MINISTRY OF EDUCATION AND TRAINING

UNIVERSITY OF LAW HO CHI MINH CITY

SPECIAL TRAINING PROGRAMS



COMPARATIVE LAW
TOPIC: LEARN TAIWANSESE LAW

Lecturers : LLM. Ngo Kim

Hoang Nguyen
Group : 3
Class : CLCQTKD44

Name ID
Dinh Quang Anh 1953401010005
Nguyen Quoc Anh 1953401010009
Luong Ngo Thanh Cong 1953401010018
Nguyen Minh Hoang 1953401010045
Pham Le Huy 1953401010057
Nguyen Cuong Thinh 1953401010154
October 7th, 2022
 INTRODUCTION
I. History of taiwan
- Taiwan was an unfamiliar island from time immemorial, at
least to the Chinese, but it was not a deserted island because
researchers discovered at least 8,000 years ago that there were
aboriginal people living on this land and the aboriginal people
still exist today and must be re-emphasized. ancient Taiwanese
aborigines have no roots or any connection to the Chinese, but
they are of Southeast Asian origin and they use the
Austronesian language family.
- In 1544, when western countries were making voyages of
discovery, the Portuguese set foot on the island and named the
island "lhla Formosa" which means "beautiful island".
- In 1624 the Dutch arrived and occupied Taiwan, and they
also brought han chinese to labor and help them build Taron
castle. Since then, Taiwan was a colony of the Dutch and it is
possible that Taiwan was the first time taiwan was owned and
ruled by a certain country 2 years later the Spaniards also came
and took Northern Taiwan as their colony.
- In 1662 the Dutch were defeated by the Chinese, headed by
Zheng Chengcheng , a Ming dynasty loyalist who crossed the
sea to Taiwan with the idea of "anti-Qingming" and from there
Taiwan first fell into the hands of the Chinese. Speaking of
Zheng succeeding, this was a military leader of the Ming
Dynasty when the Ming Dynasty fell and the Qing Dynasty
ascended to the throne, and Zheng successfully aligned himself
with the people of the former regime who fled to Taiwan,
drove out the Dutch and seized the land. Here, the remnants of
the Ming dynasty built, strengthened their forces and
constantly infiltrated the Mainland, seeking to overthrow the
Qing Dynasty. The small Ming army that remained lasted only
21 years, that is, in 1683, under the Kangxi emperor, the Qing
dynasty sent a fleet to Taiwan and defeated the Zheng army
that officially annexed Taiwan with the Great Qing Empire.
This is the first time the island has been reunified with
mainland China, but this unification has not lasted forever
either. In 1894, on the grounds that a Japanese ship sank in the
Taiwan area, 34 sailors on board were captured and beheaded
by Taiwanese aborigines, the Japanese side demanded
compensation but the Qing did not approve when the Japanese
invaded Taiwan, a war broke out between the Qing dynasty
and Japan but only lasted 1 year when the Qing dynasty fell.
and had to cede the island of Taiwan to the Japanese, who built
the island into a rich land. They expanded the transport
network, especially the railways. During this period, rice and
sugarcane production both increased several times in 1939.
- This tiny island became the world's 7th largest sugar producer
during its management period. Here, the Japanese people
adopted assimilation, i.e. tried to teach the people that they had
to consider themselves japanese, and this measure was quite
successful as dozens of men served in the Japanese army.
- With its expansionist ambitions, Japan participated in World
War 2 as 1 member of the fascist faction alongside Nazi
Germany and Italy. After 1942 the United States declared war
on Japan and supported China, the KMT government now
rejected all agreements signed with Japan, arguing that Taiwan
should be part of China until the end of World War 2 when
Japan was defeated and had to cede Taiwan to China. On
October 25, 1945, the Republic of China arrived and received
Taiwan from the Japanese side.
- In 1949, Chiang Kai-shek's Republic of China was driven out
and had to retreat to the island of Taiwan, the civil war ending
with the victory of the Chinese Communist Party.
- Then came the People's Republic of China and ruled
mainland China. However, Chiang Kai-shek's Republic of
China in Taiwan still claims sovereignty over all of China,
including the mainland and the island of Taiwan. At that time
the UN countries only recognized Chiang Kai-shek's Republic
of China as the legitimate government in Mainland China even
though they only retained the territory of the island of Taiwan,
due to the effects of the cold war and the story of confrontation
with the Communists at the time.
- In the following decades there was a significant shift in status
as mainland China's power increased rapidly in many ways,
recognition began to take place in the world.
- By 1971 the United Nations had recognized the People's
Republic of China as the legitimate government of mainland
China.
II. State of Taiwan
- As of 09 December 2021, there are 13 UN and Vatican
member states that have diplomatic relations with Taiwan, the
diplomatic states of the Republic of China are: 4 Oceania
countries: Nauru, Palau, Marshall Islands and Tuvalu; The 9
Latin American-Caribbean countries are Belize, Honduras,
Haiti, Nicaragua, Paraguay, Saint Kitts and Nevis, Saint Lucia
and Saint Vincent and the Grenadines; an African country is
Eswatini, along with Vatican City in Europe. The countries
maintain formal diplomatic relations with the Republic of
China, most of which have diplomatic representations in
Taipei.
III. Law of taiwan
- The Constitution of the Republic of China is the basic law for
the nation's judiciary, establishing judicial power independent
of executive power, legislative power, examination power, and
supervisory power. The constitution proposes that the central
government have separation powers, along with other basic
national policies, but many of the territorial provisions are
"China" so many are suspended to match reality. A section of
law follows the written system of continental European civil
law, standardized under the "central normative standard law"
divided into ordinary regulatory law, special regulation law,
wartime regulation charter, general principles of organizational
norms. The process of making and amending laws needs to go
through the Legislature, then be announced by the president.
The Bureaucracy, The Examination Institute, or other agency
may promulgate procedures, rules, measures, guidelines,
standards, and other orders, the power to interpret the contents
of which rests with the Judiciary.
- The general court is divided into the supreme court, the high
court and the local court, below which are established criminal
and civil courts, in addition to the constitutional court in charge
of handling constitutional disputes, administrative courts
handling administrative proceedings, specialized courts
dealing with intellectual property, juveniles, and household
chores, and wartime trial military courts. The trial court does
not use a jury judge, but rather uses the method of the
presiding judge and the jury judge trying together, and requires
conduct in a state of public fairness. Currently, the RoC
maintains the death penalty regime, but the government has
gradually reduced the number of people executed, based on a
2006 census in which about 80% of the population agreed to
maintain the death penalty. In May 2017, the Legislature
declared that civil law's obstruction of same-sex marriage was
unconstitutional, asking for an amendment. Same-sex marriage
in Taiwan legalized on May 24, 2019, becoming the first
country in Asia to legalize same-sex marriage, despite a
referendum showing that 69% of Taiwanese voters opposed
the recognition of same-sex marriage.
 SOURCES OF TAIWAN LAW
I. Taiwan legal overview
- Taiwan is a society of legal pluralism. Dutch, traditional
Chinese, Japanese and American legal traditions all heavily
influenced the development of Taiwan legal system. For
example, the VOC first introduced a tax system to Taiwan,
which remained effective through Zheng period. More
specifically, it instituted a licensing system to license hunters
to areas under Dutch control and collected taxes from farming
to receive revenues.
- Since its primary purpose is to use Taiwan as a base to
establish its monopoly of sea trade in East Asia, the Dutch did
not intend to exercise much more control that is political or
judicial than maintaining peaceful environment for economic
and trade development. In terms of laws and regulation, Dutch
laws generally applied. With specific Taiwan local matters,
local ordinances applied. It set up three courts: A Dutch court,
a Japanese court and a Chinese court. With matters, dealing
with Chinese or Japanese, Chinese or Japanese court and laws
applied. With matters dealing with aborigines, tribe custom
and laws governed. With matters involving Dutch people and
serious matters including matters involving conflicts between
ethic groups, Dutch court and laws controlled.
- During the next 22 years, Zheng continued to encourage trade
and agriculture development. On the other hand, he brought
traditional Chinese laws and rules to Taiwan. Zheng
implemented 大 明 律 (The Great Ming Code) in Taiwan. It was
essentially a penal code following traditional Confucian moral
principles and enforcing harsh criminal punishments.
Importing Confucian teachings to Taiwan laid a solid
foundation for the later integration of Taiwan to be part of
China by the Qing government.
- The Zheng family surrendered control of Taiwan to the Qing
government in 1684, when the Qing government officially
included Taiwan to be part of its territory. Qing applied 大清律例
(The Great Qing Code). Over the 200 years of Qing’s control
in Taiwan heavily influenced Taiwan’s legal development in
the area of family law and criminal law. Even today, some
traditional principles are still highly respected and followed in
certain areas of law. For example, for certain offenses, if a
person commits against “his lineal blood ascendant”,
punishment will be “increased up to one half.
- After being defeated by Japanese, Qing government turned
over Taiwan to Japan on May 8, 1895. Due to Taiwanese’
brave, fierce and persistent fights, Japanese government
eventually passed the Law Relating to Laws and Ordinances to
Be Enforced in Taiwan, aka Law No. 63 of 1896. This law
vested the legislative power on the local government of
Taiwan, which can issue ordinances that will have same effect
as Japanese law to be applied in Taiwan. Law No. 31 of 1905,
according to which the ordinances issued by the local
government of Taiwan shall not conflict with Japanese laws or
any Japanese laws or ordinances specifically applied to
Taiwan, later amended Law No. 63 of 1896.
- But in 1921, following the colonial expansion theory, the
Japanese diet took a swift turn and passed Law No. 3 of 1921,
which further amended Law No. 63 of 1896 by limiting the
legislative power of the local government to only two
situations: (1) there was no Japanese law issued in the area, or
applicable, or (2) laws issued based on the special situation of
Taiwan.
- Meanwhile, Japan underwent its own modern legal reform,
Meiji Law Reform. It passed the first modern constitution in
1890, which models directly from German Constitution. In the
next few years, it quickly established modern legal systems by
passing five major codes: Civil Code of 1896, Commercial
Code of 1899, Criminal Code of 1907, Criminal Procedure Act
of 1890, and Civil Procedure Act of 1890. All these laws were
heavily influenced by German and French civil laws. As these
laws started to apply in Taiwan, western conception of
individual rights and freedoms were gradually exposed to
Taiwanese as well.
- As Japan entered into the militarism era, all those modern
laws were disrespected until the end of the World War II, when
Japan turned Taiwan back to Chinese government in 1945.
Meanwhile, Mainland China was experiencing modern legal
reform as well. The government of the Republic of China
enacted its first modern Constitution in 1946 recognizing basic
human rights and liberties among other modern legal thoughts
and passed a few major laws during the 1930s and 1940s as
well. However, as KMT moved to Taiwan after being defeated
in the Chinese civil war, it did not apply all those modern laws
until 1987.
- At the same time, American legal traditions have heavily
influenced Taiwan legal development due to the closer
relationship between the United States and Taiwan after
WWII. For example, when Taiwan enacted its very
first Domestic Violence Prevention Act in 1998, it imported
the idea of injunctive relief, a frequently used equitable remedy
in the United States courts into the Act.
II. Legal System: Civil Law Legal System
- Taiwan is a civil law jurisdiction. There are three types of
primary sources of law: laws, customs filling gaps of laws
consistent with public policy or morals, and jurisprudence if
neither laws nor customs apply. Judicial decision is generally
considered a secondary source of law, except that the Council
of Grand Justices has the power to interpret Constitution and
its decisions are binding with the same legal effect as
Constitution.
- There are three major types of laws and regulations,
according to the Central Regulations Standard Act of 2004, the
Constitution and its amendments are the Supreme Law of the
