Updates

Taiwan’s stimulus vouchers explained

In response to the Covid-19 outbreak earlier this year, Taiwan’s government announced a second stimulus program to encourage consumer spending (the first program ran between July and December 2020). While most of the information about the program is in Chinese, some foreign nationals are eligible to receive stimulus vouchers. Here, we explain what the stimulus program involves, who is eligible and how eligible recipients can apply, receive, and spend the vouchers.

Voucher Program

2021′s stimulus program involves the government issuing TWD 5000 (approx. USD 180) in vouchers to eligible citizens and residents. Unlike the TWD 3000 stimulus vouchers last year, these vouchers are free and do not require users to pay TWD 1000 to receive them. Vouchers are issued in either paper or digital format. Paper vouchers can be used at restaurants, stores, hotels and other participating businesses nationwide before 30 April 2022. They will be issued in the following formats: TWD 200, TWD 500 and TWD 1000. Digital vouchers come in three formats; those linked to credit cards, those linked to stored value cards, and those linked to mobile payment platforms. They can also be used to make purchases on participating eCommerce sites.

Eligibility

The following people are eligible to receive stimulus vouchers:

  1. Taiwanese nationals, including nationals without household registration but with a Taiwan residency card or national ID
  2. Foreign spouses of Taiwanese nationals
  3. Alien Permanent Residence Card (APRC) holders
  4. Foreign diplomats

Vouchers for foreign diplomats will be issued directly by the Ministry of Foreign Affairs. At the time of writing, other foreign nationals in Taiwan, including ARC and Employment Gold Card holders, are unfortunately not included in the program.

Important Dates

  1. Digital vouchers can be applied for anytime between 22 September 2021 and 30 April 2022.
  2. Paper vouchers can be applied for online from 25 September 2021.
  3. Paper vouchers can be applied for from convenience stores from 9am on 25 September to 10pm 1 October 2021 and collected between 8 October and 21 October 2021. A second application period runs from 9am on 25 October to 10pm on 31 October with vouchers collected between 8 November and 21 November 2021.
  4. Paper vouchers can be applied for at most branches of Chunghwa Post from 4 October 2021 and collected between 12 October and 30 October 2021.
  5. All vouchers must be spent by 30 April 2022.

How to Apply

The vouchers can be applied for from the easy-to-remember web address 5000.gov.tw.

Paper vouchers can also be applied for in store during the above application periods by using iBon or FamiPort service machines at convenience stores or by visiting branches of Chunghwa Post. Likewise, paper vouchers can be collected at convenience stores or branches of Chunghwa Post during the collection periods provided above. When applying for paper vouchers online, you will be asked which convenience store location you wish to collect your vouchers from. Expect to see additional promotions from participating businesses encouraging you to spend your paper vouchers with them.

To prevent overcrowding at stores and post offices, the government is encouraging the online application and use of digital vouchers.

For digital vouchers, click through links are provided for each participating bank, stored value card issuer or mobile payment platform. Users will then be able to complete the linking of the vouchers to their desired card. There are additional promotions available from each bank or card issuer to encourage users to link their vouchers. For example, banks are offering cashback or lottery promotions for linking to their credit cards. Stored value cards such as iPass, iCash2.0 and EasyCard are offering extra credit when you link to their cards. Mobile payment platforms such as LINE Pay Money are offering points or other benefits for linking vouchers. Please refer to individual bank, card issuer or mobile platform’s dedicated stimulus voucher page for more information.

Choose wisely. Once you have linked your vouchers to a digital payment method, you can not change to paper vouchers, nor can you change to another digital payment method.

