港澳法视界 | 香港法律制度介绍（二）——以判例探香港民事法律制度

Preface

The civil law and civil litigation system in Hong Kong is based on common law, combined with localized legislation and judicial practice, forming a rule of law system that is both rigorous and flexible. This article selects several typical cases in Hong Kong courts in recent years and analyzes them from four dimensions: contract law, tort law, marriage and family law (including the case of Zong Qinghou's estate), and civil litigation procedures, revealing the refined characteristics and judicial wisdom of Hong Kong's legal system.

案情概述：本案中，原告何丽琼（母亲）与第一被告郭凤英（女儿）通过电话达成口头协议，约定女儿及其丈夫刘振威（第二被告）协助母亲协商提高某物业收地补偿款，作为回报，补偿款将由女儿与兄长平分。原告主张该口头协议具有法律约束力，但被告辩称家庭内部协议缺乏订立合同的意图。原审法院认定协议存在但不具法律约束力，原告上诉至香港上诉法院。

Summary of the case: In this case, the plaintiff Ho Lai King (mother) and the first defendant Kwok Fung Ying (daughter) reached a verbal agreement over the phone, agreeing that the daughter and her husband Lau Chun Wai (second defendant) would assist the mother in negotiating to increase the compensation for the acquisition of a certain property. In return, the compensation would be divided equally between the daughter and her brother. The plaintiff claims that the oral agreement is legally binding, but the defendant argues that the internal family agreement lacks the intention to enter into a contract. The original court found that the agreement existed but was not legally binding, and the plaintiff appealed to the Hong Kong Court of Appeal.

判决要点：上诉法院推翻原审判决，认为需结合具体情境判断家庭关系中的合同意图。本案中，女儿与兄长存在长期竞争关系，且母亲对儿子有明显偏袒，若协议不具约束力，女儿的努力将仅使兄长受益，这与常理不符。客观证据显示双方存在明确的合同意图。法院强调，对价无需等价，只需具有法律上的价值。女儿协助谈判的行为构成有效对价，即使未直接支付金钱，仍符合合同法要求。此外，原告主张协议隐含“所有成功投资均需分成”，但法院指出隐含条款需满足“商业必要性”和“不言而喻性”。本案中，协议仅针对特定物业补偿款，无法扩展至其他投资项目。

Key points of the judgment: The appellate court overturned the original judgment and believed that the intention of the contract in the family relationship should be judged based on specific circumstances. In this case, there is a long-term competitive relationship between the daughter and her brother, and the mother has obvious favoritism towards her son. If the agreement is not binding, the daughter's efforts will only benefit her brother, which is contrary to common sense. Objective evidence shows that both parties have a clear contractual intention. The court emphasized that the consideration does not need to be equivalent, only has legal value. The daughter's act of assisting in negotiations constitutes effective consideration, and even if no direct payment is made, it still meets the requirements of contract law. In addition, the plaintiff claims that the agreement implies that "all successful investments must be shared", but the court points out that the implied terms must meet "commercial necessity" and "self-evident". In this case, the agreement only applies to specific property compensation payments and cannot be extended to other investment projects.

制度启示：一是家庭协议的审慎审查，香港法院对家庭内部协议持严格态度，但不绝对排除其法律效力。需结合亲属关系、利益分配等客观因素综合判断。二是对价的宽泛认定，合同法对对价的要求较低，非金钱形式的服务或承诺亦可构成有效对价，增强了交易灵活性。最后是隐含条款的边界，法院仅在必要时补充隐含条款，避免过度干预当事人意思自治，维护合同稳定性。

Institutional inspiration: Firstly, the prudent review of family agreements. Hong Kong courts hold a strict attitude towards internal family agreements, but do not absolutely exclude their legal validity. It is necessary to make a comprehensive judgment based on objective factors such as family relationships and distribution of interests. The second is the broad recognition of consideration: Contract law has lower requirements for consideration, and non monetary forms of services or commitments can also constitute effective consideration, enhancing transaction flexibility. Finally, there is the boundary of implicit clauses. The court only supplements implicit clauses when necessary to avoid excessive interference with the parties' autonomy of will and maintain contract stability.

