The Catholic University of America

The Legal System of Taiwan

INTRODUCTION

Taiwan is a civil law country. The emphasis of the legal system is placed on statutes rather than case law. When trying to make a decision, the Courts look to what the Constitution states first and then to codes, statutes, and ordinances.

BACKGROUND

Geography

Taiwan is located in the Western Pacific approximately 100 miles off the southeastern coast of China and north of the Philippines. The island is bordered by the East China Sea, the Philippine Sea, the South China Sea, and the Taiwan Strait. It has a total area of 14,400 square milres which is slightly smaller than the states of Maryland and Delaware combined. Two thirds of the island is covered with mountains. The Jade Mountain (Yu Shan) is the island's tallest peak, which measures 12,966 feet above sea level. The capital of Taiwan is its largest city, Taipei, which literally means "north of Taiwan". It is the center of all the political, commercial, and cultural activity on the island.

History

The Chinese began migrating to Taiwan as early as A.D. 500. The island was claimed as a base for trade with China and Japan by Dutch traders in 1624. Taiwan was ruled by China's Manchu dynasty from 1683-1895 until China was forced to cede Taiwan to Japan after a military defeat in 1895. China managed to regain control of the island after WWII. In 1949, a civil war in mainland China ended after the Communist victory over the Nationalist forces. Chiang Kai-Shek, the leader of the Nationalist party, and 2 million of his followers fled to Taiwan and established a government proclaiming Taipei the provisional capital of Nationalist China. Over the course of the past 54 years, the island has prospered and become democratized. The People's Republic of China officially replaced Taiwan in the United Nations in 1971. In 1993 the first official talks regarding reunification were held where both countries signed a historic accord committing them to continued dialog. The question of the eventual reunification between Taiwan and Mainland China is still the dominant political issue.

The People

The population of Taiwan is approximately more than 22 million people. Only about an estimated 390,000 originated from Mainland China. Taiwan has the second highest population density in the world next to Bangladesh with 609 per square kilometer. The official language of Taiwan is Mandarin Chinese, which is used in government, education, and the media. However, there are also various dialects of Chinese, a Fujian dialect, and a dialect known as "Hakka" which are used. Religious practices of the Taiwanese combine Buddhist and Taoist beliefs with the Confucian ethical code.population density in the world next to Bangladesh with 609 per square kilometer. The official language of Taiwan is Mandarin Chinese, which is used in government, education, and the media. However, there are also various dialects of Chinese, a Fujian dialect, and a dialect known as "Hakka" which are used. Religious practices of the Taiwanese combine Buddhist and Taoist beliefs with the Confucian ethical code.

GOVERNMENT and POLITICAL STRUCTURE

Taiwan is a multiparty democratic regime headed by a popularly elected president and a unicmeral legislature. The Republic of China's (ROC's) Constitution is based on Dr. Sun Yat-sen's Three Principles of the people:

  • Nationalism
  • Democracy, and
  • Social Well-being

On January 1, 1947 the Constitution was promulgated and it was put into effect on December 25 of the same year. The National Assembly has amended it three times- in 1992, 1994, and 1997. Some of the major amendments include such measures as the president shall be elected by direct popular vote for a four-year instead of a six year term. On March 23, 1996, the first direct popular election of the president was held.

The central government in Taiwan is divided into five branches, which are known as "Yuan" meaning house. There is one for executive, legislative, judicial, impeachment, and examination affairs.

Executive Branch

The current head of state for Taiwan is President Chen Shui-bian who took office on May 20, 2000. He serves as the President of the Executive Yuan. The executive branch is made up of the Executive Yuan which is headed by the premier and the president. The premier is appointed by the president of the Republic. The heads of various ministries and commissions under the Executive Yuan make up the ROC Cabinet. Under the Executive Yuan, there are three levels of subordinate organization: the Executive Yuan Council; the eight ministries (interior, foreign affairs, national defense, finance, education, justice, economic affairs, and transportation and communications), the Mongolian and Tibetan Affairs Commission and Overseas Chinese Affairs Commission; and subordinate departments.

