Presentation subject comparative law topic taiwan

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4 Nguyễn Thị Diệu Anh 2053801011016 5 Nguyễn Kiều Phương Uyên 2053801011317

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I. History of state:

Taiwan, also known as the Republic of China, was born in 1912 in China. At that time, Taiwan was under Japanese rule under the Treaty of Shimonoseki of 1895, under which the Qing court (Qing) ceded Taiwan to Japan. The government of the Republic of China began exercising jurisdiction over Taiwan in 1945 after the surrender of Japan at the end of World War II. The government of the Republic of China moved to Taiwan in 1949 after a civil war with the Communist Party of China. Since then, the Republic of China has continued to exercise jurisdiction over the main island of Taiwan and a series of surrounding islets, leaving Taiwan and China each under the administration of a single government. different.

It is commonly believed that European sailors passing Taiwan record the island’s name as Ilha Formosa, or beautiful island.

Taiwan continues to experience visits by small numbers of Chinese merchants, fishermen and pirates.

<b>1624 – 1662 : Dutch Formosa</b>

The island of Taiwan, also commonly known as Formosa, was partly under colonial rule by the Dutch Republic from 1624 to 1662 and from 1664 to 1668. In the context of the Age of Discovery, the Dutch East India Company established its presence on Formosa to trade with the Ming Empire in neighbouring China and Tokugawa shogunate in Japan, and also to interdict Portuguese and Spanish trade and colonial activities in East Asia.

<b>1662 -1683: Kingdom of Tungning</b>

The Kingdom of Tungning, also known as Tywan by the British at the time, was a dynastic maritime state that ruled part of southwestern Taiwan and the Penghu islands between 1661 and 1683. It is the first predominantly ethnic Han state in Taiwanese history. At its zenith, the kingdom's maritime power dominated varying extents of coastal regions of southeastern China and controlled the major sea lanes across both China Seas, and its vast trade network stretched from Japan to Southeast Asia.

<b>1683-1895: Taiwan under Qing rule</b>

Taiwan under Qing rule refers to the rule of the Qing dynasty over the island of Taiwan from 1683 to 1895. The Qing dynasty sent an army led by general Shi Lang and defeated the Ming loyalist Kingdom of Tungning in 1683. Taiwan was formally annexed in April 1684.

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Taiwan was governed as Taiwan Prefecture of Fujian Province until the establishment of the Fujian–Taiwan Province in 1887. The Qing dynasty extended its control of Taiwan across the western coast of Taiwan, the western plains, and northeastern Taiwan over the 18th and 19th centuries.[2] The Qing government did not pursue an active colonization policy and restricted Han migration to Taiwan for the majority of its rule out of fear of rebellion and conflict with the Taiwanese indigenous peoples. Han migrants were barred from settling on indigenous land and markers were used to delineate the boundaries of settled areas and mountain dwelling aborigines. Despite Qing restrictions, settlers continued to enter Taiwan and push the

boundaries of indigenous territory, resulting in the expansion of Qing borders in Taiwan to encompass all of the western plains and northeastern Taiwan. The lack of state sponsored colonial

administration led to frequent rebellions by Han settlers in Taiwan. By the end of Qing rule in 1895, Taiwan's ethnic Han population had increased by over two million with some estimates at over three million, making them the majority demographic on the island. Taiwan was ceded to the Empire of Japan with the Treaty of Shimonoseki in April 1895, following the Qing dynasty's defeat in the First Sino-Japanese War.

<b>1895: Republic of Formosa</b>

The Republic of Formosa was a short-lived republic[1][2] that existed on the island of Taiwan in 1895 between the formal cession of Taiwan by the Qing dynasty of China to the Empire of Japan by the Treaty of Shimonoseki and its being taken over by Japanese troops. The Republic was proclaimed on 23 May 1895 and extinguished on 21 October, when the Republican capital Tainan was taken over by the Japanese. Though sometimes claimed as the first Asian republic to have been proclaimed, it was predated by the Lanfang Republic in Borneo, established in 1777, as well as by the Republic of Ezo in Japan, established in 1869.

<b>1869-1945: Taiwan under Japanese rule</b>

The island of Taiwan, together with the Penghu Islands, became a dependency of Japan in 1895, when the Qing dynasty ceded Fujian-Taiwan Province in the Treaty of Shimonoseki after the Japanese victory in the First Sino-Japanese War. The short-lived Republic of Formosa resistance movement was suppressed by Japanese troops and quickly defeated in the Capitulation of Tainan, ending organized resistance to Japanese occupation and inaugurating five decades of Japanese rule

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over Taiwan. The entity, historically known in English as Formosa, had an administrative capital located in Taihoku (Taipei) led by the Governor-General of Taiwan.

