All Issues

Disaster Politic, Law and Insurance in Climate Change Era: The Case of Taiwan

Chun-Yuan Lin (download)

As climate-related disasters become more frequent and catastrophic, the capacity of disaster management system is under challenges. Scholars have put efforts on reforming disaster law, yet the impact of politics on disaster management is understated. This article takes Taiwan as a case to study how the disaster management system evolves with the interrelationships between disasters, politics, and law. This article suggests that Confucianism in the past authoritarian times had developed a paternalist disaster politics, which continuingly affects current operation of the disaster management system. Under the influence of paternalist politics, the state takes a primary role in disaster management without a sustainable financial mechanism, which renders citizens passive and indifferent. To better respond to climate change, this article integrates climate change adaptation to disaster management and proposes climate insurance to better distribute disaster risk and enhance the resilience of Taiwan amid a changing climate.

Trusts and Choice of Law Rules in Taiwan

 Ying-Khai Liew (download)

Taiwan has recognised trusts in its general law for 25 years now. However, it does not contain specific choice of law rules applicable to trusts. This is a regrettable state of affairs in our increasingly globalised world, where incidences of cross-border trust disputes will only be on the rise. This paper argues that the lack of a dedicated set of choice of law rules relating to trusts causes much confusion and uncertainty, not only as to how Taiwanese courts would characterise a trust dispute and the inconsistent connecting factors that would apply, but also in relation to the scope of the applicable choice of law rules (whichever they may be) and the special difficulties raised by a breach of trust claim. All these difficulties derogate from a proper recognition of the trust as a distinctive legal device and fail properly to protect the autonomy and legitimate expectations of the parties. These problems can, however, be easily surmounted by adopting the Hague Trusts Convention.

Regulatory Options for Importation of Genome-Edited Foods in Taiwan

Pei-Kan Yang (download)

With rapid advancement in modern biotechnology, the agro-food industry has been engaged in producing foods derived from genome-editing technology to meet the growing demand for food security and nutrition worldwide. Unlike those traditionally recognized as safe, these “novel foods” bring regulatory challenges to the insurance of food safety and legal issues over consistency with existing framework of food safety governance. Despite the thriving cultivation of genome-edited crops worldwide, Taiwan’s Council of Agriculture (COA) adopted the policy that neither genetic modified nor edited crops are allowed to plant in the field. Therefore, the genome-edited food products in Taiwan, if any, will come most likely from abroad through importation, and the regulatory pressure will fall stressfully on Taiwan’s Food and Drug Administration (TFDA) rather than the COA. Against such background, this paper will examine possible legal challenges for importing genome-edited food products under current food laws, and explore policy options and considerations for regulation of genome-edited foods in Taiwan. This paper argues that Taiwan FDA could adopt a more cautious strategy toward imported genome-edited foods, in contrast to genome-edited crops as currently permitted for plantation in some countries. Moreover, a categorical case-by-case regulatory approach mixed with product-and-process based considerations can be adopted in tandem with early consultation in order to achieve a more balanced outcome in accommodating various policy objectives and multiple interests involved in the field of newly advanced genome-editing technology.

The Reluctant Acceptance of Same-Sex Unions and Parents in Israel

Zvi Triger (download)

Israeli marriage law is religious in nature, and makes no provision for civil marriages. It is thus remarkable that same-sex unions have been recognized, albeit to a limited extent, by Israeli courts, and that same-sex marriages performed abroad have been registered and recognized by Israeli authorities. This article explores the growing acceptance of both same-sex partners and parents in a country where personal law is based on religion. I argue that there are two main reasons for this acquiescence: (1) Israeli-Jewish culture places great emphasis on the family and on procreation, and has been characterized in the literature as pronatalist. Therefore, LGBTQ people who choose to live in long-term, monogamous relationships and have children are accepted, as they can be seen as living within Jewish culture and its familial orientation; (2) The so-called demographic problem, which is used to encourage Israeli Jews to have more children in order to continue to outnumber Israeli Palestinians, allows Jewish LGBTQ individuals to join this national effort, thus gaining legitimacy for their families. As the article shows, none of the rights that same-sex partners and parents have under Israeli law were voluntarily awarded by the legislature. All of these entitlements were recognized by Israeli courts only after lengthy and costly litigation, oftentimes against fierce resistance on the part of Israel’s Attorney General. Hence, while Jewish Israeli same-sex partners enjoy a relatively high degree of sociolegal recognition, it should nevertheless be considered a “reluctant acceptance.”

 

Debates on Same-Sex Parentage: Main Arguments in France

Anne-Marie Leroyer (download)

The debates on same-sex marriage have been heated in France. It is particularly interesting to note that arguments mobilizes were not legal. The question of marriage and adoption was not posed empirically, but ideologically. Many arguments from anthropology, religion and political philosophy were used to argue against the reform. The question that can be asked is why these arguments have had so such space in France?

Medically Assisted Procreation for Women Couples in French Law: Review of New Legislation

Maïté Saulier (download)

French law regulates medically assisted procreation (AMP) within the framework of a more general law, known as the “bioethics law”. The first bioethics laws date from 1994. This law has the particularity of being revisable. In July 2019, a bill was tabled to carry out the third revision. The health crisis, a busy legislative schedule but also political opposition led to a considerable delay in the adoption of this reform, which was finally adopted definitively on 29 June 2021.

The first draft opened the benefit of medically assisted procreation to couples and single women. This proposal was adopted by both parliamentary chambers (National Assembly and Senate) during the preparatory work. But in February 2021, against all expectations, the Senate had finally refused this opening, in a climate of total confusion. It was to be expected that in its final readingthe National Assembly would reverse its position by allowing unmarried women and couples to have recourse to medically assisted reproduction.

A “moment in history”, a “text which, above all else, places the will of men above the weight of destiny”, these are the terms used by the bearers of this project on 29 June 2021. This is obviously an incredible step forward. However, the modalities chosen to allow the establishment of filiation with regard to the female couple in the event of recourse to a sperm donor reveal valuable lessons. These modalities shows that the legislator is incapable of going beyond a traditional model of filiation, based on carnal procreation, to grasp the specifics of AMP. This article proposes, after a historical overview, to analyse the choices that the legislature is preparing to make in 2021 and the paradoxes that lie behind them.

