Taiwan Legal Research

By Alex Zhang

Alex Zhang is the Archibald C. and Frances Fulk Rufty Research Professor of Law, Associate Dean of Information Services, and Director of the J. Michael Goodson Law Library. Before joining Duke Law, Alex was the Assistant Dean for Legal Information Services, Professor of Practice, and Director of the Wilbur C. Hall Law Library of Washington and Lee University School of Law. She previously held positions at the University of Michigan Law School and Stanford University Law School. Alex received her J.D. with a certificate in International Trade and Finance Law from the University of Kansas and her M.S.I degree from the University of Michigan, School of Information. Alex teaches Research Methods on Chinese Law and Policy and Advanced Legal Research at Duke Law School.

Published January/February 2025

(Previously updated in March 2016 and in July/August 2019)

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1. Introduction

Taiwan, historically known as “Formosa,” is an island in East Asia. It is surrounded by the East China Sea, the Philippine Sea, the South China Sea, and the Taiwan Strait. The latter geographically separates it from Mainland China. Taiwan possesses a few striking characteristics with its rich economic and cultural history.

Economically, Taiwan is highly developed in maritime trade, the origin of which can be traced back to long before the Dutch colonial period in the 1600s. Back then, aborigines in Taiwan mostly lived on farming and hunting. Traded products, such as deerskin for salts and other living necessities, such as clothes, porcelain, and irons, were primarily from pirates from Japan or Mainland China.[1] By the time the Dutch took de facto control, it was already flourishing for international trade. The rudimentary implicit, if not explicit, rules and ideas of free and equal market exchange gradually developed among merchants and traders and undoubtedly helped lay the foundation for Taiwanese society to be more receptive to modern industrialization and Western conceptions of law and individual rights than some East Asian neighbors.

Contrary to what many people may assume, Taiwan has a rich history as an immigrant island. Although the origin of Taiwan’s aborigines remains debated, two of the most accepted theories are the aborigines of Taiwan are of a mixed race of Malayans or descendants of the Miao tribe of China. Before the Dutch occupied Taiwan, there were Chinese and Japanese who lived on the island; the Dutch control pushed the first big wave of immigrants from Mainland China to Taiwan in history. To find more labor to make Taiwan a “thriving land colony” of its own, the Dutch government, represented by the East India Company (Vereenigde Ostindische Compagnie (VOC)) attracted over fifteen thousand people, primarily from the Fujian province of China, right across the Taiwan Strait, to come to work in Taiwan.[2] After that, there were three major migration movements from Mainland China and Japan when Taiwan was under the control of the Zheng family, Japan, and the Chinese Nationalist Party (KMT) respectively. Immigrants have played an important role in the economic and legal development of Taiwan. As an immigrant island, Taiwan is more receptive to external ideas and culture, including legal culture and foreign laws.

Finally, Taiwan has been a colony or under de facto control as a colony for at least over 400 years. The imperial Chinese governments had made several unsuccessful attempts to take control of Taiwan since 230 A.D. Not until the Yuan Dynasty in the 1300s was a military inspectorate established in Taiwan.[3] The Dutch, after defeating the Spanish in 1642, physically occupied the island from 1624 to 1662 but never claimed sovereignty over Taiwan. Zheng Chenggong, a general from the falling Ming Dynasty, expelled the Dutch and took control of Taiwan, establishing his rule from 1662 to 1884 after signing the Exchanged Memorandum between Zheng and the Dutch in 1662 with the then-Taiwan officer of VOC, Frederick Coyett. The Qing government resumed its control of Taiwan from the 1880s to 1895 until it was defeated in the first Sino-Japanese War. As a result, it signed the Treaty of Shimonoseki to hand over Taiwan to Japan, effective on May 8, 1895. Japan exercised its control of Taiwan until the end of World War II when it turned Taiwan back to the Chinese government. A few years later, KMT physically landed in Taiwan and took control, after being defeated by the Chinese Communist Party (CCP) in the Chinese Civil War in 1949. Different ideas, laws, and cultures were brought to Taiwan during different time periods. This creates a mixture of legal cultures in Taiwan.

2. Legal Pluralism

Taiwan is a society of legal pluralism. Dutch, traditional Chinese, Japanese, and American legal traditions have all heavily influenced the development of the Taiwanese legal system. For example, the VOC first introduced a tax system to Taiwan,[4] which remained effective through the 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.[5]

Since its primary purpose was 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 political or judicial control than necessary to maintain a peaceful environment for economic and trade development. In terms of laws and regulations, Dutch laws were generally applied, but local ordinances were applied to specific Taiwanese matters. It set up three court systems: Dutch court, Japanese court, and Chinese court. With matters dealing with Chinese or Japanese, Chinese or Japanese courts and laws applied. With matters dealing with aborigines, tribe customs and laws governed. With matters involving Dutch people and serious matters, including matters involving conflicts between ethnic groups, Dutch courts and laws controlled.[6]

During the twenty-two years under Zheng’s control, he continued to actively promote trade and agriculture development. On the other hand, Zheng brought traditional Chinese laws and rules to Taiwan. He implemented 大明律 (The Great Ming Code) in Taiwan. It was essentially a penal code following traditional Confucian moral principles, emphasizing social hierarchy, familial obligations, and strict enforcement of harsh criminal punishments. The introduction of Confucian teachings to Taiwan laid a solid cultural and legal 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 incorporated Taiwan into its territory. Qing implemented 大清律例 (The Great Qing Code), which governed Taiwan for over 200 years, particularly in the areas of family law and criminal law. Even today, some traditional principles are still highly respected and followed in certain areas of law. A notable example is a provision that if a person commits against “his lineal blood ascendant,” the punishment will be “increased up to one half.”

After its defeat by Japan, the Qing government ceded Taiwan to Japan on May 8, 1895. Due to the Taiwanese’ brave, fierce, and persistent fights, the Japanese government eventually passed the Law Relating to Laws and Ordinances to Be Enforced in Taiwan, Law No. 63 of 1896. This law vested the legislative power in the local government of Taiwan, which can issue ordinances that would have the same effect as Japanese law to be applied in Taiwan. The Law No. 63 of 1896 was later amended by 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.