land. A statute, may be named Act, is passed by the Legislative
Yuan and enacted by the President. Code refers to a
codification of Acts. On the third level are Regulations and
Rules, which are issued by delegated government agencies.
There are also rules applied to different government agencies
internally: Directions.International treaties and agreements of
self-executing in nature are applied directly in the domestic
court. Non self-executing treaties and agreements shall be
submitted to Legislative Yuan via Executive Yuan within 30
days. Once they are transformed to be domestic law, they have
the same effect as domestic legislations under the Regulations
Governing the Process of Treaties and Agreements.
- Currently, there are five major laws in addition to the
Constitution in Taiwan. Civil Code is divided into five
chapters and covers most civil and commercial matters that
dealing with relations among private parties, such as contract,
torts, property, succession and family law. Taiwan Civil
Code was first enacted on May 23, 1929 and has been
amended a few times. The most recent amendment was
enacted on June 13, 2012. Criminal Code was first
promulgated in Taiwan on January 1, 1935 and was most
recently amended on November 30, 2011. It has been amended
26 times since 1935. Code of Civil Procedure was first
promulgated on February 1, 1935 and amended on June 25,
2003. Code of Criminal Procedure was first promulgated on
July 28, 1928 and has been amended 27 times since then. The
most recent amendment occurred on December 12, 2007. Since
1994, Taiwan legislature passed a series of laws governing
administrative matters including the Administrative Procedure
Act, first promulgated on February 3, 1999 and most recently
amended on December 28, 2005.
- According to the article 1 of the Civil Code of Taiwan,
customs are considered primary sources of law in civil matters
if all four conditions are met. Note that customs do change
over the years. Customary practices recognized in certain time
period may not be recognized in other time periods. In
addition, if a law is passed to govern the same matter, then
customs will not be considered as a source of law. Moreover,
custom shall not conflict with principles of public order and
good morals. If neither laws nor customs apply on a certain
subject area, then jurisprudence applies.
- Judicial decisions are secondary sources of law. The Supreme
Court is the court of last resort for ordinary civil and criminal
matters. The administrative courts are composed of both the
High Administrative Courts and the Supreme Administrative
Court. The Supreme Administrative Court serves as a final
court for all administrative litigation matters and also has
jurisdictions over certain appeals from the Intellectual Property
Court.
- In order to comply with the Intellectual Property
Organization Act, a specialty court, Intellectual Property Court
was established on July 1, 2008. The Court serves as a first and
second instance of civil and criminal matters governed by IP
related laws, decisions of which can be appealed to the
Supreme Court. The Court also serves as a first instance of
administrative and compulsory enforcement actions governed
by IP-related laws, decisions of which can be appealed to the
Supreme Administrative Court, as a final court.
- The Council of Grand Justices deals with constitutional law
related matters including interpreting Constitution and uniform
interpreting statutes and laws. Its decisions are final and are
binding and treated the same effect as a Constitutional
provision. If it rules a constitutional provision unconstitutional,
relevant government agency may propose a revision and send
to be passed by the National Assembly.
III. Legal Research Strategies and Major
Resources
- It is generally wise to start with secondary resources for any
legal: First, a secondary resource will help a researcher quickly
master the basics of a legal structure and system of a particular
subject or jurisdiction. Second, a secondary resource may also
point a researcher to the most relevant primary source so as to
save time during the legal research process. If a research has
not decided on a research topic yet, starting with secondary
resources may help pick a topic quickly.
1. Secondary Resources
- A secondary resource generally includes legal research
guides, monographs and scholarly treatises, legal periodicals,
dissertations and theses, government reports, legal newspaper
and magazines etc.
A) Legal Research Guide
- A good legal research guide can greatly help with cost-
effective research. There are currently a few excellent research
guides on Taiwanese law and legal system available in
English, although some may be out of date. Foreign Law
Guide by Reynolds and Flores not only provides a quick
overview of legal history and legal system of a jurisdiction, but
also lists major legal resources, both primary and secondary. It
also points to major laws on many specific subject areas.
- Taiwanese Legal Research at the University of Washington
Law Library provides a comprehensive list of legal materials
and tools related to Taiwanese legal research. The guide was
written in 1999 and therefore may not reflect certain legal
publications published after 1999. The guide also links to
several major Taiwanese legal databases .
- The Legal System of the Republic of China in Taiwan in the
Modern Legal System Cyclopedia provides an excellent
overview of legal history of China as well as legal system of
Taiwan. However, the author appears to focus on the influence
of the Chinese legal tradition on Taiwan’s legal development.
More importantly, the guide was published in early 1990s and
does not reflect changes ever since then.
B) Monographs and Scholarly Treatises
- There are many scholarly treatises and books published by
both Western publishers, such as Butterworth, Kluwer
International, Hart Publishing, Cambridge University Press,
Oxford University Press, Intersentia, and domestic publishers,
such as 元照出版社，三民书局，and National Taiwan University Press.
A researcher may find relevant scholarly treatises or
monographs in three ways. First, a user can search by keyword,
title or subject in library catalogs. Almost all major law
libraries make their library catalogs open to the public on the
web. In addition, WorldCat, a union catalog that contains
catalog records of thousands of libraries worldwide, is another
efficient tool to find relevant treatises or books. Second, A user
may also browse or search on Google Books. For books out of
copyright, a user may also be able to access the entire book in
full text. For most books out of copyright, a user may at least
be offered a snippet view. Third, A user may find relevant
books and articles through annotated bibliographies:
- Constance Johnson, The Republic of China on Taiwan: A
Selectively Annotated Bibliography of English-Language
Legal Materials (1988). It provides a comprehensive list of
pre-1988 articles, books, reports and primary documents on
Taiwan in many legal subject areas with a subject index. It is
available both in print and online.
- In addition, Ingrid Kost has published a Bibliography: Select
Legal Materials on China Received and Catalogued in the
Peace Palace Library every year since 2004 in the Chinese
Journal of International Law. The bibliography focuses on
articles and books on China in the area of international law and
does cover materials on Taiwan.
- Many commercial publishers publish practice-oriented
materials, usually in loose-leaf services in the areas such as
business, investment, trade, tax and labor and employment law.
For example, Doing Business and investing in Taiwan,
published Pricewaterhousecoopers LLP, provides practical
guides on Taiwanese business, tax, investments and foreign
trade laws and regulations. Another similar publication
focusing on business entities in Taiwan is Business Operations
in the Republic of China (Taiwan), published by Bloomberg
BNA.
2. Primary Sources of Law & Judicial Decisions
A) Constitution & Legislative Materials
- Constitution in the vernacular Chinese can be found at
the Legislative Yuan’s law database and the Ministry of
Justice’s Laws and Regulations Database. Both databases
include not only just text of the Constitution and its
amendments, but relevant legislative history materials
including legislative records and historical versions of
amendments and provisions of Constitutions. The English
translation of the texts of the Constitution and its Amendments
may be found on President’s website. In addition, original PDF
image of the texts of Constitution and its Amendments as well
as relevant legislative records bilingual or multilingual may
also be found on at the National Parliamentary Library
website. Researchers may also find pending bills and new acts
at the Legislative Yuan’s website.
- Presidential Official Gazettes containing presidential
promulgation and notices are made available in vernacular
Chinese in PDF (July 1997- current) and in Word (1948- June
1997).
B) Laws and Regulations
- Laws and Regulations may found on the Ministry of Justices
Laws and Regulations Database. In addition, different
government agencies have also made their official gazettes
online usually including laws, regulations and/or directives
issued by their own. They are all available at National Central
Library Gazette Online, which includes PDF image usually
after 1994 and word format only pre-1994 in the vernacular
Chinese.
- There have been a few print publications of compiled laws of
the Republic of China, usually called “ 六 法 全 书 ” , because it
includes among laws, six major laws and codes of the Republic
of China: Constitution, Civil Code, Criminal Code, Code of
Civil Procedure, Code of Criminal Procedure and
Administrative Laws. A researcher may also access it online
at S-Link Six Major Laws Online , a non-governmental
website, for free. In addition, the most current versions of 六法全
书 in print include:
C) Judicial Decisions
- Note that judicial decisions are generally not considered as
primary sources of law in Taiwan except judicial
interpretations issued by the Council of Grand Justices. It is
only discussed Judicial Decisions may be found at Judicial
Yuan’s case searching database, which contains decisions of
national courts on all levels and local courts. Date of coverage
varies but can be found here. Selective decisions may also be
found on Judicial Yuan’s official gazette online. In addition,
the Supreme Court of Taiwan also publishes a few collections
of judicial decisions and resolutions in print: Judicial
Interpretations of the Constitutional Court can be found on
its website (No.1 /1949 to present) in Chinese. An English
version of the Judicial Interpretations is published by the
Judicial Yuan in paper:
 Judicial Yuan, The Republic of China Constitutional
Court (Grand Justices Council) Reporter: Interpretations
D) International agreements, treaties and conventions
- International Agreements and Conventions that Taiwan is a
party can be found on Ministry of Justice Laws and
Regulations Database under Convention in both Chinese and
English. In addition, agreements and conventions in other
languages may also be found at the Ministry of Foreign
Affairs Statements and Communiqués online in PDF.
E) E-Resources
- MOJ Laws and Regulations Database: an official government
database that includes laws, regulations, directives,
conventions, judicial interpretations and decisions in full text
in vernacular Chinese and English. It is part of Taiwanese
government’s efforts to promote transparency and openness of
government information and operation. Scope of the database
is explained here.
- Global Legal Information Network (GLIN) maintained by the
Law Library of Congress also provides laws of Taiwan since
1947 in full text in the vernacular Chinese and abstracts in
English for free.
- Asian Legal Information Institute (Asian Lii) also makes
freely available Constitutional Court decisions of Taiwan since
1949 in html.
- Commercial Databases:
i. LawBank : launched in 2010, offers access to a wide
variety of primary and secondary resources in full text
online. Some of the content is freely available to the
public, however most content requires a subscription.
 ii. LawData :a leading commercial database that provides
access in full text to both primary and secondary sources
online. Its coverage is not just limited to Taiwanese
materials, but extends to Mainland China and Hong
Kong. It also covers law dictionaries and sample law
exams.
iii. ChinaLawInfo : a commercial database offered by a
Beijing based company, ChinaLawInfo. Ltd., contains a
Taiwanese laws and regulations database.
JUDICIAL SYSTEM
- The judicial system is based on civil law and Taiwan accepts
compulsory jurisdiction of the International Court of Justice.
- The Law on the Organization of the Judiciary states that the
judicial system consists of three levels: the Supreme Court, the
College of The Judiciary and the Local Court of Justice. The
Supreme Court is the court of criminal and civil procedure,
except for civil proceedings with a maximum amount of
1,500,000 new yuan and criminal proceedings of contempt
specified in Article 376 of the Criminal Procedure Law, all
proceedings can be appealed to the Court.

