Translations

When will a foreign national be banned from (re)entering Taiwan?

Foreign nationals can be prohibited from entering Taiwan on a number of grounds. This post outlines those grounds and provides an updated translation of the regulations governing entry bans.

Statutory basis

Taiwan’s National Immigration Agency has the power to prohibit a foreign national from entering Taiwan. Immigration Act §18.

New translation (as of October 2014)

The rules for entry bans are set out in the ‘Operation Directions for Banning Entry of Aliens’ (禁止外國人入國作業規定). The Operation Directions have been amended twice in the last year but no updated translation has been available. A new translation is here in a bilingual format. It is provided by the Winkler Partners Translation Department as a public service to the international community in Taiwan and is part of an project to translate important but previously untranslated Taiwanese laws.

Multiple grounds for entry bans

The Operation Directions were most recently amended in 2014. They provide for 18 different circumstances that can lead to prohibitions on entry to Taiwan for periods generally ranging from one to ten years. Some bans can be permanent. Reasons for imposing an entry ban include:

  1. violations of immigration rules such a failing to submit a passport for inspection or using another person’s passport (Operation Directions §2) ,
  2. criminal record in Taiwan (§4),
  3. overstays (§3), and
  4. likelihood of conduct jeopardizing national security, public safety or terrorist activities (§5).

Suspended sentences and suspended indictments grounds for ban

According to the Operation Directions, entry bans based on a criminal record include not only suspended sentences, but also decisions by or to suspend indictment. These bans last for two years. §4(8).

An overstay of up to 90 days is exempt from an entry ban but the overstaying foreign national will not be able to enter Taiwan on a landing visa for one year. §8(1). The exemption will be revoked if the foreign national fails to pay the overstay fine.

Reductions and exemptions to bans

There are also provisions that mitigate the harshness of these bans.  For example, a ban may be reduced from five years to three years in substance abuse cases where the foreign national has successfully completed a diversionary treatment program. §3(8). The National Immigration Agency’s Immigration Case Review Committee may also extend or reduce bans by one to three years. §5. Permanent residents, spouses of Taiwanese citizens, stateless persons with residence, and victims of human trafficking are eligible for 50% reductions or humanitarian exemptions. §§8-12.

Appeals

Entry bans are administrative decisions. They can be appealed in a two-step process. First the banned foreign national must appeal to the National Immigration Agency. If the National Immigration Agency denies the appeal, the appeal can be raised to the Ministry of the Interior. These appeals are intended to give the agency making the decision and its superior agency the opportunity to correct any errors. In practice, appeals to administrative agencies are rarely successful. These appeals are usually resolved in a few months.

The second step is an appeal to the courts. If the Ministry of the Interior denies the banned foreign national’s appeals, the foreign national gains standing to take legal action in Taiwan’s Administrative Courts. Despite their name, the courts are part of the judicial branch of government. They are independent of executive branch agencies like the National Immigration Agency and the Ministry of the Interior and overturn administrative decisions with some regularity. Proceedings in these courts are likely to last at least one year. The ban normally remains in place during the proceedings.

Download and license

Download Operation Directions for Banning Entry of Aliens.

Creative Commons License
“Operation Directions for Banning Entry of Aliens” by Winkler Partners is licensed under a Creative Commons Attribution 3.0 Unported License.

Based on a work at http://www.immigration.gov.tw/.

Translation of Taiwan’s Habeas Corpus Act

Taiwan’s Habeas Corpus Act came into effect on 8 July 2014. The Act has important implications for foreign nationals in Taiwan because it requires judicial review of administrative detention by agencies such as the National Immigration Agency .

The Chinese-language United Daily News, for example, reported on 17 July that the Taoyuan District Court ordered the release of a Vietnamese migrant worker who had overstayed and had been held by the NIA in a detention facility since April. After a habeas corpus petition was filed on her behalf, the District Court ruled that her detention was unconstitutional and ordered her release. The Winkler Partners Translation Department has translated the Act as part of an ongoing project to release important but untranslated laws and regulations.