<b>1945-Now </b>

As a result of the surrender and occupation of Japan at the end of World War II, the islands of Taiwan and Penghu were placed under the governance of the Republic of China (ROC),[note 1] ruled by the Kuomintang (KMT), on 25 October 1945. Following the February 28 massacre in 1947, martial law was declared in 1949 by the Governor of Taiwan Province, Chen Cheng, and the ROC Ministry of National Defense. Following the end of the Chinese Civil War in 1949, the ROC government retreated from the mainland as the Chinese Communist Party (CCP) proclaimed the establishment of the People's Republic of China. The KMT retreated to Taiwan and declared Taipei the temporary capital of the ROC. For many years, the ROC and PRC each continued to claim in the diplomatic arena to be the sole legitimate government of "China". In 1971, the United Nations expelled the ROC and replaced it with the PRC.

In 1987, martial law was lifted and Taiwan began a democratisation process, beginning with the abolition of the Temporary Provisions and culminating with the first direct president election in 1996. By 2000, the Democratic Progressive Party (DPP) came to power and began to pursue Taiwanese independence and identity but efforts to do so are blocked by the PRC.

Due to Taiwan's ambiguous political status, the ROC has participated in a number of international organizations under the name "Chinese Taipei". Due to the One-China policy of the PRC government the PRC holds that the ROC ceased to exist and that Taiwan is an inseparable part of the PRC; the PRC refuses diplomatic relations with any country that recognizes the ROC. However, the ROC still controls Taiwan, Penghu, Quemoy, Lienchiang, and other minor islands.

II. History of law:

1. Aboriginal Law (pre-1624)

One origin of law of Aboriginal peoples came from a concept of chongzu 崇祖, or ancestral worship. Ancestral spirits were believed to exist forever and co-exist among the living. It was thought that if you violate customs or taboo, this would possibly result in some sort of catastrophe and would require subsequent prayer to the ancestors to avoid such a catastrophe from happening again. Breaking the law was

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thought to have the result of multiple levels of trouble for you or your family. Criminal Law at this time took on the philosophy of “an eye for an eye”. Another important aspect was the concept that traditional customs, no matter what the content, were accepted as normal. Most laws and customs were passed by word of mouth. Tribes had a chief that was elected or chosen by bloodline. He was considered the local leader and representative to foreign tribes. Penalties for unlawful acts were separated into non-property related penalties (ex. bodily harm) and property related penalties. Non-property related crimes would result in corporal punishment such as caning. Property related crimes would result in compensation. The leader of the tribe was arbitrator to disputes.

2. Dutch Rule (1624-1662)

From 1624 to 1662 the Dutch ruled Taiwan under the auspices of the United East Indian Company (Vereenigde Oost-Indische Compagnie or VOC in Dutch). The VOC was a trading company established in 1602 with the authority of the States-General of the Netherlands to carry out colonial activities in Asia. The Governor during this time was the head of government and was empowered to legislate, collect taxes, wage war and declare peace on behalf of the VOC and, by extension, the Dutch state. Because the VOC was given diplomatic, administrative, judicial, and other functions of sovereignty, the Dutch legally exercised control over Taiwan. During their rule, the Dutch made serious efforts in the development of Taiwan. They established laws concerning aspects of life such as the levying of import and export tariffs, the sale of lands, the construction of houses, the organization of markets, the production of alcohol and sugar, gambling, and the granting of permission to enter and live in aboriginal settlements. The Dutch claimed they governed the whole island and created an administration and infrastructure that facilitated mostly commerce. They introduced land management and cultivation schemes as well as zoning and required a 10 percent tax on all production within their zones. They issued hunting licenses and taxed the subsequent catch. They also required a tax for certain staples. The Dutch established a Court of Justice in the southern town of Tainan. The Dutch colonists maintained a concept of legal dualism. If the case involved Europeans, then Dutch law would take effect. If the case involved aboriginals, aboriginal law would take effect. If the case involved Han, then the customs of the Han people would take effect.