判决书原文：

legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=129903&currpage=T（本文中的所有链接请用谷歌浏览器访问）

案情概述：原告自2002年起与深水埗区议会合办“香港电脑节”，被告于2010年举办“深水埗脑场电脑节”。原告指控被告名称构成假冒侵权，主张其活动名称已建立商誉，公众易产生混淆。

Summary of the case: The plaintiff has been co organizing the "Hong Kong Computer Festival" with the Sham Shui Po District Council since 2002, and the defendant held the "Sham Shui Po Brain Field Computer Festival" in 2010. The plaintiff alleges that the defendant's name constitutes counterfeit infringement and claims that its activity name has established goodwill, which can easily cause confusion among the public.

判决要点：法院认为“香港电脑节”名称缺乏显著性，原告未证明其已成为区别服务来源的标识。尽管活动多次举办，但名称本身为通用描述性词汇，难以构成专有权利。被告名称包含“脑场”（本地电脑城代称），与原告名称存在差异，且原告顾客主要为参展商户，普通公众混淆可能性较低。原告未证明因被告行为导致实际经济损失或商誉损害，不符合假冒侵权的“损害”要件。

Key points of the judgment: The court believes that the name "Hong Kong Computer Festival" lacks distinctiveness, and the plaintiff has not proven that it has become a symbol of distinguishing service sources. Although the event has been held multiple times, the name itself is a generic descriptive term that cannot constitute exclusive rights. The defendant's name includes "Brain Field" (a local computer city nickname), which differs from the plaintiff's name, and the plaintiff's customers are mainly exhibitors, so the possibility of confusion among the general public is low. The plaintiff has not proven that the defendant's actions resulted in actual economic losses or damage to reputation, which does not meet the "damage" requirements for counterfeiting infringement.

制度启示：香港普通法对“假冒”的认定要求原告证明其名称或标识已建立独特商誉，通用词汇或描述性名称难以获得保护。法院综合考虑名称相似度、目标客户群体、市场定位等因素，避免机械适用规则。侵权责任的成立需以实际损害为前提，原告需提供量化损失证据。

Institutional inspiration: The recognition of "counterfeiting" under Hong Kong common law requires the plaintiff to prove that their name or logo has established a unique reputation, and that generic or descriptive names are difficult to protect. The court takes into account factors such as name similarity, target customer group, and market positioning to avoid mechanically applying rules. The establishment of tort liability requires actual damage as a prerequisite, and the plaintiff needs to provide quantifiable evidence of loss.

判决书原文：legalref.judiciary.hk/lrs/common/search/search_result_detail_frame.jsp?DIS=73042&QS=%2B%7C%28HCA%2C621%2F2010%29&TP=JU

案情概述：原告美国技术公司因电邮诈骗，将两笔款项误汇入被告香港公司账户。原告起诉要求被告返还不当得利，并申请冻结账户资金。

Summary of the case: The plaintiff, a US technology company, mistakenly transferred two payments to the defendant's Hong Kong company account due to email fraud. The plaintiff sued the defendant for the return of unjust enrichment and applied for the freezing of account funds.

判决要点：关于不当得利的认定，香港高等法院依据普通法“恢复原状”原则，认定被告无法律依据收取款项，构成不当得利，应全额返还。原告在诉讼前申请冻结令，法院基于“紧急性”和“胜诉可能性”标准，批准临时冻结被告账户资金。案件涉及香港与美国法律适用及证据调取，法院通过《海牙取证公约》程序获取境外证据，确保程序合法性。

Key points of the judgment: Regarding the determination of unjust enrichment, the Hong Kong High Court, based on the common law principle of "restoration to the original state", found that the defendant had no legal basis to receive payment, which constituted unjust enrichment and should be fully refunded. The plaintiff applied for a freezing order before the lawsuit, and the court approved the temporary freezing of the defendant's account funds based on the criteria of "urgency" and "likelihood of winning the lawsuit". The case involves the application of laws in Hong Kong and the United States, as well as the retrieval of evidence. The court obtained foreign evidence through the Hague Convention on Evidence to ensure the legality of the procedure.