In 1921, following the colonial expansion theory, the Japanese diet took a decisive turn by passing 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. [7]

During the same period, Japan was undergoing its modernization through the Meiji Law Reform. It passed the first modern constitution in 1890, modeled directly on the German Constitution. In the following years, Japan quickly established modern legal systems by passing five major codes: the Civil Code of 1896, the Commercial Code of 1899, the Criminal Code of 1907, the Criminal Procedure Act of 1890, and the Civil Procedure Act of 1890. German and French civil law traditions heavily influenced all these laws. As these modern laws started to apply in Taiwan, they introduced Western concepts of individual rights and freedoms to the Taiwanese population.

As Japan entered its militarism era, the modern legal framework established during the Meiji Law Reform era was largely disregarded until the end of World War II, when Japan turned Taiwan back to the Chinese government in 1945. Meanwhile, Mainland China was also undergoing its modern legal reform. 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 fully implement its modern laws in Taiwan under 1987.

Following World War II, Taiwan’s legal development was heavily influenced by American legal traditions. For example, when Taiwan enacted its first Domestic Violence Prevention Act in 1998 (last revised in 2023), it imported the idea of injunctive relief, a frequently used equitable remedy in the United States courts, into the Act.

For more detailed discussions of Taiwan’s legal history and tradition, please see the following resources:

  • Chang-fa Lo, Taiwan: External Influences Mixed with Traditional Elements to Form its Unique Legal System, in Law and Legal Institutions of Asia: Traditions, Adaptations and Innovations (Cambridge, UK: Cambridge University Press, 2011).
  • 王泰升，具有歷史思維的法學：結合台灣法律社會史與法律論證（2010).
  • Henry Shih-shan Tsai, Maritime Taiwan: Historical Encounters with the East and the West (2009).
  • Tonio Andrade, How Taiwan Became Chinese: Dutch, Spanish, and Han Colonization in the Seventeenth Century (2008).
  • Hsin-Hui Chiu, The Colonial ‘Civilizing Process’ in Dutch Formosa, 1624-1772 (2008).
  • 余钊飞， 我国台湾地区法制史研究综述（1949-2004）（2008).
  • Binghui Liao and Dewei Wang, Taiwan under Japanese Colonial Rule, 1895-1945: history, culture, memory (2006)
  • Changfa Luo, The Legal Culture and System of Taiwan (2006).
  • Tsung-fu Chen, The Rule of Law in Taiwan, Culture, Ideology, and Social Change, in Understanding China’s Legal System: Essays in Honor of Jerome A. Cohen (C. Stephen Hsu ed., 2003).
  • Tonio Andrade, The Rise and Fall of Dutch Taiwan: 1624-1662, 17 J. World Hist. 429-50 (2006).
  • Tay-sheng Wang, The Legal Development of Taiwan in the 20th Century: Toward a Liberal and Democratic Country, 11 Pac. Rim L. 7 Pol’y J. 531 (2002).
  • 王泰升，台湾法的断裂与延续 (2002).
  • 王泰升，台湾法律史概论 (2001).
  • Tay-Sheng Wang, Legal Reform in Taiwan under Japanese Colonial Rule, 1895-1945: Reception of Western Law (2000).
  • John Robert Shepherd, Statecraft and Political Economy on the Taiwan Frontier, 1600-1800 (1993).
  • Mark A. Allee, Law and Local Society in Late Imperial China: Northern Taiwan in the Nineteenth Century (1994).
  • Chien-Chao Hung, Taiwan under the Cheng Family 1662-1683: Sinicization after Dutch Rule (Georgetown University Dissertation, 1981).
  • Wen-Hsiung Hsu, Chinese Colonization of Taiwan (University of Chicago Dissertation, 1975).
  • William Campbell, Formosa under the Dutch: Described from Contemporary Explanatory Notes and a Bibliography of the Island (1903).
  • Taiwan Historical Research (1994- ): A leading quarterly academic journal on Taiwanese history published by the Institute of Taiwan History.
  • Journal of Taiwan Law (台法月报).

3. Current Legal System

3.1. Current Legal Status in International Law

One of the most heavily debated and controversial issues in international law is whether Taiwan is an independent nation. Academia has tried to solve the question from several different angles. The elements of statehood are delineated under the Article 1 of the 1933 Montevideo Convention. Under international law, a legitimate state shall have four characteristics: “a permanent population, defined territory, government, and capacity to enter into relations with other states.”

The last two elements are the most controversial issues in Taiwan. Which government is the solely legitimate government of Taiwan: The Republic of China or the government of the People’s Republic of China? Both governments claim they are the only legitimate government in China, including Taiwan, which is part of the Chinese territory. PRC government has been extremely firm on this issue. Under the preamble of the Constitution of the People’s Republic of China, “Taiwan is part of the sacred territory of the People’s Republic of China.” In addition, under Article 2 of the Anti-Succession Law of the People’s Republic of China of 2005, “There is only one China in the world. Both the mainland and Taiwan belong to one China…Taiwan is part of China. The state shall never allow the ‘Taiwan independence’ secessionist forces to make Taiwan secede from China under any name or by any means.”