- Specifically, the Court has jurisdiction over the following

cases:
 Appeal of a first instance judgment of the College Court
or branch court in criminal proceedings;
 Appeals to appellate judgments of the College Court or
branch court in criminal and civil proceedings;
 Appeal of a College Court ruling or branch court
 Appealing the appellate judgment issued by the court
under simple procedure, the amount in dispute exceeds
1,500,000 New York and has special permission;
 Criminal and civil retrials in Supreme Court powers;
 Special appeals; or
 Other statutory cases.
- The feature of the Supreme Court is that it has many courts,
currently there are nine criminal courts and eight civil courts,
each consisting of five judges. All appeals are decided by the
court, because the courts may have different views, the court's
power to unify the interpretation of the law is significantly
reduced, to unify the views, the judges in the household and
the court meet regularly and decide on legal issues, the
resolution is not formally binding, but practically effective.

- The Judicial Yuan is the judicial branch of the government of

the Republic of China in Taiwan
- The Judicial Yuan (大法官會議) has 15 members in charge of
interpreting the Constitution. The Director and Deputy Provost
are the Grand Praetors appointed by the President, eight Grand
Praetors, including the Abbot and Vice-Chancellor, have four-
year terms, the remaining number have 8-year terms.
- The Judicial Yuan oversees the Supreme Court, the Supreme
Court, the Local Court, the Administrative Court and the
Commission for the Punishment of Civil Servants.
- According to Articles 77 and 78 of the Constitution of the
Republic of China, Article 5 of the Constitution Amendment
and Articles 30,43 and 75 of the Law on Local Regimes, the
main tasks of the Judicial Yuan include:
 Interpret the Constitution and unify the interpretation of
laws and orders;
 Dismissal of the President and Vice President and
adjudication of unconstitutional political party
dissolution proceedings;
 Trial of criminal and civil proceedings;
 Adjudication of administrative proceedings;
 Adjudication of proceedings on disciplinary measures
against civil servants; and
  Consider whether local charters violate the national law
or the Constitution
 Administration of justice
- The Judicial Yuan ruled on the following four types of cases:
1. Interpretation of the Constitution;
2. Unify the interpretation of laws and orders;
3. Dismissal of the Presidency and Vice President; and
4. Unconstitutional declaration of dissolution of political
party
- Petitions for interpretation of the Constitution may be filed in
the following cases:
 If the central or local government is unsure of the
application of the Constitution in the exercise of power,
if the agency, while exercising its power, conflicts with
another authority regarding the application of the
Constitution or if the agency is unsure of the
constitutionality of certain laws or orders or their
enforcement;
 If an individual, legal entity or political party, stating
that his or her constitutional rights have been violated
and have exhausted all judicial measures prescribed by
law, challenge the constitutionality of the law or order
applied by the court of cassation in its ruling;
 If at least one-third of the members of the Legislature,
exercising their power, are unsure of the application of
the Constitution or the constitutionality of the particular
law when applying and filing petitions; or
 If any court considers that certain laws that apply to
court proceedings are unconstitutional.
1. Supreme Court
- The Supreme Court (traditional Chinese: 最高法院; pinyin:
Zuìgāo Fǎyuàn) is the court of final examination of criminal
and civil proceedings, civil proceedings can be appealed to the
Court only if more than 1,500.00 new yuan are disputed,
except for contempt of offense specified in Article 376 of the
Criminal Procedure Law, all criminal cases can be appealed to
the Court.
The court has jurisdiction over the following cases:
 Appeal of a first instance judgment of the College Court
or branch court in criminal proceedings;
 Appeals to appellate judgments of the College Court or
branch court in criminal and civil proceedings;
 Appeal of a College Court ruling or branch court
 Appealing the appellate judgment issued by the court
under simple procedure, the amount in dispute exceeds
1,500,000 New York and has special permission;
 Criminal and civil retrials in Supreme Court powers;
 Special appeals; or
 other statutory cases