 

Governing Through Corruption: The Symbolism of the Death Penalty for Chinese Corrupt Officials

Pu-Ma Shen (download)

In a 2011 debate, the Chinese government decided to maintain the death penalty for corruption while eliminating it for other more serious crimes. While the motivation behind use of the death penalty in regard to corruption has not been fully explored, it is crucial to explore the messages of the Chinese government. Although executions are expressed in legal terms following the rule of law, the death penalty itself is understood by the public through the state-controlled media, and it is noteworthy how the Chinese state media interprets legal terms in plain language to construct the meaning of the death penalty. In other words, how does fear of crime exist if China is “governing through corruption”? A content analysis of 328 corruption media reports shows that the revival of traditional values under State Confucianism reveals the rationale for condemning corrupt officials to death. Parallels between media reports and legal elements suggest that the immorality of these officials, as portrayed by the media, forms the foundation of legal arguments for the death penalty, therefore representing a step from immorality to illegality. This paper suggests that the cultural image of the new capitalist class reflects the ways in which old communist values provided a basis for denouncing white-collar criminals when capitalism entered China in 1978; further, it suggests that the government establishes a culture of control by utilizing symbolic rhetoric in an attempt to tackle corruption by governing through corruption.

Citizenship on Paper. On the Risk of Statelessness of Polish Children Raised in Same-Sex Unions Abroad

Dorota Pudzianowska & Piotr Korzec (download)

The paper discusses a new cause of statelessness of children that is currently emerging under Polish law. Statelessness in children can arise in situations where their foreign birth certificate is not tolerated by the legal system of ex-lege nationality iure sanguinis on the grounds of disclosing persons of same-sex as parents and the place of birth does not confer nationality iure soli. This cause of statelessness can be characterized as technical because it arises where citizenship law does not regulate proof of citizenship and mediates the acquisition of identity and travel documents through other procedures. The children of same-sex couples are thus citizens de iure--purely on paper--but not in any meaningful practical sense, effectively becoming stateless because they do not receive the treatment of nationals by the state of which they are citizens in this manner. This sort of statelessness can be just a temporary hurdle, but it may well be permanent or at least indefinite. The matter has been the subject of strategic litigation in Poland.

Accordingly, this paper discusses the administrative proceedings before consular sections and vital-records registers for identity and travel documents. It also provides an overview of the diverging decisions of administrative courts (following judicial review) concerning the transcription of birth certificates disclosing persons of the same sex as parents. Lastly, it deals with the recent resolution of an extended panel of the Supreme Administrative Court effectively forestalling all such litigation as irrelevant. The SAC held that access to formal citizenship (ID, passport, PESEL number) may be granted on the basis of such a foreign birth certificate; this, however, has led to its own wave of problems with administrative authorities. The paper concludes by highlighting the developments in the Council of Europe and European Union’s law as a potential cure against the palpable malaise of administrative authorities in respect to ‘offending’ birth certificates.

 

Same-Gender Parenting and the Best Interests of the Child: The European Perspective with the Example of Austria

Helmut Graupner (download)

Austria, like Taiwan, but unlike all the other European countries, opened up marriage to same-gender couples by way of a Constitutional Court‘s judgment. Different from Taiwan, Austria realized equality also in parenting (second-parent adoption, joint adoption, and automatic co-parenthood) with the Constitutional Court’s core argument of the best interests of each individual child. This article presents how Austria, once the first country in the world to repeal the death penalty for homosexual contact and later on one of the last to remove its criminal prosecution, paved the way to full family law equality for same-gender and opposite-gender couples, and elaborates how children’s rights turned out to be crucial in this process.

 

Transitional Equality in Transnational Context 

 Suzanne A. Kim (download)

The legalization of same-sex marriage in Taiwan in the past few years and emerging legal recognition for same-sex couples in Japan mark important expansions of family recognition in Asia. These developments provide an opportunity to consider the gap between formal and substantive equality in the rights of diverse families in Taiwan, Japan, and other jurisdictions. This essay examines these recent changes in family recognition in Taiwan and Japan alongside experiences of U.S. couples to generate new areas of inquiry into developing equality with full attention to a broad range of socio-legal experience.

This essay considers a framework of “transitional equality” I have discussed in the U.S. context to identify the process of families transitioning into new formal legal status categories. As I have described elsewhere, when a person or class of persons obtains a new status or gains previously denied rights, “the path itself from one legal status to another becomes critically important and may itself be impacted by race, gender, age, and other factors. The process of transitioning to a new status can be complex and burdensome in unexpected ways, and lack of attention to that process can impair persons’ inhabitation of their newly acquired legal rights.” This transitional space is one worthy of socio-legal attention in the effort to build fuller equality for diverse families. Taiwan and Japan introduce further opportunities to examine the role of marriage recognition in reflecting and constructing broader norms concerning national identity, race, ethnicity, gender, age, economic status, access to justice, and in the cultural contingency of societal inclusion and legal subjectivity.

 

The Status of Marriage 

Mary Anne Case (download)

Focusing chiefly on the efficiency advantages of marriage as a legal status that should be open to couples regardless of sex, rather than on the more familiar constitutional and human rights arguments for same-sex marriage recognition, this article applies the tools of law and economics to an analysis of the legal institution of marriage as it has developed over time and in the recent past in a variety of legal systems, including chiefly the United States and Taiwan, but also, inter alia, Hong Kong, Japan, France, and the Netherlands. While it urges an emphasis on the practical, the article acknowledges and discusses the importance symbolic aspects have played in the evolution of relationship recognition in the last several decades. It builds on the author’s earlier work analogizing the development of the law of marriage to that of business corporations and examining the ways in which feminist claims to liberty and equality in marriage have brought about legal change.

 

The Prevalence and Psycho-Social Risk Factors of Indiscriminate Murder: No Man Is an Island?