Under Article 4 of the Constitution of the Republic of China, “the territory of the Republic of China according to its existing national boundaries shall not be altered except by resolution of the National Assembly.” KMT, the current controlling party of the Taiwan government, has been consistent on its One China policy. Although the DDP (Democratic Progressive Party), another dominant political party of Taiwan, has attempted to claim that Taiwan is independent from China and that the ROC is the only legitimate government of Taiwan, it has never been successful. [8]

Second, does the Republic of China possess sufficient capacity to enter relations with other states? On the one hand, scholars have argued that the ROC government has insufficient capacity to enter relations with other states. For example, it has not been able to participate in any international organization that requires statehood as a criterion for membership. In addition, very few countries recognize the ROC government, limiting its capacity for formal diplomatic engagement. [9]

On the other hand, people have argued that although ROC is not a member of international organizations that require statehood, such as the United Nations, it has been actively participating in international organizations that do not have such requirements, such as the World Trade Organization (WTO), Asian Development Bank, under the name of “Taiwan, China” or “Chinese Taipei.” Furthermore, although most countries do not enter formal diplomatic relations with Taiwan and do not recognize Taiwan as a separate nation from China, Taiwan has established economic ties and cultural exchange relations with most countries worldwide.[10]

Moreover, although both the government of Taiwan and the People’s Republic of China claim that Taiwan is an inseparable part of China, some scholars argue that whether the ROC is a legitimate government of China is a distinctly different question from whether the ROC is a legitimate government of Taiwan.[11]

The latter leads to another critical issue: whether Taiwan Island is part of Chinese territory. Historically, when Chinese written records of Taiwan dated back to 230 A.D., it was not until during the Qing dynasty that the Chinese government first formally recognized the Taiwan territory as part of China in 1684.[12] The Japanese, after a brief occupation of Taiwan, returned Taiwan to the then-government of China, the Republic of China government, under the Cairo Declaration in 1943. Potsdam Declaration later strengthened the Cairo Declaration. In 1952, when the Japanese signed a peace treaty, it reaffirmed that it “renounced all right, title, and claim to Taiwan…” Therefore, it appeared that there was an international consensus that Taiwan should be part of China. However, we could only wish things were this simple. Another issue was brought up after the outbreak of the Korean War: whether the Cairo Declaration was a self-executing treaty or just a declaration or statement. If it was not a self-executive treaty, since there was no subsequent instrument to ratify the treaty or the statement, the Cairo Declaration shall not be deemed valid.[13]

Some scholars also argue from the People’s Republic of China’s perspective that the PRC is the legitimate government of Taiwan because it meets all the requirements of statehood over Taiwan as part of Chinese territory under the 1933 Montevideo Convention.[14]

For more detailed discussions on this issue, please read the following treatises and articles:

  • Jie Zhu, Study on the Issue of Taiwan’s Participation in the International Space (2023).
  • Julia C. Strauss, State Formation in China and Taiwan: Bureaucracy, Campaign, and Performance (2020).
  • John F. Copper, Taiwan: Nation-State or Province? (7th ed. 2020).
  • A New Era in Democratic Taiwan: Trajectories and Turning Points in Politics and Cross-Strait Relations (Jonathan Sullivan and Chun-Yi Lee eds., 2018).
  • Council on Foreign Relations, China-Taiwan Relations (last updated Feb. 15, 2024).
  • Frank Chiang, The One-China Policy: State, Sovereignty, and Taiwan’s International Legal Status (2018).
  • Martin B. Gold, A Legislative History of the Taiwan Relations Act: Bridging the Strait (2017).
  • Tom Ginsburg, Confucian Constitutionalism? The Grand Justices of the Republic of China in Judicial Review in New Democracies (2009).
  • The “One China” Dilemma (Peter C.Y. Chow ed., 2008).
  • Bjorn Ahl, Taiwan, in Max Planck Encyclopedia of Public International Law (2008).
  • James R. Crawford, The Creation of States in International Law (2007).
  • Pasha L. Hsieh and Steven Y. Wu, Bibliography of Books and Articles on International and Comparative Law relevant to Taiwan (2000-2006), 24 Chinese (Taiwan) Y.B. Int’l and Aff. 443 (2006).
  • David Raic, Statehood and the Law of Self-Determination (2002).
  • Y.Y. Wang, “One China, One Taiwan:” An Analysis of the Democratic Progressive Party’s China Policy, in International Studies in Sociology and Social Anthropology: Taiwan in Perspective, 159-182 (2000).
  • Alan M. Wachman, Taiwan: Parent, Province, or Blackballed State? in International Studies in Sociology and Social Anthropology: Taiwan in Perspective, 183-204 (2000).
  • Jonathan J. Charney and J.R. V. Prescott, Resolving Cross-Strait Relations between China and Taiwan, 94 Am. J. Int’l 453 (2000).
  • The International Status of Taiwan in the New World Order: Legal and Political Considerations (Jean-Marie Henckaerts ed., 1996).
  • Taiwan Communiqué and Separation of Powers: Hearings before the Subcommittee on Separation of Powers of the Comm. on the Judiciary, 97th Cong. 2nd Sess (1983).
  • Victor H. Li, De-recognizing Taiwan: The Legal Problems (1977).
  • Lung-chu Chen and W.M. Reisman, Who Owns Taiwan: A Search for International Title, 81 Yale L.J. 599 (1972).
  • Frank P. Morello, The International Legal Status of Formosa (1966).

3.2. Constitution Regime

The current Taiwanese constitution was adopted on December 25, 1946, and became effective on January 1, 1947. However, the Constitution was not implemented in Taiwan until 1987, as Taiwan was under the control of martial law, Temporary Provisions Effective during the Period of Mobilization for the Suppression of the Communist Rebellion. There have been quite a few revisions to the Constitution. The Constitution was last amended in 2005 by the seventh revision.

The fundamental principle of the Taiwanese Constitution is to establish a democratic republic in Taiwan, following Dr. Sun Yet-Sen’s Three Principles of the People: Nationalism, Democracy, and Livelihood. The Constitution guarantees certain individual rights and freedoms and protects people from government infringements.

Under Chapter 3 of the Constitution, the National Assembly exercises power, including electing the President and Vice-President, amending the Constitution, and voting on proposed amendments submitted by the Legislative Yuan through referendum. The President is the head of the State and exercises powers such as concluding treaties, declaring war, and promulgating laws. The President and Vice-President serve a term of six years and for up to two terms.

In addition, Taiwan’s government is uniquely divided into five branches. Dr. Sun Yat-Sen coined the term 五權分 立 (separation of powers among five branches) of the government. He combined the Western idea of separation of powers among the Executive, Judicial, and Legislative branches with two of the three branches of traditional Chinese imperial governments: the Executive Yuan and the Control Yuan.