2. College Courts
- There are six College Courts (traditional Chinese: 高等法院;
pinyin: Gāoděng Fǎyuàn) in the Free Zone (including Taiwan
and parts of Fujian):
Traditional Chinese
Number Name
characters
1 Taiwan College Court 臺灣高等法院
Taichung Division Taiwan
2 臺灣高等法院臺中分院
High Court
3 Tainan Campus Taiwan 臺灣高等法院臺南分院
 College Court
Kaohsiung Campus
4 臺灣高等法院高雄分院
Taiwan High Court
Hualian Institute of Taiwan
5 臺灣高等法院花蓮分院
High Court
Jinmen Campus Fujian
6 福建高等法院金門分院
High Court
- The College Courts and its divisions have jurisdiction over
the following cases:
 Appeal a first instance judgment of a local court or
division in ordinary criminal and civil proceedings;
 Intermediate appeals of local court or divisional
judgments in ordinary proceedings
 The criminal high court shall impose a sentence of
imprisonment for a certain period of time by the Court
of Criminal Colleges and Divisions; and
 Other cases defined by law
- The College Court and division are divided into criminal,
civil and special courts, each consisting of one Chief Judge and
two Deputy Judges, in addition, the College Court and the
division have a Secretariat headed by the principal secretary,
the secretary assists the director in the management.
Proceedings in the College Or Divisional Court are heard by a
group of three judges, but one of the three may proceed to the
trial.
- The college court has seven civil courts that handle second-
level civil appeals and counterclaims under the legal system,
consisting of one chief judge and three judges. The court has
11 criminal justices for second-level criminal appeals, legal
counterclaims, and first-instance proceedings on civil unrest,
diplomacy and violations of diplomatic relations, including one
chief justice and two or three judges. According to the needs,
the Court also manages several special courts such as the Fair
Trade Special Court, the Family Task Force Court, the
International Trade Task Force Court, the Maritime Task Force
Court, the National Compensation Task Force Court, the Anti-
Corruption Task Force Court, The Special Court for
Intellectual Property, the Juvenile Crimes Task Force Court,
the Paramedical Special Court, the Police Special Court, the
Sexual Harassment Task Force Court,...
3. Local Court
- There are currently 22 Local Courts (traditional Chinese: 地方;
pinyin: Dìfāng Fǎyuàn) in the Free Zone (including Taiwan
and parts of Fujian):
Tradi Tradi Tradi
tiona tiona tiona
Nu l Nu l Nu l
Nam Nam Na
mb Chin mb Chin mb Chin
e e me
er ese er ese er ese
chara chara chara
cters cters cters
Zhan 臺灣彰 Lian 福建連 臺灣臺
Tai
1 g 化地方 9 jian 江地方 17 南地方
nan
Hua 法院 g 法院 法院
臺灣嘉 Mia 臺灣苗 臺灣臺
Chia Tai
2 義地方 10 o 栗地方 18 北地方
yi pei
法院 Flip 法院 法院
臺灣橋 臺灣南 臺灣臺
Qiao Nant Tait
3 頭地方 11 投地方 19 東地方
tou ou ung
法院 法院 法院
臺灣新 臺灣新 Tao 臺灣桃
Hsin Xin
4 竹地方 12 北地方 20 yua 園地方
chu hua
法院 法院 n 法院
臺灣花 臺灣澎 臺灣宜
Hual Pen Yila
5 蓮地方 13 湖地方 21 蘭地方
ien ghu n
法院 法院 法院
6 Kaoh 臺灣高 14 Ping 臺灣屏 22 Yun 臺灣雲
 雄地方 don 東地方 林地方
siung lin
法院 g 法院 法院
臺灣基 臺灣士
Co Shili
7 隆地方 15 林地方
Long n
法院 法院
福建金 Taic 臺灣臺
Kin
8 門地方 16 hun 中地方
men
法院 g 法院
- Each Local Court may establish a simple court or more for
hearing proceedings in accordance with simple judgments,
civil simple proceedings for proceedings with a disputed
amount of not more than 300,000 new taiwan currency and
simple legal proceedings, there are currently a total of 45
houses in Taiwan, there is also the Taiwan Kaohsiung Juvenile
Court established under the Juvenile Event Handling Law
- Each Local Court has a criminal, civil and simple suspension
and may establish a task force to handle juvenile, family,
traffic, labor proceedings and settle judgments for violations of
the Law on Maintenance of Social Order on one side. Each
court has a chief judge with oversight and assignment powers,
and each local court has a Public Defender's Office and a
Deferred Justice Office.
- A judge adjudicates proceedings by ordinary and simple
procedure and small deposit proceedings, a group of three
judges adjudicates proceedings by ordinary procedure and
appeals or intermediate appeals of simple judgments and
money. Criminal proceedings are tried by a group of three
judges, but a simple trial can be conducted by a judge. The
Juvenile Court adjudicates only juvenile proceedings.
4. Administrative Court
- The current system of administrative proceedings has two
levels, the Administrative Court classifies into the College
Administrative Court, which is the court of first instance, and
the Supreme Administrative Court, which is the court of final
appeal.
 Traditional Chinese
Name
characters
Supreme Administrative Court 最高行政法院
Taipei College Administrative
臺北高等行政法院
Court
Taichung College Administrative
臺中高等行政法院
Court
Kaohsiung College Administrative
高雄高等行政法院
Court
Tainan College Administrative
臺南高等行政法院（籌設中）
Court (tentative)
5. Civil Servant Disciplinary Committee
- The Civil Servant Disciplinary Committee (公務員懲戒委員會)
maintains official discipline and fines civil servants, regardless
of rank or position, for violating the law or neglecting their
duties under Article 77 of the Constitution
6. Judge
- Article 80 of the Constitution provides that judges must be
nonpartisan and adjudicate independently in accordance with
the law, furthermore, Article 81 provides that judges have life
terms. A judge cannot be dismissed, unless he commits a
crime, is disciplined or has an injunction, cannot be suspended,
transferred or has a reduced salary, unless required by law.
Judges appoint from those who have passed the Judicial
Officer Examination, completed the Judicial Officer Training
Course, and have outstanding records after the period of
practice.
 EDUCATION OF LAW
- Taiwan’s legal education system was initially induced by the
Japanese during the colonial period, which commenced at the end
of the nineteenth century. I n a coun try such as Taiwan, which
has, via Japan, adopted the Continental European civil law system,
the legislative regulation of social life is predicated upon
knowledge produced by legal education and then mediated
through the executive and the judiciary. The institutions of legal
education create a class of legal professionals who engage in the
creation of law and who influence the general community’s
perception of the legal system. What, then, is the normative
content of such education, which plays a crucial role in a
country governed by the rule of law? In the case of Taiwan, we
can examine this question from the perspective of social
history and come to understand and critique the orientation of
current reform projects.
I. The introduction of Western legal studies
under Japanese rule
1. The education system (1895—1945)
- This chapter begins by examining legal education in the
period of Japanese colonial rule. At first, the colonial
government did not provide professional training for Taiwanese
people, for example, by setting up legal education institutes.
Instead, it relied on legal bureaucrats recruited from Japan. We
can contrast the Japanese attitude to modern legal and medical
education, both of which were absent in Taiwan when Japanese
rule commenced. The colonial government moved quickly to
establish medical training schools. On the other hand, as law is
closely connected to political power, the colonial government did
not want Taiwanese people to study law, lest they use it as a
weapon against Japanese rule.
- However, from 1910, some Taiwanese travelled offshore to
undertake legal education. By the 1920s, 20 per cent of
Taiwanese students in Tokyo were studying law. In 1918,
Qingyao Ye became the first Taiwanese person to become a
qualified lawyer and in 1931 Yansheng Huang became the first
Taiwanese person to be appointed as a judge in Taiwan.
Lawyers and judges were highly respected in local
communities. This tendency of the Taiwanese to study law
abroad has continued to the present day. As we will see, it has
far-reaching effects on domestic legal education. In 1928,
under its policy of national assimilation, Japan established
Taiwan’s first legal education institute, in the Department of
Government within the College of Liberal Arts and Political
Science at Taihoku (Taipei) Imperial University. This institute
was oriented towards producing administrative officers rather
than legal professionals. lt is not surprising that it mainly
produced graduates with the administrative skills needed in
government and business, as it was greatly influenced by a
conception of legal education developed at the Imperial
University of Japan. This emphasized the inseparabil- ity of
law and politics. Furthermore, the social status of executive
and judicial officers at that time was higher than that of legal
practitioners. Students of the Department of Government
gained a Bachelor of Laws degree after three years of study.
2. Teaching content
- The law course set up in the Department of Government
contained subjects (frequently based on key legal codes) that in
many ways were not dissimilar to those still taught in law
departments today. Compulsory subjects included, for
example, Constitutional Law, Administrative Law, Civil Law,
Commercial Law, Criminal Law and Legal Theory. Students
were also required to take economics, finance, politics and
ethics. The elective subjects available were drawn from legal,
economic and political topics, in roughly equal shares. The
choice students made depended generally on their career
direction. Those who wanted a career in the business world
would select options concerning civil law and commercial law.
Those interested in government would choose constitutional and
international law related subjects. In addition, those who wanted
to pursue a judicial career would choose family law,
inheritance law, civil and criminal procedure, and so on.
Students also frequently selected subjects from other faculties
such as philosophy, history, literature and science.
- Lecturers used textbooks written by important Japanese legal
academics. Foreign books in German, English and French were
also often used as sources. Case studies were drawn from the
judgments of Japanese courts. Courses thus focused on Japan
rather than Taiwan, though some research was conducted into
Taiwanese issues. Overall, though, libraries held very few
materials on Taiwan. A major reason for this focus on Japan
was that graduates would seek employ- ment throughout the
Japanese Empire and its sphere of influence (for example,
Manchuria), not simply in Taiwan.
- The teaching model that followed was practised in Japan
before World War Two, and involved lecturers explaining
legal principles while students made notes and memorized the
information. There was little training in reflective analysis or
independent judgment.
3. The background and performance of students
rind lecturers
- All the law teachers in the Department of Government were
from Japan and all were male. Most of them held a Bachelor of
Laws degree, frequently from the Imperial University of
Tokyo. The majority were engaged full-time in teaching and
research; only a few held judicial posts and it would seem that
none were practicing lawyers. Most of them seem to have held
liberal political views.
- At that time, most of the students were Japanese, with only
around 10 per cent coming from the Taiwanese community.
None were female. After graduation, most moved into
administrative or governmental roles; very few became
lawyers or judges, and even fewer became academics.
II. Legal education under the Kuomintang
1. The legal educational system (1945-1990)
- After World War Two, the Japanese-based legal system
operating in Taiwan was replaced by that of the Republic of
China, molded on the Chinese mainland by the Kuomintang.
With this change, legal education in Taiwan, including the
content of legal education, shifted its focus to the law of the
Republic of China. However, a degree of continuity was
maintained since the Japanese had had a major influence on the
modernization of law on the Chinese mainland, including
through the translation of Western civil law terminology into
Chinese characters. Moreover, the Department of Government
was renamed and reorganized into the Kuomintang’s new
Department of Law at National Taiwan University (the former
Taihoku Imperial University). In the early 1950s, it continued
to be Taiwan’s only institution of legal education.
- It was not until 1955 that the second institution of legal
education in Taiwan was founded: the law department of the
Taiwan Provincial College of Business and Law (now National
Taipei University). In the context of the long period of
military rule, legal education developed quite slowly. By 1990,
there were still only eight institutions of legal education in
Taiwan: four public (at National Taiwan University, National
Taipei University, National Chengchi University and the
military academy described below) and four private (Soochow
University, Fujen Catholic University, Chinese Culture
University and Tunghai University). Some of the law schools
were initially established as postgraduate institutes, because
they did not have sufficient teachers and facilities for