Additional Promotions

There are a total of eight add-on promotions run by different government agencies to encourage spending in designated industries. The majority of these are lottery draw promotions. They are:

  1. 好食劵 – for restaurants, night markets and food stalls
  2. 國旅券 – for the tourism industry (hotels, hostels and hot springs, etc)
  3. i原券 -   for businesses recognized by the Council of Indigenous Peoples
  4. 農遊券 – for agriculture, fishing and forestry businesses
  5. 藝FUN券/ArtsFunNext – for the arts
  6. 動滋券 – for sports
  7. 客庄券 – for businesses recognized by the Hakka Affairs Council
  8. 地方創生券 – for businesses recognized by the National Development Council

The first 4 million people who register for the digital vouchers will automatically receive the add-on vouchers for restaurants, night markets and food stalls. For the others, people must register separately. Lotteries will be drawn each week between 11 October and 5 November. Winning participants will be notified by text message. An overview of the add-on promotions and each lottery draw period can be found here. Please refer to each add-on promotional website for more details. Some individual program websites were not available at the time of writing. We will add links once they go live.

Local governments have also announced additional promotions to encourage spending in their areas. For example, Taipei City’s program requires users to download the TaipeiPASS mobile application.  TaipeiPASS promotions are available to all users including ARC holders, and are not limited to Taipei City residents. Vouchers can be used at participating restaurants, hotels, hostels, night markets, sports facilities, movie theaters and other businesses in the city. Validity periods and eligibility requirements for vouchers issued by local governments may differ from those set by central government. Taipei City’s voucher program information page is available here.

Spending Restrictions

Vouchers can be used in most businesses nationwide. Vouchers can also be used to pay hospital registration fees, school tuition fees, community college fees, buxiban/cram school fees, 30 or 60-day TRA train tickets, phone bills, gas bills and even purchasing products sold at temples. Because the aim is to stimulate consumer spending, vouchers can not be used to pay for stocks, water and electricity bills (run by state-owned enterprises), fines, health insurance, tax, government fees or stored value transactions. Digital vouchers can not be used on foreign eCommerce sites.

Spend wisely. It is up to the individual store whether they will give change.

Our Takeaway

While the government is encouraging the use of digital vouchers, we believe that like last year, most people will opt for the paper vouchers as they provide greater flexibility. Because they come in TWD 200, TWD 500 and TWD 1000 values, consumers can spread their spending around at different locations. They are also more convenient if you wish to donate them or give them to others. Happy spending!

Covid-19 support for small businesses and startups in Taiwan

In 2020 at the onset of the COVID-19 pandemic, Taiwan’s government introduced a Special Act (Special Act for Prevention, Relief, and Revitalization Measures for Severe Pneumonia with Novel Pathogens) to provide subsidies and grants to support impacted businesses in Taiwan. Since an increase in domestic infections in May 2021, and the moving to a Level 3 alert, meaning restaurants, entertainment venues and other businesses had to close, the government on 24 June introduced further support. The government adjusted the alert level down to Level 2 on 27 July.

This article summarizes the latest support available for small businesses and startups. Small businesses refer to companies with under 200 employees or paid in capital of NT$100 million (approx. US$3.6 million) or less.

Subsidies for small businesses

Generally, small businesses in Taiwan in some industries whose turnover has been negatively impacted by over 50% in either May, June, or July 2021, can apply for subsidies. The government will subsidize the business with NT$40,000 (approx. US$1,428) per employee as a one-off payment.

In addition, if subsidiaries in these industries are forced to close because of Covid restrictions and are unable to pay basic salary to their employees, they can apply for a closed-down subsidy. The government will subsidize businesses with NT$10,000 (approx. US$357) per employee. The government will also offer NT$30,000 (approx. US$1,071) in subsidies and NT$10,000 (approx. US$357) drawn from employment stability funds to each employee working at impacted businesses.

The Executive Yuan has requested that applications are examined leniently to protect as many affected businesses as possible. Businesses can only choose one of the options mentioned above to apply for the subsidies.

Bailout Loans

The government has prepared a total of NT$ 1.2 trillion (approx. US$ 42.8 billion) in bailout loans, of which NT$800 billion (approx. US$ 28 billion) is new funds introduced on 24 June. The loans are also designed for individual laborers, small businesses, referring to a company with under 200 employees, or small-scale profit seeking enterprises. The details are as follows.

