按標籤顯示項目： v15
September 2020 Vol.15 No.2
Global Trends in Legal Recognition of Same-Sex Couples: Cohabitation Rights, Registered Partnership, Marriage, and Joint Parenting
- Robert Wintemute(download)
This article examines four global trends with regard to the legal recognition of same-sex couples: access to the rights of opposite-sex cohabiting couples, access to a registered partnership law as an alternative to marriage, access to marriage, and access to joint legal parenthood (through joint or second-parent adoption or after assisted reproduction). Developments since 2017 in Taiwan in relation to same-sex marriage and adoption by same-sex couples are then compared with these global trends. The article concludes that developments in Taiwan are entirely “normal”. Other countries have allowed same-sex couples to marry, while withholding access to joint adoption, or preventing non-citizens from marrying. Taiwan’s restrictions are likely to be temporary, as they have been in other countries. Full legal equality, with no exceptions, will eventually be achieved.
Sticking to the Past: Same-sex Union and Original Meaning in Hong Kong
- Marco Wan (download)
This article builds on the author’s work on the uses of history by the Hong Kong law courts in the context of sexual minority rights, and focuses on the judicial turn to original meaning in the territory’s latest case on marriage equality: MK v. HKSAR. In that case, the Court of First Instance held that neither the government’s refusal to legalize same-sex marriage nor its failure to provide an alternative framework for the recognition of same-sex relationships was unconstitutional. In particular, the court reasoned that the meaning of “marriage” in Article 37 of the Basic Law, which guarantees the right to marry and to raise a family freely, should be determined in light of the understanding of the term when the constitutional document was promulgated. I argue that the court’s insistence on original meaning goes against the grain of the majority judgment in W v. Registrar of Marriages, which to date remains the only case on the right of marry from Hong Kong’s Court of Final Appeal. I further argue that despite the Court of First Instance’s reliance on lex specialis, there is significant precedential force for the introduction of both same-sex marriage and civil partnerships in Hong Kong.
Barring Married Same-Sex Couples from Joint Adoption: Comparative Perspectives and the Case of Taiwan
- Holning Lau (download)
Taiwan is the first country in Asia to legalize same-sex marriage, but it forbids married same-sex couples from jointly adopting children. This article examines this restriction through the lens of comparative law, which brings into focus two main insights. First, we see that, out of all countries that have legalized same-sex marriage, Taiwan is one of only two that bar married same-sex couples from joint adoption. As this article will explain, the fact that Taiwan’s policy is so anomalous should spur skepticism of the policy’s appropriateness. Second, judicial opinions from around the world contain persuasive reasoning that further calls into question Taiwan’s treatment of married same-sex couples. This article explains that these findings, taken together, cast enormous doubt on the constitutionality of Taiwan’s exclusionary adoption policy.
Comparative Studies of Enforcement and Compensation of Securities Cases and Lessons for the Chinese Securities Law 2019
- Mo-Qi Zi
China just introduced its version of private securities class action rule in the Securities Law of the PRC 2019. It combines an opt-out rule with a public agency as the representative of plaintiffs’ groups, which intends to control frivolous litigation. This article argues that this rule is inefficient and proposes a new public-and-private-convergence enforcement model based on the following studies. Firstly, from the history of the regulation of securities market in the US, UK, and Australia, this article finds out that neither the private class action nor the public enforcement should be used alone as the primary enforcement method. Because a full-scale class action tends to over-deter and public enforcement tends to under-deter. Also, the compensation rate is low and the resolution time is long. Secondly, based on the experiences of private securities class action cases in the US, Australia, Japan, South Korea and Taiwan, this article finds out that it is hard to adjust the incentives of private securities class action to achieve balance. Moreover, since the optimal deterrence level is hard to ascertain, so without this benchmark we could not know what the right number of cases is, which makes the theory of using a full-scale US-style private securities class action to increase deterrence level questionable. Then, this article turns to examine ADR in the US and the Netherlands--Arbitration and Settlement to see if they can be alternatives to the private class action, but finds out they are not suitable to resolve cases on a large scale. Lastly, due to the above failures, this article proposed that a new enforcement style combining private enforcement with public enforcement should be built. To rebuild the enforcement model, we should reconsider our policy indicators, and turn to focus on increasing the compensation rate and decreasing enforcement costs rather than increasing the numbers of cases. Based on this policy choice, this article proposes a new enforcement style combining private enforcement with public enforcement from the experiences of different jurisdictions, including the UK, Australia, Denmark, where the resolution, especially the compensation regime is led by the securities regulator instead of the court.