 Kevin Chien Chang Wu & Mau Sheng Lee & Yi Fang Lu & Yuan Zhen Yeh & Jun Kai Wang & Su Syan Jou (download)

 

The aims of this study are to clarify the definitional issues pertaining to indiscriminate murder and to analyze prevalence and risk factors of such crime. A specially designed questionnaire was distributed to a control group (n=98) who were over age 20 without any court conviction and recruited from internet advertisement and four offender groups (n=209) from nationwide prisons. The valid response rate was 91% for the offender group and 98% for the control group. The offender group was comprised of indiscriminate (5%), stranger (28%), domestic (30%) and acquaintance (37%) murderers. We estimated that the prevalence rate of indiscriminate murder is about 0.04 per100,000 residents in Taiwan. Other main findings are, first, compared with the control group, indiscriminate murderers had much lower empathy, failed to form intimate relationships and with high school dropout rates, there were no significant differences among the five groups on self-esteem, violent attitudes, cynicism, high risk family, psychiatry illness history, anger, depression, substance abuse, unemployment, juvenile/adult prior convictions. Second, among the four murderer subgroups there are no statistically significant differences in the rates of psychological factors such as self-esteem, violent attitudes, cynicism, high risk family factor and psychiatric illness history. However, the indiscriminate murder subgroup has significantly higher antisocial tendency than domestic murder subgroup, and higher loneliness and social alienation than stranger murder subgroup. Our analysis suggests that unlike mass media stereotypes, there is no significant association between indiscriminate murder and mental illness, substance use and prior conviction. The indiscriminate murder subgroup lacked capabilities to build up proper intimate, school and social relationships, and have been isolated psychologically and somehow turned their backs on the world. Nonetheless, to argue it the other way around, perhaps the situation is created by society’s making them socially invisible by leaving them out of social connections. These people finally link with society again only through indiscriminate murder. Limitations of this paper are described and suggestions for further research in terms of developing an evidence-based understanding of indiscriminate murder.

Global Trends in Legal Recognition of Same-Sex Couples: Cohabitation Rights, Registered Partnership, Marriage, and Joint Parenting

Robert Wintemute(download)

This article examines four global trends with regard to the legal recognition of same-sex couples: access to the rights of opposite-sex cohabiting couples, access to a registered partnership law as an alternative to marriage, access to marriage, and access to joint legal parenthood (through joint or second-parent adoption or after assisted reproduction). Developments since 2017 in Taiwan in relation to same-sex marriage and adoption by same-sex couples are then compared with these global trends. The article concludes that developments in Taiwan are entirely “normal”. Other countries have allowed same-sex couples to marry, while withholding access to joint adoption, or preventing non-citizens from marrying. Taiwan’s restrictions are likely to be temporary, as they have been in other countries. Full legal equality, with no exceptions, will eventually be achieved.

Sticking to the Past: Same-sex Union and Original Meaning in Hong Kong

Marco Wan (download)

This article builds on the author’s work on the uses of history by the Hong Kong law courts in the context of sexual minority rights, and focuses on the judicial turn to original meaning in the territory’s latest case on marriage equality: MK v. HKSAR. In that case, the Court of First Instance held that neither the government’s refusal to legalize same-sex marriage nor its failure to provide an alternative framework for the recognition of same-sex relationships was unconstitutional. In particular, the court reasoned that the meaning of “marriage” in Article 37 of the Basic Law, which guarantees the right to marry and to raise a family freely, should be determined in light of the understanding of the term when the constitutional document was promulgated. I argue that the court’s insistence on original meaning goes against the grain of the majority judgment in W v. Registrar of Marriages, which to date remains the only case on the right of marry from Hong Kong’s Court of Final Appeal. I further argue that despite the Court of First Instance’s reliance on lex specialis, there is significant precedential force for the introduction of both same-sex marriage and civil partnerships in Hong Kong.

Barring Married Same-Sex Couples from Joint Adoption: Comparative Perspectives and the Case of Taiwan

Holning Lau (download)

Taiwan is the first country in Asia to legalize same-sex marriage, but it forbids married same-sex couples from jointly adopting children. This article examines this restriction through the lens of comparative law, which brings into focus two main insights. First, we see that, out of all countries that have legalized same-sex marriage, Taiwan is one of only two that bar married same-sex couples from joint adoption. As this article will explain, the fact that Taiwan’s policy is so anomalous should spur skepticism of the policy’s appropriateness. Second, judicial opinions from around the world contain persuasive reasoning that further calls into question Taiwan’s treatment of married same-sex couples. This article explains that these findings, taken together, cast enormous doubt on the constitutionality of Taiwan’s exclusionary adoption policy.

Comparative Studies of Enforcement and Compensation of Securities Cases and Lessons for the Chinese Securities Law 2019

Mo-Qi Zi (download)

China just introduced its version of private securities class action rule in the Securities Law of the PRC 2019. It combines an opt-out rule with a public agency as the representative of plaintiffs’ groups, which intends to control frivolous litigation. This article argues that this rule is inefficient and proposes a new public-and-private-convergence enforcement model based on the following studies. Firstly, from the history of the regulation of securities market in the US, UK, and Australia, this article finds out that neither the private class action nor the public enforcement should be used alone as the primary enforcement method. Because a full-scale class action tends to over-deter and public enforcement tends to under-deter. Also, the compensation rate is low and the resolution time is long. Secondly, based on the experiences of private securities class action cases in the US, Australia, Japan, South Korea and Taiwan, this article finds out that it is hard to adjust the incentives of private securities class action to achieve balance. Moreover, since the optimal deterrence level is hard to ascertain, so without this benchmark we could not know what the right number of cases is, which makes the theory of using a full-scale US-style private securities class action to increase deterrence level questionable. Then, this article turns to examine ADR in the US and the Netherlands--Arbitration and Settlement to see if they can be alternatives to the private class action, but finds out they are not suitable to resolve cases on a large scale. Lastly, due to the above failures, this article proposed that a new enforcement style combining private enforcement with public enforcement should be built. To rebuild the enforcement model, we should reconsider our policy indicators, and turn to focus on increasing the compensation rate and decreasing enforcement costs rather than increasing the numbers of cases. Based on this policy choice, this article proposes a new enforcement style combining private enforcement with public enforcement from the experiences of different jurisdictions, including the UK, Australia, Denmark, where the resolution, especially the compensation regime is led by the securities regulator instead of the court.

