Outline of Taiwanese law covering structure and workings of Taiwan’s legal system and review of major laws and regulations
Technical Examination Officers (技術審查官, TEOs) were introduced into Taiwan’s Intellectual Property Court system to assist in cases where the technical expertise needed to make clear judgments exceeds the general knowledge of the court judges.
Due in large degree to the prominence of Taiwan’s technology industry, complicated patent applications and subsequent litigation mean that courts often struggle with detailed technical information. The TEO system was set up to ensure the courts run smoothly with as much technical information as possible. TEOs were in most cases previously employed as Patent Officers at Taiwan’s Intellectual Property Office (TIPO) and are required to have significant academic qualifications and a good record to be considered. There are currently thirteen TEOs working on cases at the Taiwan Intellectual Property Court, seven with machinery, civil engineering or design backgrounds; four with electronic, electrical or information backgrounds; and two with chemical or biotechnology backgrounds.
What is perhaps unusual about this system is the status of the officers. TEOs are employees of the court, rather than expert witnesses called by either party. They have significant relevant industry experience as opposed to legal backgrounds, and for that very reason are able to provide assistance to judges. TEOs are appointed to cases based on their relevant expertise. Borrowing from similar mechanisms in Japan and South Korea, Taiwan introduced TEOs under order of the presiding judge, to provide:
- technical judgment
- technical information
- analysis and technical opinion as well as,
- participate in the litigation process
As court employees, TEOs are instructed by the judge when necessary. They can provide technical expertise either orally or in written form. In the case of written reports, these are submitted to the judge for review and are not made public. TEOs are permitted to ask questions or request more information from both parties at the discretion and on approval of the judge. In a courtroom sitting, these requests may be made by the judge on behalf of the TEO. Judges use the technical information presented by the TEO to decide cases.
Between 2008 and 2012, TEOs participated in a total of 1,636 cases. 1,070 of those cases pertained to civil litigation, 550 were administrative litigation and sixteen cases were criminal litigation. The vast majority of cases concerned mechanical products (48% of cases); electrical or electronic products (26% of cases); and chemical products (8% of cases).
WP partners Peter Dernbach, Gary Kuo and paralegal Michael Fahey recently contributed an article to the American Chamber of Commerce in Taipei (AmCham)’s monthly TOPICS magazine. The article takes a look at the recent set of food scandals that have shaken the public’s faith in Taiwan’s food industry, examining it from a legal perspective.
The article summarizes previous food scandals that have occurred in Taiwan, dating back to the bran oil tragedy in 1979, which claimed the lives of over fifty people and caused significant physical harm to many others.
The article goes on to analyze the key litigation following the 2011 plasticizer scandal and the 2013 olive oil scandal. Peter and Gary explain the successful criminal prosecutions in both cases, the failure of a class action in the olive oil case, and the constitutional issues that led the Ministry of Health and Welfare to roll back massive fines imposed by local governments.
The article concludes that while Taiwan has made significant and admirable strides in its legal system since the 1979 bran oil tragedy, it will need to do much more to ensure that the country’s vibrant culinary culture and consumer health are adequately protected.
The entire article is available on AmCham’s website.
As part of our pro bono support for Forward Taiwan, a grass roots movement for immigration reform in Taiwan, Winkler Partners’ Michael Fahey spoke at the National Immigration Agency’s 2014 International Conference on Immigration Policy. The purpose of the presentation was to describe recent government liberalization and to evaluate them quantitatively and qualitatively. Forward Taiwan’s proposals for immigration reform were also introduced.
Michael summarized the main issues that have led to immigration reform in the past, from the creation of permanent residence in 1999, to the recent relaxation of rules including those for financial health and criminal records. These relaxations have in part led to a steady increase in the number of permanent residents in Taiwan, from 1649 in 2005, to 10,811 as of September 2014.
One of Forward Taiwan’s main policies is to encourage the Taiwanese government to make it easier for foreign students and professionals already studying or working in Taiwan to stay and contribute to society. Foreign students are now given a six month extension to look for work after graduation for example, whilst the same is given to professionals to change employment. This has resulted in an increase of 343 professional and 525 student ARC (alien resident certificate) extensions since April of this year. While these figures are modest, they are a step in the right direction if Taiwan is to attract and keep foreign talent.
An even more recent development has been the new points system set out in regulations implementing the Employment Service Act. The points system allows foreign graduates of Taiwanese universities to obtain work authorization if they can score 70 points for various criteria. Points are given for university degrees, reputable universities, Chinese and foreign language, following government policy and even residence abroad. The significance of the new points system is that it is now possible for foreign graduates of Taiwanese universities to work and reside in Taiwan without having to meet minimum salary requirements.
Nearly 260 foreign graduates have been granted work authorization under the points system since it was announced in July of this year.
The presentation that accompanies Michael’s talk can be viewed here.
As the owners of intellectual property are well aware, convictions for lesser crimes in Taiwan rarely result in the offender actually serving jail time. If a court sentences an offender to a custodial sentence of up to six months for an offense that carries a maximum of five years, the sentence can be commuted to to a fine (yike fajin ) at a daily rate of NT$1,000 (c. US$33) to $3,000 (c. US$100). Criminal Code § 41.