Legislative Branch

The legislative branch is composed of the unicameral Legislative Yuan and the unicamercal National Assembly. The Legislative Yuan is the highest legislative body in Taiwan. It legislates, examines budgetary bills, reviews audits, and oversees the operation of the Executive Yuan. There are a total of 225 seats in the Legislative Yuan: 168 elected by popular vote; 41 elected on the basis of the proportion of nationwide votes received by participating political parties; 8 elected from overseas Chinese constitutencies on the basis of the proportion of nationwide votes received by participating political parties; and 8 elected by popular vote among the aboriginal populations. The National Assembly's primary responsibility is to amend the Constitution and to impeach the president or the vice president. There are 334 seats in the National Assembly. Members are elected by popular vote to serve four year terms.

Judicial Branch

The Judicial Yuan is made up of justices appointed by the president with the consent of the National Assembly. Beginning this year, the justices will be appointed by the president with the consent of the Legislative Yuan. The Judicial Yuan is the highest judicial organization of the state and is responsible for civil, criminal and administrative cases as well as cses involving the discipline of public functionaries. The Council of Grand Justices serves as the main body with 17 grand justices according to Article 3 of the Organic Law of Judicial Yuan. The number has been reduced to 15 through Article 5 of the Additional Articles of the Constitution. The president and the vice present are to be selected from among the members consists of a president, the vice president, a secretary general, and a deputy secretary. The Judicial Yuan also has a panel of 17 justices.

The Judicial Yuan has the following powers:

  • the power to interpret
  • the power to adjudicate
  • disciplinary power, and
  • the power of judicial administration

Meetings may be held by the Grand Justices of the Judicial Yuan, and presided over by the President, to interpret the Constitution and to unify the interpretation of statutes and regulations.

The Power to Interpret

The President of the Judicial Yuan presides over meetings of the Grand Justices of the Judicial Yuan held to interpret the Constitution to unify the interpretations of statutes and regulations. In recent years, the Grand Justices have exercised this function to the full extent playing a very important role as protectors for both constitutional order and people's rights.

The Power to Adjudicate

The Grand Justices of the Judicial Yuan handles cases concerning the dissolution of political parties violating the Constitution. From 1948 to July 20, 2001, 529 interpretations of the Constitution were rendered at the request of government agencies, individuals, judicial persons, and political parties.

The Supreme Court, high courts, and the district court and their branches hear civil and criminal cases. The Court system is governed under the "three-level and three-instance" paradigm where issues of facts are decided in the first and second instances and only issues of law are decided in the third instance. There is also a separate Administrative Court set up to and decide administrative cases. These Courts are run by a "one level and one-instance" paradigm where retrial proceedings may only be initiated if there are legitimate grounds.

Disciplinary Power

Cases concerning disciplinary measures against public officials are adjudicated by the Committee on the Discipline of Public Functionaries. Decisions by the Committee are final but re-adjudication may be available where there is a legitimate ground. Cases are adjudicated independent and are free from any interference because judges of the Courts and members of the Committee hold office for life and are considered to be above partisanship.

The Power of Judicial Administration

The President and the Vice President of the Judicial Yuan exercise the power over judicial administration. They have the power and the ability to develop a sound judicial system, increase the effectiveness of the judicial functions, improve the working conditions for the judiciary, and elevate the quality of the judicial decisions that are promulgated.

The Constitution

It is the supreme law of the land and contains 175 articles in the original text. The Constitution has been amended five times since its initial promulgation. The five amendments are made up of eleven articles that have been consolidated into a single text and is maintained as a separate portion of the Constitution. The term law according to Article 170 of the Constitution means any legislative bill duly passed by the Legislative Yuan and promulgated by the President. Articles 171 and 172 state that laws and ordinances that contravene the Constitution shall be null and void.

Court System

Taiwan has a three-tiered court system made up of the Supreme Court, the High Courts, and the District Courts. The Supreme Court makes up the top tier of the court system. The function of the Supreme Court in Taiwan is similar to its function here. It serves as the court of final appeal. It s made up of five civil tribunals and five criminal tribunals. The second tier is made up of the High Courts, which are established in the provinces or special regions. Each of the High Courts have several tribunals for civil and criminal trials made up of a presiding judge and two other judges. The third tier are made up of district courts which are the lowest courts located in counties or cities. These courts are usually presided over by one judge. However, there can be up to three judges on a panel on cases of major proportion.