undergraduate pro- grams.' The law department operating for
military officers began to operate in 1957. Its graduates
received preferential treatment in the professional admission
examination (with less onerous requirements) and many
became lawyers.
- These institutions also established Masters and Doctoral
programs in order to foster legal research capacity; for
example, National Taiwan University created its LL.M
program in 1955 and its Ph.D program in 1974.
2. Teaching content
- The curricula of all these law schools were regulated by the
Ministry of Education and were structured around the legal
codes, in a similar way to law teaching under Japanese rule.
The curricula were heavily weighted towards compulsory
subjects. In contrast to the Japanese period, however, legal
education under the Kuomintang was also directed at instilling
a culture of Chinese nationalism and reinforcing the power of
the Kuomintang’s authoritarian state.' Kuomintang ideology,
based on Sun Yat-sen’s ‘Three Principles of the People’, was
the basis of constitutional thought.
- Education in conceptions of individual rights and freedoms was
stifled, although from the 1970s a few theories drawn from
American, European or Japanese lib- eral democratic traditions
began to be discussed, especially by younger scholars who had
studied in those societies.
- From the 1970s, too, the rigid teaching methods of the earlier
years began to give way to more innovation; again, this was
led by the new generation of law teachers returning from
graduate study overseas. New textbooks appeared and teachers
increasingly referred to different legal theories, and discussed
real and hypothetical cases rather than merely examining legal
codes. This development improved the students’ comprehension
of legal concepts and their ability to trans- plant foreign civil law
to local practice. The quality of legal professionals and judges
rose as a consequence.
3. The background and performance of students and
teachers
- One of the great strengths of legal education in Taiwan is that
it has become accessible to the entire population. This
development occurred during the author- itarian period of
Kuomintang rule. While teachers and students were initially
disproportionately drawn from families that had fled from
mainland China in 1949, the percentage froln other groups
(that is, the native Taiwanese) rose steadily, until by the 1980s,
they were in a majority. Legal education came to be offered on
merit, without discrimination based on ethnicity or social class.
Moreover, while the great majority of law students were
initially male, female participation gradually increased, until
by the end of the 1980s, women attended law schools in equal
numbers to men. Politically and socially disadvantaged groups
were thus able to gain access to legal education. This
contributed to the capacity of the movements of political
opposition and social protest, which expanded in the 1980s, to
carry out their activities within the legal system.
- In contrast to the broad accessibility of legal education,
admission to the legal profession remained highly restricted; the
extrelnely low pass rates for the exami- nations for lawyers and
judges meant that the large majority of law students were
unable to become professional lawyers. The pass rate of the
professional admis- sion examination for lawyers was 17.5 per
cent during the 1950s but dropped to around 2 per cent for
most of the 1960s, 1970s and 1980s. It surprisingly rose to
above 14 per cent in 1989 and then was about 9 per cent on
average during the 1990-2000 period. In contrast, the
examination for judges has maintained an extremely low pass
rate; while it was around 16 per cent in the 1950s, it has been
around 4 per cent since 1960.
III. Legal education in the post-autocratic era
1. Rising student numbers and institutional
diversification from 1991
- During the 1990s, while many longstanding problems with
the nature of legal education remained unresolved, its
availability was greatly expanded. This occurred in tandem
with the trend towards political liberalization and
democratization, and with the advance of globalization and
technological innovation. As mentioned above, between 1928
and 1990 there were just eight Taiwanese institutions with law
departments. However, in 2006, a survey by the Ministry of
Education indi- cated that 37 universities and other higher
education institutions had established 109 law department and
postgraduate institutes. The number of students had risen to
17,671. In other words, over 16 years between 1991 and 2006,
the number of universities or colleges providing legal
education had increased more than fourfold.
- Five different kinds of legal education institutions have been
involved in this expansion: (1) national universities that
previously concentrated on other dis- ciplines, such as
engineering; (2) newly founded national universities; (3)
colleges upgraded from private institutes; (4) colleges
upgraded from private schools offering professional diplomas;
and (5) newly founded private institutions. The last three
categories greatly increased after reforms to higher education
taking effect from 1994.
- Why have these universities and colleges set up law courses,
one after another? Taiwan has become a society in which law
has assumed greater importance. Some universities have
therefore established law courses in response to the increasing
need for people with legal skills, in areas of employment such
as the public service or the commercial sector. On the other
hand, a more pragmatic motive has been that law schools can
be established at low cost and can easily attract students in a
context where law has rising prestige and legal skills are in
rising demand. This later consideration is particularly
important to many private institutes that lack an established
reputation.
- As more and more institutions engage in legal education, they
have each sought to distinguish themselves in the marketplace.
They have created new institutional arrangements and offered
programs with specialized orientations. Some of these do not
go much further than a change of name. However, what has
changed dramatically is the structure of postgraduate programs
in legal education. As the reforms in this area have been rather
complex, they are best described under three categories.
a) Postgraduate education for students holding an
undergraduate law degree.
- The changes here concern students admitted to further study
in the form of Masters and Doctoral degrees. The range of
specializations has markedly expanded. Consider the
developments at the law schools at National Taiwan University
and National Chengchi University, for example. At National
Taiwan University, in addition to traditional specializations in
jurisprudence, public law, civil law and criminal law, new
specializations have been established in areas such as
economic law, fiscal law and international law. At National
Chengchi University, the traditional fields have been
complemented by offerings in financial law, employment law
and social law. Students taking these specializations are now
able to build on them by embarking on advanced studies,
drawing on comparative law or training in other disciplines.
Many have moved on to Doctoral programs in Europe, the
United States or Japan. However, a major problem with many
of these students in advanced programs has been that they are
just biding their time; their real focus is on preparing for the
lawyers’ and judges’ examina- tions. Consequently, there is
little improvement in students’ ability to conduct legal
research. Moreover, the deterioration in the ratio of academic
supervisors to students has also cast doubt upon whether the
quality of graduate legal research has improved more
generally.
b) Basic legal training for students who have not studied
law.
- In the 1980s, the educational bureaucracy decided not to
introduce the American JD model of postgraduate legal
education into Taiwan. However, through the influence of Mr
Li Mo, Soochow University in Taipei, a private institution,
estab- lished a special Masters stream for non-law graduates.
At that time, it was possible for public servants to apply for the
program and, if enrolled, to obtain a three-year scholarship.
This meant that the success of the course was not in doubt.
- While Soochow’s course is apparently similar to an American
JD, it differs in several important respects. First, it is not run
for the sole purpose of producing legal practitioners. Most of
its graduates work in the public service or otherwise return to
their former positions. Very few become lawyers or judicial
officers. Second, in contrast to the American position, the
Soochow course is a traditional Masters degree, in the sense
that it requires the completion not only of course- work, but
also of a research thesis. This has proved to be an important
obstacle for some students who cannot finish their study on
time, or who are unable to produce a thesis of an appropriate
quality.
- In 1997, National Chengchi University, a public institution,
set up a similar program, followed by National Taipei
University in 2001 and National Taiwan University in 2004.
All of these, like Soochow, were not originally directed at
producing lawyers. Recently, however, programs such as that
at National Taiwan University have emphasized that their
objective is to enable students to develop legal knowledge and
skills at a level sufficient for legal practice. Thus, there now
seems to be a move toward American-style courses.
c) Specialized legal training for students either with or
without previous studies in law.
- The third development in legal education consists of discrete
programs in specific areas of law. These do not aim at a
comprehensive legal education, and certainly do not prepare
students for professional admission examinations (although
students may have other ideas). An early example of this was
National Taiwan Ocean University, which in 1991 established
a Maritime Law Research Institute enrolling both law
graduates (‘Group A’) and non-law graduates (’Group B’). Of
broader significance was the joint initiative of National Chiao
Tung University and National Tsing Hua University, both at
Hsinchu, which set up a Law and Technology Research
Institute in 2001. This also enrolls both law and non-law
graduates, dividing them into two groups. For students with a
law background, this model does not materially differ from the
advanced training in a particular specification, discussed
above. A difficulty with this model of legal education is that it
often involves a compromised allocation of resources and staff
between two very different groups of students in terms of their
background, knowledge and goals.
- A part from these examples, there are other institutions that
tout their specializations in their attempts to recruit both law
and non-law graduates; those most commonly highlighted are
programs in finance law, fiscal law and intellectual property
law. Some also promote their particular combination of
theoretical and practical teaching or the fact that they cater for
full-time workers. In this envi- ronment, it is not surprising that
the numbers of Masters students has grown sharply.
2. Teaching content
- In the 1990s, law teachers with graduate experience in the
United States began to reach an equivalent number to those
returning from Europe and Japan. This meant that, in addition to
continuing the Civil Law tradition of legal interpretation, law
schools began to increase the teaching of American legal research
methodologies, such as Economic Analysis of Law, Critical
Legal Studies and forms of empiri- cally based legal analysis.
- Despite the availability of comprehensive legal textbooks across
a wide range of legal subjects, law teachers continued to use
lecturing as their main teaching style. lt is difficult to say
whether they drew links between the legal theories derived
from overseas and the laws, judgments and interpretations
produced in Taiwan, as there is no empirical information
available at the national level. However, there were already
some law teachers developing a different approach to legal
educa- tion, one which focused on case analysis, rather than
legal theories (though this remained a minority approach among
scholars at National Taiwan University and nationally). By way
of illustration, a number of professors at National Taiwan
University Law School selected several major interpretations
of the Council of Grand Justices (Taiwan’s Constitution
Court), as well as scholarly writings, and edited them for the
purposes of producing teaching materials.
- At the same time as improvements were being made to the
rather rigid methods of teaching, there was, as mentioned
above, significant growth in the number of law schools. This
raised the question of whether teaching qualifications were
adequate. There were several law schools where the standard of
teachers and students was not ideal. Some of the newly
established schools were in the parlous situation of having only