The translation is available for download here.

Creative Commons License

“Habeas Corpus Act” by Winkler Partners is licensed under a Creative Commons Attribution 3.0 Unported License.

Based on a work at law.moj.gov.tw.

Translation of Taiwan Regulations Governing Non-Disclosure of Investigations

The criminal investigation phase (zhencha) is a critical part of Taiwanese criminal procedure. During this phase, the prosecutor investigates the facts of the case and holds closed hearings to determine whether a defendant should be indicted.

Taiwan’s Code of Criminal Procedure prohibits prosecutors, police, defense counsel, and others connected with a case from releasing any information during the criminal investigation phase with a public interest exception. Code of Criminal Procedure § 245. In practice there are many leaks.

The prohibition on releasing information is fleshed out in an important set of regulations known as the “Regulations Governing Non-Disclosure of Investigations” issued in 2012 . The Winkler Partners Translation Department has now translated the Regulations as part of an ongoing project to release important but untranslated laws and regulations.

The translation is available for download here.

Creative Commons License
“Regulations Governing Non-Disclosure of Investigations” by Winkler Partners is licensed under a Creative Commons Attribution 3.0 Unported License.

Based on a work at law.moj.gov.tw.

Translation of Taiwan’s wiretapping law

Taiwan enacted the Communications Protection and Surveillance Act in 1999 “to protect the people’s freedom of confidential communications from unlawful infringement, as well as to ensure national security and maintain social order.” The Act was amended in 2006 and 2007 but has not been previously translated into English.

Download Communications Protection and Surveillance Act (translation)

Creative Commons License
Taiwan Communications Protection and Surveillance Act by Winkler Partners is licensed under a Creative Commons Attribution 3.0 Unported License.

Based on a work at law.moj.gov.tw.

Winkler Partners Releases Translation of Taiwan Trademark Act

To celebrate the INTA’s 2012 Annual Meeting starting in Washington DC Saturday, Winkler Partners is pleased to release its translation of the Taiwan Trademark Act to the trademark and Taiwanese legal communities.

Much of this translation was completed more than a decade ago by our founding partner Robin Winkler.  In 2011, Taiwan’s Legislature enacted extensive amendments to the Act that will come into force on 1 July 2012.

The Winkler Partners Translation Department has now completed its translation of the amendments along with a thorough revision of the entire text.

While we have released this translation to the community under a Creative Commons license, we appreciate your adherence to the license’s attribution requirement. The translators would also welcome your comments and suggestions on how to improve translation.

You may download either:

We hope that you find both versions useful.

Creative Commons License
Taiwan Trademark Act by Winkler Partners is licensed under a Creative Commons Attribution 3.0 Unported License.

Based on a work at law.moj.gov.tw.

Taiwanese Law in English: Standards and Nomenclature

Introduction and Sources
Since 2002, Taiwan’s national government (through the cabinet-level Research, Development, and Evaluation Commission) has been urging all government agencies to create bilingual websites. In tandem with this effort, many agencies have been working to complete English translations of the core laws in their jurisdictional areas for publication on their websites, to make Taiwan’s laws more accessible to those who do not read Chinese. Although such translations are for reference only and the Chinese text always governs1, the agencies are making efforts to produce accurate and serviceable English versions. Also, in 2003, Taiwan’s Executive Yuan (Cabinet) published its first official guidelines for the standard translation of some key legal terminology.

Even before these recent initiatives, reference translations of some Taiwanese laws had been available from various sources for several decades, but the translations available at any given time varied in quality (some excellent, some less so) and up-to-dateness. And despite the recent advances, a number of challenges remain in producing more complete and standardized translations of Taiwanese law.
For a list of sources, please refer to Online Sources of English Translations of Taiwanese Law.

Standardizing Taiwanese Legal Terms in English

The task of translating Taiwan’s laws into English is impeded by the paucity of authoritative guidelines and resources for standardizing the English terminology used in translations. Such standardization is difficult because Taiwan’s legal system historically is a civil law system modeled after aspects of the German, Japanese, Swiss, and French systems. While a certain legal term in Taiwan may have a clear counterpart in a language such as German or Japanese, the term, or the legal concept it represents, may not have a ready counterpart in English2.

