeal is rejected and the decision to apply Macau law in the original trial is upheld.