However, as KMT moved to Taiwan after being defeated in the Chinese civil war, ); 王泰升，具有歷史思維的法學：結合台灣法律社會史與法律論證（). . is a legitimate government of China is a different issue from whether ROC is a.
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A party may not set up organizations in universities, the court, or the army. A political association may not accept donations from foreign associations, legal persons, individuals, or the associations or legal persons of which the majority of members are foreigners.
Law of Taiwan
The Ministry of the Interior shall set a Party Review Commission to review the punishment made on parties. The Party Review Commission shall be composed of just persons, and the number of commissioners who come from the same party may not exceed one half of the total number; the organization of the Commission shall be prescribed by the Ministry of the Interior. Chapter 10 Supervision and Punishment. After a civil association is approved and registered, the alteration of its constitution, curriculum vitae of the employed personnel or list of the principals shall be reported to the regulating authority for examination and reference within 30 days.
Where a civil association has not been established within six 6 months after the establishment is permitted, the permit shall be abolished. However, the term may be prolonged by up to three 3 months with the approval of the regulating authority. Where it is necessary to incorporate or divide civil associations due to adjustment of organizational area or other reasons, an application may be submitted to the regulating authority for approval of incorporation or division. Where it is necessary to modify the administrative organization area or name of a civil association, a meeting record letter may be submitted to the regulating authority for inspection.
The modified name of civil association should not be similar to that of a civil association already registered. Tenure of office for a civil association resolved in the forgoing paragraph will obtain the resolution of member meeting or member representative meeting. The regulating authority may encourage civil associations of excellent performance, and the regulations on such encouragement shall be prescribed by the central regulating authority.
Where a civil association violates a law or its constitution or encumbers public welfare, the regulating authority may warn it, cancel its resolution, or stop whole or a part of its business, and order it to improve within a specified time limit; in case improvement is not made within the time limit or in serious circumstances, the following punishments may be executed:. Recall of the personnel. Setting a time limit for correction. Abolishment of the permit. The punishment of warning, cancellation of resolution, and stoppage of business referred to in the above paragraph also may be executed by the regulating authority of a target business.
However, the punishment of cancellation of resolution or stoppage of business shall be executed based on negotiation with the regulating authority. Punishment of parties shall be limited to warning, setting time limit for correction, and disincorporation. To get a party disincorporated, the regulating authority shall transfer the case along with related evidence to the Constitutional Courtroom composed of Grand Justices of the Judicial Yuan for judgment.
The transfer referred to in the above paragraph may be performed only provided that not less than two-thirds of the present commissioners of the Party Review Commission think that the party has breached the Constitution. A civil association shall be disincorporated in any of the following occasions:. The permit is abolished by the regulating authority.
Corrections are not finished within the specified time limit. The provision of Subparagraph 4 of the above paragraph is not applicable to disincorporation of parties. Where the permit of a civil association is abolished by the regulating authority and a time limit is set for disincorporation but it is not disincorporated before the time limit expires, the provision of the above paragraph shall apply.
Where a civil association is established without applying for a permit or registration according to law and a time limit for disincorporation has been set by the regulating authority, but it is not disincorporated within the time limit and activities are still held in the name of the association despite the order of stoppage issued by the regulating authority, the principal plotter will be condemned to fixed-term imprisonment or penal servitude of up to two 2 years.
Where the permit of a civil association is abolished by the regulating authority and a time limit is set for disincorporation, but it is not disincorporated before the time limit expires and activities are still held in the name of the association, the principal plotter will be punished according to the provision of the above paragraph. The donation accepted by a person who commits the crime prescribed in the above paragraph shall be expropriated. In case the whole or a part of the donation cannot be expropriated, a sum equal to the price shall be replevied.
Where a sum fined under this Act is not paid within the time limit after a notice has been given, the case will be transferred to the court for coercive execution. Chapter 11 Supplementary Provisions. Regulations on election and recall of elected personnel, personnel management, and disposal of financial affairs of civil associations shall be prescribed by the central regulating authority. This Act shall become effective as of the date of promulgation. The articles of this law amended on 12th May of of the Republic of China take effect on 23rd November of Mission Statement About Minister.