The lack of authoritative translation guidelines is reflected in the inconsistent English names by which individual laws have been known in the past. For example, Taiwan’s basic corporate governance law, the Company Act, has historically been referred to by various names in English, including the “Company Law,” “Company Act,” and “Corporate Statute.” This kind of inconsistent terminology is already widely scattered across the Internet, compounding the potential for further confusion.

2003 Legal Translation Guidelines

The prospects for consistent English terminology in translating Taiwanese law brightened when the first (and as of today still the only) official guidelines relating to English legal translation were issued through a formal letter by Taiwan’s Executive Yuan (Cabinet) on 3 July 2003. These brief guidelines (entitled the Table of Standard English Translations of Legislative Nomenclature and referred to as the Table of Standard Translations below) specify standard nomenclature to be used in the translated names of, and in citations to, Taiwanese legislation. The Table of Standard Translations is critical to the English translation of Taiwanese law, so I introduce some key terminology from the Table and related concepts below.

“Act,” “Regulation,” and “Direction”

The two main categories of written law under Taiwan’s Constitution are: (1) statutes (法律) enacted by the national legislature and promulgated by the president, and (2) statutory regulations (法規命令, referred to simply as “regulations” below) issued by a government agency that has been authorized to do so under an enabling statute, either specifically or by authorized power of office. The hierarchy of authority is clear-cut: a statute may not conflict with the constitution (and is void if it does), and a regulation may not conflict with any statute.3

One source of past confusion is that, according to Taiwan’s National Legislation Standards Act, any of four different Chinese terms ( 法, 律, 條例, 通則) may be used in the name of a statute to identify it as a statute (without actually using the word “statute” in the name). Similarly, any of seven different Chinese terms may be used in the name of a regulation to identify it as a regulation.

These variant Chinese terms in the names of statutes and regulations have no bearing on the relative authority of one statute over another or one regulation over another. They are merely descriptive, in a general way, of the type of subject matter addressed. Taiwan has therefore decided to simplify things in English by using the English word “Act” across the board in the translated names of Taiwanese statutes and the English word “Regulation” across the board in the translated names of regulations.4 The rationale is that this will immediately inform an English reader whether a piece of legislation falls in the higher category of a legislature-enacted statute or in the lower category of an agency-issued regulation.

In addition to issuing regulations under authority vested in them by statutes, Taiwan’s government agencies often issue guidelines governing their internal operations and procedures or giving general instructions to subordinate agencies or officers. These may be published for public reference, but are not directly binding on the public. Such guidelines are collectively referred to in Chinese as “administrative directions” (行政規則), but individually are issued under a variety of different Chinese names that literally translate into various terms such as “procedural key points,” “principles,” and “matters for attention” (作業要點, 原則, 注意事項). To help distinguish such administrative guidelines from binding statutory regulations, the Table of Standard Translations prescribes that the English word “Directions” be used across the board to translate the names of such guidelines, regardless of their actual names in Chinese.

Citation Terminology

Besides setting out standard nomenclature for the English names of Taiwan’s statutes, regulations, and administrative directions, the Table of Standard Translations also prescribe standard English terms to be used when citing legislation. Statutes and regulations are divided into the basic unit of “articles,” which may be further subdivided into “paragraphs,” “subparagraphs,” and “items” (條, 項, 款, 目).

The articles of longer statutes and regulations may also be grouped into “parts,” “chapters,” “sections,” “subsections,” and “items” (編, 章, 節, 款, 目). Articles newly inserted by amendments may be indicated by the number of the preceding article plus a hyphenated numerical suffix -1, -2, -3, etc. (equivalent in function to the bis, ter, quater…sometimes used for the same purpose in legislation abroad). The Table of Standard Translations also gives generic English names for four general chapter headings found in many of Taiwan’s statutes: General Principles, General Provisions, Penal Provisions, Supplementary Provisions (總則, 通則, 罰則, 附則).