Prosecution System

Taiwan also has a three-tiered prosecution system to coincide with the each of the three parts of the court system. All of the prosecution sections belong to the Ministry of Justice which is located under the Executive Yuan. The prosecution department of the Supreme Court consists of one prosecutor-general and a number of other prosecutors. The prosecution departments of the High Court has a chief prosecutor with several prosecutors. The prosecution department of the District court is also similarly structured with a chief prosecutor and a number of other prosecutors.

Court Decisions

Judicial authorizations are widely consulted even though Taiwan is a civil law jurisdiction. Court decisions generally only bind the case at trial. However, court decisions to become binding precedent when they are final judgments entered by the Supreme Court or the Supreme Administrative Courts. All other decisions made by all other Courts serve merely as references.

Legal Professionals

In order to qualify as a legal professional in Taiwan, students need to finish four to five years of legal education at the university level. When students graduate from law departments, they get a bachelor's degree and can then pursue many different options. Students can take the national civil servant test and serve in government agencies or take the judicial test in order to be judges or prosecutors. Another option open to them is to take the national Bar examination to become qualified lawyers.

Reforms

The Taiwanese legal system is not without flaws similar to those found in other legal systems throughout the world. The President of the Judicial Yuan is in charge of judicial reform. Reforming the following areas will pose a challenge: efficiency; accessibility; judicial transparency; judicial fairness, and judicial intergrity. Some steps taken to improve civil proceedings include alternative dispute resolution and contracting out legal enforcement. To expedite criminal proceedings, there has been expanded use of summary judgments and the introduction of a plea bargaining system. Other steps taken to improve the judicial system include the establishment of civil courts, specialized courts, and specialized judges. These changes are expected to increase the public's confidence in the judiciary.


Sources

Judicial Information

www.china.org/cn/english/30744.htm

http://www.loc.gov/law/glin/taiwan.html

http://www.judicial.gov.tw/b4/e-index.htm

http://www.gio.gov.tw

Background Information

http://www.cia.gov/cia/publications/factbook/geos/tw.html

http://www.taiwanstudies.org/taiwan_background/basic_facts_figures/

http://www.bartleby.com/151/234.html#Government

http://vacations.lycos.com/packages/show_country.asp?countryid=TW

http://taiwanresources.com/info/gphy/gphy.html

Links to additional information

The Constitution of Taiwan

http://www.virtual-asia.com/taiwan/bizpack/legalcodes/constitution/legal_constitution7.htm

English translations of laws from Taiwan

http://www.qis.net/chinalaw/lawtran1.htm

Taiwan Legal Codes and Regulations

http://www.virtual-asia.com/taiwan/bizpack/legalcodes/legalcodes.htm

Taiwan Resources Homepage

(For additional information about history, etc.)

http://taiwanresources.com/index.html

Additional Sources of Legal Information (In Chinese)

Gazette of the Office of the President

http://www.oop.gov.tw

Legislative Yuan Gazette and websites

http://www.ly.gov.tw

Executive Yuan Gazette

http://www.gazettes.com.tw

Ministry of Justice Gazette

http://law.moj.gov.tw

Judicial Yuan Gazette

http://www.judicial.gov.tw

Vistor Information

http://www.lonelyplanet.com/destinations/north_east_asia/taiwan/index.htm

http://www.orientaltravel.com.hk/china/Taiwan_city.htm

http://www.taiwan.travelmall.com/guide.html

Recent News and Current Events

http://www.cna.com.tw/eng/

http://www.taiwandc.org/news.htm

AUTHOR:

The following webpage was created by a student for Prof. Fischer's Comparative Law Class at the Columbus School of Law the Catholic University of America for Spring 2003.

For more information contact:

http://faculty.cua.edu/fischer/

For Comparative Law Class Webpage for Spring 2003:

http://faculty.cua.edu/fischer/ComparativeLaw2003/comphome2003.htm