History of law in Taiwan

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This page is a history of the legal regime in Taiwan.

Aboriginal Law (pre-1624)[edit]

The earliest majority inhabitants of Taiwan were probably from Southeast Asia and are racially similar to the Malay group who inhabit Malaysia and Indonesia.[1] Other minority groups to inhabit Taiwan during this time were the Han Chinese, Japanese traders, European explorers, missionaries, and other traders. One origin of law of Aboriginal peoples came from a concept of chongzu 崇祖, or ancestral worship.[2] Ancestral spirits were believed to exist forever and co-exist among the living. It was thought that if you violate customs or taboo, this would possibly result in some sort of catastrophe and would require subsequent prayer to the ancestors to avoid such a catastrophe from happening again.[2] Breaking the law was thought to have the result of multiple levels of trouble for you or your family.[2] Criminal Law at this time took on the philosophy of “an eye for an eye”.[2] Another important aspect was the concept that traditional customs, no matter what the content, were accepted as normal.[2] Most laws and customs were passed by word of mouth. Tribes had a chief that was elected or chosen by bloodline. He was considered the local leader and representative to foreign tribes. Penalties for unlawful acts were separated into non-property related penalties (ex. bodily harm) and property related penalties. Non-property related crimes would result in corporal punishment such as caning. Property related crimes would result in compensation. The leader of the tribe was arbitrator to disputes.

Dutch Rule (1624-1662)[edit]

Dutch Placard.

From 1624 to 1662 the Dutch ruled Taiwan under the auspices of the United East Indian Company (Vereenigde Oost-Indische Compagnie or VOC in Dutch). The VOC was a trading company established in 1602 with the authority of the States-General of the Netherlands to carry out colonial activities in Asia. The Governor during this time was the head of government and was empowered to legislate, collect taxes, wage war and declare peace on behalf of the VOC and, by extension, the Dutch state. Because the VOC was given diplomatic, administrative, judicial, and other functions of sovereignty, the Dutch legally exercised control over Taiwan.[3] During their rule, the Dutch made serious efforts in the development of Taiwan. They established laws concerning aspects of life such as the levying of import and export tariffs, the sale of lands, the construction of houses, the organization of markets, the production of alcohol and sugar, gambling, and the granting of permission to enter and live in aboriginal settlements. The Dutch claimed they governed the whole island and created an administration and infrastructure that facilitated mostly commerce. They introduced land management and cultivation schemes as well as zoning and required a 10 percent tax on all production within their zones. They issued hunting licenses and taxed the subsequent catch.[4] They also required a tax for certain staples. The Dutch established a Court of Justice in the southern town of Tainan. The Dutch colonists maintained a concept of legal dualism.[2] If the case involved Europeans, then Dutch law would take effect. If the case involved aboriginals, aboriginal law would take effect. If the case involved Han, then the customs of the Han people would take effect.[2]

Koxinga (1662-1683)[edit]

The Kingdom of Tungning 東寧 was argued to be the first Han Chinese government to rule Taiwan. It was ruled by Zheng Chenggong (鄭成功), a child of Chinese and Japanese parents, between 1661 and 1683 after the defeat of the Dutch. The government at the time had a Chinese legal system, a court, scholars, and advisors.[1] The government of this time was similar to a Ming Dynasty government.[2] Taiwan society during this time absorbed the legal and political system of imperial China along with the Confucian educational and philosophy systems. Although Confucian literati made up only a small portion of Taiwan Society,[3] Confucianism had profoundly found its way into Taiwanese Society. Traditionally, power was in the hands of the father or grandfather with regards to disciplinary matters, marriage and property. There was also a strict division between government officials and citizens, between elders and the young, between husbands and wives, and between masters and servants, etc.[5] During this military occupation of Taiwan, the Aboriginals were still able to use their own law.[2]

Qing Dynasty (1683-1895)[edit]

From 1683 to 1895, Taiwan was loosely ruled by the Qing administration. Initially, Taiwan was a prefecture of the Fukien province, and after 1886 Taiwan became a province of China. The Great Qing Legal Code or Qing Code (大清律例), local customs and unofficial sources of law in imperial China were the source of law in Taiwan during this time.[3] In 1875, because of the Qing Empire’s desire to fortify aboriginal areas (including eastern Taiwan), the Qing government repealed the restrictive policies towards Taiwan. The first governor of Taiwan (1884–91) Mr. Liu Ming Chuan, considered a national hero by many Taiwanese, made important reforms and improvements to the infrastructure of Taiwan.[4] He set forth important tax and fiscal reforms and provided competent rule. In 1891 he was recalled by Beijing and retired. It has been debated by scholars just how much effective control the Qing Chinese had and wanted to have. Furthermore, it has been debated whether Beijing considered Taiwan under its jurisdiction. In 1867, Taiwanese aboriginals killed a crew of shipwrecked Americans. Beijing responded by saying that aboriginal lands were not under the jurisdiction of China.[4] In addition, popular uprisings were common.[3] Some scholars estimate there were as many as eighty-five uprisings during the Qing rule. Dispute resolution in Taiwan at this time was similar to the Chinese legal tradition with unofficial resolution preferable to official court adjudication. The Chinese administration was largely ineffective in settling disputes and corrupt officials usually found in favour of whoever bribed them most successfully.[4]> Conciliation was presided over by relatives or local notables, and only after conciliation failed would a magistrate hear the dispute, so locals were largely governing their own affairs.[3]