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Article 2 Deleted Article 3 Regulating authorities as called in this Act, at the central and provincial level, refer to the Ministry of the Interior; at the municipal level, refer to municipal governments; and at the county city level, refer to county city governments. Article 4 Civil associations are divided into the following three categories: Article 5 The organizational area of a civil association shall refer to the corresponding administrative region and subordinate organizations may be established. Article 6 The site of a civil association shall be located where the regulating authority is located.
Article 7 Two or more civil associations of the same level and the same category may be organized within the same organization area unless otherwise limited by law. There must be no less than thirty 30 initiators, and a person who is over twenty 20 years old and, besides the situations prescribed below, may be an initiator as referred to in the above paragraph: Article 10 A civil association shall, within thirty 30 days after the establishment conference is held, report the constitution, a list of the members, and curriculum vitae of the personnel employed to the regulating authority for approval and accreditation, and the regulating authority shall grant an accreditation certificate and an official seal.
Article 11 After being approved and registered by the regulating authority, a civil association may register itself as a legal person at the governing local court, and shall submit a photocopy of the registration certificate to the regulating authority for reference within thirty 30 days after the registration is finished. Article 12 The constitution of a civil association shall include the following contents: Name Tenet Organizational area. Chapter 3 Members Article 13 A member representative of a civil association refers to a representative chosen by the member organization or elected by the subordinate associations or elected by way of geographical election according to the provision of Article 28; the rights of member representatives shall be executed in the same way as members.
Article 15 In any of the following occasions, a member of a civil association shall be disaffiliated: Article 16 All the members member representatives of a civil association have the right to vote, to elect, to be elected, and to recall. Chapter 4 Personnel Article 17 Each civil association shall set directors and supervisors, and they shall be elected from the members member representatives.
And the quota shall meet the following provisions: Article 19 The elected directors and supervisors of an upper level civil association are not limited to the representatives designated by lower level civil associations. Article 20 The tenure of the directors and supervisors of a civil association may not exceed four 4 years, and they may be reappointed only if they are elected again upon expiration of the tenure unless otherwise prescribed by law or otherwise limited in the constitution.
Article 21 The directors and supervisors of civil associations all are positions of no pay. Article 23 A director or supervisor of a civil association who meets any of the following conditions shall be relieved from the position immediately, and the vacancy shall be filled by the alternate directors or alternate supervisors in order: Article 24 A civil association may, according to the provision of its constitution, employ staff to handle the affairs and business of the association. However, the following matters may be resolved only with the consent of not less than two-thirds of the attendees: Different ideas, laws and culture were brought to Taiwan during different time periods.
This creates a mixture of legal cultures in Taiwan. Taiwan is a society of legal pluralism. Dutch, traditional Chinese, Japanese and American legal traditions all heavily influenced the development of Taiwan legal system. For example, the VOC first introduced a tax system to Taiwan [5] , which remained effective through Zheng period.
More specifically, it instituted a licensing system to license hunters to areas under Dutch control and collected taxes from farming to receive revenues. Since its primary purpose is to use Taiwan as a base to establish its monopoly of sea trade in East Asia, the Dutch did not intend to exercise much more control that is political or judicial than maintaining peaceful environment for economic and trade development. In terms of laws and regulation, Dutch laws generally applied. With specific Taiwan local matters, local ordinances applied. It set up three courts: A Dutch court, a Japanese court and a Chinese court.
With matters, dealing with Chinese or Japanese, Chinese or Japanese court and laws applied. With matters dealing with aborigines, tribe custom and laws governed. With matters involving Dutch people and serious matters including matters involving conflicts between ethnic groups, Dutch court and laws controlled. During the next 22 years, Zheng continued to encourage trade and agriculture development. On the other hand, he brought traditional Chinese laws and rules to Taiwan. It was essentially a penal code following traditional Confucian moral principles and enforcing harsh criminal punishments.