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3. Koxinga (1662-1683)

The Kingdom of Tungning 東寧 was argued to be the first Han Chinese government to rule Taiwan. The government at the time had a Chinese legal system, a court, scholars, and advisors. The government of this time was similar to a Ming Dynasty government. Taiwan society during this time absorbed the legal and political system of imperial China along with the Confucian educational and philosophy systems. Traditionally, power was in the hands of the father or grandfather with regards to disciplinary matters, marriage and property. There was also a strict division between government officials and citizens, between elders and the young, between husbands and wives, and between masters and servants, etc. During this military occupation of Taiwan, the Aboriginals were still able to use their own law.

4. Qing Dynasty (1683-1895)

From 1683 to 1895, Taiwan was loosely ruled by the Qing administration. The Great Qing Legal Code or Qing Code (大清律例 ), local customs and unofficial sources of law in imperial China were the source of law in Taiwan during this time. The first governor of Taiwan (1884–91) Mr. Liu Ming Chuan made important reforms and improvements to the infrastructure of Taiwan. He set forth important tax and fiscal reforms and provided competent rule. In 1867, Taiwanese aboriginals killed a crew of shipwrecked Americans. Beijing responded by saying that aboriginal lands were not under the jurisdiction of China. In addition, popular uprisings were common. Some scholars estimate there were as many as eighty-five uprisings during the Qing rule. Dispute resolution in Taiwan at this time was similar to the Chinese legal tradition with unofficial resolution preferable to official court adjudication. The Chinese administration was largely ineffective in settling disputes and corrupt officials usually found in favour of whoever bribed them most successfully. Conciliation was presided over by relatives or local notables, and only after conciliation failed would a magistrate hear the dispute, so locals were largely governing their own affairs.

5. Japanese rule (1895-1945)

Qing China was defeated in the First Sino-Japanese War (1894–95) and Japan took over control of Taiwan and the Penghu islands. The Government-General of Taiwan was created by an imperial ordinance known as the Organic Regulations of the Government-General of Formosa (ORGG). This ordinance gave the Governor-General of Taiwan the rank similar to a Premier or Chief Justice of the Supreme Court in

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Tokyo.Among their powers were the power to control general political affairs, the power to command the military and naval forces, and the power to handle judicial affairs. In March 1896 the Imperial Diet (Japan’s legislature 帝國議会 Teikoku-gikai, currently the National Diet of Japan 国会 Kokkai) enacted the Law Relating to Laws and Ordinances to Be Enforced in Taiwan (Title 63, or Law 63). This law gave the Governor-General the power to issue ordinances (ritsurei) that have the same effect as Japanese law. Title 63 was extended every three years (article 6) until 1906 when it came under pressure from the public about its constitutionality. The law was often attacked in the Diet as illegal because it gave the Government General law-making power, not the Diet. As a result, in 1906, Title 63 was revised under Title 31, which restricted the powers of the Governor-General. These changes had little real effect and were revised further in 1921 under Title 3. Under Title 3, the power to issue ritsurei was restricted by the exception principle in Article 1. In theory, the effective law in Taiwan would increasingly be covered by Japanese Law. Sources of law during this time for Patent Law, Copyright Law, Trademark Law, Criminal Procedure, Civil Code, Commercial Laws, Civil Procedure, and Maritime Laws were from Japanese Law. Organic Regulations of Law Courts and Criminal Law were governed by ritsurei. This time period also marked a steady incorporation of western law into Taiwanese law

6. Republic of China (1945-present)

<b>The Transition of the Legal Systems, 1945-49</b>

The ROC legal system took effect in Taiwan on 25 October 1945 after most Japanese laws were repealed on 25 October 1946

<b>Martial Law State, 1949-87</b>

The KMT-headed ROC central government moved to Taiwan in December 1949 followed by a large number of Chinese immigrants who eventually accounted for about 13 percent of Taiwan’s entire population. Taiwan and China have had distinct legal systems, but after this migration these distinctions have become even more pronounced. The “Statute for Agriculture, Mining, Industry and Commerce During the Extraordinary Period” (1938) and the "Temporary Provisions Effective During the Period of General National Mobilization for the Suppression of Communist Rebellion" (1942) gave authorities the power to control resources, as well as establish political control over freedom of news, speech, press, communication, assembly and association during wartime.

<b>Democratization of Law, 1987-present</b>

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The government terminated Martial Law in 1987 and the Period of National Mobilization officially came to an end on 1 May 1991. With various constraints of the constitution lifted, legal reforms proceeded rapidly, along with the continued incorporation of western legal concepts being integrated into ROC Law.

III. Sources of law:

1. Laws and regulations

There are three major types of laws and regulations, according to the Central Regulations Standard Act of 2004; the Constitution and its amendments are the Supreme Law of the land. The legislation, which may be named "code", "act, is passed by the Legislative Yuan and published by the President are the most important sources of laws. 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: Directions.