Japanese rule (1895-1945)[edit]

Qing China was defeated in the First Sino-Japanese War (1894–95) and Japan took over control of Taiwan and the Penghu islands. The process, however, was not smooth and Taiwan desperately resisted the Japanese takeover, and this resistance influenced the initial legislative institutions in Taiwan. The Government-General of Taiwan was created by an imperial ordinance known as the Organic Regulations of the Government-General of Formosa (ORGG). This ordinance gave the Governor-General of Taiwan the rank similar to a Premier or Chief Justice of the Supreme Court in Tokyo.[6] Among their powers were the power to control general political affairs, the power to command the military and naval forces, and the power to handle judicial affairs.[7] In March 1896 the Imperial Diet (Japan’s legislature 帝國議会 Teikoku-gikai, currently the National Diet of Japan 国会 Kokkai) enacted the Law Relating to Laws and Ordinances to Be Enforced in Taiwan (Title 63, or Law 63). This law gave the Governor-General the power to issue ordinances (ritsurei) that have the same effect as Japanese law.[8] Title 63 was extended every three years (article 6) until 1906 when it came under pressure from the public about its constitutionality. The law was often attacked in the Diet as illegal because it gave the Government General law-making power, not the Diet.[9] As a result, in 1906, Title 63 was revised under Title 31, which restricted the powers of the Governor-General. These changes had little real effect[10] and were revised further in 1921 under Title 3. Under Title 3, the power to issue ritsurei was restricted by the exception principle in Article 1. In theory, the effective law in Taiwan would increasingly be covered by Japanese Law. Sources of law during this time for Patent Law, Copyright Law, Trademark Law, Criminal Procedure, Civil Code, Commercial Laws, Civil Procedure, and Maritime Laws were from Japanese Law. Organic Regulations of Law Courts and Criminal Law were governed by ritsurei.[11] This time period also marked a steady incorporation of western law into Taiwanese law.[2]

Republic of China (1945-present)[12][edit]

Introduction[edit]

The Transition of the Legal Systems, 1945-49[edit]

The ROC legal system took effect in Taiwan on October 25, 1945 after most Japanese laws were repealed on October 25, 1946

Martial Law State, 1949-87[edit]

The KMT-headed ROC central government moved to Taiwan in December 1949 followed by a large number of Mainlanders who eventually accounted for about 13 percent of Taiwan’s entire population. From then on, Taiwan and mainland China have had its own distinct legal systems. The “Statute for Agriculture, Mining, Industry and Commerce During the Extraordinary Period” (1938) and the "Temporary Provisions Effective During the Period of General National Mobilization for the Suppression of Communist Rebellion" (1942) gave authorities the power to control resources, as well as establish political control over freedom of news, speech, press, communication, assembly and association during wartime.

Democratization of Law, 1987-present[edit]

The government terminated Martial Law in 1987 and the Period of National Mobilization officially came to an end on May 1, 1991. With various constraints of the constitution lifted, legal reforms proceeded rapidly, along with the continued incorporation of western legal concepts being integrated into ROC Law.[2]

See also[edit]

References[edit]

  1. ^ a b JOHN F. COPPER, Taiwan: Nation-State or Province?, 1-45 2003
  2. ^ a b c d e f g h i j k See Wang Tay-Sheng, TAIWAN FALÜSHI GAILUN [General Discussion on Taiwanese Legal History] 19-30 (2001).
  3. ^ a b c d e TAY-SHENG WANG, Legal Reform In Taiwan Under Japanese Colonial Rule, 1895-1945: The Reception of Western Law (2000)
  4. ^ a b c d Denny Roy, Taiwan: A Political History (2003)
  5. ^ LO CHANG-FA, The Legal Culture and System of Taiwan, Chapter 1 (2006)
  6. ^ Edward I-te Chen, Japanese Colonialism in Korea and Formosa: A Comparison of The Systems of Political Control, 30 HARVARD JOURNAL OF ASIATIC STUDIES, pp. 126-158, (1970).
  7. ^ ORGG Article 4
  8. ^ Title 63 Article 1
  9. ^ RAMON H. MYERS, Mark R. Peattie, CHING-CHIH CHEN, The Japanese Colonial Empire, 1895-1945, Pg. 101-252, (1987).
  10. ^ WANG, Legal Reform in Taiwan Under Japanese Colonial Rule
  11. ^ Chen, Japanese Colonialism in Korea and Formosa
  12. ^ PD-ROC-exempt Certain works in this section the public domain because it is exempted by Article 9 of the Republic of China's Copyright Act (in effect in the "Free Area"). This excludes from copyright all government and official documents and official translations, including news releases, speeches, laws, and documents. It also excludes from copyright oral and literary news reports strictly intended to communicate facts, test questions from all kinds examinations held pursuant to laws or regulations, slogans and common symbols, terms, formulas, numerical charts, forms, notebooks, or almanacs.

External links[edit]