The Executive Yuan is the highest state administrative organ, headed by the Premier and Vice Premier. The Legislative Yuan, the highest legislative organ, exercises lawmaking powers, among others. The Judicial Yuan is the highest judicial organ. It has three court systems: ordinary courts, which deal with ordinary civil and criminal matters; administrative courts, which handle administrative matters; and the Constitutional Court, which has the power to interpret the Constitution and unify the interpretation of laws and orders. In addition, it established a specialty court: the Intellectual Property Court. Examination Yuan is the highest examination organ for matters such as examination, employment, registration, etc. The Control Yuan is the highest oversight organ, and it has the powers of consent, impeachment, censure, and auditing.

For more discussions on the Taiwanese’ constitutional regime, please see the following books and articles.

  • David S. Law and Hisang-Yang Hiseh, Judicial Review of Constitutional Amendments: Taiwan in Constitutionalism in Context 185-215 (David S. Law ed. 2022).
  • Zhaoxin Jiang, The Longest Process: Making the 1946 Constitution of the Republic of China in Asian Comparative Constitutional Law 55-78 (Ngoc Son Bui and Mara Malagodi eds., 2018).
  • Jiunn-rong Yeh, The Constitution of Taiwan: A Contextual Analysis (2016).
  • Semi-Presidentialism and Democracy (Robert Elgie et al. eds., 2011).
  • 呂炳寬, etc., 中華民國憲法精義 ＝ The Spirit of R.O.C.’s Constitution (2007).
  • Wilson Center, Asia Program Special Report no. 125 (2004). This issue focuses exclusively on Taiwan constitutional law reform.
  • Hungdah Chiu, Constitutional Development and Reform in the Republic of China on Taiwan (With Documents), 29 Issues and Studies 1 (1993).
  • Taiwan in the Modern World: Constitutional Reform and the Future of the Republic of China (Harvey J. Feldman ed., 1991).
  • Yat-Sen Sun, San Min Zhu Yi, The Three Principles of the People: With Two Supplementary Chapters by President Chiang Kai-Shek (Taipei, China Pub. Co., 196- ).
  • Yat-Sen Sun, The Principle of Democracy (1953).
  • Yat-Sen Sun, The Principle of Nationalism (1953).
  • Yat-Sen Sun, The Principle of Livelihood (1953).

3.3. 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.[15] Judicial decisions are generally considered a secondary source of law, except that the Council of Grand Justices has the power to interpret the Constitution, and its decisions are binding with the same legal effect as the Constitution itself.

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, which 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, there are Regulations and Rules issued by delegated government agencies under statutory authority. Internal rules are also applied to different government agencies called directions. Taiwan abolished its Regulations Governing the Processing of Treaties and Agreements in 2015 and replaced it with the Law governing the Processing of Treaties and Agreements of 2015.

Currently, there are five major laws in Taiwan in addition to the Constitution. The Civil Code is divided into five chapters. It covers most civil and commercial matters dealing with relations among private parties, such as contracts, torts, property, succession, and family law. The Taiwan Civil Code was first enacted on May 23, 1929, and has been amended a few times. The most recent amendment was enacted on January 20, 2021. The Criminal Code was first promulgated in Taiwan on January 1, 1935, and was most recently amended on July 1, 2024. Code of Civil Procedure was first promulgated on February 1, 1935, and lastly amended on November 29, 2023. Code of Criminal Procedure was first promulgated on July 28, 1928, with the most recent vision on January 15, 2020. Since 1994, the Taiwan legislature has passed a series of laws governing administrative matters, including the Administrative Procedure Act, first promulgated on February 3, 1999, and most recently amended on January 20, 2021.

According to Article 1 of the Civil Code of Taiwan, customs are considered primary sources of law in civil matters under certain conditions. If no law has been passed to govern the same matter, customs will be considered the primary source of law. Moreover, customs shall not conflict with principles of public order and good morals. If neither laws nor customs apply to a certain subject area, then jurisprudence applies.

Judicial decisions are secondary sources of law in Taiwan. The Supreme Court is the court of last resort for ordinary civil and criminal matters. The administrative courts are composed of the High Administrative Courts and the Supreme Administrative Court. The Supreme Administrative Court serves as a final court for all administrative litigation matters and has jurisdiction over certain appeals from the Intellectual Property Court.

The Intellectual Property Court was established on July 1, 2008, as a specialty court in compliance with the Intellectual Property Court Organization Act. It serves as the first and second instance of civil and criminal matters governed by IP-related laws, and its decisions can be appealed to the Supreme Court. The Court also serves as the first instance of administrative and compulsory enforcement actions governed by IP-related laws, and its decisions can be appealed to the Supreme Administrative Court as a final court of review.

The Council of Grand Justices is responsible for handling matters related to constitutional law, including interpreting the Constitution and providing uniform interpretations of statutes and laws. Its decisions are final, binding, and carry the same effect as constitutional provisions. If the Council declares a constitutional provision unconstitutional, the relevant government agency may propose a revision, which must be submitted for approval by the National Assembly.

For more detailed analyses, see the following well-written articles on Taiwan’s legal system:

  • David S. Law and Hsiang-Yang Hsieh, Judicial Review of Constitutional Amendments: Taiwan, in Constitutionalism in Context (David S. Law ed., 2019).
  • Wen-Chen Chang, Constitutional Court of Taiwan, in Oxford Constitutional Law (last updated 2017).
  • Po Jen Yap, The Constitutional Court of Taiwan and Calibrated Judicial Review, in Courts and Democracies in Asia 79-93 (2017).
  • Wen-Chen Chang, The Constitutional Court of Taiwan, in Comparative Constitutional Reasoning (Andras Jakab, Arthur Dyevre, and Giulio Itzcovich eds., 2017).
  • Ernest Caldwell, Widening the Constitutional Gap in China and Taiwan: History, Reform, and the Transformation of the Control Yuan, 2017 U. Ill. L. Rev. 739 (2017).
  • Kai-Ping Su, Criminal Court Reform in Taiwan: A Case of Fragmented Reform in a Not-Fragmented Court System, 27 Pac. Rim. L. and Pol’y J. 2013 (2017).
  • Neil Chisholm, Judicial Reform in Taiwan: Institutionalizing Democracy and the Diffusion of Law (2015).
  • The Functional Transformation of Courts: Taiwan and Korea in Comparison (Jiunn-rong Yeh ed., 2015).
  • Huifang Huang, Taiwan’s Criminal Case System and the Development Direction of the Guiding Case System in the People’s Republic of China, China Guiding Cases Project (2014).
  • Wen-Chen Chang and Jiunn-Rong Yeh, Judges as Discursive Agent: The Use of Foreign Precedents by the Constitutional Court of Taiwan, in The Use of Foreign Precedents by Constitutional Judges (Tania Groppi and Marie-Claire Ponthoreau eds., 2013).
  • Chien-Chih Lin, The Birth and Rebirth of the Judicial Review in Taiwan–Its Establishment, Empowerment, and Evolvement, 7 Nat’l Taiwan Univ. L. Rev 503 (2012).
  • Chang-fa Lo, Taiwan: External Influences mixed with Traditional Elements to Form its Unique Legal System, in Law and Legal Institutions of Asia: Traditions, Adaptations and Innovations (2011).
  • Changfa Luo, The Legal Culture and System of Taiwan (2006).
  • Tay-Sheng Wang, Taiwan in Asian Legal Systems: Law, Society, and Pluralism in East Asia (1997).
  • Hungdah Chiu Jyh-Pin Fa, Taiwan’s Legal System and Legal Profession, in Taiwan Trade and Investment Law 21-43 (Mitchell A. Silk ed., 1994).
  • Herbert H.P. Ma, General Features of the Law and Legal System of the Republic of China, in Trade and Investment in Taiwan (Hanbao Ma and In-Jaw Lai eds., 1985).

3.4. Legal Education and Legal Profession

3.4.1. Legal Education

The first local law school in Taiwan was established in 1928 during the Japanese colonial period, Taihoku (Taipei) Imperial University Law School. It was later renamed the National Taiwan University Law School in 1946. There are over twenty universities and colleges that offer law programs in Taiwan.

Performance on the college entrance exam remains a critical factor in determining whether a high school student would be able to be admitted to a desirable law school program, especially since law is one of the most popular subjects and it is extremely competitive to enter into a top-rank law school in Taiwan. The college entrance exam system was first established in 1954, under which the college admission was purely based on the exam score. Although the goal of this system is to achieve a fair college admission system for everyone, the system failed to achieve the goal in practice. In 2002, the Taiwan Ministry of Education introduced a new diverse college entrance program to achieve the principles of “equity, justice, and openness” under Article 18 of the University Act.

Under Article 26 of the University Act of Taiwan, undergraduate legal education is usually about four years, master’s education ranges from one to four years, and doctoral education should be between two and seven years, subject to special exceptions approved by the Ministry of Education. Certain traditional domestic law courses have always been made mandatory, such as constitutional law, civil law, criminal law, and civil procedure. Recently, more and more law schools also offer courses in foreign and international law. Some law schools, such as Soochow Law School, have even made courses, such as Introduction to Anglo-American Law, mandatory.

Most courses in Taiwanese law are offered as lectures, with limited in-class interactions between professors and students. Students spend most of their time taking notes in classes, and class participation is usually not considered when grading. University faculty is ranked as lecturers, assistant professors, associate professors, and professors. Two of the most important promotion factors are teaching and research.

3.4.2. Legal Profession

Attorney: Under Article 3 of the Attorney Regulation Act, any citizen of the Republic of China may qualify to practice law after successfully passing the Attorney Qualification Exam and completing the requisite New Admittees training program of six months administered by either the Judges and Prosecutors Judicial Training Institute or the Taiwan Bar Association. The Attorney Qualification Exams may be waived when people meet certain qualifications. A foreigner may also practice law in Taiwan if fulfilling the requirements listed under the Attorney Regulation Act.

The Examination Yuan of Taiwan administers the Attorney Qualification Exam once a year. Under Article 5 of the Regulation on the Attorney Qualification Exams, a law degree is generally required to take the exam. The passage rate of the Taiwanese Bar Exam is extremely low, with about 9% on average in recent years, a huge increase from the 1980s when the average passage rate was about 1%. In addition, a licensed attorney must become a member of a Bar Association. A directory of lawyers is available to search for or browse on the Ministry of Justice website.

Judge and Prosecutor: The Judges Act of Taiwan governs three types of “judges:” Grand Council Justices, the Commissioner of the Public Functionary Disciplinary Sanction Commission, and judges of any other courts. Article 5 and Article 6 of the Judges Act list all the qualifications for judges and several ways to qualify for a judgeship. A fresh graduate from an approved law school may become a district court judge after passing a judge or prosecutor qualification exam. There are many other methods to be qualified for judgeship besides passing the qualification exam, such as having practiced law for more than six years or having graduated from a law program and having served as a full-time professor, associate professor, or assistant professor for more than six years.

The Judicial Selection Committee established that the Judicial Yuan had the power to select judges. All judges selected must go through training from one and half years to two years at the Judges and Prosecutors Training Institute. The curriculum focuses on practical skills building, legal ethics, and certain theoretical courses. Trainees may also select courses in foreign languages or foreign law. Trainees must pass final exams with satisfactory scores to graduate from the Training Institute.[16] The Judges Act also provides measures to review, remove, evaluate, reward, and discipline judges to prevent corruption and maintain judicial integrity.

In Taiwan, it is common to switch between roles as prosecutors and judges. Transfers between positions have become easy under certain relevant laws and regulations. For example, under Article 5 of the Judges Act, a tenured prosecutor automatically qualifies to be appointed as a judge. Judges and prosecutors share substantially similar qualifications for appointment and training requirements.

However, the powers and duties of judges and prosecutors are not the same. Prosecutors hold both investigation and trial powers under the Court Organization Act and the Criminal Procedure Code of Taiwan. Therefore, the separation of legal regulations between judges and prosecutors has been brought up frequently as a topic in the debates on judicial reform in Taiwan. As a result, the most recently enacted Judges Act does not apply to prosecutors. In 2012, Taiwan abolished the Regulation on Switching between Judges and Prosecutors.

