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This page is a history of the legal regime in Taiwan.
| This article may require cleanup to meet Wikipedia's quality standards. The specific problem is: Need wikifying and sources.(June 2012) |
This page is a history of the legal regime in Taiwan.
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.
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]
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]
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]
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]
The ROC legal system took effect in Taiwan on 25 October 1945 after most Japanese laws were repealed on 25 October 1946
The KMT-headed ROC central government moved to Taiwan in December 1949 followed by a large number of Chinese immigrants who eventually accounted for about 13 percent of Taiwan’s entire population. Taiwan and China have had distinct legal systems, but after this migration these distinctions have become even more pronounced. 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.
The government terminated Martial Law in 1987 and the Period of National Mobilization officially came to an end on 1 May 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]
Taiwan, officially the Republic of China (ROC), is a country in East Asia. It shares maritime borders with the People's Republic of China (PRC) to the northwest, Japan to the northeast, and the Philippines to the south. The main island of Taiwan, formerly known as Formosa, has an area of 35,808 square kilometres (13,826 sq mi), with mountain ranges dominating the eastern two-thirds and plains in the western third, where its highly urbanised population is concentrated. The capital is Taipei, which, along with New Taipei and Keelung, forms the largest metropolitan area of Taiwan. Other major cities include Kaohsiung, Taichung, Tainan and Taoyuan. With 23.45 million inhabitants, Taiwan is among the most densely populated countries in the world.
The politics of the Republic of China take place in a framework of a representative democratic republic, whereby the President is head of state and the Premier is head of government, and of a multi-party system. Executive power is exercised by the government. Legislative power is vested in primarily with the parliament and limited by government. The Judiciary is independent of the executive and the legislature. The party system is dominated by the Kuomintang, which favors closer links to mainland China, and the Democratic Progressive Party, which favors Taiwanese nationalism.
The history of the island of Taiwan dates back tens of thousands of years to the earliest known evidence of human habitation. The sudden appearance of a culture based on agriculture around 3000 BC is believed to reflect the arrival of the ancestors of today's Taiwanese indigenous peoples. The island was colonized by the Dutch in the 17th century, followed by an influx of Hoklo people including Hakka immigrants from the Fujian and Guangdong areas of mainland China, across the Taiwan Strait. The Spanish built a settlement in the north for a brief period but were driven out by the Dutch in 1642.
Taiwanese indigenous peoples, Formosan people, Austronesian Taiwanese, Yuanzhumin or Gaoshan people, are the indigenous peoples of Taiwan, who number about 569,000 or 2.38% of the island's population. This total is increased to more than 800,000 people if the indigenous peoples of the plains in Taiwan are included, pending future official recognition. Recent research suggests their ancestors have been living on Taiwan for approximately 6,500 years. A wide body of evidence suggests Taiwan's indigenous people maintained regular trade networks with regional cultures before major Han (Chinese) immigration from continental Asia began in the 17th century.
Chinese unification, also known as the Cross-Strait unification, Chinese annexation, or Chinese reunification is the potential annexation of territory currently controlled by the People's Republic of China and the Republic of China under one political entity, possibly the formation of a political union between the two republics. Together with full Taiwan independence, unification is one of the main proposals to address questions on the political status of Taiwan, which is a central focus of Cross-Strait relations.
Tael, also known as the tahil and by other names, can refer to any one of several weight measures used in East Asia and Southeast Asia. It usually refers to the Chinese tael, a part of the Chinese system of weights and currency. The Chinese tael was standardized to 50 grams in 1959.
The controversy regarding the political status of Taiwan, sometimes referred to as the Taiwan Issue or Taiwan Strait Issue or, from a Taiwanese perspective, as the mainland Issue, is a result of the Chinese Civil War and the subsequent split of China into the two present-day self-governing entities of the People's Republic of China and the Republic of China.
The National Assembly was the authoritative legislative body of the Republic of China, commonly referred to as Taiwan after 1949, from 1947 to 2005. Along with the Control Yuan and the Legislative Yuan, the National Assembly formed the tricameral parliament of China.
The Constitution of the Republic of China is the fifth and current constitution of the Republic of China, ratified by the Kuomintang during the Constituent National Assembly session on December 25, 1946, in Nanjing, and adopted on December 25, 1947. The constitution, along with its Additional Articles, remains effective in ROC-controlled territories.