For most enterprises impacted by the pandemic, the government will provide bailout loans with a maximum amount set at NT$150 million (approx. US$5.36 million) for turnover or capital expenditures. The government is also providing bailout loans covering operational costs (such as salary, rent, and so on) up to a maximum of NT$6 million (approx. US$214,290).

Loans for Startups provided by the NDC

The National Development Council (NDC) will provide loans to startups up to a maximum of NT$26 million (approx. US$928,570) per applicant.

Loans for Small Businesses provided by the Central Bank

The government will provide project financing for businesses applying for loans up to NT$16 million (approx. US$571,430) from Taiwan’s Central Bank.

For more information on the impact of Covid-19 on businesses in Taiwan, please contact Christine Chen at cchen@winklerpartners.com.

This update was written by Christine Chen and trainer lawyer Kai-yu Chang.

Covid-19 support for international enterprises in Taiwan

In 2020 at the onset of the Covid-19 pandemic, Taiwan’s government introduced a Special Act (Special Act for Prevention, Relief, and Revitalization Measures for Severe Pneumonia with Novel Pathogens) to provide subsidies and grants to support impacted businesses. Taiwan raised its alert level to Level 3 in mid-May 2021 forcing restaurants, entertainment venues and other businesses to close. The government then introduced more support on 24 June. This article summarizes the newest support available for international enterprises.

Subsidies

International enterprises with Taiwan subsidiaries in some industries whose turnover has been negatively impacted by over 50% in either May, June, or July 2021, can apply for subsidies. The government will subsidize the business with NT$ 40,000 (approx. US$1,428) per employee as a one-off payment.

In addition, if subsidiaries in these industries are forced to close because of Covid restrictions and are unable to pay basic salary to their employees, they can apply for a closed-down subsidy. The government will subsidize businesses with NT$10,000 (approx. US$357) per employee. The government will also offer NT$30,000 (approx. US$1,071) in subsidies and NT$10,000 (approx. US$357) drawn from employment stability funds to each employee working at impacted businesses.

The Executive Yuan has requested that applications are examined leniently to protect as many affected businesses as possible. Businesses can only choose one of the options mentioned above to apply for the subsidies.

Bailout Loans

The government has prepared a total of NT$1.2 trillion (approx. US$42.8 billion) in bailout loans, of which NT$800 billion (approx. US$28 billion) is new funds introduced on 24 June. The details are as follows.

For most enterprises impacted by the pandemic, the government will provide bailout loans with a maximum amount set at NT$500,000,000 (approx. US$17.8 million) for turnover or capital expenditures. The government is also providing bailout loans covering operational costs (such as salary, rent, and so on) up to a maximum of NT$6,000,000 (approx. US$215,000).

For more information on the impact of Covid-19 on businesses in Taiwan, please contact Christine Chen at cchen@winklerpartners.com.

This update was written by Christine Chen and trainer lawyer Kai-yu Chang.

Update on COVID-19 entry restrictions as of 27 June 2021

Back in March this year, Taiwan loosened entry restrictions and reduced quarantine periods due to the island’s successful efforts at keeping the COVID-19 pandemic at bay. However, since the outbreak of domestic infections in mid-May, Taiwan has now strengthened its entry and quarantine measures in response. The Level 3 epidemic alert currently in effect is expected to end on 26 July. However, restrictions on certain sectors, such as dining and sports venues (except swimming pools), will be partially lifted starting 13 July. Social distancing must still be maintained, and masks must be worn at all times outside the home except when eating or drinking.

Suspended visa applications

Entry to Taiwan has been suspended for foreign nationals who do not hold a valid Alien Resident Certificate (ARC), including those who hold a valid visitor/ resident visa. Visa applications have also been suspended in Taiwan and overseas.

Exceptions for entry are permitted on a case-by-case basis for emergencies and on humanitarian grounds. When applying for a special entry permit from an overseas ROC mission, the Taiwan Central Epidemic Command Center (CECC) will do the final review of the application and decide whether to grant special permission. If the applicant meets the requirements, the overseas ROC mission will issue a visa with the special entry permit.

