MACAU SAR, CHINA Law and Practice Contributed by: João Nuno Riquito, Bruno Almeida and Daniel de Senna Fernandes, Riquito Advogados
1. General 1.1 General Characteristics of the Legal System The Macau Special Administrative Region (“Macau SAR”) legal system is governed by civil law. Its judi- cial system is composed of the courts and the public prosecutor’s office. The courts exercise full judicial authority, with the pub- lic prosecutor’s office as an independent judicial body whose main duties are to uphold the law, represent the Macau SAR (and other entities) in court, and conduct criminal investigations. Judicial System The Macau SAR’s judicial system is based on an adversarial model. A court, however, can order evidence to be produced that it deems relevant to the decision, but no court can take the initiative to resolve a dispute unless one of the parties requests it. The court may only con- sider the facts submitted to it by the parties (with the exception of those that are public and evident and those it becomes aware of while performing its duties and those that are relevant to determining whether the parties are acting with fraudulent intent). Throughout the proceedings, the adversarial principle must be observed, which ensures that no decisions can be taken until the relevant parties are called to provide their views and evidence. Each party will have the right to state their position in respect of any of the parties’ actions and evidence submitted to the court. There are, of course, exceptions to this principle, which are intended to ensure the effectiveness of the decision. An interim decision may be made in these situations and the party against whom the decision is taken will have the opportunity to submit its defence and evidence after the decision, which will then be reviewed by the court accordingly. The court operates in strict compliance with the prin- ciples of impartiality and objectivity, and its decisions are based solely on the laws. The parties should be treated equally. The particular procedure will depend on the type of action sought by each party.
Civil Proceedings The initial stage of the proceedings is based on writ- ten submissions. The court will review the parties’ submissions and documentary evidence and, if fur- ther evidence is required, the matter will be submit- ted to trial. The trial hearing is fundamentally of an oral nature, where witnesses, experts and the parties’ depositions are produced before the court. The court and the parties are admitted, with certain limitations, to interrogate and counter-interrogate the witnesses and seek further clarifications through the judge. Writ- ten statements can only exceptionally be admitted and final arguments on matters of fact are produced orally before the court. Closing legal arguments may be produced orally if the parties so agree, otherwise they are to be produced in writing before the final decision is issued. Each court decision should provide the reasoning that led to it, whilst observing a certain structure to ensure clarity and objectivity, thus allowing it to be reviewed by the parties and by superior courts in case of appeal. Criminal Proceedings Criminal proceedings also follow an adversarial prin- ciple but with a different structure. The investigation is conducted by the public prosecutor’s office, which is an independent judicial body. After the investiga- tion is completed, the public prosecutor’s office will determine whether an indictment is made based on the evidence collected and will submit the matter to trial. During the investigation, the proceeding is mainly inquisitorial. However, after the investigation is com- pleted, the defendant will have the ability to contradict and dispute any indictment made by the public pros- ecutor. For that purpose, the defendant may request that the indictment be reviewed by a pre-trial judge before the matter goes to trial, or simply submit its defence to the trial court. 1.2 Court System The Macau SAR has an independent judicial system, extending to final adjudication. The structure of the court system is regulated by Law No 9/1999, amend- ed by Law No 4/2019. There are three instances in the Macau SAR, hierarchically organised, which have jurisdiction over its entire territory:
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