制度启示：香港侵权法对不当得利的认定较为灵活，无需证明被告主观过错，降低了原告举证难度。并且香港法院对冻结令的快速审批，为跨境资金追回提供了有力保障。此外，香港积极参与国际公约，为跨境侵权案件的证据获取和执行提供便利。

Institutional inspiration: The determination of unjust enrichment in Hong Kong's tort law is relatively flexible, without the need to prove the defendant's subjective fault, which reduces the difficulty for the plaintiff to provide evidence. And the rapid approval of freezing orders by Hong Kong courts provides strong protection for cross-border fund recovery. In addition, Hong Kong actively participates in international conventions to facilitate the acquisition and enforcement of evidence in cross-border infringement cases.

案情概述：双方于1996年结婚，2003年离婚，争议焦点为财产分配。区域法院裁定丈夫资产465万港元中，妻子分得三分之一（155 万港元）。妻子上诉至终审法院，主张适用“平等分享”原则。

Summary of the case: The two parties got married in 1996 and divorced in 2003, with a dispute over property distribution. The district court ruled that out of the husband's assets of HKD 4.65 million, the wife would receive one-third (HKD 1.55 million). The wife appealed to the final court, advocating the application of the principle of "equal sharing".

判决要点：终审法院推翻既往“合理需要”原则，引入英国“公平分配”标准，强调婚姻财产应平均分割，除非有充分理由偏离。此外，法院综合考虑双方经济贡献、家务劳动及子女抚养，认定双方贡献均等，支持妻子获得共同资产的50%。若财产来源与婚姻无关（如婚前继承），法院可酌情调整分配比例，但需明确说明理由。

Key points of the judgment: The final court overturned the previous principle of "reasonable necessity" and introduced the British standard of "fair distribution", emphasizing that marital property should be divided equally unless there are sufficient reasons to deviate. In addition, the court comprehensively considered the economic contributions, household chores, and child rearing of both parties and determined that their contributions were equal, supporting the wife in obtaining 50% of the common assets. If the source of property is unrelated to marriage (such as pre marital inheritance), the court may adjust the distribution ratio at its discretion, but the reasons must be clearly stated.

制度启示：香港夫妻财产分配原则的转变，体现对性别平等和家庭贡献的重视，与国际趋势接轨。法院不仅关注经济贡献，还将家务劳动、子女教育纳入评估，更全面保护非经济贡献方权益。终审法院要求法官在偏离平均分配时必须充分说理，避免权力滥用。

Institutional inspiration: The transformation of the principle of property distribution between spouses in Hong Kong reflects the emphasis on gender equality and family contributions, and is in line with international trends. The court not only focuses on economic contributions, but also includes household chores and children's education in the evaluation, more comprehensively protecting the rights and interests of non economic contributors. The final court requires judges to fully reason and avoid abuse of power when deviating from equal distribution.

判决书原文：

legalref.judiciary.hk/lrs/common/search/search_result_detail_frame.jsp?

DIS=76131&QS=%2B%7C%28FACV%2C16%2F2008%29&TP=JU

案情概述：宗庆后生前拟为三名子女设立信托，委托长女宗馥莉处理相关事宜。因信托设立争议，三名子女起诉要求冻结信托资金。香港高等法院批准冻结令，禁止处置汇丰银行账户内约18亿美元资产。

Summary of the case: Zong Qinghou planned to establish a trust for his three children before his death, entrusting his eldest daughter Zong Fuli to handle related matters. Due to a dispute over the establishment of a trust, three children filed a lawsuit requesting the freezing of trust funds. The Hong Kong High Court has approved a freezing order prohibiting the disposal of approximately $1.8 billion worth of assets in HSBC bank accounts.