Notary Public: Like many other civil law jurisdictions, Taiwan considers a notary public a legal professional. A notary public can be a judicial official in court who meets the qualifications set under Article 23 of the Judicial Personnel Regulation or a private notary public (a person appointed by a court) who meets the requirements listed under Article 25 of the Notary Public Act.

Legal Aid: The Legal Aid Foundation was established in 2004 by the Judicial Yuan in accordance with Article 5 of the Legal Aid Act to protect citizens’ constitutional right to equal access to justice. According to Article 25 of the Legal Aid Act, an attorney is obligated to provide legal aid services in the Bar Association he or she belongs to unless exempted.

For more discussions on Taiwanese legal profession and legal education, please see the following:

  • Ching-fang Hsu, The Political Origins of Professional Identity: Lawyers, Judges, and Prosecutors in Taiwan’s State Transformation, Asian Journal of Law and Society (2018).
  • Chih-Chieh Lin, Mong-Hwa Chin and Shang-Jyh Liu, Legal Education in Taiwan: Evolution and Innovation, 3 Asian J. L. and Soc’y 247 (2016).
  • Thomas Chih-hsiung Chen, Clinical Education in Taiwanese Law Schools in Clinical Legal Education in Asia: Accessing Justice for the Underprivileged 75-90 (Shuvro Prosun Sarker ed., 2015).
  • Ming-Yan Shieh and Yen-Chia Chen, Reforming Taiwan’s Legal Education in the Age of Globalization in Legal Education in the Global Context: Opportunities and Challenges (Christopher Gane and Robin Hui Huang eds., 2015).
  • Kuo-Chang Huang, Chang-Ching Lin and Kong-pin Chen, Do Rich and Poor Behave Similarly in Seeking Legal Advice? Lessons from Taiwan in Comparative Perspective, 48 Law and Soc’y Rev. 193 (2014).
  • Thomas Chih-hsiung Chen, Legal Education Reform in Taiwan: Are Japan and Korea the Models?, 62 J. Legal Edu. 32 (2012).
  • Serge A. Martinez, Law Clinics in Taiwan: Can Clinical Legal Education Succeed in This Civil Law Jurisdiction Education System?, 7 NTU L. Rev. 343 (2012).
  • Kuo-Chang Huang, Kong-Pin Chen, and Chang-Ching Lin, Does the Type of Criminal Defense Counsel Affect Outcomes? A Natural Experiment in Taiwan, 30 Int’l Rev. L. and Econ. 113 (2010).
  • Wen-Liang Tseng and Tai-Sheng Wang, A Taste of Being Annexed: The Conditions and Predicaments of the Native Taiwanese Legal Talents during the Early Years of the Post-war Era, 14 Taiwan Hist. Res. 89-160 (2007).
  • 王泰升， 曾文亮， 二十世紀臺北律師公會會史 (2005).
  • 劉恆妏, 從知識繼受與學科定位論百年來台灣法學教育之變遷 (2005).
  • Jane Kaufman Winn, The Role of Lawyers in Taiwan’s Emerging Democracy, in Raising the Bar: The Emerging Legal Profession of East Asia (2004).
  • Wanhong Zhang Simin Huang, Lawyering across the Strait: The Past, Present, and Future of Legal Services Market between Mainland China and Taiwan, 26 Colum. J. Asian L. 299 (2003).
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  • 王泰升， 國立台灣大學法律學院院史：1928-2000, 臺大法學教育的回顧 (2002).
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4. Legal Research Strategies and Major Resources

It is generally advisable to start legal research with secondary resources for several reasons: first, well-written secondary resources can help a researcher quickly master the basics of a legal structure and system of a particular subject or jurisdiction. Second, well-researched secondary resources may also point a researcher to the most relevant primary source to increase research efficiency. If a researcher has not decided on a topic, starting with secondary resources may help identify a suitable topic quickly.

4.1. Secondary Resources

Secondary resources typically include legal research guides, monographs and scholarly treatises, legal periodicals, dissertations and theses, government reports, legal newspapers, and magazines.

4.1.1. Legal Research Guide

A well-crafted legal research guide can greatly enhance the efficiency and cost-effectiveness of research. Currently, there are two updated research guides on Taiwanese law and its legal system available in English.

Foreign Law Guide by Reynolds and Flores has a chapter on Taiwan that not only provides a quick overview of the legal history and legal system but also lists major legal resources, both primary and secondary. It also points to major laws on many specific subject areas.[17]

Republic of China (Taiwan) Legal Research guide at Harvard Law School Library provides up-to-date information on resources and strategies for conducting Taiwan Legal Research. Among other things, this guide also highlights a few helpful online resources for empirical studies of Taiwan legal research.

4.1.2. Monographs and Scholarly Treatises

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 have published many scholarly treatises in Taiwanese law. A researcher may find relevant scholarly treatises or monographs in three ways. First, researchers can search by keyword, title, or subject in library catalogs. Almost all major law libraries have made catalogs available to the public online. In addition, WorldCat, a union catalog that contains catalog records of thousands of libraries worldwide, is another efficient tool for finding relevant treatises or books. Second, a user may also browse or search on Google Books. For books that are not copyrighted, a researcher may also be able to access the entire book in full text. For most books still within copyright restrictions, a researcher may be able to access a snippet view. Third, annotated bibliographies offer curated lists of books and articles, often with brief descriptions, making it easier to identify and evaluate relevant sources.

Constance Johnson’s The Republic of China on Taiwan: A Selectively Annotated Bibliography of English-Language Legal Materials (1988) provides a comprehensive list of pre-1988 articles, books, reports, and primary documents about Taiwan in many legal subject areas. It includes a subject index for easier navigation. The book is available in print and online.

Ingrid Kost’s Bibliography: Select Legal Materials on China Received and Catalogued in the Peace Palace Library has been published every year since 2004 in the Chinese Journal of International Law. The bibliography focuses on articles and books on international law in China, including materials on Taiwan.