Further Issues in the Translation of Taiwanese Law

The terminology introduced above is essentially the extent of the brief official Table of Standard Translations. So translators are still left largely to their own devices in deciding what English term is the most appropriate translation of a given Chinese legal term in Taiwan. Some other quasi-official reference materials are available in the form of bilingual lexicons posted on the websites of some government agencies. And, of course, existing English translations of statutes and regulations published by government agencies also provide valuable reference material to translators.

Taiwan does not have a single ministry or agency in charge of producing translations. Individual agencies handle the translation of key statutes and regulations within their purview. For example, the Taiwan Intellectual Property Office currently handles the translation of patent, copyright, and trademark regulations, the Securities and Futures Bureau and related agencies coordinate the translation of capital markets regulations, and so forth. These agencies may assign staff to produce translations internally or may outsource translation work through government procurement procedures. The practice of making government agencies responsible for translations within their own areas of competency has helped to maintain fair (though still varying) quality in translations.

A basic issue in legal translation between any languages is that the “legal meaning” of a word (the word’s meaning in a specific legal context) may differ from the plain language meaning of the word. A competent translator of legal texts must firmly grasp the legal meaning of a term before deciding on the appropriate translation for it in the target language. The legal meaning may derive from customary usage in the legal field or from a definition written into a statute or regulation. For example the Chinese term for “mergers and acquisitions” (併購) is specifically defined in Taiwan’s Business Mergers and Acquisitions Act as including not just “mergers” and “acquisitions” but also “demergers.”5 When translating the term in a context dictated by that act, the translator needs to be aware of this extra meaning and may need to convey it in the translation or in a note to the translation.

A further point to bear in mind when reading Taiwan’s laws, whether in Chinese or in translation, is that when a statute or regulation is amended, some or all of the amended articles may be designed to take effect on a later date. In many cases this is not immediately apparent from the text of the articles in question. For this reason, readers should also consult the legislative history (a list of past amendments, the articles affected, and the dates of effectiveness) that is published along with the text of the statute or regulation.

Resources for Finding Taiwanese Law in English

In a separate entry, we have compiled a reference list of some websites containing Chinese and English texts of various Taiwanese laws. (All of the websites listed are free of charge except for the Lawbank database, which provides limited access for free but requires a paid subscription for full access.)

Notes:

  1. The official language of the law in Taiwan is Chinese, and the Chinese-language versions of Taiwan’s laws are the only authoritative versions. It bears emphasizing though that while Chinese is the official language of the law in both Taiwan and China, the two countries have very different legal systems, and identical Chinese language terms may have fundamentally different meanings in each.
  2. In recent years, especially in the areas of administrative and criminal law, Taiwan’s lawmakers have increasingly also consulted the law of English-speaking countries when drafting legislation, and this naturally eases the job of producing subsequent English translations.
  3. In addition to the Constitution, statutes, and regulations, Taiwan’s system also recognizes, to varying extents, other sources of law including treaties and international agreements, emergency orders, certain court decisions and orders and interpretations by government agencies, customs, scholarly treatises, and legal principles.
  4. To this general rule, the Table of Standard Translations also specifies a few exceptions, as follows: five of Taiwan’s basic statutes are to be named in English “Code” (rather than “Act”): the Civil Code, Criminal Code, Code of Civil Procedure, Code of Criminal Procedure, and Code of Administrative Procedure; and two categories of regulations (施行細則, 標準) are to be named respectively “Enforcement Rules” and “Standards” (rather than “Regulations”).
  5. Business Mergers and Acquisitions Act, Art. 4(1)(ii).

Paul Cox heads the Winker Partners Translation Department.

Online Sources of English Translations of Taiwanese Law

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.

  1. Ministry of Justice law database
  2. Judicial Yuan law database
  3. Lawbank law database

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.

  1. Capital markets law
  2. Intellectual property law
  3. Competition law
  4. Environmental law
  5. Business and industrial law
  6. Banking law
  7. Tax law
  8. 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.

 

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