Importing Confucian teachings to Taiwan laid a solid foundation for the later integration of Taiwan to be part of China by the Qing government. The Zheng family surrendered control of Taiwan to the Qing government in , when the Qing government officially included Taiwan to be part of its territory.
Even today, some traditional principles are still highly respected and followed in certain areas of law. This law vested the legislative power on the local government of Taiwan, which can issue ordinances that will have same effect as Japanese law to be applied in Taiwan.
But in , following the colonial expansion theory, the Japanese diet took a swift turn and passed Law No. Meanwhile, Japan underwent its own modern legal reform, Meiji Law Reform. It passed the first modern constitution in , which models directly from German Constitution. In the next few years, it quickly established modern legal systems by passing five major codes: All these laws were heavily influenced by German and French civil laws.
As these laws started to apply in Taiwan, western conception of individual rights and freedoms were gradually exposed to Taiwanese as well. As Japan entered into the militarism era, all those modern laws were disrespected until the end of the World War II, when Japan turned Taiwan back to Chinese government in Meanwhile, Mainland China was experiencing modern legal reform as well. The government of the Republic of China enacted its first modern Constitution in recognizing basic human rights and liberties among other modern legal thoughts and passed a few major laws during the s and s as well.
However, as KMT moved to Taiwan after being defeated in the Chinese civil war, it did not apply all those modern laws until At the same time, American legal traditions have heavily influenced Taiwan legal development due to the closer relationship between the United States and Taiwan after WWII. For example, when Taiwan enacted its very first Domestic Violence Prevention Act in , it imported the idea of injunctive relief, a frequently used equitable remedy in the United States courts into the Act.
One of the heavily debated and most controversial issues in international law currently is whether Taiwan is an independent nation. Academia has tried to solve the question from several different angles.
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The elements of statehood are delineated under the Article 1 of the Montevideo Convention. A legitimate state under the International law shall have four characteristics: The last two elements are most controversial for Taiwan issues. Which government is the solely legitimate government of Taiwan: Both governments claim that they are the only legitimate government of China including Taiwan as part of the Chinese territory.
PRC government has been extremely firm on this issue. Both the mainland and Taiwan belong to one China…Taiwan is part of China. The state shall never allow the " Taiwan independence " secessionist forces to make Taiwan secede from China under any name or by any means. Although the DDP Democratic Progressive Party , another dominant political party of Taiwan, has attempted to claim that Taiwan is independent from China and ROC is the only legitimate government of Taiwan, it has never been successful.
Second, does the Republic of China have sufficient capacity to enter into relations with other states? On the one hand, scholars have argued that the ROC government does not have sufficient capacity to enter into relations with other states. For example, it has not been able to participate in any international organization that requires membership of a state and only very few countries recognize the ROC government. Furthermore, although most countries in the world do not enter formal diplomatic relations with Taiwan and do not recognize Taiwan as a separate nation from China, Taiwan has established economic ties and cultural exchange relations with most of the countries worldwide [12].
Moreover, although both governments of Taiwan and China claims that Taiwan is an in-separable part of China, some scholars argue that whether ROC is a legitimate government of China is a different issue from whether ROC is a legitimate government of Taiwan. The latter then leads to another issue: Looking back, although Chinese written records of Taiwan can be traced back to A. Japanese, after a brief occupation of Taiwan, returned Taiwan to the then government of China, Republic of China government, under the Cairo Declaration in Potsdam Declaration later strengthened the Cairo Declaration.
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However, we could only wish things were this simple. Another issue was brought up after the outbreak of the Korean War, that is: If it is not a self-executive treaty, then since there was no subsequent instrument to ratify the treaty or the statement, the Cairo Declaration shall not be deemed as valid [15].
For more detailed discussion on this issue, please read the following treatises and articles. The current Taiwanese constitution was adopted on December 25, and became effective on January 1, by the government of the Republic of China in Mainland China. However, the Constitution did not apply in Taiwan until , as Taiwan was under control by martial law, Temporary Provisions Effective during the Period of Mobilization for the Suppression of the Communist Rebellion. There have been quite a few revisions to the Constitution. The Constitution was last amended in by the seventh revision.