 

Status of Same-Sex Marriage Legislation in Japan

-   Masahiro Sogabe (download)

This article provides an overview of the status of same-sex marriage legislation in Japan. While there are lawmakers in Japan who advocate for recognition of same-sex marriage through legislation, conservatives committed to the traditional family view predominate in the Diet. Article 24 of the Constitution is a provision on marriage, but because it states that “marriage shall be established solely on the basis of the consent of both sexes,” there are a few scholars who argue that the Constitution guarantees same-sex marriage, while there are few who argue that it prohibits it. The majority holds that the law can recognize same-sex marriage. There have been lawsuits filed seeking recognition of same-sex marriages, but it is unlikely that the Supreme Court, with its extreme judicial reluctance, would find them unconstitutional. On the other hand, public opinion’s understanding of same-sex marriage has gradually improved in recent years, and while the road is not easy, it will be interesting to see what happens in the future.

 

Minority Rights and Democratic Consensus:
The Irish Same-Sex Marriage Referendum

-  Oran Doyle (download)

29 countries in the world have introduced same-sex marriage. 22 have done so by legislation, four by judicial decision, two by a combination of judicial decision and legislation, and one by popular referendum. The Irish same-sex marriage referendum of 2015 has been criticised for putting minority rights to a popular vote. This criticism largely misunderstands the legal and social context of the Irish referendum, however. A necessary component of constitutional amendment, the referendum required campaigners to build a robust democratic consensus in favour of same-sex marriage, strongly entrenching minority rights. These benefits would likely not have arisen, however, if a referendum had been a choice on the part of political actors rather than a legal necessity. It is therefore unlikely that the Irish experience, whatever its merits, can be straightforwardly translated to other jurisdictions. Nevertheless, the Irish referendum campaign yields some lessons for other activist campaigns for same-sex marriage. In particular, the story-telling of gay people--and the responses of their fellow citizens--may have been more significant than the articulation of more public values, such as equality. 

 

First Comes Marriage, Then Comes Baby, Then Comes What Exactly?

- Erez Aloni (download)

Taiwan’s legalization of same-sex marriage is an event of international importance concerning the rights of LGBTQ+ individuals and partners; further, it constitutes an opportunity to examine the state of LGBTQ+ equality in Taiwan and elsewhere. To this end, through theoretical and comparative lenses, this Article asks
what equality for LGBTQ+ means and what comes after marriage. It offers perspectives on the past, present, and future of the intersection of same-sex marriage and equality. Looking at the path to same-sex marriage in Taiwan, the Article argues that the Taiwanese Constitutional Court’s ruling legalizing same-sex marriage maintained a line between domesticated liberty for LGBTQ+ people, on the one hand, and limits on that population’s liberty to form families, on the other. The law that implemented the ruling kept this tension; hence, it enfolds discrimination against LGBTQ+ individuals, especially in the area of family formation. But Taiwan is not exceptional in holding onto parentage discrimination after legalization of
same-sex marriage. The European perspective teaches that discrimination in parentage remains after legalization but disappears over time. Experience fromelsewhere also clarifies that the fight for equal parental rights can be difficult, andthat much opposition to LGBTQ+ equality is embedded in biases related toLGBTQ+ parenting and in racism.

Finally, moving to explore future paths to parity, the Article contends that, forvarious reasons including those indicated above, marriage cannot serve as the finalfrontier of LGBTQ+ equality. Substantive equality in Taiwan requires, at the least,the repeal of adultery as a grounds for divorce and for civil remedies. A broader view of equality and autonomy also warrants adopting a regime in which marriage is not the only mechanism to access rights and benefits that are linked to relationships of interdependency. Likewise, creating more options for legal recognition of relationships is imperative for individuals in diverse types of relationships, and for LGBTQ+ individuals in particular. Lastly, the Article suggests that discrimination that currently exists in the area of obligations toward parents-in-law has a liberating aspect.

The Taiwanese experience is a teaching moment for LGBTQ+ movements and scholars around the globe. It calls on other scholars to avoid generalizations in framing paths to liberty and equality by being sensitive to local differences, and to reconsider the place of marriage as the golden standard of LGBTQ+ equality.

 

Supervised Child Visitation for Non-Custodial Parent:
A Study of Court-Assisted-Visitationand Its Monitoring System in Taiwan

- Mogana Sunthari Subramaniam (download)

This article presents a study of supervised visitation services offered by Taipei, New Taipei City, Hsinchu and Kaohsiung districts in Taiwan. It is based on a review of practices and services offered by Visitation and Family Services Centers based at the courts operated by the city/county governments, NGO and private agencies. It is a qualitative research conducted by way of interviews with judges ordering supervised visitation and social workers handling supervised visitation meetings. This study found that the courts started encouraging supervised visitation in separation and divorce cases involving domestic violence and high levels of family conflict after the introduction of the Domestic Violence Prevention Law in 1998. The
best interests of the child principle enshrined in Article 1055-1 of the Taiwan Civil Code is the fundamental consideration for judges and social workers to determine if supervised visitation should be allowed, restricted or discontinued. Both legal and non-legal experts are working hand-in-hand to promote continued contact between the non-custodial parent and the children of high conflict, separated and divorced families.

 

Family Law in Taiwan: Historical Legacies and Current Issues 

-   Yun-Ru Chen & Sieh-Chuen Huang (Download)

This article provides a bird’s-eye view of Taiwan family law by highlighting its major historical transformations, special characteristics and current issues. It begins with a historical outline of the successive legal regimes which brought in multiple sources of Taiwan family law, namely the traditional Chinese legal system, the colonial Japanese law and the post-war KMT law. It then examines the transformations of laws on marriage, divorce, parent-children relationship, as well as significant issues, such as same-sex marriage, cross-border marriage, elderly support, and adult guardianship. Overall, the development of Taiwan family law could be seen as local development in the global context. This article offers a tentative analysis of the features which could be understood as the manifestations of global trends as well as their adaption or metamorphosis in specific cultural and local settings. In addition to legal developments, this article also highlights recent scholarly trends in the area of Taiwanese family law in order to provide a starting point for further research. 