Enhanced quarantine procedures

Beginning 27 June 2021, enhanced quarantine procedures have been put in place due to the emergence of the Delta variant. These include:

  1. Arriving travelers from “key high-risk countries” (including those who have visited or transited through those countries in the past 14 days) must quarantine at a group quarantine facility for 14 days. Costs are covered by the Taiwanese government. Currently, key high-risk countries include the UK, Brazil, Israel, India, Indonesia, Peru, and Bangladesh.
  2. Flight crews of Taiwanese airlines arriving from key high-risk countries must also quarantine for 14 days but they have the choice to quarantine at a designated quarantine hotel or at a company dormitory that meets related regulations.
  3. Travelers from other countries not named in the high-risk list are required to stay in a quarantine hotel or group quarantine facility for 14 days after arrival. They must also undergo a PCR test (cost covered by the government) before the end of their quarantine period.
  4. It is currently not possible to quarantine at home or in a private dwelling.

Increased testing

All arriving travelers in Taiwan must now be tested three times for COVID-19 before the end of their quarantine period. This new requirement was implemented on 2 July 2021 to further tighten measures to combat the spread of the highly transmissible Delta variant. The type of testing differs depending on where the traveler is arriving from.

  1. Travelers arriving from key high-risk countries must undergo PCR testing upon check in at the quarantine facility, a rapid home test between the 10th and 12th day and another PCR test at the end of the quarantine period.
  2. Travelers arriving from other countries must undergo a deep-throat saliva test and PCR test upon arrival, a rapid home test between the 10th and 12th day and a second PCR test between the 12th and 14th day of quarantine.

All arriving travelers must take a quarantine vehicle arranged by the Ministry of Transportation to their quarantine location, and those who test positive will be subjected to genome sequencing. It is no longer possible for friends or family members to collect arriving travelers at Taiwan’s airports or ports.

Travelers planning on entering Taiwan should check the latest announcements from the CECC’s official website before arranging travel.

For questions about immigration matters in Taiwan, please contact Christine Chen at cchen@winklerpartners.com.

Taiwan COVID-19 entry restrictions as of 1 March 2021

Taiwan’s Central Epidemic Command Center (CECC) has announced new entry restrictions for people entering the country. These new rules came into force on 1 March 2021. Entry restrictions were first introduced on 19 March 2020 with a mandatory 14-day quarantine for Taiwan nationals and foreign residents wishing to enter the country. To date, Taiwan has reported just around 1,000 confirmed COVID-19 cases, of which the vast majority were imported from abroad, and ten deaths in total.

On 1 March 2021, the CECC eased entry restrictions into Taiwan, reintroducing reduced quarantine periods for short-term business travelers from low- and medium-risk countries/regions and reintroduced entry for medical care. However, social visits and tourism are still banned. Qualifying reasons for entry have expanded for all types of travelers (foreign nationals, Hong Kong/Macao residents and Mainland Chinese residents), as long as those entering the country receive approval from the respective government department before travel.

For example, patients seeking medical care should receive approval from the Ministry of Health and Welfare while international students should receive approval from the Ministry of Education. Those entering based on humanitarian grounds, emergencies or other special reasons should receive approval from the Ministry of Foreign Affairs.

Short-term business travelers, which include employees of international companies who have been transferred to Taiwan to fulfill business contracts, are again eligible to apply for shortened quarantine periods. To qualify for the shortened quarantine period, the business traveler must meet the following conditions:

  1. The business traveler is eligible to enter the country in accordance with CECC announcements;
  2. The business traveler is applying for a duration of stay in Taiwan of less than three months;
  3. The purpose of the visit is business activity and relevant documents outlining the purpose have been provided by legally established businesses in Taiwan;
  4. The business traveler is traveling to Taiwan from low- and medium-risk countries as listed by the CECC and has not traveled to other countries or regions in the 14 days prior to boarding their flight to Taiwan.

