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:
No.NameTraditional ChineseTaiwanese Hokkien romanizationHakka romanizationBopomofo1ConstitutionHiàn-hoatHién-fap ㄒㄧㄢˋ ㄈㄚˇ2Bîn-hoatMìn-fap ㄇㄧㄣˊ ㄈㄚˇ3Bîn-sū Sò͘-siōng-hoatMìn-sṳ Su-siung-fap ㄇㄧㄣˊ ㄕˋ ㄙㄨˋ ㄙㄨㄥˋ ㄈㄚˇ4Criminal CodeHêng-hoatHìn-fap ㄒㄧㄥˊ ㄈㄚˇ5Hêng-sū Sò͘-siōng-hoatHìn-sṳ Su-siung-fap ㄒㄧㄥˊ ㄕˋ ㄙㄨˋ ㄙㄨㄥˋ ㄈㄚˇ6Administrative LawsHêng-chèng Hoat-kuiHàng-chṳn Fap-kûi ㄒㄧㄥˊ ㄓㄥˋ ㄈㄚˇ ㄍㄨㄟ
Laws are promulgated by the President after being passed by the Legislative Yuan; the enforcement rules of laws issued by the competent authority under the Executive Yuan designated by the legislation.
Historical background Taiwan under Japanese rule After Taiwan ceded to Japan in 1895, the Civil Code of Japan was created in 1896. It was heavily influenced by the first draft of the German Civil Code and the French Civil Code. The code is divided into five books. Those on family and succession retain certain vestiges of the old patriarchal family system that was the basis of Japanese feudalism. It was in these sections that most of the postwar revisions were made. At that time it was considered no longer necessary or desirable to pay such homage to the past, and the sections dealing with family law and succession were brought closer to European civil law. This law was applied to Taiwan.
During Japanese rule, the court in the modern sense, which means the judicial power is independent from the administrative power, was created for the first time in Taiwanese history.
Codification of Republic of China Law After the Kuomintang consolidated its rule over China in Northern Expedition, the Nationalist government succeeded in codifying all the major civil, criminal, and commercial laws of China: the Criminal Code (1928), the Code of Criminal Procedure (1928), the Civil Code (1929), the Code of Civil Procedure (1929), the Insurance Law (1929), the Company Law (1929), the Maritime Law (1929), the Negotiable Instruments Law (1929), Bankruptcy Law (1935), and the Trademark Law (1936).Hungdah Chiu and Jyh-Pin Fa, "Taiwan's Legal System and Legal Profession" in Taiwan Trade and Investment Law ed. Mitchell A. Silk (Hong Kong: Oxford University Press, 1994) at 3. https://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=1123&context=mscas The laws enacted by the Kuomintang were largely based on drafts formed during the late Qing dynasty. At the end of Qing Dynasty, the government recruited some Japanese law experts to draft the law for China. Tokyo High Court judge has drafted the first 3 Chapters (General Provision, Law of Obligation Law of Real Property) of the Civil Code, as well as the Code for Civil Procedure, for the Qing Empire. Professor drafted the Commercial Law. However, before these draft bills being enacted, the Qing dynasty was overthrown, with China descending into warlordism for the ensuing decade.
In the area of constitutional law, the Taiwan uses the 2005 Additional Articles which amend the original 1947 Constitution. Significant changes have been made to take into account the fact that the Government of the Republic of China only controls Taiwan and surrounding islands since the 1950s.
The transition of legal systems (1945–1949)
The ROC legal system took effect in Taiwan on 25 October 1945, after most Japanese laws were repealed on 25 October 1946.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.
Martial law (1949–1987) The Kuomintang-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. 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" (1948) 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 (from 1987) The Kuomintang finally 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.See generally WANG
Government
President Articles 35–52 of the Constitution of the Republic of China and Article 2 of the Additional Articles of the Constitution of the Republic of China state that the President shall be directly elected by the entire populace of the free area of the Republic of China, and may hold office for no more than two consecutive four-year terms (Article 2 of the Additional Articles). The President represents the country in its foreign relations (Article 35). The President also has command of the armed forces (Article 36); promulgates laws and mandates (Article 37); may make a declaration of martial law with the approval of, or subject to confirmation by, the Legislative Yuan (Article 39); may appoint and remove civil servants and military officers (Article 41); may confer honors and decorations (Article 42); may grant amnesties and pardons, remission of sentences, and restitution of civil rights (Article 40); as well as conclude treaties and declarations of war and cease-fire (Article 38). According to the Additional Articles of the Constitution of the Republic of China, the President may issue emergency orders and take all necessary measures to avert imminent danger affecting the security of the State or of the people or to cope with any serious financial or economic crisis. The President may declare the dissolution of the Legislative Yuan after consulting with its president.
