This article explores the complex process of legal transplants in Taiwan, examining how the legal system has been influenced by external forces and shaped by local responses such as selective adoption, adaptation, and (semi-)autonomous interpretation by various actors. The analysis begins with the historical progression of Taiwan’s legal landscape, tracing changes from Dutch colonization in the 17th century, through Sinicization under the Zheng and Qing dynasties, to the modernizations during Japanese rule, and the American influences in the post-war era. Key case studies, including women’s access to courts, democratization efforts, domestic violence legislation, human rights advancements, and the legalization of same-sex marriage, underscore Taiwan’s ability to integrate and at times contribute to global legal principles. Legal transplants go beyond mere imposition, serving as processes that reshape local customs and merge various legal traditions. Strategically utilized by a spectrum of actors, from rulers and the powerful to the subordinated and marginalized, Legal transplants function as mechanisms to sustain hegemony and, simultaneously, to resist it. The article concludes by advocating for future research that adopts a long-term, locally grounded perspective to fully grasp the transformative potential of legal transplants.

 

Parent Maintenance, Interdependent Family and Elder Care in Taiwan 

Li-Ju Lee (download)

In Taiwan, elder care is first and foremost a family responsibility. The family has been an important social institution for meeting basic needs of family members, where the duty of mutual support ensures collective survival and prosperity. In the Family Code, legislators transformed such traditional practice into individual obligations/rights and incorporated filial piety into legal provisions, creating the legal interdependent family, a self-sufficient economic unit bonded by blood and marriage. As Taiwanese population fast aging and fewer family members are available to bear maintenance burden, traditional family values and the concept of filial piety are being challenged. The 2010 amendment to the Family Code, allowing some adult children to exempt from their parental support obligations, has opened the floodgates of litigation between elderly parents and their estranged children. It suggests changes in the distribution of elder care between the state and families as well as the shifts in welfare policies. This article discusses the development, enforcement and impact of Taiwan’s parent maintenance law, focusing on how the social change challenges the legalization of the interdependent family. The author urges to reconsider the construction of the legalized family and the relationship between family and state responsibility in order to protect the elderly’s wellbeing and dignity.

 

Punishing the Passenger for the Driver’s Drunk Driving: A Case Study of Mens Rea, Burden of Proof and Law Reform in Taiwan 

JianLin Chen (downloads)

In 2019, Taiwan introduced an offence that punishes passengers of a vehicle driven by a drunk driver. The offence was introduced under a deliberate legislative decision to omit any mens rea requirement vis-à-vis the passenger. I comprehensively survey how the Taiwanese courts have applied this new offence, and document the disparate judicial approach towards the burden of proof of mens rea. I further situate this offence with the earlier reform of the administrative penalty regime, and argue that the otherwise undesirable disparate judicial interpretations are the inevitable consequence of unresolved legislative tension between the lofty rule of law ideals and practicalities of enforcement expediency. More broadly, this case study adds to the literature on legislature-judiciary dynamic that has thus far focused on Taiwan’s polarized political landscape. I highlight how overwhelming political consensus can produce legislations that are as equally fraught for the courts to handle.