March 2020 Vol.15 No.1
Status of Same-Sex Marriage Legislation in Japan
- Masahiro Sogabe (download)
This article provides an overview of the status of same-sex marriage legislation in Japan. While there are lawmakers in Japan who advocate for recognition of same-sex marriage through legislation, conservatives committed to the traditional family view predominate in the Diet. Article 24 of the Constitution is a provision on marriage, but because it states that “marriage shall be established solely on the basis of the consent of both sexes,” there are a few scholars who argue that the Constitution guarantees same-sex marriage, while there are few who argue that it prohibits it. The majority holds that the law can recognize same-sex marriage. There have been lawsuits filed seeking recognition of same-sex marriages, but it is unlikely that the Supreme Court, with its extreme judicial reluctance, would find them unconstitutional. On the other hand, public opinion’s understanding of same-sex marriage has gradually improved in recent years, and while the road is not easy, it will be interesting to see what happens in the future.
Minority Rights and Democratic Consensus:
The Irish Same-Sex Marriage Referendum
- Oran Doyle (download)
29 countries in the world have introduced same-sex marriage. 22 have done so by legislation, four by judicial decision, two by a combination of judicial decision and legislation, and one by popular referendum. The Irish same-sex marriage referendum of 2015 has been criticised for putting minority rights to a popular vote. This criticism largely misunderstands the legal and social context of the Irish referendum, however. A necessary component of constitutional amendment, the referendum required campaigners to build a robust democratic consensus in favour of same-sex marriage, strongly entrenching minority rights. These benefits would likely not have arisen, however, if a referendum had been a choice on the part of political actors rather than a legal necessity. It is therefore unlikely that the Irish experience, whatever its merits, can be straightforwardly translated to other jurisdictions. Nevertheless, the Irish referendum campaign yields some lessons for other activist campaigns for same-sex marriage. In particular, the story-telling of gay people--and the responses of their fellow citizens--may have been more significant than the articulation of more public values, such as equality.
First Comes Marriage, Then Comes Baby, Then Comes What Exactly?
- Erez Aloni (download)
Taiwan’s legalization of same-sex marriage is an event of international importance concerning the rights of LGBTQ+ individuals and partners; further, it constitutes an opportunity to examine the state of LGBTQ+ equality in Taiwan and elsewhere. To this end, through theoretical and comparative lenses, this Article asks
what equality for LGBTQ+ means and what comes after marriage. It offers perspectives on the past, present, and future of the intersection of same-sex marriage and equality. Looking at the path to same-sex marriage in Taiwan, the Article argues that the Taiwanese Constitutional Court’s ruling legalizing same-sex marriage maintained a line between domesticated liberty for LGBTQ+ people, on the one hand, and limits on that population’s liberty to form families, on the other. The law that implemented the ruling kept this tension; hence, it enfolds discrimination against LGBTQ+ individuals, especially in the area of family formation. But Taiwan is not exceptional in holding onto parentage discrimination after legalization of
same-sex marriage. The European perspective teaches that discrimination in parentage remains after legalization but disappears over time. Experience fromelsewhere also clarifies that the fight for equal parental rights can be difficult, andthat much opposition to LGBTQ+ equality is embedded in biases related toLGBTQ+ parenting and in racism.
Finally, moving to explore future paths to parity, the Article contends that, forvarious reasons including those indicated above, marriage cannot serve as the finalfrontier of LGBTQ+ equality. Substantive equality in Taiwan requires, at the least,the repeal of adultery as a grounds for divorce and for civil remedies. A broader view of equality and autonomy also warrants adopting a regime in which marriage is not the only mechanism to access rights and benefits that are linked to relationships of interdependency. Likewise, creating more options for legal recognition of relationships is imperative for individuals in diverse types of relationships, and for LGBTQ+ individuals in particular. Lastly, the Article suggests that discrimination that currently exists in the area of obligations toward parents-in-law has a liberating aspect.