Those who meet the above conditions must also provide a travel itinerary for their stay and a disease prevention plan. A certificate of a negative COVID-19 RT-PCR test result issued within three days of boarding their flight is still required. Once in Taiwan, the business traveler may apply for a COVID-19 test taken at their own expense to end their quarantine period. Those from low-risk countries/regions may apply for this test on the fifth day of arrival, and those from medium-risk countries on the seventh day of arrival. If results are negative, the business traveler may then apply to the local health authority to end their quarantine early; however, they should still observe enhanced self-health management until the 14th day after entry. During this observation period, business travelers should avoid going to crowded places or use public transportation and can only conduct limited business activities. The host company must also keep a daily log of the business traveler’s activities in Taiwan, including the names of the people that they meet, which should not include anyone not mentioned in their travel itinerary. Designated personnel must also pick up the business traveler and always accompany them throughout their stay, and the business traveler should always wear a face mask when going outside. Additionally, for the first two weeks of their visit, the business traveler is required to stay at a government-mandated quarantine hotel.

As of 24 March 2021, the following countries and regions are considered low- and medium-risk countries/regions:

Low-Risk Countries/Regions

New Zealand, Macao, Palau, Fiji, Brunei, Laos, Nauru, The Marshall Islands, Bhutan, Australia, Singapore, Vietnam

Medium-Risk Countries/Regions

Cambodia, Hong Kong, Mauritius

Travelers planning on entering Taiwan should check the latest announcements from the CECC’s official website before arranging travel.

For questions about immigration matters in Taiwan please contact Christine Chen at cchen@winklerpartners.com.

Covid-19 measures for Taiwan employees and the self-employed announced

In the midst of the Covid-19 pandemic, the Taiwan government has announced subsidy programs for impacted employees and the self-employed. This article was updated on 20 April to reflect newly announced subsidy programs available for self-employed workers.

Reassurance Employment Plan for employees

On 27 March 2020 the Taiwan government announced a Reassurance Employment Plan (安心就業計畫) aimed at countering the negative impact of the ongoing Covid-19 pandemic on the Taiwanese job market. The measures, which apply retroactively to 15 January, include government subsidies for employees who have wages and working hours reduced due to a contraction in their employer’s business. Agreements reached between employees and their employer must be in writing, and include wage and hour reductions for a period of more than 30 days in order to qualify for the subsidy. Employees can apply for the subsidy at their local labor authority. Certain categories of foreign nationals, for example those with dependent ARCs or APRCs working in Taiwan, are eligible for this subsidy.

Employers may decide to report the agreement to the local labor regulator. However, even if the employer does not complete the report, the employee can notify the local labor regulator, who may review the agreement to confirm whether it meets the subsidy criteria. If so, the employees can then receive the subsidy.

The subsidy calculation formula is the average monthly insured salary (the maximum amount is NT$45,800) for the 12 month period prior to the effective date of the agreement minus the agreed monthly salary specified in the agreement (must be at least NT$23,800) multiplied by 50%. The maximum monthly subsidy amount is NT$11,000. Employees may receive the subsidy for at most 6 months. The program applies only to full and part-time employees that receive salary on a monthly basis (i.e. not hourly wage employees). As an example, if an employee is usually paid NT$45,800, and the agreed monthly salary in the agreement is NT$23,800, then the subsidy available will be NT$11,000= (45,800-23,800)*50%.

Subsidy program for the self-employed

On 20 April 2020, a subsidy program for the self-employed (including independent contractors) was officially announced. The subsidy is NT$10,000 per month. The self-employed may receive subsidies for up to 3 months. The self-employed are eligible to apply for the subsidy if the following conditions are met: (i) they hold Taiwan citizenship; (ii) they have enrolled in the labor insurance scheme through a professional union on or before 31 March 2020; (iii) their insured salary in March was NT$24,000 or less; (iv) their taxable income in 2018 was NT$408,000 or less; and (v)  they are ineligible to apply for other subsidies issued by government authorities (such as the ones offered by the Ministry of Transportation and Communications or the Ministry of Culture).