Many commercial publishers produce practice-oriented materials, usually in the form of loose-leaf services in areas such as business, investment, trade, tax and labor, and employment law. For example, Doing Business and Investing in Taiwan, published by 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. IBFD Tax Research provides essential tax information for Taiwan. The International Encyclopedia of Laws also covers Taiwan in several major areas of law.

4.1.3. Legal Periodicals

There are quite a few English legal journals focusing on Taiwan.

Chinese (Taiwan) Yearbook of International Law and Affairs (1981- ), published by the Chinese (Taiwan) Branch of the Association of International, includes articles, notes, and documents related to the Taiwanese practice of international law and related issues. It is available in print and online at multiple databases such as Hein’s Foreign and International Law Resources Databases and Westlaw (CHINYILA). This publication continues a ceased print publication, The Annals of the Chinese Society of International Law (1964-1982).

National Taiwan University Law Review (2006- ), published by the National Taiwan University Press in English with abstracts in Chinese. It is available in print and online at Hein’s Law Library Journal, Westlaw (NTAIULR), and the publisher’s website.

China Law and Practice (1987- ), published by China Law and Practice Ltd. of Hong Kong. It includes articles on Taiwanese law and business development as well. Issues published since 2002 are made available online at ABI/Inform Global.

The China Quarterly (1960- ), published by the University of London, Contemporary China Institute, and Congress for Cultural Freedom. It is an academic journal that covers Taiwan’s legal and political issues. It is available in print and online at multiple journal databases such as Jstor, Cambridge Journals Online, and ABI/Inform Global.

There are also plenty of general law reviews and journals in English that contain articles on Taiwanese legal issues. A researcher may locate them by searching by keyword, title, or author in one of the legal journal databases such as Lexis, Westlaw, HeinOnline, JStor, ProQuest, etc.

There are four types of Chinese legal periodicals in Taiwan: Academic law reviews and journals, association periodicals, commercial publications, and governmental publications. For example:

  • Chinese Law Journal (1956- ): A quarterly journal by the Ministry of Justice.
  • 臺北大學法學論叢 (1966- ): A leading academic journal published by National Taipei University Law School.
  • Chengchi Law Review (1969- ): A leading academic journal by National Chengchi University Law School.
  • National Taiwan University Law Review (1971-).
  • Soochow Law Review (1976- ): A leading academic journal by Soochow University Law School.
  • Fair Trade Quarterly (1993-): A leading publication on fair trade and competition law by the Fair-Trade Commission of Taiwan.
  • The Taiwan Law Review (1995- ): A monthly publication by 元照出版社.
  • Taiwan Law Journal) (1999- ): A commercial publication covering both scholarly articles and practical articles and issues.
  • Academia Sinica Law Journal (2007- ): A publication by Taiwan Academia Sinica.

Researchers may find more law reviews and journals in the library catalog of the Examination Yuan of the Republic of China. The library provides a table of contents of all the issues of the journals included in the catalog. In addition, the Social Science Research Center of the National Science Council of Taiwan created a Taiwan Social Science Citation Index in 2000, offering journal coverage for the years 1997-1999 in its 2000 edition. It has included eight law journals in the index since then. For a more comprehensive list of law journals, researchers can turn to commercial vendors, such as LawBank, which lists over 100 law journals published by government agencies, academic institutions, professional associations, and other publishers. Users can typically browse the table of contents of most journals without a subscription.

4.1.4. Dissertations and Theses

Dissertations and theses on Taiwan legal issues written in English can be accessed through the ProQuest Dissertations and Theses database. For theses and dissertations written in the vernacular, searching an index or a database may be the most efficient method for locating them. National Sun Yat-Sen University has created a searchable and browsable database for dissertations and theses. The database contains over 300,000 dissertations and theses in many areas, including law subjects, from many academic institutions in Taiwan and worldwide. A researcher may also search on LawBank for basic bibliographic information about a law dissertation or thesis.

4.1.5. Current Awareness Tools

LawBank offers an online database for legal news. Taiwan legal news may also be found through platforms such as LexisNexis, Westlaw, and Access World News.

Additionally, short articles written by practitioners on platforms such as Thomson Reuters’s Practical Law Global, ICLG.com, and Lexology.com can serve as a valuable starting point for research on Taiwan legal issues, offering quick insights and practical guidance.

4.1.6. Translation Tools

Government agencies in Taiwan are translating an increasing number of laws, regulations, and judicial decisions into English. Translations of laws and regulations are generally not considered official and will almost always be trumped by the original versions in the vernacular. While an English translation may be very helpful for a native English speaker to understand the material and research, it is not always reliable or accurate. The Laws and Regulations Database of the Republic of China provides English translations of laws, judicial interpretations, international treaties, treaties, and agreements between mainland China and Taiwan in full text. A very helpful feature of the database is its detailed legislative history in English. Furthermore, Judicial Yuan Interpretations are also available in English at Judicial Yuan’s Laws and Regulations Retrieving System.

Online translation engines, such as Google Translate, are neither reliable nor accurate. Human translation services are usually available at very expensive fees. Therefore, a traditional dictionary or a legal glossary created by a governmental agency can be helpful for legal researchers as well:

Bilingual Glossary:

Dictionary:

4.2. Primary Sources of Law and Judicial Decisions

4.2.1. Constitution and Legislative Materials

The Constitution in vernacular Chinese can be found in the Legislative Yuan’s law database and the Ministry of Justice’s Laws and Regulations Database. Both databases include not only the text of the Constitution and its amendments but also relevant legislative history materials, including legislative records and historical amendments. The English translation of the texts of the Constitution and its amendments may be found on the President’s website and the English interface of the Ministry of Justice’s Laws and Regulations Database. In addition, original PDF images of the texts of the Constitution and its amendments, as well as relevant legislative records, bilingual or multilingual, may also be found on the National Parliamentary Library website. Researchers may also find pending bills and new acts on the Legislative Yuan’s website.

Presidential Official Gazettes containing presidential promulgation and notices are available in vernacular Chinese in PDF, ODT, and Word.