 

Disaster Laws and Management Authorities in Taiwan (1945-2019)

-  Yung-Hua Kuo (Download

Disaster is a continuous process in that its mitigation, preparedness, response, and recovery all influence one another, and even the risk as well as the severity of the next disaster. To fully realize disaster management and its issues in Taiwan, this paper examines disaster laws and management authorities throughout the ROC rule beginning in 1945. According to this research, the history of disaster management in Taiwan can be divided into two periods. From 1945 to 1999, disaster effects were primarily handled by the executive power through local administrative regulations and presidential emergency decrees. These measures focused on response to an imminent disaster and recovery from damage already sustained, but they overlooked the important task of averting disasters. Since 2000 to the present, the legislature has actively passed and amended statutes to establish a national legal framework of disaster management and to address specific issues caused by major disasters. However, even after making legal reforms, fragmented authorities remain a problem for successful disaster management in Taiwan. This paper suggests that Taiwan needs an agency with sufficient power and resources to make long-term plans and coordinate intragovernmental efforts when facing disasters. In addition, it is important to increase the capacity of local governments to mitigate, prepare for, respond to, and recover from disasters. By incorporating local knowledge and  diverse opinions of the affected people, Taiwan may better reduce disaster risks and adapt to impacts according to specific social, cultural, and environmental contexts. 

 

The History of Administrative Law in Taiwan under the Japanese Rule Era (1895-1945): A Neglected Yet Valuable Piece of Legal History for Research

- Chien-Liang Lee  (Download)

The social and historical context should not be ignored in administrative legal studies because the gestation, generation, evolution, and transformation of the connotations of administrative laws are inevitably deeply influenced by the surrounding politics, economics, society, and culture. This is why research on the development and evolution of administration law plays a crucial role in administrative legal studies.
A review of Taiwanese administrative law textbooks shows that administrative legal history related articles are mainly focused on the development of administrative law in Continental European countries (especially Germany). Taiwanese administrative laws’ development is rarely addressed. If it was addressed, the article usually starts with the establishment of the Republic of China, ignoring the administrative law developments under the Japanese Rule Era in Taiwan. However, since the connotations of administrative laws are deeply influenced by the surrounding politics, economics, society, and culture, exploring Taiwanese administrative law during the period of Japanese rule is crucial in understanding the development of Taiwanese administrative law.
Taking the legal history view of “focusing on the law of the land”, this paper selects all the administrative laws that were previously implemented in Taiwan as research subjects. This paper will first provide an overview of the constitutional system under Japanese Rule Era in Taiwan. Next, it will explain and analyze the development and characteristics of administrative laws under Japanese Rule Era. Finally, this paper will provide a comprehensive observation of the development of modern Taiwanese administrative law while trying to draw historical lessons from the implementation situations of these laws, identifying the normative principles that are in line with the life experiences and legal emotions of Taiwanese people. Thispaper is expected to benefit the establishment of Taiwanese administrative legal history.

Family Law and Politics in the Oriental Empire: Colonial Governance and Its Discourses in Japan-Ruled Taiwan (1895-1945)

-   Yun-Ru Chen

This article challenges the common misconception that in Japan-colonized Taiwan, family law was considered marginal and secondary in the arena of legal reforms. Instead, through multi-faceted analysis of family laws, customs, and politics, the article argues that family law intertwined with politics in various ways. Examples are found in internal discussions among Japanese scholars, political advisors, officials, and jurists, on wide ranging topics from colonial policies and legal structures to, more specifically, whether Taiwanese family customs or Japanese family law should apply to Taiwanese. Moreover, family law served as an essential tool not only for cultural assimilation, but also on legal aspects such as the very definition of who were Japanese/Taiwanese. The importance of family law is also reflected in the fact that on one hand, family law was viewed as the last bastion for special colonial legislation, and on the other deemed a crucial step for racial integration by assimilationists. Moreover, the intertwining of family law and politics were not localized to substantial matter, but also rhetoric. The ambiguity of the Japanese colonialism being a “nation-empire” or “oriental colonialism” made it possible for Japanese to retain a fluidity in its rhetoric based on both similarity and difference at the same time. There were interconnections between rhetoric modes on “factual question” (such as “close vs. far” and “similar vs. different”) and normative decision (such as “assimilation vs. special rule” and “Japanese family law vs. Taiwanese customs”). Overall, the reason why Japanese colonial rule left Taiwanese family matters in the customary law regime for the entire colonial time was not that it was mere an afterthought. On the contrary, family law was too relevant to change.

 

John Rawls on Civil Disobedience: The Enbryo and Mature Development

-   Hung-Ju Chen

In A Theory of Justice John Rawls the famous political philosopher in the 20th century devotes almost 30 pages to civil disobedience and conscientious refusal. Rarely discussed is a short article published two years before A Theory of Justice named The Justification of Civil Disobedience. Comparing these two texts contributes to a comprehensive understanding of the evolution of Rawls’s theory. The differences or changes between the two texts have been out of sight and ignorance about the previous text hinders the main function of civil disobedience in Rawls’s theory, that is, the communicative function. The purpose of this article is to give those two texts a close reading, find how Rawls evolves his arguments, demonstrate the essential function of disobedience in Rawls’s theory, and explicate implications. Through reading those two texts we can understand how the principle of nonviolence becomes essential to civil disobedience and why Rawls relaxes some justificatory requirements to initiate disobedience but meanwhile he finds the potentiality of disobedience to de-stabilize the basic structure of society.

 

 

Follow the Money: The Buck Stops Where?: A Historical Analysis of Transparency and Campaign Finance Law in Taiwan (1935-2004)