Eligible self-employed workers can submit an application form along with a copy of their bank passbook to their professional union.

For more information on employment matters in Taiwan, please contact Christine Chen at cchen@winklepartners.com.

Taiwan benefit corporation legislation proposals

We last wrote about benefit corporation legislation in Taiwan back in 2017, and since then there has been some movement on this topic. On 6 July 2018, the Legislative Yuan requested that the Ministry of Economic Affairs (MOEA) coordinate with stakeholders to evaluate whether a special chapter covering social enterprises and benefit corporations should be added to the existing Company Act or whether separate legislation should be introduced. The MOEA was given a year to produce a report on this topic and present it to the Legislative Yuan before August 2019. A summary of the report’s key points is outlined below:

Social Innovation Enterprise as a catch-all term

In their report, the MOEA use the term “social innovation enterprise” (社會創新組職) as an umbrella term for all organizations with a declared social or environmental purpose, whether they are companies, sole proprietorships, partnerships or cooperatives.

No special chapter in the Company Act

  • The Company Act is for companies, and is unsuitable for different organizations
  • The Company Act states that a company is a profit-making enterprise and that the responsible person should give priority to the maximization of shareholders’ interests. If the interests of third parties other than shareholders are pursued, this might violate the company’s obligations
Difficulty in passing special legislation

  • Social innovation enterprises come in many forms, which agency would provide oversight?
  • How should the responsible person implement social or environmental obligations? How would violations of the law be handled?
  • Should these enterprises be required to allocate surpluses for social good?
  • Should third-party standards be used or should such enterprises be certified by a third party? As there is no consensus across industry, the MOEA believes that legislation would be difficult to implement.
Administrative guidance in the short term

  • Issuing guidance through administrative notices provides for flexibility, and could quickly be revised or updated according to the operational needs of different types of business.
  • Strengthening and expanding an existing platform for social enterprises (Social Innovation Enterprise Registration Database). This would provide resources and support for enterprises with a declared social or environmental goal, while building consensus for possible legislation further down the road.

We will monitor developments as the MOEA continues its dialogue with business and academia on benefit corporation legislation in Taiwan.

For more information on this topic, email Christine Chen at cchen@winklerpartners.com.

Further movement on Taiwan STO regulations

We published an earlier article regarding proposed regulations to be promulgated by the Taiwan Financial Supervisory Commission (the “FSC”) concerning security token offerings (“STO”).  At the end of June, the FSC released more information on what the final regulations may include.

The latest proposals do not vary significantly from the earlier proposed regulations except with respect to the two issues set out below:

  1. Increase in individual investor limit.  The cap on the amount an individual professional investor can invest in a single STO was raised from NT$100,000 (approximately US$3,000) to NT$300,000 (approximately US$9,000).
  2. Addition of limitations on STO platforms.  The more substantial change from the proposed regulations was the addition of limitations on the dollar amount and frequency of STOs allowed to be conducted on individual STO platforms.  The latest proposals provide that an individual platform may conduct STOs only up to an accumulated volume of NT$100 million (approximately US$3 million).  After a platform has conducted STOs aggregating NT$100 million, it may no longer conduct STOs.  Each STO platform must also wait at least one year between each STO conducted.  These two additional limitations will very likely dissuade most, if not all, potential STO platform providers from entering the market.

We will continue to watch this space in hopes that more business-friendly regulations will eventually materialize.

For more information, please contact Gregory Buxton at gbuxton@winklerpartners.com.

Proposed regulations governing Taiwan STOs

At the end of 2018 we wrote an article regarding crowdfunding in Taiwan. We questioned whether in the future Taiwan might allow companies to raise funds through ICOs conducted via crowdfunding channels. Current indications are that the Taiwan Financial Supervisory Commission (the “FSC”) intends to regulate such ICOs, commonly referred to as security token offerings (“STO”), separately from crowdfunding. However, the general regulatory framework to be applied to STOs bears a significant resemblance to the existing crowdfunding rules.