4.2.2. Laws and Regulations

Laws and regulations can be accessed through the Ministry of Justice’s Laws and Regulations Database. In addition, different government agencies have also published their official gazettes online, which typically include laws, regulations, and/or directives issued by those agencies. These official gazettes are available at National Central Library Gazette Online and include PDF images or Word format in vernacular Chinese. The date of coverage varies depending on the agencies.

There have been several print publications of compiled laws of the Republic of China, commonly referred to as “六法全书,” as they include 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:

  • 最新綜合六法全書 （陶百川 et al. eds., 2023).
  • 最新實用六法全書(修訂大字版) (施茂林 and 陳維鈞 eds., 2020).
  • 最新綜合六法要旨增編判解指引法令援引事項引得全書 (陶百川 et al. eds., 2009).
  • 新編六法參照法令判解全書 (林紀東, et al. eds., 2024).
  • English translations of the laws and regulations of Taiwan are available in the Laws and Regulations Database of the Republic of China, which is provided by the Ministry of Justice in Taiwan.

4.2.3. Judicial Decisions

It is important to note that judicial decisions are generally not considered primary sources of law in Taiwan except for judicial interpretations issued by the Council of Grand Justices. Judicial decisions may be found in Judicial Yuan’s case searching database, which contains decisions of national courts on all levels and local courts. Selective decisions may also be found on the Judicial Yuan’s official gazette online (1994- ). In addition, the Supreme Court of Taiwan also publishes a few collections of judicial decisions and resolutions in print:

  • 最高法院, 最高法院判例要旨: 中華民國16年 － 94 年/Precedents and Resolutions of the Supreme Court, Taiwan: 1927-2005 (2007).
  • 最高法院, 最高法院決議匯編: 中華民國17年 － 95年/Supreme Court, Taiwan, Resolutions, Compiled: 1928-2006 (2007).
  • 最高行政法院, 最高法院行政判例要旨彙編: 中華民國22年 － 97年/ (2008).

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 available at Judicial Yuan’s Law and Regulations Retrieving System and is also available in print: Judicial Yuan, The Republic of China Constitutional Court (Grand Justices Council) Reporter: Interpretations (2000- ).

4.2.4. International Agreements, Treaties, and Conventions

International agreements and conventions to which Taiwan is a party can be found on the Ministry of Justice Laws and Regulations Database under Convention in Chinese and English. Agreements and conventions in other languages may also be found in the Ministry of Foreign Affairs Statements and Communiqués online in PDF format.

4.3. 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 the Taiwanese government’s efforts to promote transparency and openness of government information and operations. An explanation of the scope of the database is also available.
  • Asian Legal Information Institute (Asian LII) has also made freely available constitutional court decisions on Taiwan since 1949 in HTML.
  • Commercial Databases:
    • LawBank: launched in 2010, offers access to a wide variety of primary and secondary resources in full text online. Only limited content is freely available without a subscription.
    • LawData: a leading commercial database that provides full-text access to both primary and secondary sources online. Its coverage is not just limited to Taiwanese materials but also includes mainland China and Hong Kong. It also covers law dictionaries and sample law exams.
    • ChinaLawInfo: a commercial database offered by a Beijing-based company. ChinaLawInfo Ltd. contains a database of Taiwanese laws and regulations.
    • Both Hein’s World Constitutions Illustrated Library and LLMC Digital have resources on primary and secondary resources of the laws of Taiwan. Certain titles published during the Republic of China era from 1911 to 1949 on LLMC Digital are accessible under China (People’s Republic).
  • Datasets and Statistical Resources:

 

[1] Tonio Andrade, How Taiwan Became Chinese: Dutch, Spanish, and Han Colonization in the Seventeenth Century (2008). See also Hsin-Hui Chiu, The Colonial ‘Civilizing Process’ in Dutch Formosa, 1624-1772 (2008).
[2] Tonio Andrade, The Rise and Fall of Dutch Taiwan: 1624-1662, 17 J. World Hist. 429, 429-50 (2006).
[3] History of Taiwan (last visited Dec. 17, 2024).
[4] Tsong-min Wu, Village Franchise System in Dutch Taiwan, 15 Acad. Q. 1 (2008).
[5] John Robert Shepherd, Statecraft and Political Economy on the Taiwan Frontier, 1600-1800, 74-75 (1993).
[6] Changfa Luo, The Legal Culture and System of Taiwan 2-4 (2006).
[7] Tay-Sheng Wang, Legal Reform in Taiwan under Japanese Colonial Rule, 1895-1945: Reception of Western Law, 63-127 (2000).
[8] Huang-Chih Chiang and Jau-Yuan Hwang, On the Statehood of Taiwan: A Legal Reappraisal, in The “One China” Dilemma 57-80 (Chow, Peter C.Y. ed., 2008).
[9] For example, see James R. James R., The Creation of States in International Law 198-211 (2d ed., 2007).
[10] For example, see Ko Swan Sik, Taiwan’s “Return” to International Organizations, in The International Status of Taiwan in the New World Order: Legal and Political Considerations, 79-116 (Jean-Marie Henckaerts ed., 1996).
[11] For example, see Huang-Chih Chiang and Jau-Yuan Hwang, On the Statehood of Taiwan: A Legal Reappraisal, in The “One China” Dilemma 57-80 (Chow, Peter C.Y. ed., 2008).
[12] Tay-Sheng Wang, Legal Reform in Taiwan under Japanese Colonial Rule, 1895-1945: Reception of Western Law 31 (2000).
[13] For a more detailed discussion, see Victor H. Li., De-recognizing Taiwan: The Legal Problems (1977).
[14] For example, see Jianming Shen, Sovereignty, Statehood, Self-Determination, and the Issue of Taiwan, 15 Am. U. Int’l. L. Rev. 1101 (2000).
[15] For a more detailed discussion, see Changfa Luo, The Legal Culture and System of Taiwan 37-66 (2006).
[16] See Academy for the Judiciary, Ministry of Justice, https://www.tpi.moj.gov.tw/291066/ (last accessed Dec. 17, 2024).
[17] Alex Zhang, Foreign Law Guide: Taiwan (last updated June 2023).