按標籤顯示項目： v14

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)

(downloads)

-   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

(downloads)

-   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)

(downloads)

-   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)

Alternatives to Imprisonment／Kan-Mei Chang 1-36

The Sentencing Behavior of Criminal Court Judges／Tung-Ming Tsai 37-76

Some Questions Arising from the Amendment of the Criminal Code of the Republic of China／Chi-Yang Shih 77-84

A Legal Analysis of the Development of Venture Capital in the Republic of China／Paul S.P. Hsu 85-112

An Comparative Constitutional Study on the Physiology and Pathology of Modern Congressional System – Its Legislative Process Approach – ／Hong-Hsi Lee 113-134

General Introductions and Evaluations to the Courses Related to Health Laws and Regulations, Offered by the Three National Colleges of Medicine (Taita, Yang-Ming and Kuo-Farng) in Taiwan (R.O.C.) ／Sheng-Llong Lee 135-160

The Family Council on Our Civil Law and the Way of Settlement about Domestic Troubles／Chi-Yen Chen 161-176

The Abolition of the Penalties of a Check Drawer in ROC – Its Problems and Suggested Measures／Jen-Huong Wang 177-186

The Status of Sureties on Bankruptcy Proceedings／Yeong-Jia Louch 187-196

A Study on the Commercial Use of Trademark／Tseng-Chen, Ming-Ruu 197-210

Unlautere Poeisunterbietung／Yih-Nan Liaw 211-242

Legla Control over the Liner Conferences／Tse-Tung Ko 243-262

The Legal Status of Non-recognized Foreign Corporations in the Republic of China／Jeng Ou-Yang 263-286