The Executive Yuan Articles 53–61 of the Constitution of the Republic of China and Article 3 of the Additional Articles of the Constitution of the Republic of China state that the Executive Yuan shall be the highest administrative organ of the state (Article 53), and have a president (usually referred to as the premier), a vice president (vice premier), a number of ministers and chairpersons of commissions or councils, and several ministers without portfolio (Article 54). The premier is appointed by the President of the Republic with the consent of the Legislative Yuan (Article 55). The vice premier, ministers, and chairpersons are appointed by the President on the recommendation of the premier (Article 56).
The Legislative Yuan Articles 62–76 of the Constitution of the Republic of China and Article 4 of the Additional Articles of the Constitution of the Republic of China state that the Legislative Yuan shall be the highest legislative organ of this Country, and exercises legislative power on behalf of the people (Article 62). Beginning with the Seventh Legislative Yuan, the Legislative Yuan shall have 113 members (Additional Article 4). The members of the Legislative Yuan shall serve a term of four years, which is renewable after re-election (Additional Article 4). According to Article 4 of the Additional Articles of the Constitution of the Republic of China, the distribution of the Legislative seats is as follows:
Seventy-three members shall be elected from the Special Municipalities, counties, and cities in the free area. At least one member shall be elected from each county or city. Members for the seats shall be elected in proportion to the population of each Special Municipality, county, or city, which shall be divided into electoral constituencies equal in number with the members to be elected; Three members each shall be elected from among the lowland and highland aborigines in the free area; A total of 34 members shall be elected from the nationwide constituency and among citizens residing abroad. The Legislative Yuan has a president and a vice president, elected by and from among its members (Article 66).
The functions of the Legislative Yuan are: to decide by resolution statutory or budgetary bills or bills concerning martial law, amnesty, declaration of war, conclusion of peace or treaties, and other important affairs of the state (Article 63); to propose to amend the Constitution (Article 12 of the Additional Articles), change the nation's territorial boundaries (Article 2 of the Additional Articles), or impeach the President or Vice President (Article 2 of the Additional Articles).
The Judicial Yuan Articles 77–82 of the Constitution and Article 5 of the Additional Articles of the Constitution state that The Judicial Yuan shall be the highest judicial organ of the state (Article 77). The Judicial Yuan is in charge of the courts at all levels, the Administrative Court, and the Committee on the Discipline of Public Functionaries. It is responsible for the adjudication of civil, criminal, and administrative cases, as well as the discipline of civil servants (Article 77).
The Judicial Yuan shall have 15 grand justices (Additional Article 5). The 15 grand justices, including a president and a vice president of the Judicial Yuan to be selected from amongst them, shall be nominated and, with the consent of the Legislative Yuan, appointed by the President of the Republic. Each grand justice of the Judicial Yuan shall serve a term of eight years and shall not serve a consecutive term (Additional Article 5). The grand justices interpret the Constitution and unify the interpretation of laws and orders (Article 78). They also form a constitutional tribunal to adjudicate matters relating to the impeachment of the President or the Vice President, and the dissolution of political parties violating constitutional provisions (Additional Article 5).
The Examination Yuan Articles 83–89 of the Constitution of the Republic of China and Article 6 of the Additional Articles of the Constitution of the Republic of China state that the Examination Yuan shall have charge of matters relating to the examination, employment, and management of all civil servants of the state (Article 83). The Examination Yuan oversees all examination-related matters such as qualification screening, tenure, pecuniary aid in case of death, and the retirement of civil servants, as well as all legal matters pertaining to the employment, discharge, performance evaluations, scale of salaries, promotions, transfers, commendations, and rewards for civil servants (Additional Article 6). *some articles were amended or cease to apply
The Control Yuan