判决要点：法院认为信托协议需明确委托人、受托人及受益人权利义务。本案中，信托文件未正式签署，设立程序未完成，资产仍属委托人遗产。鉴于资产可能转移，法院依据《高等法院规则》第22A 号命令，批准冻结令以保障未来判决执行。案件涉及内地与香港法律冲突，法院尊重内地主案判决，通过财产保全令确保两地程序协调。

Key points of the judgment: The court believes that the trust agreement needs to clarify the rights and obligations of the settlor, trustee, and beneficiary. In this case, the trust documents have not been formally signed, the establishment procedures have not been completed, and the assets still belong to the trustee's estate. Given the possibility of asset transfer, the court has approved a freezing order in accordance with Order 22A of the High Court Rules to safeguard the enforcement of future judgments. The case involves legal conflicts between mainland China and Hong Kong. The court respects the main judgment of the mainland and ensures procedural coordination between the two places through property preservation orders.

制度启示：香港法院对信托协议的形式和内容要求严格，跨境信托需符合两地法律规定。香港的冻结令可有效防止资产转移，为跨境争议解决争取时间。值得一提的是，香港法院在跨境案件中注重与内地司法机构的协作，避免裁判冲突。

Institutional inspiration: Hong Kong courts have strict requirements for the form and content of trust agreements, and cross-border trusts must comply with the laws and regulations of both regions. The freezing order in Hong Kong can effectively prevent asset transfer and buy time for cross-border dispute resolution. It is worth mentioning that Hong Kong courts pay attention to cooperation with mainland judicial institutions in cross-border cases to avoid judicial conflicts.

判决书原文：

legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=171062&currpage=T

案情概述：原告起诉被告拖欠2010年至2015年旧曲目版权费，被告向法院交存2500万美元作为潜在赔偿担保。版权审裁处裁定被告需支付费用后，原告申请将交存款项及利息转付己方。

Summary of the case: The plaintiff sues the defendant for owing copyright fees for old tracks from 2010 to 2015, and the defendant deposits $25 million with the court as potential compensation guarantee. After the Copyright Tribunal ruled that the defendant was required to pay fees, the plaintiff applied to transfer the deposit and interest to themselves.

判决要点：依据《高等法院规则》第22A号命令，法院有权命令当事人将款项交存法院，并在判决后直接支付给胜诉方。本案中，法院在诉讼初期即要求被告交存款项，防止其转移资产，体现“诉讼保全”制度的威慑作用。交存款项的利息按香港银行同业拆息（HIBOR）计算，归原告所有，保障胜诉方实际利益。

Key points of the judgment: According to Order 22A of the High Court Rules, the court has the power to order the parties to deposit funds with the court and pay them directly to the winning party after the judgment. In this case, the court required the defendant to deposit funds at the beginning of the litigation to prevent the transfer of assets, demonstrating the deterrent effect of the "litigation preservation" system. The interest on the deposited funds shall be calculated at the Hong Kong Interbank Offered Rate (HIBOR) and shall belong to the plaintiff, safeguarding the actual interests of the winning party.

制度启示：香港法院对大额诉讼可强制要求交存款项，确保判决执行，尤其适用于跨境纠纷。除冻结令外，款项交存为原告提供了更高效的风险防控手段。除此之外，利息计算标准明确，避免因诉讼拖延导致损失扩大。

Institutional inspiration: Hong Kong courts may mandate the deposit of funds in large litigation cases to ensure the enforcement of judgments, especially in cross-border disputes. In addition to the freezing order, the deposit of funds provides the plaintiff with a more efficient risk prevention and control measure. In addition, the interest calculation standards are clear to avoid the expansion of losses due to litigation delays.

判决书原文：

legalref.judiciary.hk/lrs/common/search/search_result_detail_frame.jsp?DIS=130590&QS=%24%28Hong%2CKong%2CKaraoke%2CLicensing%2CAlliance%2CLimited%29&TP=JU