The Constitution specifically guarantees certain individual rights and freedoms and protects people from government infringements. President is the head of the State and exercises powers such as concluding treaties, declaring war and promulgating laws. Both President and Vice- President serve a term of 6 years up to two terms. In addition, Taiwan government is divided into five branches. Taiwan government is divided into five branches. Sun Yat-Sen coined the term: He combined the western idea of separation of powers among Executive, Judicial and Legislative branches with two of the three branches of traditional Chinese imperial governments: The Executive Yuan is the highest state administrative organ, headed by the Premier and the Vice Premier.
The Legislative Yuan , the highest legislative organ, exercises lawmaking powers among others. The Judicial Yuan is the highest judicial organ. It has three court systems: Ordinary Court dealing with ordinary civil and criminal matters, Administrative court dealing with administrative matters, and Constitutional Court, which has the power to interpret the Constitution and to unify the interpretation of laws and orders. In addition, it also established a specialty court: Examination Yuan , highest examination organ, is in charge of matters such as examination, employment, registration etc.
The Control Yuan is the highest control organ that has the powers of consent, impeachment, censure and auditing. Taiwan is a civil law jurisdiction. There are three types of primary sources of law: Judicial decision is generally considered a secondary source of law, except that the Council of Grand Justices has the power to interpret Constitution and its decisions are binding with the same legal effect as Constitution.
There are three major types of laws and regulations, according to the Central Regulations Standard Act of , the Constitution and its amendments are the Supreme Law of the land. A statute, may be named Act, is passed by the Legislative Yuan and enacted by the President. Code refers to a codification of Acts. On the third level are Regulations and Rules, which are issued by delegated government agencies. There are also rules applied to different government agencies internally: According to Article 4 of the Law, Ministry of Foreign Affairs is in charge of treaty negotiation and signing subject to exceptions.
Article 8 stipulates that after a treaty is signed, the competent authorities shall submit to the Legislative Yuan via Executive Yuan within 30 days for deliberations. Article 11 states that treaties, once ratified become effective at the time of presidential promulgation. Administrative authority is an organization representing the State, any local self-governing body or any other subject of administration with an independent legal status, in declaration of its intention and carrying on public affairs.
Laws and Regulations
An individual or entity commissioned to exercise public authority shall be deemed to be an administrative authority within the scope of commission Articles 1—2. All information held or kept in custody by an administrative authority shall in principle be made public but may be restricted in exceptional cases, and the disclosure of and restrictions on information shall, unless as herein prescribed, be separately provided by law Article The Civil Code [14] is the basic law for most private relations between persons.
It is divided into five parts:. The Civil Code states that if there is no applicable act for a civil case, the case shall be decided according to customs. If there is no such custom, the case shall be decided according to jurisprudence. The legal capacity of a person commences from the moment of live birth and terminates at death. Maturity is attained upon reaching the twentieth year of age, and a minor, who has not reached their seventh year of age, has no capacity to make juridical acts. A minor who is over seven years of age has limited capacity to make juridical acts.
A married minor has the capacity to make juridical acts. A juridical person is established only according to this code or any other acts. A juridical act which is against public policy or morals is void. The expression of intent of a person who has no capacity to make juridical acts is void. An expression is also void which is made by a person who, though not without capacity to make juridical acts, in a condition of unconsciousness or mental disorder. The making or receiving of an expression of intent of a person who is limited in capacity to make juridical acts must be approved by his guardian, except when the expression of intent relates to the pure acquisition of a legal advantage, or to the necessaries of life according to his age and status.
A unilateral act made by a person limited in capacity to make juridical acts without the approval of his guardian is void. A contract made by a person limited in capacity to make juridical acts without the approval of his guardian is valid upon the acknowledgement of the guardian. Before the acknowledgement of the contract made by a person who is limited in capacity to make juridical acts, the other party to the contract may withdraw it, except he knew that the approval of the guardian had not been given, when the contract was made.
