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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]
Source: [12]
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. The main island of Taiwan, also known as Formosa, lies between the East and South China Seas in the northwestern Pacific Ocean, with the People's Republic of China (PRC) to the northwest, Japan to the northeast, and the Philippines to the south. It has an area of 35,808 square kilometres, with mountain ranges dominating the eastern two-thirds and plains in the western third, where its highly urbanized population is concentrated. The combined territories under ROC control consist of 168 islands in total covering 36,193 square kilometres. The largest metropolitan area is formed by Taipei, New Taipei City, and Keelung. With around 23.9 million inhabitants, Taiwan is among the most densely populated countries.
Taiwan, officially the Republic of China (ROC), is governed in a framework of a representative democratic republic under a five-power system first envisioned by Sun Yat-sen in 1906, whereby under the constitutional amendments, 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 Executive Yuan. Legislative power is vested primarily in the Legislative Yuan. Taiwan's judiciary is independent of the executive and the legislature. In addition, the Examination Yuan is in charge of validating the qualification of civil servants, and the Control Yuan inspects, reviews, and audits the policies and operations of the government.
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. People from China gradually came into contact with Taiwan by the time of the Yuan dynasty (1271–1368) and Han Chinese people started settling there by the early 17th century. The island became known by the West when Portuguese explorers discovered in 16th century and named it Formosa. Between 1624 and 1662, the south of the island was colonized by the Dutch headquartered in Zeelandia in present-day Anping, Tainan whilst the Spanish built an outpost in the north, which lasted until 1642 when the Spanish fortress in Keelung was seized by the Dutch. These European settlements were followed by an influx of Hoklo and Hakka immigrants from Fujian and Guangdong.
Taiwanese indigenous peoples, also known as Formosans, Native Taiwanese or Austronesian Taiwanese, and formerly as Taiwanese aborigines, Takasago people or Gaoshan people, are the indigenous peoples of Taiwan, with the nationally recognized subgroups numbering about 600,303 or 3% of the island's population. This total is increased to more than 800,000 if the indigenous peoples of the plains in Taiwan are included, pending future official recognition. When including those of mixed ancestry, such a number is possibly more than a million. Academic research suggests that their ancestors have been living on Taiwan for approximately 15,000 years. A wide body of evidence suggests that the Taiwanese indigenous peoples had maintained regular trade networks with numerous regional cultures of Southeast Asia before the Han Chinese colonists began settling on the island from the 17th century, at the behest of the Dutch colonial administration and later by successive governments towards the 20th century.
The president of the Republic of China, also known as the president of Taiwan, is the head of state of the Republic of China, commonly known as Taiwan, as well as the commander-in-chief of the Republic of China Armed Forces. Before 1949 the position had the authority of ruling over Mainland China, but after communist victory in the Chinese Civil War, the remaining jurisdictions of the ROC have been limited to Taiwan, Penghu, Kinmen, Matsu, and smaller islands.
Tael, or liang, also known as the tahil and by other names, can refer to any one of several weight measures used in East 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 political status of Taiwan or the Taiwan issue is an ongoing geopolitical dispute about Taiwan, currently controlled by the Republic of China (ROC), that arose in the mid-twentieth century. Originally based in mainland China before and during World War II, the ROC government retreated to Taiwan in 1949 after it was defeated by the Chinese Communist Party (CCP) during the Chinese Civil War and the subsequent establishment of the People's Republic of China (PRC). Since then, the effective jurisdiction of the ROC has been limited to Taiwan, Penghu, Kinmen, Matsu, and smaller islands.
The Legislative Yuan is the unicameral legislature of the Republic of China (Taiwan) located in Taipei. The Legislative Yuan is composed of 113 members, who are directly elected for four-year terms by people of the Taiwan Area through a parallel voting system.
The Penghu or Pescadores Islands are an archipelago of 90 islands and islets in the Taiwan Strait, about 50 km (31 mi) west of the main island of Taiwan across the Penghu Channel, covering an area of 141 square kilometers (54 sq mi). The archipelago collectively forms Penghu County of Taiwan and is the smallest county of Taiwan. The largest city is Magong, on the largest island, which is also named Magong.