one or two full-time members of teaching staff.'2 Most law
schools sought teaching staff who had gained Doctoral degrees
overseas. These had the potential to combine legal theory and
practical analysis, as we have just seen, but the number of such
scholars did not keep pace with the rapid growth in the number
of law schools. Moreover, if we look at those staff who entered
the new law schools, they lacked leadership from senior legal
scholars, and tended to sacrifice the inter- ests of students in
their allocation of time between teaching and research.
- Furthermore, a number of lawyers and judges who in
previous times would have been unlikely to gain a teaching
position in a law school were now able to do so as a
consequence of the great need for staff. To be sure, they were
able to bring to their students an understanding of the practical
operation of law. Nonetheless, legal education was not their
basic profession, nor could it be expected that it would become
so. Thus, the content of their teaching tended not to extend to
new trends and developments in legal thought. They could
contribute little to raising standards of legal knowledge and
legal problem-solving in talented students. This failure to pay
attention to the quality of teaching, and to blindly expand legal
education, seemed to follow the same mistaken path as in the
early period of Republican China.
- On the question of curriculum, some potential for significant
change appeared to open up in 1995, thanks to a momentous
decision of the Council of Grand Justices in that year." The
Council found that the uniform control over university courses
exercised by the Ministry of Education was unconstitutional.
This meant that law schools were no longer obliged to follow
the course plans developed by the Ministry. The possibilities
for curriculum reform have, however, still been somewhat
constrained by the topics assessed in the lawyers’ and judges’
examina- tions — these have remained substantially the same.
Even those subjects that have been designated as options have
effectively become compulsory subjects, as they are tested in
the examinations. The lack of an impetus for change has meant
that, despite the legal freedom that universities now enjoy to
set their own curricula, the structure of courses essentially
remains the same as in the 1980s. Indeed, the centrality of civil
law and commercial law remains a feature of legal studies, just
as it was in 1928, even though public law courses have become
more prominent. Optional courses have certainly become more
diverse, particularly as a result of teachers studying overseas,
and some deal with new legal issues. Unfortunately, though, as
before, compulsory subjects tend to crowd optional subjects
out of the curriculum.
3. The background mid performance of student and
teachers
- The aspect of Taiwan’s legal education system that most
deserves approbation is the broad range of backgrounds of both
students and teachers. This promotes social mobility. In terms
of ethnicity, the proportion of students and teachers from each
Taiwanese ethnic group generally corresponds to their
proportion of the gen- eral population. However, very few
teachers are from an indigenous background and there are still
relatively few female teachers, so there is room for improve-
ment. Fortunately, in recent years, the number of female
appointments to teaching staff has, it would seem, exceeded
that of males.
- The political and economic backgrounds of law students are
similarly diverse. In the previous period, the entire education
system on the island was geared towards instilling Kuomintang
ideology into the population. Law students and law teachers
could not avoid this influence. However, during the 1990s, the
pre- eminence of Kuomintang ideology came to an end.
Different points of view were reflected in legal circles. In the
last presidential election, for example, the candi- dates of both
major political parties (President Ma Ying-jeou and Mr Frank
Hsieh) were graduates of National Taiwan University Law
School.
- At the same time, as in previous years, students from poorer
social backgrounds were able to ascend to a relatively high
social position through merit-based entry to legal education
and low university fees. The former President of Taiwan, Chen
Shut-bran, came from a poor household but became a lawyer
through his study at National Taiwan University Law School
and, ultimately, the leader of the nation.
- How have lawyers, judges and other graduates of Taiwan’s
legal education system performed? At present, one can only
give an impressionistic analysis; empirical research into the
issue needs to be conducted. Several common criti- cisms can
be identified. Some derive from non-legal professionals, such
as doc- tors, accountants and engineers; for example, a
frequently heard complaint is that lawyers do not understand
non-legal disciplines. This complaint may simply reflect the
fact that each profession tends to view itself as particularly
important. However, two more specific concerns seem of more
substance. One is how, in individual cases, non-legal
knowledge may be incorporated into the legal process. A
second relates to the alleged inability of Taiwanese lawyers to
deal with the complexities of international transactions (such
as those involving engineering projects). An issue raised by
this latter issue is the extent to which law schools should be
responsible for such education, or whether it is more
appropriately dealt with by in-house training provided by
firms.
- More broadly, there are complaints that judges have
insufficient understanding of social context, and that legal
education has not adequately stressed the linkages between law
and society. Be that as it may, the issue is not simply one of
legal education, but also involves the judicial training system.
- However, there is an even more significant issue that must be
faced by Taiwan’s legal education system — why do the
majority of law graduates not engage in legal practice? On one
analysis, it could be suggested that if the present limits on the
numbers of lawyers and judges nationally are not to be very
significantly lifted (and the pass rate in the admission exams
significantly raised), then admission to legal education should
be correspondingly restricted. In order to determine the
appropriate intake of both law students and of legal
professionals, the funda- mental objective of legal education
should be considered. The aim is to enable individuals to
understand legal reasoning and to apply it to practical problems
(including in a legal research capacity). In a context where the
demands made of law are increasing and domestic graduates
are more exposed to international competition, it is necessary to
aim at an admission standard that will select highly capable
students. A system that then prevented the large majority of such
students from admission to practice should be called into
question.
- On the other hand, there are several problems with an overly
restrictive approach to selection of students. lt may deny
students from poorer socio-economic backgrounds the
opportunity of studying law. It could also lead to legal education
being monopolized by a small group of people, and/or
dominated by particular and narrow educational approaches.
Further, if students are guaranteed entry into the profession, this
may lead, in the absence of competition, to laziness on their
part, and poor quality outcomes. Therefore, a degree of
competition is appropriate both at the stage of entry to legal
studies, and at the stage of admission to the profession.
4. The controversies over reform during the
democratic period.
A) Recent proposals for reform: the 2006 White Paper
- There has been no lack of controversy surrounding legal
education since Taiwan democratized; from the end of the
1990s, in particular, there have been many scholarly gatherings
where this has been the central theme. In December 1999, the
Taiwan Law Society at its annual meeting discussed the
purposes of legal education, the content of courses and the role
of postgraduate legal education. In March 2002, a conference
organized by National Taiwan University Law School on the
reform of legal education discussed the relationship between
these issues and the professional examinations, as well as on-
the-job training. In 2004, the Ministry of Justice organized an
international conference considering the implications of
Japan’s adoption of United States-style legal education, as well
as developments in Germany.
- In 2005, the legal reform issue had become politically
significant enough for a governmental committee to be set up.
In March of that year, at the suggestion of several law
professors, the President’s Human Rights Advisory
Commission established a ‘Committee to Promote the Reform
of Taiwan’s Legal System’, convened by the then Vice-
President Annette Lu.36 The Committee’s terms of reference
included reform of legal education. A major reason for the
establish- ment of this Committee was that jurisdiction over legal
education is split between four governmental organizations: the
Ministry of Education is responsible for higher education
aspects; the Examination Yuan for professional examinations; the
Ministry of Justice for professional training; and the Judicial Yuan
for appoint- ments. None of these agencies is superior to any of
the others, so the Committee was created in an attempt to
transcend jurisdictional boundaries.However, the authority of
the Vice-President in these matters is constitutionally doubtful.
- Following the establishment of this Committee, in May 2005, the
government appointed National Taiwan University’s Professor
Chang-fa Lo to conduct an inquiry into Taiwanese legal
education. The inquiry was to canvass views from a wide range
of stakeholders, and propose specific changes. Professor Lo
was assisted by a taskforce of eight, which included academics,
legal professionals and judges. Views were sought from across
the island and a range of possible reform models devised. In
addition, three large-scale forums were organized. The first
was an international conference that solicited the opinions of
scholars from countries such as the United States, Japan,
Germany and South Korea. The second was a conference
jointly organized with the Examination Yuan, which looked at
the examinations for judges and lawyers. The third was called
at the end of 2005 to finalize a White Paper on Reform of
Taiwan’s Legal Education System, and the various options it
contained.
This White Paper indicated that there was a high degree of
consensus around several issues. First, in relation to law
degrees, the White Paper observed that the current system
lacked clear goals, had no sense of appropriate intakes and
lacked quality assurance. In order to address this, the White
Paper proposed a three-year specialist law degree designed to
train legal professionals. Students would either be in one
model graduates of other disciplines or in another model
graduates or fourth year undergraduates. The professional
admission examinations should, according to the White Paper,
be redesigned so that at least 70 per cent of those students
graduating with a law degree would pass; the mode of
examina- tion was to be subject to further discussion. Law
faculties implementing the new system would encourage
students to undertake Doctoral studies either in Taiwan or
overseas to ensure the development of future academic talent.
New institutional arrangements for determining intake,
evaluating legal education and certifying schools would be
introduced. The existing undergraduate programs could either
be maintained, or phased out, with law students holding a
Bachelor-level degree being able to participate in professional
examinations for a certain period.
- On the question of teaching staff, the White Paper proposed a
teacher-student ratio of at least twelve to one, with at least half
the staff being full-time. At least 20 per cent of staff would be
drawn from professional lawyers and judges, with the
government supplementing payments of judges in the event
that their salaries decreased on taking up an academic position.
Teaching methods and materials would be oriented towards the
American ‘Socratic Method’ of teaching, or other methods
involving active exchanges with students. Existing teaching
materi- als focusing on the legal Codes would be modified or
integrated with the new material.
- In order to enable students to be internationally competitive,
courses, and pos- sibly degrees involving law in foreign
languages would be offered. International contacts and
cooperation, specialist options and better education in legal
theory were also proposed." If the White Paper’s account of
Taiwan’s legal education system in 2006 is compared with the
position in 1978, it is clear that the disregard for teaching the
rule of law and legal theory is no longer evident. On the other
hand, the White Paper indicates that courses and teaching
styles have atrophied and that the many problems evident in
the 1980s persist.