An expression of intent which an agent makes in the name of the principal within the scope of his delegated power takes effect directly to the principal. If an expression of intent which is required to be made to the principal is made to his agent, the provision of the preceding paragraph shall be mutatis mutandis applied. An expression of intent inter presents becomes effective at the moment when the person to whom it is made understands it well. An expression of intent inter absents becomes effective at the moment when the notification of the expression reaches such other party, except when the withdrawal of the notification previously or simultaneously reaches such other party.
The fact that after the notification of the expression the expresser dies, or becomes unable to make juridical acts, or is limited in capacity to make juridical acts, shall not null the expression of intent. In the interpretation of an expression of intent, the real intention of the parties must be sought rather than the literal meaning of the words. A person who offers to make a contract shall be bound by his offer except at the time of offer he has excluded this obligation or except it may be presumed from the circumstances or from the nature of the affair that he did not intend to be bound.
Exposing goods for sale with their selling price shall be deemed to be an offer. However, the sending of pricelists is not deemed to be an offer. An offer ceases to be binding if it is refused. An offer made inter presentes ceases to be binding if it is not accepted at once.
An acceptance which arrives late, except under the circumstances in the preceding article, shall be deemed to be a new offer. An acceptance with amplifications, limitations or other alterations shall be deemed to be a refusal of the original offer and the making of a new offer. In cases where according to customs or owing to the nature of the affair, a notice of acceptance is not necessary, the contract shall be constituted when, within a reasonable time, there is a fact, which may be considered as an acceptance of the offer. If a notice of withdrawing an offer arrives after the arrival of the offer itself, though it should usually arrive before or simultaneously with the arrival of the offer within a reasonable time by its transmitting manner, and this might be known to the other party, the other party so notified should notify the offerer immediately of such delay.
When the parties have reciprocally declared their concordant intent, either expressly or impliedly, a contract shall be constituted. If the parties agree on all the essential elements of the contract but have expressed no intent as to the non-essential elements, the contract shall be presumed to be constituted. In the absence of an agreement on the above-mentioned non-essential elements, the court shall decide them according to the nature of the affair.
When one of the parties to a contract receives earnest money from the other, the contract is presumed to be constituted. The debtor shall be responsible for his acts, whether intentional or negligent. The extent of responsibility for one's negligence varies with the particular nature of the affair; but such responsibility shall be lessened, if the affair is not intended to procure interests to the debtor.
If there is change of circumstances which is not predictable then after the constitution of the contract, and if the performance of the original obligation arising therefrom will become obviously unfair, the party may apply to the court for increasing or reducing his payment, or altering the original obligation. If according to the nature of the contract or the expression of intent of the parties, the purpose of the contract can not be accomplished if not performed within the fixed period, and if one of the parties does not perform the contract within that period, the other party may rescind the contract without giving the notice specified in the preceding article.
Unless otherwise provided by the act or by the contract, a person who is bound to make compensation for an injury shall restore the injured party to the status quo before the injury. If the restoration of the status quo ante shall be paid in money, interest shall be added from the time of the injury. If a person has wrongfully damaged to the body, health, reputation, liberty, credit, privacy or chastity of another, or to another's personality in a severe way, the injured person may claim a reasonable compensation in money even if such injury is not a purely pecuniary loss.
If it was reputation that has been damaged, the injured person may also claim the taking of proper measures for the rehabilitation of his reputation. A person who, intentionally or negligently, has wrongfully damaged the rights of another is bound to compensate him for any injury arising therefrom. The same rule shall be applied when the injury is done intentionally in a manner against the rules of morals. A person, who violates a statutory provision enacted for the protection of others and therefore prejudice to others, is bound to compensate for the injury, except no negligence in his act can be proved.