The Taiwanese experience is a teaching moment for LGBTQ+ movements and scholars around the globe. It calls on other scholars to avoid generalizations in framing paths to liberty and equality by being sensitive to local differences, and to reconsider the place of marriage as the golden standard of LGBTQ+ equality.
Supervised Child Visitation for Non-Custodial Parent:
A Study of Court-Assisted-Visitationand Its Monitoring System in Taiwan
- Mogana Sunthari Subramaniam (download)
This article presents a study of supervised visitation services offered by Taipei, New Taipei City, Hsinchu and Kaohsiung districts in Taiwan. It is based on a review of practices and services offered by Visitation and Family Services Centers based at the courts operated by the city/county governments, NGO and private agencies. It is a qualitative research conducted by way of interviews with judges ordering supervised visitation and social workers handling supervised visitation meetings. This study found that the courts started encouraging supervised visitation in separation and divorce cases involving domestic violence and high levels of family conflict after the introduction of the Domestic Violence Prevention Law in 1998. The
best interests of the child principle enshrined in Article 1055-1 of the Taiwan Civil Code is the fundamental consideration for judges and social workers to determine if supervised visitation should be allowed, restricted or discontinued. Both legal and non-legal experts are working hand-in-hand to promote continued contact between the non-custodial parent and the children of high conflict, separated and divorced families.
Vol.15 (No.2 June 1986)
Comment on the System of Supervision in Parliament／Chan-Lin Tsai 1-17
Free Judgement of Evidence／Tun-Ming Tsai 17-60
Das Wiener Übereinkommen über Internationale Warenkaufverträge vom 11. April 1980 – unter besonderer Berücksichtigung des Außenhandels (German) ／Peter Jen-huong Wang 61-96
A continued Study on the Commercial Use of Trade Mark／Ming-Ruu Tseng-Chen 97-112
Legal Consideration with Respect to International Investment and the Development of Multinational Enterprise – Outlook for Multinationalization of ROC’s Enterprise – ／Ming-Chiang Chen 113-134
The Equality between Man and Woman on Family Law from the Point of Marriage and Divorce Effect／Chi-Yen Chen 135-164
The Doctrine of Judicial Precedent／Yeong-Jia Louch 165-182
The Protection of Industrial and Intellectual Property in the Asia Pacific Area – Taiwan, ROC as a Case of Study／Paul S.P. Hsu 183-196
The Legal Problems of Video Cassette／De-Fen Ho 197-226
The Review of Computer Law and the Draft of New Laws／Paul C.B. Liu 227-244
Losing the Right of Limitation of Liability／Fang-Chih Lien 245-267
Vol.15 (No.1 December 1985)
Sentencing of Criminal Court Judge／Tun-Ming Tsai 1-46
Legal Analysis of the PRC’s Foreign Economic and Trade Policy Toward the United States／Peter Jen-Huong Wang 47-66
Für und Gegen ein Gesetz von Marktsordnung und Kritik dessen Entwurfs／Yih-Nan Liaw 67-112
A Study of Graft Transplantation of Judicial Review…An Analysis to its European System／Hong-Hsi Lee 113-156
Verkauf Fremder Sache, Genehmigung des Eigentümers und Parteiwecksel／Tze-Chien Wang 157-166
A Survey of Currrent Legal Problems on Container and Multimodal Transport／Tse-Tung Ko 167-204
An Legal Analysis on the Development of Securities Investment Trust Enterprises in the Republic of China／Paul S.P. Hsu 205-242
The Legal Problems of Video Cassette／De-Fen Ho 243-276
Legal Problems on the Computer Counterfeit and Piracy／Paul C.B. Liu 275-294
Outlook for the Capital Market in the Republic of China from a Legal and Policy Perspective／Paul S.P. Hsu 295-320