- While the White Paper took the debate over legal education
to a more sophis- ticated level, there were problems about
participation in the process leading up to its publication.
Unfortunately, the prevalence of legal education ‘talk fests’
prior to Professor Lo’s inquiry meant that many stakeholders
were rather fed up with the issue, as little concrete action
seemed to eventuate. Many academic staff were not motivated
to participate actively, partly because of the increasing
pressure to produce research articles, and/or because of
teaching overloads. Moreover, Professor Lo’s taskforce had
only a few months to examine an extremely complex issue and
to devise a policy response, so there was no real opportunity to
have an extended dialogue between alternative points of view.
Further, some specific pro- posals really needed more
discussion in order to be fully developed. For example, having
the same course of legal study for graduates, regardless of
whether their first degree was in law or another discipline,
seems unreasonable, at least at first glance.
B) The temporary victory of the American model of legal
education.
- In Taiwan’s political culture, the conditions for a broad
public policy debate are frequently lacking. Consequently, the
government moved quickly to insti- tute reform without more
wide-ranging analysis. The President’s Human Rights
Advisory Commission established a program for reform in
April 2006, under which Legal Professional Institutes teaching
postgraduate law courses were to be in operation by 2008, a
timetable approved by the Ministry of Education. The main
policy initiative in this pro- gram was the introduction of
American-style graduate law degrees. This meant that the
existing departments of law in universities were faced with
closure, and their students would be able to sit the professional
admission examination only within a limited time period. In
2007, Ming-chen Chen, a legislator with the Democratic
Progressive Party who strongly favored American-style legal
educa- tion, introduced a bill that would require all future
candidates taking the exami- nations for admission to the legal
profession, the judiciary and for prosecutorial positions, to
have studied at the Legal Professional Institutes. Students
currently enrolled and present graduates of undergraduate law
schools would have no more than ten years within which to
take the exams.
- With these serious proposals suddenly on the table, many law
teachers realized that a major change to legal education could
quite possibly occur, but they had very little idea about what
form this change might take, or at least they had only a partial
impression. The law schools established during the 1990s were
especially concerned, fearing that they would not satisfy the
requirements for the establish- ment of the Legal Professional
Institutes, and would have to cease operating. Consequently, a
large number of law school administrators began to agitate for
modifications to the reform plan. They advocated a ‘two-track’
system of legal education, under which the present
undergraduate law schools could continue to operate.
- Political considerations then forced a change in the direction
of the reforms. In June 2007, ten law school administrators,
including representatives from the leading law schools, met
with President Chen Shui-bian, expressing their reservations
about the proposals from his Advisory Commission. Realizing
that there was no consensus among legal circles on the reform
issue, President Chen directed the Education Department to
suspend implementation of the Legal Professional Institutes
scheme. The Examination Yuan was also to suspend its
revision of the examination system, and members of the
Democratic Progressive Party caucus in the Legislative Yuan
were asked to respect the views of the legal academics and
withdraw the reform bill. President Chen agreed that reform
should proceed in an incremental, two track and diversified
way. The move to convert Taiwan’s legal education system to
an American model thus came to at least a temporary halt. No
one knows how reform will proceed in the future. In any event,
reforms of teaching methods and teaching materials, which are
not necessarily linked to wider systemic changes, are still
under discussion.
5. Thought before action
- Reform of Taiwan’s system of legal education requires
careful consideration of the key underlying concepts. In the
author’s view, in democratic Taiwan it is not possible for
scholars to stimulate change by relying on the actions of
political powerbrokers. Feasible reform can be achieved only
through debate and compro- mise involving all the interested
parties. Of course, systemic change can often be implemented
more efficiently in an authoritarian state, as opposed to a
democratic one, the only problem being that change for the
worse is just as likely as change for the better. Scholars in a
democratic society must therefore ground their pro- posals on
rational observation of a situation, and then persuade the public
of the need for particular reforms based on a coherent
conceptual analysis.
- Unfortunately, the recent scholarly debates on reform of legal
education have usually rested on views formed frorri personal
experience, or have sought to invoke models from overseas.4'
However, individual experience is limited and cannot pinpoint
the weaknesses of the current system, nor predict the possible
difficulties associated with reform, nor explain why teaching
methodologies have remained basically unchanged for 80
years. These issues need to be explored through empirical
research; for example, research is needed to identify the appro-
priate number of lawyers that should be admitted through the
professional examination.
- Moreover, every reform model has its benefits and drawbacks
and resolving these can depend on value judgments. Student
selection provides a clear example: should the requirements of
elite groups or the general society prevail? Given that there is
no objective way of resolving this question, foreign models are
useful only as reference materials, not as guides. At the end of
the day, reform must respond to Taiwan’s own social
conditions.
6. A proposal for further discussions on legal
education
- Set out below is the author’s own suggestion for reform of
legal education in Taiwan. I aim to clarify the educational and
professional aims of legal education in order to identify the
qualities demanded of law students and the requirements of
law teachers. This figure also enables assessments to be made
of current legal institutions, with a view to determining
whether they are capable of implementing reforms. It outlines
the essential features of a new legal education system, so that
further thought can be given to specific issues such as
modifying teaching materials and evaluating law schools.
- The outline describes a ‘two track multiple outcomes’ system in
which there would be two pathways to legal education. One
pathway would (as at present) be an undergraduate law degree,
during which a student would receive a basic grounding of law.
A graduate could choose not to undertake further education,
but in order to become a legal professional, the graduate would
have to pass the professional admission examination (the
reasonableness of this examination is another issue). Further
training in law might be required, but this would be the
responsibility of legal professional bodies rather than
universities. If the student did not pass, or did not seek to pass,
an admissions examination, other options, such as working in
the legal affairs department of a business enterprise, would
remain open.
- Undergraduate students could alternatively choose to
continue their legal edu- cation by undertaking a Masters
degree. LL.M graduates could become legal pro- fessionals or
take up other options, or they could continue their studies at
Doctoral level either in Taiwan or overseas. The purpose of
gaining a Ph.D would be to seek employment at a university or
legal research institute. It would, of course, also be possible for
a student to embark on studies in other disciplines, such as
economics, accounting and management, even to the point of
obtaining an addi- tional degree. Indeed, such study should be
encouraged. Such additional studies would not, however,
constitute part of the system of legal education.
- The second pathway would be for students who had
completed an undergraduate degree in a discipline other than
law. It would aim to open up access to the legal pro- fession to
a wider range of people, and to promote healthy competition
and coopera- tion with the students taking the first pathway.
Students taking the second pathway would need to make a
choice: either to undertake studies to gain legal knowledge
sufficient to become a lawyer, or to study law as an adjunct to
work in another pro- fession. This choice would determine the
type of graduate legal education in which they would enroll. If
they made the first choice, to study law in depth, they would
enter a Legal Professional Institute and receive legal training
similar to that offered to undergraduate law students. Thus they
would be in a similar position to gradu- ate students taking the
JD degree in the United States. In order to distinguish these
students in Taiwan from LL.M Jorue students, and in particular
to avoid the misapprehension that such study would entail a
thesis, the term ‘Legal Professional Masters’ would be used.
- Holders of Legal Professional Masters degrees would have
the same access to legal professional examinations as those
with LL.B and LL.M degrees. Whether the degree in another
discipline would provide them with an advantage in the job
market would depend on the nature of their degree and on the
specific job require- ments. Unlike LL.B graduates, though,
Legal Professional Masters students could, like LL.M students,
seek admission directly to a Doctoral program and engage in
advanced studies in law, in order to become legal academics or
professional legal researchers. Creating multiple pathways to
an academic or research career would enrich Taiwan’s legal
research culture, and expand the opportunities for
interdisciplinary work.
- Outstanding non-law graduates who wished to study aspects
of law in addition to their main specialty could study discrete
legal subjects in an adjunct program run through their (non-
law) professional postgraduate institutes. This would not,
however, result in their obtaining any kind of law degree. This
should be viewed as one aspect of legal education, one that
would strengthen the linkages between law and other
professions in society, and increase awareness throughout
society of the rule of law. The law teachers in these programs
would be likely to engage in different sorts of research work to
those in the law faculties and legal research institutes,
generating further diversity.
- In short, this two-track system would lead to greater
diversity, broadening the range of choices available to
individuals, and improving national legal education and
research.
IV. Conclusion.
- This chapter has sought to relate the present dilemmas
facing Taiwanese legal education to the history of law
teaching on the island. This history began during the
Japanese colonial period, and continued through the
authoritarian period of Kuomintang rule, to present-day
liberal democratic Taiwan. Notwithstanding the many
debates on the aims and content of legal education that have
occurred over the last hundred years, there remains
uncertainty as to the future direction of law teaching.
- There is now a pressing need to conduct credible empirical
research into the current state of legal education in Taiwan.
Without a full grasp of its present condition and the causes of
its ‘illness’, it is not appropriate to simply prescribe a
foreign cure. In contrast to the past tendency of legal education
to serve the interests of politics, we must now stress that the
conceptual starting point should be the needs of the students.
We need to identify the different kinds of legal curricula
appropriate to different pedagogical needs of talented people.
Are we talking about people aiming to be law teachers; legal
researchers; legal profes- sionals seeking a license to practice
(where licensing policy is determined by government); legal
officers in government agencies or businesses; or people who
engage in professions outside the law? We also need to
review the student qual- ity required for selection into courses,
and the educational quality expected in tertiary institutions.
- I have proposed that legal education be reworked along the
lines of a ‘two- track multiple outcomes’ model. In my view,
this model will ensure that legal education for this generation
of students creates a firm legal underpinning for Taiwanese
society, enabling future generations to enjoy a rich quality of
life.
 CHOOSE A TYPICAL ISSUE THAT
YOU ARE INTERESTED IN AND
COMPARE TO VN
 Unsuccessful accusations against others does not mean
that they will be accused of slander? This is a common
question asked by many Taiwanese people.