If several persons have wrongfully damaged the rights of another jointly, they are jointly liable for the injury arising therefrom. The same rule shall be applied even if which one has actually caused the injury cannot be sure. Instigators and accomplices are deemed to be joint tortfeasors. An official, who has intentionally committed a breach of duty which he ought to exercise in favor of a third party and therefore prejudice to such third party, is liable for any injury arising therefrom. If the breach is the result of this official's negligence, he may be held liable to compensate only in so far as the injured person is unable to obtain compensation by other means.
In the case mentioned in the preceding sentence, if the injured person who may obviate the injury by making use of a legal remedy has intentionally or negligently omitted to make use of it, the official shall not be liable to compensate for the injury. A person of no capacity or limited in capacity to make juridical acts, who has wrongfully damaged the rights of another, shall be jointly liable with his guardian for any injury arising therefrom if he is capable of discernment at the time of committing such an act.
If he is incapable of discernment at the time of committing the act, his guardian alone shall be liable for such injury. In the case of the preceding sentence, the guardian is not liable if there is no negligence in his duty of supervision, or if the injury would have been occasioned notwithstanding the exercise of reasonable supervision. If compensation cannot be obtained according to the provisions of the preceding two sentences, the court may, on the application of the injured person, take the financial conditions among the tortfeasors, the guardian and the injured person into consideration, and order the tortfeasors or his guardian to compensate for a part or the whole of the injury.
The employer shall be jointly liable to make compensation for any injury which the employee has wrongfully caused to the rights of another in the performance of his duties. However, the employer is not liable for the injury if he has exercised reasonable care in the selection of the employee, and in the supervision of the performance of his duties, or if the injury would have been occasioned notwithstanding the exercise of such reasonable care.
If compensation cannot be obtained according to the provision of the preceding sentence, the court may, on the application of the injured person, take the financial conditions of the employer and the injured person into consideration, and order the employer to compensate for a part or the whole of the injury. The employer who has made compensation as specified in the preceding sentence may claim for reimbursement against the employee committed the wrongful act.
If injury is caused by an animal, the possessor is bound to compensate the injured person for any injury arising therefrom, unless reasonable care in keeping according to the species and nature of the animal has been exercised, or unless the injury would have been occasioned notwithstanding the exercise of such reasonable care. The possessor may claim for reimbursement against the third party, who has excited or provoked the animal, or against the possessor of another animal which has caused the excitement or provocation. The injury, which is caused by a building or other work on privately owned land, shall be compensated by the owner of such building or work, unless there is no defective construction or insufficient maintenance in such building or work, or the injury was not caused by the defectiveness or insufficiency, or the owner has exercised reasonable care to prevent such injury.
In the case of the preceding sentence, if there is another person who shall be responsible for the injury, the owner making compensation may make a claim for reimbursement against such person.
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The manufacturer is liable for the injury to another arising from the common use or consumption of his merchandise, unless there is no defectiveness in the production, manufacture, process, or design of the merchandise, or the injury is not caused by the defectiveness, or the manufacturer has exercised reasonable care to prevent the injury. The manufacturer mentioned in the preceding sentence is the person who produces, manufactures, or processes the merchandise. Those, who attach the merchandise with the service mark, or other characters, signs to the extent enough to show it was produced, manufactured, or processed by them, shall be deemed to be the manufacturer.
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If the production, manufacture, process, or design of the merchandise is inconsistent with the contents of its manual or advertisement, it is deemed to be defective. The importer shall be as liable for the injury as the manufacturer. If an automobile, motorcycle or other motor vehicles which need not to be driven on tracks in use has caused the injury to another, the driver shall be liable for the injury arising therefrom, unless he has exercised reasonable care to prevent the injury.
The person, who runs a particular business or does other work or activity, shall be liable for the injury to another if the nature of the work or activity, or the implement or manner used might damage to another. Except the injury was not caused by the work or activity, or by the implement or manner used, or he has exercised reasonable care to prevent the injury.
Unless otherwise provided by the act or by the contract, the compensation shall be limited to the injury actually suffered and the interests which have been lost. Interests which could have been normally expected are deemed to be the interests which have been lost, according to the ordinary course of things, the decided projects, equipment, or other particular circumstances.