The National Assembly was the authoritative legislative body of the Republic of China, from 1947 to 2005. Along with the Control Yuan and the Legislative Yuan, the National Assembly formed the tricameral parliament of the Republic of China.
The Constitution of the Republic of China is the fifth and current constitution of the Republic of China (ROC), ratified by the Kuomintang during the Constituent National Assembly session on 25 December 1946, in Nanking, and adopted on 25 December 1947. The constitution, along with its Additional Articles, remains effective in ROC-controlled territories.
The history of the Republic of China began in 1912 with the end of the Qing dynasty, when the Xinhai Revolution and the formation of the Republic of China 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 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 Legal 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 across over 30 revisions between 1644 and 1912. One of the earliest of these revisions was in 1660, completed by the Qing official Wei Zhouzuo and the noble Bahana.
The island of Taiwan, together with the Penghu Islands, became an annexed territory of the Empire of Japan in 1895, when the Qing dynasty ceded Fujian-Taiwan Province in the Treaty of Shimonoseki after the Japanese victory in the First Sino-Japanese War. The consequent Republic of Formosa resistance movement on Taiwan was defeated by Japan with the capitulation of Tainan. Japan ruled Taiwan for 50 years. Its capital was located in Taihoku (Taipei) led by the Governor-General of Taiwan.
The Government of the Republic of China, is the national authority whose actual-controlled territory consists of main island of Taiwan (Formosa), Penghu, Kinmen, Matsu, and other island groups, collectively known as Taiwan Area or Free Area. A unitary state, the ROC government, under the current constitutional amendments, is run by a de facto semi-presidential system, consists of the presidency and five branches (Yuan): the Executive Yuan, Legislative Yuan, Judicial Yuan, Examination Yuan, and Control Yuan. The president is the head of state, with the premier as the head of government, currently ruled by the Democratic Progressive Party (DPP) since 2016. Since the 2005 amendments of the Additional Articles of the Constitution, the Legislative Yuan has been the de facto unicameral parliamentary body of the country.
Law enforcement in Taiwan operates primarily through governmental police agencies.
The law of the Republic of China as applied in Taiwan, Penghu, Kinmen, and Matsu 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:
At its establishment in 1912, the Republic of China claimed to be the successor state to the entirety of the Qing empire, which included Outer Mongolia. The Republic of China did not recognize Mongolia's independence until 1945; the two never exchanged diplomats. When the Chinese Civil War ended in 1949, Mongolia recognized the People's Republic of China; the Republic of China continued to show Mongolia as part of its territory on official maps until 2002 when they recognized Mongolia as an independent country and established informal relations.
The Republic of China (ROC) began as a sovereign state in mainland China on 1 January 1912 following the 1911 Revolution, which overthrew the Manchu-led Qing dynasty and ended China's imperial history. From 1927, the Kuomintang (KMT) reunified the country and ruled it as a one-party state and made Nanjing the national capital. In 1949, the KMT-led government was defeated in the Chinese Civil War and lost control of the mainland to the Chinese Communist Party (CCP). The CCP established the People's Republic of China (PRC) while the ROC was forced to retreat to Taiwan and retains control over the "Taiwan Area"; the political status of Taiwan remains in dispute to this day.
The Qing dynasty (1644–1912) was the last imperial dynasty of China. The early Qing emperors adopted the bureaucratic structures and institutions from the preceding Ming dynasty but split rule between the Han and Manchus with some positions also given to Mongols. Like previous dynasties, the Qing recruited officials via the imperial examination system until the system was abolished in 1905. The Qing divided the positions into civil and military positions, each having nine grades or ranks, each subdivided into a and b categories. Civil appointments ranged from an attendant to the emperor or a grand secretary in the Forbidden City (highest) to being a prefectural tax collector, deputy jail warden, deputy police commissioner, or tax examiner. Military appointments ranged from being a field marshal or chamberlain of the imperial bodyguard to a third class sergeant, corporal or a first or second class private.