-   Po-Liang Chen

The Taiwanese legislature enacted the Political Donation Act 2004 (PDA), adopting U.S. and Japanese campaign finance law models. Nonetheless, the legislative efforts seemed slight. This paper argues it is because the Taiwanese legislature of 2004 underestimated two main factors of the campaign finance market: the value of transparency and the pre-existing electoral clientelism. This paper adopts a historical institutionalism approach to analyze the evolution of electoral clientelism and its interaction with campaign finance law before the enactment of PDA in four eras: the Japanese colonial rule era (1935-1945), the transition from the Japanese colonial rule era to the ROC era (1945-1949), the authoritarian era (1949-1991), and the democratic era (1991-2004). From 1895, Japan established a colonial regime in Taiwan. The Government-General of Taiwan (GGT) held elections in 1935. In order to control the electoral outcome, the GGT enacted strict election laws and lenient campaign finance rules, and enforced them arbitrarily to form a coalition leaning to the GGT via exchange of interests. As a result, the GGT controlled the majority. The election of 1935 marks the beginning of elections in Taiwan, as well as the beginnings of electoral clientelism. After WWII, the Republic of China (ROC) began to rule Taiwan. In order to enhance its legitimacy, the ROC and its ruling party, KMT, suspended elections at the central government level but opened the local assembly elections under the SNTV. In the absence of effective campaign finance laws, the partisan enforcement granted the KMT an advantage over the opposition. As a result, the KMT established a mutual reliance alliance with local factions and controlled the majority in each level of local congress; and electoral clientelism took root in Taiwanese society. With the end of the temporary provisions, the ROC reopened elections at all levels in 1991. Given the rise of electoral competitiveness, the electoral clientelism rose. In response to the people’s outrage, the PDA, a milestone in campaign finance law, was ultimately enacted in 2004. Nonetheless, under the shadow of authoritarian rule and electoral clientelism, the scope of public disclosure was limited; and the effects of PDA have been slight. This study argues that openly recognizing the value of transparency and expanding the scope of financial disclosure could suppress electoral clientelism and lay the bedrock of a clean government.

 

文章下載

1.Family Law and Politics in the Oriental Empire: Colonial Governance and its Discourses in Japan-Ruled Taiwan (1895-1945)

2.John Rawls on Civil Disobedience-The Embryo and Mature Development

3.Follow the Money: The Buck Stops Where?: A Historical Analysis of Transparency and Campaign Finance Law in Taiwan (1935-2004)

The Paris Agreement and the Transformation of Global Climate Law: Taiwan’s Perspective

-           Chun-Yuan Lin & Jiunn-Rong Yeh

This article examines the process and result of the Paris Agreement with an attempt to explore its impact on the global climate change law. This article argues that, the Paris Agreement presents a new model for global climate change law. This article then examines recent development of climate change law in Taiwan, and argues that Taiwan should be better prepared for the coming global climate change legal order with three ways: deepening climate change policy, reconstructing organizational and procedural settings and seeking opportunities in the new legal order.

 

Joyous Buddha, Holy Father, and Dragon God Desiring Sex: A Case Study of Rape by Religious Fraud in Taiwan

-        Jianlin Chen

This Article critically examines the intriguing criminalization of religious fraudulent sex in Taiwan and makes three contributions. This Article explains how the new constitutional issue (i.e., proportionate restriction of religious practices) raised under this alternate approach may be overcome, and further highlights the normative advantages in terms of deterring criminals and informing victims.

 

Regulatory Competition and the World Bank’s Doing Business Reports: Taiwan’s Liberalization of the Minimum Capital Requirement for Incorporation as an Example

-          Chang-hsien TSAI

This article presents regulatory/jurisdictional competition as an analytical framework for convergence towards the liberalization of the MCR, especially in the case of Taiwan.  The Taiwanese case study demonstrates that such an IGO as the WB would take initiatives in acting as a public actor to diffuse its preferred legal model such as liberalization of red tape like the MCR across national borders, by promoting jurisdictional competition sparked by its DB indicators and rankings.

 

文章下載

1. The Paris Agreement and the Transformation of Global Climate Law: Taiwan’s Perspective  

2. Joyous Buddha, Holy Father, and Dragon God Desiring Sex: A Case Study of Rape by Religious Fraud in Taiwan

3. Regulatory Competition and the World Bank’s Doing Business Reports: Taiwan’s Liberalization of the Minimum Capital Requirement for Incorporation as an Example 

Utilizing External-Knowledge in Means-Ends Analysis: A Comparative Study on Taiwanese and U.S. Cases Regarding Interdisciplinary Approaches to Constitutional Reasoning

-            Wen-Yu Chia

In this article, Wen-Yu Chia focuses on some landmark human rights cases under two jurisdictions which are the U.S. Supreme Court and the Taiwanese Constitutional Court (TCC). The author tries to illustrate some common strengths as well as weaknesses of interdisciplinary approaches of MEA in constitutional reasoning by comparative research. Those strengths and weaknesses may address the essence of interdisciplinary approaches to (constitutional) law as a distinctive legal methodology.

 

Saying is One Thing; Doing is Another? Analyzing the Chinese Nonprofit Organization Model in Investor Protection through the Taiwanese Experience

-          Guan-Wei Chao

In this article, Guan Wei Chaoexamines whether the 2015 draft amendment could lead China into a hybrid securities enforcement mechanism as its stated purpose. In addition, this Article illustrates that the convergence of NPO models between Taiwan and China may not happen due to path-dependent factors, including political, economic, and cultural circumstance, specific to the Chinese NPO ecology. More importantly, the Chinese NPO model may also reveal China’s intention to use this NPO model as an excuse to eliminate the early emergence of the grassroots NPO’s participation in investor protection, and a guise to grant the government more control over private securities enforcement.

 

Rethinking the Nature and Legal Status of Illegal Structures in Taiwan: A Commentary on Taiwan High Court Judgment Case No. 102, Shang Zi, 1188

-          Chung-Jau Wu

In this articleChung-Jau Wu considers an illegal structure is by nature illegal under both civil and administrative law from the perspective of “uniformity and consistency for legal order” and “consistency of illegality”. The author elaborates the concept by commentting on Taiwan High Court Judgment Case No. 102, Shang Zi, 1188 and other court rulings. In conclusion, the author thinks we should not even consider affording illegal structures a complete and entire right in rem.

 下載附件

-Wen-Yu_Chia

-Guan-Wei_Chao

-Chung-Jau_Wu

Justice and Law in the Republic and Mencius

-          Chi-Shing Chen

In this article, Chi-Shing Chen presents a sketch and a comparison of two perspectives of justice. Chi-Shing Chen discuss Plato’s idea of justice in the Republic, and Mencius’ thinking on the same topic in MenciusChi-Shing Chen conclude the paper by summarizing key differences and how the two thoughts may be complementary to each other.

 

FinTech Innovation and Anti-Money Laundering Compliance

-          Yen-Te Wu

In this article, Yen-Te Wu analyzed the compliance of FinTech firms with anti-money laundering (AML) laws in the US. The rapid emergence and growth of the financial innovations industry--or FinTech as it is commonly referred to in the financial services sector--has caught many players in the global financial services industry unaware. This article analyzed the compliance of FinTech firms with anti-money laundering (AML) laws in the US. The results of the study suggest that two main laws govern issues related to the laundering of monetary instruments.

