National Taiwan University Law Journal
March 2017 Volume 46, Number 1

Articles & Abstracts

Ming-Hsin Lin, Professor of Law, College of Law, National Taiwan University.

The Due Process Requirements for the Deprivation of Physical Freedom: Focusing on Judicial Intervention

Albeit Article 8 of the Constitution guarantees the physical freedom of a person, the scope of due process requirements thereof remains a controversial issue in both the academic discussions and legal practices.This paper argues that although the due process requirements provided in Article 8 of the Constitution apply admittedly to criminal defendants, the requirements shall apply to non-criminal defendants by analogy.For a specific institutional design, this paper comments upon that the newly-amended Habeas Corpus Act, and makes suggestions in response to jurisdiction and review process for future reference.

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Wan-Ning Hsu, Associate Professor of Law, College of Law, National Chengchi University.

Employer’s Delay in Acceptance or Risk of Loss in Unlawful Dismissal Cases: A Comparative Study on Japan, and the Judicial Decisions of the Civil Code §487 in Taiwan

If an employee has not performed his or her promised work, he or she will not have a claim for remuneration, which is so-called the doctrine of no-work-no-pay. However, the Civil Code §487 is the exception of the doctrine of no-work-no-pay. On the other hand, according to the Civil Code § 267, where “performance of the service is impossible”, the existence of the employee’s right to demand for his remuneration depends on whether the impossibility is “attributable to the employer”. Thus, how to distinguish the employer’s delay to accept the performance tendered to him from the impossibility of the employee's performance is an important issue because it will decide if the employee has the right to claim for remuneration. Through an analysis of the Japan experiences and the reflection on the judicial decisions of the Civil Code §487 in unlawful dismissal cases in Taiwan, this research will focus on the controversial issues, such as when the employer delays accepting the performance and if the employee still has to tender the performance, and try to solve them by the doctrine of risk of loss.

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Tsung-Fu Chen, Professor of Law, College of Law, National Taiwan University.

Tortious Liability on Negligent Infringement on Interests: Dilemma From and Breakthrough For the Distiguishment of Infrigement on Rights and Interests

Article 184 of Taiwan Civil Code follows the model of German Civil Code, establishing the tort liability through the distinction between the infringement on rights and the infringement on interests, which has been confirmed by recent Taiwan Supreme Court judgments although it is debatable on this issue from academics in the past. Following this distinction, it raises an important issue about the requirements to impose a tort liability on the tortfeasor when he negligently, rather than intentionally, infringes upon the interests of another. This paper explores the ways in which German law deals with such cases, including the broad interpretation of the “rights” elucidated under article 823 (1) of German Civil Code and the establishment of a theory of the protection for a third party to a contract. This paper suggests that, in addition to expand the scope of the concept of ‘right’ protected by the tort law in appropriate cases, it is desirable to utilize the second sentence of article 184 (1) of Taiwan Civil Code to deal with those controversial cases of negligent infringement on the interests of another.

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Ching-Wen Hsueh, Assistant Professor, Department of international Business, National Chengchi University.

The Content and Application of NME Treatment under WTO Agreement

The domestic markets of communist courtiers were controlled by the governments and do not play by the rules of market. Therefore, it is questionable whether the investing authorities still have to take the domestic normal value as the basis for comparison. Thus, in this paper’s section I, the origin of the NME treatment is elaborated and legitimacy and necessity of such treatment is analyzed. Section II tried to discover the criteria of the NME status, which were never clearly provided in the WTO anti-dumping rules, by referring to the relevant provisions, objects and purposes of the anti-dumping rules, and the practices of the members. Section III focused on the methodologies to determine the normal value in NME. By virtue of the findings in the previous sections, the “surrogate mode”, which is the most widely adopted methodology to determine the normal value in NME, is the be reviewed in the last section.

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Yang-Yi Chou, Associate Professor of Law, College of Law, National Taiwan University.

The Concept of “Possession” in Criminal Law

The purpose of this article was to clarify the concept of possession in criminal law, which plays a key role in discussing the offences against personal property. The author argued that possession can be defined as the possibility to use things, which is recognized under the social viewpoint. Therefore, possession appears as a social institution. The social viewpoint has the function of orientation, which helps people to decide how they treat objects in daily life. Its legitimacy comes from the voluntary participation of individuals in this institution. 

The International Symposium on IP Licensing and Competition Laws hosted by College of Law, National Taiwan University (NTU) took place on March 9 in Taipei, Taiwan inviting experts and scholars from the US, EU, Japan and Taiwan to have rational debates over the regulatory relationship between IP licensing and competition laws, which has been a frequent issue of international contention in recent years.  Speakers and panelists who participated in the symposium respectively expressed their unique opinions from different perspectives in economics, law and practical operation.  The symposium hence served as a venue for them to find their common grounds on these issues and to propose possible solutions for the relevant domestic authorities' reference to future implementation of policies and application of laws.