The history of the Republic of China begins after the Qing dynasty in 1912, when the formation of the Republic of China as a constitutional republic put an end to 2,000 years of imperial rule. The Republic experienced many trials and tribulations after its founding which included being dominated by elements as disparate as warlord generals and foreign powers.
The Control Yuan is the investigatory and auditory branch of the government of the Republic of China (Taiwan). Prior to constitutional reforms in the 1990s, the Control Yuan, along with National Assembly and the Legislative Yuan formed the national tricameral parliament. It functioned similarly to an upper house of a bicameral legislature, though it formed its own separate branch and was indirectly elected by provincial or municipal legislatures with 178 seats.
As a result of the surrender and occupation of Japan at the end of World War II, the island of Taiwan was placed under the governance of the Republic of China (ROC), ruled by the Kuomintang (KMT), on 25 October 1945. Following the February 28 massacre in 1947, martial law was declared in 1949 by the Governor of Taiwan Province, Chen Cheng, and the ROC Ministry of National Defense. Following the end of the Chinese Civil War in 1949, the ROC government retreated from the mainland as the Communists proclaimed the establishment of the People's Republic of China. The KMT retreated to Taiwan and declared Taipei the temporary capital of the ROC. For many years, the ROC and PRC each continued to claim in the diplomatic arena to be the sole legitimate government of "China". In 1971, the United Nations expelled the ROC and replaced it with the PRC.
The Great Qing Legal Code, also known as the Qing Code or, in Hong Kong law, as the Ta Tsing Leu Lee (大清律例), was the legal code of the Qing empire (1644–1912). The code was based on the Ming legal code, the Great Ming Code, which was kept largely intact. Compared to the Ming code which had no more than several hundred statutes and sub-statutes, the Qing code contained 1,907 statutes from over 30 times of revisions between 1644 and 1912. One of the first of these revisions was in 1660, completed by Wei Zhouzuo and Bahana.
The island of Taiwan, together with the Penghu Islands, became a dependency of Japan in 1895, when the Qing dynasty ceded Taiwan Prefecture in the Treaty of Shimonoseki after the Japanese victory in the First Sino-Japanese War. The short-lived Republic of Formosa resistance movement was suppressed by Japanese troops and quickly defeated in the Capitulation of Tainan, ending organized resistance to Japanese occupation and inaugurating five decades of Japanese rule over Taiwan. Its administrative capital was in Taihoku (Taipei) led by the Governor-General of Taiwan.
The Government of the Republic of China, also known retroactively as the Government of Nationalist China, is the unitary government that exercises control over Taiwan, Penghu, Kinmen, Matsu and other island groups in the free area. The president is the head of state. The government consists of Presidency and five branches (Yuan): the Executive Yuan, Legislative Yuan, Judicial Yuan, Examination Yuan, and Control Yuan.
Taiwan under Qing rule refers to the rule of the Qing dynasty over Formosa from 1683 to 1895. The Qing court sent an army led by general Shi Lang and annexed Taiwan in 1683. It was governed as Taiwan Prefecture of Fokien Province (Fujian) until the declaration of Fokien-Taiwan Province in 1887. Qing rule over Taiwan ended when Taiwan was ceded to Japan by the Treaty of Shimonoseki in 1895. There were more than a hundred rebellions during the Qing period. The frequency of rebellions, riots, and civil strife in Qing Taiwan led to this period being referred to by historians as "Every three years an uprising, every five years a rebellion."
Law enforcement in Taiwan operates primarily through governmental police agencies.
The law of the Republic of China as applied in Taiwan is based on civil law with its origins in the modern Japanese and German legal systems. The main body of laws are codified into the Six Codes:
China, officially known as the Republic of China (ROC), was a country in East Asia based in Mainland China from 1912 to 1949, prior to the relocation of its government to Taiwan as a result of the Chinese Civil War. At a population of 541 million in 1949, it was the world's most populous country. Covering 11.4 million square kilometres, it consisted of 35 provinces, 1 special administrative region, 2 regions, 12 special municipalities, 14 leagues, and 4 special banners. This period is often referred to as the Republican Era in Mainland China or the Mainland Period in Taiwan.
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