A Maker or an Infringer? 3D Printing Technology and Patent Infringing Liability: Taiwan Perspectives

-          Hao-Yun Chen

In this articleHao-Yun Chen focuses on patent infringement issues associated with 3D printing, and conducts an analysis on the potential conflict between protection of patent rights and non-commercial private use in the context of 3D printing technology. Part I explains the background of the issues. Part II explains the manufacturing process of 3D printing. Part III examines potential patent infringement liabilities in each step of the 3D printing process explained in the Part II, especially those related to digital manufacturing. Part IV discribes the rising of end-user infringement, and explores its impacts on patent law.

 

An Overlooked Case for Judicial Review: Striking a Dynamic Balance between Constitutionalism and Democracy

-          Wen-Cheng Chen & Min-Ta Chuang

In this article, Wen-Cheng Chen & Min-Ta Chuang analyzed Commentators disagree on the legitimacy of judicial review in a constitutional democracy. Many scholars who argue for (or against) judicial review have based their claims on democracy or democratic theory, while other scholars have founded their positive (or negative) arguments on constitutionalism or constitutional theory.

Functions of Directors’ and Officers’ (D&O) Liability Insurance and Litigation Risk: An Empirical Legal Study of Taiwan

-          Chun-Yuan Chen

In this article, Chun-Yuan Chen empirically analyzes the functions of directors’ and officers’ (D&O) liability insurance in corporate governance in Taiwan. He also reexamines the fundamental issue on the litigation risk of directors and officers, and argues and concludes that D&O insurance should not be compulsory and legally capped in Taiwan.

 

The Role of Governance in Bilateral and National Climate Change Financial Mechanisms

-          Wen-Chen Shih

In this article, for the design of national Climate Change Financial Mechanisms’ (CCFMs) governance structure, Wen-Chen Shih points out what lessons can be learned from applying these guiding principles, and whether these guiding principles are playing an equally important role in the governance of national CCFMs. Finally yet importantly, Shih clams that many national CCFMs rely partially on bilateral CCFMs. Therefore, in analyzing the role of governance in national CCFMs by shih, governance in bilateral CCFMs will also be examined for its implications on national CCFMs.

 

Towards Religious Institutionalism? The Future of the Regulation of Religious Institutions in Taiwan

-          Rung-Guang Lin

In this article, Rung-Guang Lin analyzes a newly emerging approach to the autonomy of religious institutions in Taiwan’s constitutional jurisprudence. In the ROC Constitution, this view is in contrast to an underlying assumption in the Court’s previous jurisprudence on freedom of religion, namely, that the norms and activities of religious groups are presumptively subject to the authority of state law.

 

The Legal Status of Pre-Contractual Liability: Contrasting Responses from German and English Law

-          Xiao-Yang Li

In this article, Xiao-Yang Li indicates that in devising the pre-contractual liability, the legislators of China confront a long-running controversy in Chinese Law- the legal status of pre-contractual liability. The comparative study of this thesis builds a picture of the contrasting responses provided by German and English Law to the questions faced by Chinese legislators. This article at the end offers a proposal to the codification of the Chinese Civil Code.

Public Participation as a General Principle in International Environmental Law: Its Current Status and Real Impact

- Jeroen van Bekhoven 

In Public Participation as a General Principle in International Environmental Law: Its Current Status and Real Impact, Jeroen van Bekhoven discusses the status of public participation in international environmental law, which he suggests as a general principle that accepted and embedded in the international legal framework, though eventually the State holds a high degree of control.


 

The Constitutionalization of Taiwanese Family Law

- Li-Ju Lee  

In The Constitutionalization of Taiwanese Family Law, Li-Ju Lee examines series of rulings by Taiwanese Constitution Court on family laws with respect to their contents, contexts and impacts. Li argues that the constitutionalization of family law opens up future possibilities to redefine the relationships among individuals, family and society.


 

European Pluralism on the Protection of Fundamental Rights: the European Convention on Human Rights vis-à-vis the EU Legal Order

- Barrett Ji-Zeng Fan   

In European Pluralism on the Protection of Fundamental Rights: the European Convention on Human Rights vis-à-vis the EU Legal Order, Jizeng Fan demonstrates the plurality of EU human rights protection mechanisms, in which the ECHR and EU Charter on Fundamental Rights interact with each other, by the interplay between the Strasbourg Court and the Luxembourg Court.


 

Taking Global Constitutionalism Seriously: A Framework for Discourse

- Wen Cheng Chen & Shirley Chi Chu

In Taking Global Constitutionalism Seriously: A Framework for Discourse, Wen Cheng Chen and Shirley Chi Chu present an extensive analysis on global constitutionalism, which may acts as a framework to unite constitutional order discourses, a and a mapping mindset for a Global Republic of Constitutionalism. Although no panacea is proposed by Chen and Chu in this article, they suggest interdisciplinary cooperation and dialogically discursive contestation may help capturing the essence of this topic, which is also a task for “We the Global Scholar.”

The Right to Counsel of in Custody Suspects in Taiwan

- Jong-Yi Chiou

U.S. Insider Trading Law Enforcement: Issues and Survey of SEC Actions from 2009 to 2013

- Chien-Chung Lin & Eric Hung 

Issue Preclusion Based on Foreign Patent Judgment and Prosecution History: A Comparative Study to U.S. Patent System

- Tsu-Sung Hsieh

The Challenges and Contemporary Issues of Taiwan’s Investor Protection System: A Model to Learn or to Avoid

- Andrew Jen-Guang Lin

 

Beyond Uncertainty Lower Courts’ Defiance in Insider Trading Cases in Taiwan / Ching-Ping Shao

An Analysis of Institutional Choices in Regulating Internet Spam / Chia-Li Shih

Reforming the Expert Evidence System in Taiwan Criminal Justice Lessons from the United States / Ming-Woei Chang