- In common sense, making a false statement is a slander. In

the above case, if the accusation is denied, of course this
person will be convicted of slander.Taiwan's legal system does
not make false accusations so easy and straightforward.

- Three standards for handling complaints:

 First single job with a prefix or job-related structure

can be publicly reviewed for reporting. In civil
disputes, the law does not provide for reporting
behavior.
 The second consideration is evidence that proves or
willfully lied.
 The third criterion to consider slander, which is also
the most rigorous, is that the accuser himself must have
the intention to harm others.

- This standard for the only the most fields of the content is not
full, is bad remove, or do research, or report prefixes without
understanding the law.

- If not a certificate of the report of the prefix tries to find a

way to troubleshoot to prevent others from being harmed, guilt
cannot be established.
- Setting such high standards is to ensure that people can safely
exercise their right to denounce misconduct without fear of
being counter-prosecuted because of misunderstanding,
negligence or limited capacity.

- The crime of slander (誣告罪 or “malicious accusation”)

defined in Article 169 of the Penal Code of Taiwan, is defined
as the act of trying to create the truth with different goals to be
dealt with in the form of or to get the work done.

- In terms of definition, the concepts of humiliation and

defamation in Taiwan's criminal law are close to the concept of
"slander" specified at Point a, Clause 1, Article 156 of
Vietnam's Penal Code. In addition, it is also close to the
provisions on "crime of humiliating others" stated in Clause 1,
Article 155 of the Penal Code, punishing acts that "seriously
offend the dignity and honor of others", regardless of whether
the information given is true or not.

o Like Taiwan ,in Vietnam there are 3 way to

conclude slander Having fabricated acts aimed at
insulting the honor and causing damage to the
legitimate rights and interests of others: This
behavior is reflected in the fact that the offender
has created and propagated things that are not true
to the truth, contain content that distorts the honor
of others. causing damage to the legitimate rights
and interests of others.
 Committing the act of spreading fabricated information
in order to offend the honor or cause damage to the
legitimate rights and interests of others. This behavior is
shown in that even though the offender does not say
untruthful things about others and knows it is a
fabrication (knowing that what he is spreading is a
fabrication is a required sign). still spreading lies (like
 telling others, putting them on the media, etc.) to others.
What was it like?
 The other person constitutes a crime and denounces it to
a competent State agency. It is shown by self-inventing
that another person has committed a certain crime and
denouncing them to State agencies such as: Police,
Procuracy... even though this person is not actually a
person commit those crimes.
 The offender committed this crime with willful error.
The purpose of insulting the honor of others is the basic
constitutive sign of this crime.

 Example: False accusations are still not convicted:

- In June, after a drinking party, a female passenger and her

friend in Taipei took a taxi home. On the way, she discovered
the driver was going around the wrong way. Suspecting the
driver to have bad intentions, she repeatedly called her
relatives. According to her, they tried to escape from the taxi
when they found an excuse to stop at the station to go to the
bathroom, but were then forced to get back in the car. It was
not until she took out the electric stun stick to defend herself
that the driver released her. She reported and denounced the
driver's detention. The driver's side, meanwhile, presented
audio tapes and travel history to prove he wasn't on the wrong
track. The driver's account said that the two passengers got
into the car while drunk, did not speak clearly, changed the
address, so he had to change the route. The incident was
buzzing on social media and the press for a year. The driver's
family is under a lot of pressure from the public. He decided
to counter charge the passenger with false accusations. Based
on the available evidence, the prosecutor's office denied the
allegation of the female passenger. The prosecutors
determined that the driver had followed the required route, and
because she was not familiar with the road, she misunderstood
the driver to have bad intentions.The allegation is denied, so is
she guilty of slander?

-> The prosecutor also rejected the request to prosecute the

slander charges from the driver's family. The reason given was
because it could not be proven that this girl intentionally
fabricated the truth to accuse the driver.The prosecutor's office
concluded that the whole incident was due to a
misunderstanding - two passengers got into the car in a
drunken state, did not know the route, thinking that the driver
had bad intentions, while the driver heard the passenger read
another address on the phone. The phone thinks the customer
wants to change the destination. "Misunderstanding" is a
difficult reason to accept, especially for the driver's family.
When the incident went viral on social media, the family had
to go through "the hardest, most painful period of their lives",
according to the wife.According to the judgment, this girl
made a false accusation. Her false accusations have bad
consequences for an innocent person. But according to the
criminal standards of the country's law, she cannot be found
guilty of slander.

 Examples: In an affair, the event husband and

mistress went to court for extramarital affairs. [3]
Apologize to her husband and be accepted by his
wife. The wife still decides the fact that the third
person destroys the family. He secretly filmed
three times with his wife, decided to accuse him
of committing ideological crimes, and repeatedly
took pictures of her documents. She went against
her husband's line. Considering the certificates are
private photos, the girls in the photos are all
looking directly into the camera, many times
posing. The court determined that this was not a
hidden camera as she alleged, but there was
consensus. The fact that she gave testimony as an
 employee to prove her love is an act of creating
truth. From there, it was decided that she
committed a crime.

-> Falsifying facts or falsifying evidence is often a prerequisite

for determining slander. That is why the laws on “securities”
(perjury) and “slander” (malicious accusations) are placed in
the same Chapter 10 of the Penal Code of Taiwan.
157 Tay-sheng Wang (trans. by Sean
158 Tay-sheng Wang (trans. by Sean