On April 12 of this year, the FSC held a forum to discuss the key elements of the proposed STO regulations. The following proposals were discussed:

  1. Exemption from registration. An STO through which an issuer attempts to raise NT$30 million (approximately US$1 million) or less (a “SmallCap STO”) would be exempted from the registration requirements of Article 22 of Taiwan’s Securities and Exchange Act. STOs in excess of NT$30 million would be subject to the requirements of Article 22 and required to enter Taiwan’s regulatory sandbox.
  2. Permissible securities. STOs would only be permitted with respect to two types of securities: (a) fixed-interest debt and (b) profit participation rights. It is important to note that profit participation rights are not tantamount to equity share rights. Profit participation rights would not convey any of the control rights associated with share ownership, but merely convey rights to economic participation.
  3. Permissible investors. Only professional investors would be allowed to invest in SmallCap STOs, and individual investors would be limited to investing NT$100,000 (approximately US$3,000) per STO.
  4. Exhange trading. It is envisioned that security tokens issued in an STO would be exchange tradeable. Trading of SmallCap STOs would have a daily trading volume limit of fifty percent (50%) of the original issue. Securities issued in other STOs may be tradeable in the future pursuant to regulations formulated in connection with Taiwan’s financial sandbox.

The FSC plans to formalize and adopt the new STO regulations by the end of June of this year. Members of the business and legislative communities have already begun calling for increasing the SmallCap STO monetary threshold as well as loosening other restrictions. We will continue to watch this space and keep our clients informed of significant developments. A July 2019 update on the proposed regulations can be found here.

For more information, please contact Gregory Buxton at gbuxton@winklerpartners.com.

Taiwan’s legislature passes marriage equality bill

Taiwan’s Legislative Yuan passed “The Enforcement Act of Judicial Yuan Interpretation No. 748″ allowing same-sex couples to register their marriages on 17 May. The name of the Act refers to Interpretation No. 748 made by Taiwan’s constitutional court in May 2017. Interpretation No. 748 held that not permitting same-sex marriage was unconstitutional on grounds that it violated the rights to equality before the law and freedom of marriage. The Enforcement Act of Judicial Yuan Interpretation No. 748 (the “Act”) implements Interpretation 748.

Article 2 of the Act provides that “two people of the same gender may establish a permanent, exclusive, and intimate union for the purpose of pursuing a common life”.  Article 4 of the Act details the mechanics of how to create such a union and states that it may be registered as a marriage at the local Household Registration Office.

While Article 20 of the Act permits second-parent adoptions by married same sex couples, joint adoptions of non-biologically related children are not permitted. It is likely that the constitutionality of not permitting married same sex couples to adopt will be challenged on grounds of the right to equality before the law.

Article 24(2) of the Act provides that in general any provision of another law other than the Civil Code applies to a same-sex marriage if it refers to ‘husband and wife’, ‘spouse’, or ‘marriage’ . As a result, the provisions of Taiwan’s choice of law rules regarding marriage apply to same-sex marriages. Under those rules, a transnational marriage (same-sex or otherwise) is valid only if it is valid under the laws of Taiwan and the laws of the foreign spouse’s country.

As a result, transnational same-sex marriages will be valid in Taiwan only if the foreign spouse comes from a jurisdiction that permits same-sex marriage. Conversely, such a marriage will not be recognized in Taiwan if the foreign spouse comes from one of the many countries such as Japan that currently do not permit same-sex marriage.

Since Hong Kong and Macau are treated as foreign countries for most purposes, it follows that same-sex marriages where one spouse is from Hong Kong or Macau probably will not be recognized. Due to China’s special status in Taiwanese law, it is currently uncertain whether same-sex marriages where one spouse is from the People’s Republic of China will be recognized.

The Act comes into force on 24 May 2019. Taiwan’s Chinese language media has reported that local Household Registration Offices are ready to start registering same-sex marriages on the same date.

 

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