IP conviction commuted to fine
For example, criminal trademark infringement carries a maximum sentence of three years. Trademark Act § 95. Consequently, sentences for criminal trademark infringement are almost always commuted fines. This is illustrated by a 2011 case in which the Shilin District Court sentenced an offender surnamed Liu to a custodial sentence of 40 days for selling counterfeit computer accessories bearing the Hello Kitty and Audio-Technica marks. The sentence was suspended for two years and commutable to a fine of NT$1,000 per day. Shilin District Court, ShenZhijian 18 (2011).
Commutation is discretionary
While most such sentences are in fact commuted, commutation is not automatic but at the discretion of the prosecutor. Taiwan’s Code of Criminal Procedure provides that the sentences are carried out by the prosecutor at the court that handed down the sentence. § 457. This is construed to mean that the power to commute a sentence is at the discretion of the prosecutor.
Keelung City policy against commutation
The Keelung District Prosecutor’s Office has issued a new policy against drunk driving that illustrates this discretion well. Since June of this year, Keelung prosecutors have been declining to commute sentences of less than six months for drunk driving to fines where the offender has been convicted of driving under the influence twice in the past five years . The Chinese language media Liberty Times reports that 33 drivers in Keelung have not had their sentences commuted to fine as almost certainly would have been the case in other cities or counties and instead have had to serve time for drunk driving. This had led some members of Taiwan’s legal community to argue that drivers in Keelung are being singled out unfairly because this is a purely local policy with no basis in the national policies of the Ministry of Justice (which administers the procurate) or the law. According to this view, the policy of not commuting sentences for these repeat offenders would justified only if the procurate adopts a uniform national policy against commutation of sentences for repeated drunk driving offenses.
Nonetheless, prosecutorial discretion in carrying out sentences is subject to judicial review. The Code of Criminal Procedure provides that a person who has received a sentence may petition the court to review the prosecutor’s carrying out of the sentence for abuse of discretion (budang). § 484. Three offenders have petitioned the Keelung District Court since June for reviews of decisions by the Keelung District Prosecutor’s Office not to commute sentences for drunk driving into fines. One of the petitioners had his petition granted by the court on grounds that his imprisonment would cause undue hardship since he was the sole source of support for his extended family which included his 80 year old mother, young children, and his disabled younger brother. He also promised to reform and not to offend again.
New amendments to the Collective Bargaining Agreement Act would place new obligations on both labor and management in the collective bargaining process. These amendments were approved by the government in early 2008, and could be enacted and promulgated as early as May 1, 2011.
In addition to the Collective Bargaining Agreement Act, the Council of Labor Affairs has also revised the Labor Union and Settlement of Labor Disputes Acts.
Under the draft revisions to Article 6 of the Collective Bargaining Agreement Act, employers and labor representatives must collectively bargain in good faith. Neither side may refuse to negotiate without a legitimate reason. The new amendments expressly list the following reasons as prohibited refusals:
- refusing to proceed with negotiations if the proposed agreements have been presented in a reasonable manner and/or time frame;
- not answering any written notices within 60 days of receipt; and
- rejecting to offer any information that would otherwise facilitate negotiations;
Any of these acts of non-cooperation can be the basis for the Council of Labor Affairs to determine that either labor or management is refusing to negotiate. The amendments now allow the CLA to fine a party NTD 100,000-500,000 (US$3,195-15,975) if it refuses to negotiate, according to article 32 of the Act. These fines can be imposed repeatedly when labor or management refuses to negotiate on multiple occasions.
Article 6 of the act also clarifies as to who can represent labor in negotiations. Under the new law, a party must have contractual privity in the employment relation to represent. The practical effect is that only management and government-recognized unions will be able to sit at the bargaining table.
For legal guidance on employment law in Taiwan, please contact Christine Chen.
The first two databases listed are public and bilingual. Both have English pages with links to translations of many of Taiwan’s statutes, regulations, and judgments. The third, Lawbank, is a commercial service but deserves special mention because it also includes a searchable collection of administrative letters of interpretation (Chinese only) and English translations of varying quality unavailable elsewhere.
Some other web pages providing translations of Taiwanese laws in specific areas are listed below. It should be noted the home pages of most Taiwan’s government agencies provide English translations of selected key laws and regulations in the agency’s jurisdiction. The new National Immigration Agency and the Council of Labor Affairs are important examples.
- Capital markets law
- Intellectual property law
- Competition law
- Environmental law
- Business and industrial law
- Banking law
- Tax law
- Insurance law
The primary and centralized source for new laws, regulations, and administrative acts and decrees is the Executive Yuan Gazette Online. While the full announcements are only available in Chinese, their abstracts are expertly translated and updated every weekday.
Paul Cox leads the Winkler Partners Translation Department.
Taiwan’s Civil Code is divided into five Books: General Principles, Obligations, Rights Over Things, Family, and Succession. A high quality English translation of the Code as amended in 1982 has been published in Major Laws of the Republic of China on Taiwan (Magnificent, 1991). A more current (2003) translation is available behind a paywall on Lawbank. The quality of this translation is uneven.