Inheritance Dispute Resolution in Paiwan Tribes / Grace Ying-Fang Tsai

Full Text

No.File nameDownload
1 Inheritance Dispute Resolution in Paiwan Tribes pdf button
2 Reforming the Expert Evidence System in Taiwan Criminal Justice: Lessons from the United States pdf button
3 An Analysis of Institutional Choices in Regulating Internet Spam pdf button
4 Beyond Uncertainty: Lower Courts’ Defiance in Insider Trading Cases in Taiwan pdf button

 

Lorenz von Stein and Chinese Constitutional Movement: A Reexamination of Legal History / Daw-Yih Jang & Kuo-Ching Hsu

Trust Law of China and Its Uncertainties: Examination of the Rights and Obligations of Trust and Ownership of Trust Property / Ruiqiao Zhang

East Asian Trusts at the Crossroads / Ying-Chieh Wu

New Technology, New Information Privacy: Social-Value-Oriented Information Privacy Theory / Chen-Hung Chang

Full Text

No.File nameDownload
1 New Technology, New Information Privacy: Social-Value-Oriented Information Privacy Theory pdf button
2 East Asian Trusts at the Crossroads pdf button
3 Trust Law of China and Its Uncertainties: Examination of the Rights and Obligations of Trust and Ownership of Trust Property pdf button
4 Lorenz von Stein and Chinese Constitutional Movement: A Reexamination of Legal History pdf button

 

“One Country, Two State Immunity Doctrines”: A Pluralistic Depiction of the Congo Case / Chien-Huei Wu

A Contemporary Challenge for Securities Fraud Litigation after the Morrison v. National Australia Bank Case Yen-Te Wu

Norwegian Penal Norms: Political Consensus, Public Knowledge, Suitable Sentiment and a Hierarchy of Otherness / Su-Syan Jou

Adaptation to Climate Change and Insurance Mechanism: A Feasible Proposal Based on a Catastrophe Insurance Model for Taiwan/ Hsin-Chun Wang

Full Text

No.File nameDownload
1 4_Article-Hsin-Chun Wang _317-343_全 pdf button
2 3_Article-Susyan_Jou _283-315_全 pdf button
3 2_Article-Yen-Te Wu _233-281_全 pdf button
4 1_Article-Chien-Huei Wu _197-232_全 pdf button

 

Establishing Certainty of Internet Service Provider Liability and Safe Harbor Regulation /Jerry Jie Hua

East-West Intellectual Property Enforcement Partnerships: Dream and Reality / Adam R. Tanielian

Majoritarian Judicial Review: The Case of Taiwan / Chien-Chih Lin

A Judicial Response to the Call of National Reconstruction: Revisiting the Supreme Court of Japan’s Adjudication of the Cabinet Order No. 325 / Yen-Lun Tseng

Full Text

No.File nameDownload
1 4-Article-Yen-Lun Tseng_161-196全 pdf button
2 3-Article-Chien-Chih-Lin_103-160全 pdf button
3 2-Article-Adam R. Tanielian_49-102全 pdf button
4 1-Article-Jie Hua_1-47全 pdf button

 

Marriage is more than just a piece of paper: Feminist Critiques of Same Sex Marriage / Susan B. Boyd

In Search of a Modern Confucius for Effective Teaching in Law: A Trial Project to Promote Interactive Learning in Taiwan Amy / Huey-Ling Shee

The Evolution of EU-ASEAN Relations: Legal Framework and Policy Change / Chien-Huei Wu

Confucian Constitutionalism in Imperial Vietnam / Bui Ngoc Son

Full Text

No.File nameDownload
1 4-Article-Bui Ngoc Son_373-435_vol.8全 pdf button
2 3-Article-Chien-Huei Wu_329-372_vol8全 pdf button
3 2-Article-Amy Huey-Ling Shee_299-327_vol.8全 pdf button
4 1-Article-Susan Boyd_263-298_vol.8全 pdf button

 

Horizontal Model for Regulatory Reform of Communications – The Layers Model, Reform in Malaysia and the UK, and Proposals for Taiwan / Yao-kuo Eric Chiang

Are Independent Directors Effective Monitors in Taiwan? ─A Theoretical Analysis / Cheng-Fong Chou

Illicit Supply and Demand: Child Sex Exploitation in South East Asia / Adam R. Tanielian

Crime Control in China’s Pre-trial System: A Political Ideology? / Enshen Li

Roundtables

Judicial Activism v. Strict Constructionism / Honourable Michael Kirby AC CMG

Japanese Supreme Court: An Introduction / Norikazu Kawagishi

Full Text

No.File nameDownload
1 6-Roundtable-Japanese supreme court-_231-261_全 pdf button
2 5-Roundtable-Justice kirby_205-230_全 pdf button
3 3-Articile-Adam R. Tanielian__97-140_全 pdf button
4 4-Articile-Enshen Li-_141-203_全 pdf button
5 2-Articile-Cheng-Fong Chou_49-95_全 pdf button
6 1-Articile-Yao-kuo Eric_1-48_全 pdf button

 

Is There a Need for Independent Labour Courts? / Peter Axel Windel & Tong-Shuan Yang

Law Clinics in Taiwan: Can Clinical Legal Education Succeed in this Civil Law Jurisdiction with an Undergraduate Legal Education System? / Serge A. Martinez

The Fourth Estate Under Siege: The Making of a Democratic Institution and Its Pressing Challenges / Ming-Li Wang

The Introduction of Modern Constitutionalism in East Asian Confucian Context: The Case of Vietnam in the Early Twentieth Century / Bui Ngoc Son

Roundtables

Torture: Perspective from UN Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment / Manfred Nowak

Constitutionalism and the Search for Legal and Political Legitimacy in the Asian States / Kevin YL Tan

Student Note

Discussions on Rights to Family: Analysis of the Lo-Sheng Case / Hui-ling Hung

Full Text

No.File nameDownload
1 7-Student_Notes-Hui-ling_Hung(p535-554)全 pdf button
2 6-Roundtable_2_kevin_tan(p503-534)全 pdf button
3 5-Roundtable-manfred_nowak(p465-501)全 pdf button
4 4-Article_Bui Ngoc Son(p423-463) 全 pdf button
5 3-Article-Ming-Li Wang(p385-422)全 pdf button
6 2-Article-Serge A Martinez(p343-384)全 pdf button
7 1-Article-Peter_Axel_Windel(p319-342)全 pdf button

 

第 1 頁,共 2 頁