1.1 The Constitution and Human Rights

The ROC Constitution was adopted on 25 December 1946, by the National Assembly convened in Nanjing. It was promulgated by the National Government on 1 January 1947, and put into effect on December 25 of the same year. In addition to the preamble, the Constitution comprises 175 articles in 14 chapters. In essence the Constitution embodies the ideal of "sovereignty of the people," guarantees human rights and freedoms, provides for a central government with five branches and a local self-government system, ensures a balanced division of powers between the central and local governments, and stipulates fundamental national policies

1.2 Legislation

Currently, there are five major laws in addition to the Constitution in Taiwan.

The Civil Code is divided into five parts and covers most civil and commercial matters dealing with relations among private parties, such as contract, torts, property, succession and family law. The Taiwan Civil Code was first enacted on May 23, 1929 and has been amended a few times. The most recent amendment was enacted on January 20, 2021.

The Criminal Code - enforcement of the Criminal Code of the Republic of China was first promulgated in Taiwan on April 1, 1935 and was most

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recently amended on May 4, 2022. It has been amended 14 times since 1935.

Code of Civil Procedure was first promulgated on February 1, 1935 and amended on November 28, 2018.

Code of Criminal Procedure was first promulgated on July 28, 1928 and has been amended 45 times since then. The most recent amendment occurred on January 15, 2020.

Since 1994, Taiwan legislature passed a series of laws governing administrative matters including the Administrative Procedure Act, first promulgated on February 3, 1999 and most recently amended in January 2002.

1.3. Regulations

Because of the intensive development speed of the society and advancement in technology, the legislation of Taiwan in specific and the world in general cannot regulate every aspect of our lives respectively. Therefore, while legislation regulates society in a broader and more general aspect, regulations enforce the law more specific and detailed. The world is constantly developing while time and knowledge of the administrative body are limited, legislators cannot always predict how a legal regulation is conducted in reality, thus the law is continuingly being amended.

According to paragraph 2 of Article 150 of the Administrative Procedure Law, the regulations shall in their contents explicitly list the legislative basis and shall not exceed the scope of legislative delegation of power and the legislative purpose. Moreover, legal requirement controlling regulations is provided in Article 7 of the Standard Law on Enacting National Statutes and Regulations, which requires those rules issued in accordance with prescribed authority or authorized by statutes to be sent to the Legislative Yuan. If the Legislative Yuan finds that the proposed rule opposes, changes, or contradicts the enabling statutes or other statutes, or that the subject should itself have been regulated by statute, it may, after resolution, instruct the responsible agency to make the necessary amendment or even to abrogate the rule. However, if the regulations contradict Taiwan's Constitution and statutes, the judges may exclude them and not apply these rules.

2. Customary

According to Chapter 1 of the Civil Code of Taiwan, customs are considered primary sources of law in civil matters if all four conditions are met.

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(1) It must be with respect to a matter not specifically prescribed by legislation;

(2) The 'custom' must have been practiced time and again and continuously by a large proportion of people in the society over an extended period of time;

(3) People must have considered such custom as being a norm in nature and willing to be bound by it; and

(4) It may not be contrary to public order and good morals. Note that: - Customs do change over the years.

- Customary practices recognized in certain time periods may not be recognized in other time periods.

- In circumstances, a law is passed to govern the same matter, then customs will not be considered as a source of law.

- Custom shall not conflict with principles of public order and good morals

3. Jurisprudence

Underlying legal principles or the general principles of law refer to the objective legal reasons generally considered the basis for interpreting or applying laws. In civil cases, it is clear that the underlying legal principles are a source of law. According to Chapter 1 of the Civil Code, if neither laws nor customs apply on a certain subject area, then jurisprudence applies.

4. Previous judicial decisions and precedents

To interpret clearly, the only source in making legal decisions should only be based on laws passed by the Legislative Yuan and published by the President, and previous decisions of the same court or of higher courts do not have a binding effect on future cases.

However, in reality, despite being not binding, decisions of the Supreme Court still have a predominant role over the court's judgements 18 and enjoy strong de facto binding effects on future cases.

In actuality, not all rulings of the Supreme Court are regarded as precedents. The Supreme Court has a screening procedure whereby its rulings are periodically examined to see which ones can be used as precedent. A decision has unique legal significance for subsequent cases once it is chosen as a precedent. The Supreme Court believes that breaking precedents constitutes breaking a law or regulation.

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