Feature
In-depth treatment of selected topics in Taiwan law for legal professionals
03 March, 2010
Partner Peter Dernbach Recognized as IP Leader in Taiwan
Partner Peter J. Dernbach is recognized as one of the leading intellectual property law attorneys in Taiwan in the Chambers Asia 2010 directory. Leading lawyer candidates are assessed on qualities such as legal ability, professionalism, service, and client commitment, and Chambers base their rankings on interviews with both lawyers and clients. Chambers Asia 2009 described Dernbach as "a great bridge for global users–he can explain problems and solutions in a way that everyone can understand", adding that "he has a good grasp of what U.S. users expect". Winkler Partners was described as "...very helpful–the lawyers are fluent in Chinese and can understand the U.S. perspective as well as the Taiwanese courts system”.
Tagged: IP , Peter Dernbach
24 February, 2010
Towers Watson 2010 Employment Terms and Conditions Published
2010 Employment Terms and Conditions – Asia Pacific, published by Towers Watson Data Services, contains comprehensive coverage of employment- and labor-related laws and regulations for legal or human resources professionals. The Taiwan chapter includes updated information on the island's retirement laws, strikes, and short-term leave, among other items. Winkler Partners is pleased to present a sample of the Taiwan chapter. The report in its entirety can be purchased from Towers Watson Publications.
For legal guidance on employment law in Taiwan, please contact Christine Chen.
For help obtaining work permits and resident status for foreigners and PRC nationals, please contact Lloyd Roberts.
09 November, 2009
Getting the Deal Through - Trademarks 2010 Published
Getting the Deal Through recently published its most recent edition of Trademarks,* a volume in its series of annual reports designed to help general counsel, government agencies and businesses stay informed about increasingly complex trademark laws. Partner Peter J. Dernbach contributed to the Taiwan chapter, which includes information on Taiwan's year-old IP Court and the Taiwan Intellectual Property Office's proposed amendments to the Trademark Act.
For more information on trademark issues in Taiwan, please contact Peter Dernbach at +886.2.2311.2345 ext. 222.
*Reproduced with permission from Law Business Research. This article was first published in Getting the Deal Through - Trademarks 2010 (published in October 2009; contributing editors Joseph F Nicholson and Stuart J Sinder, Kenyon & Kenyon LLP). For further information please visit www.GettingTheDealThrough.com.
Tagged: IP , Peter Dernbach , trademark
21 September, 2009
Taiwan Chapter of The Mergers & Acquisitions Review Published
Partner Steven J. Hanley has contributed to the Taiwan chapter of the Mergers & Acquisitions Review, published annually by Law Business Research, Ltd. The chapter can be downloaded here.
Tagged: commercial , investment , Steve Hanley
02 September, 2009
Winkler Partners Contributes to Taiwan Chapter of Enforcement of Money Judgments
Winkler Partners associate Liu Yen-ling recently contributed to the Taiwan chapter of the latest edition of Juris Publishing's Enforcement of Money Judgments. The chapter provides a comprehensive and current overview of enforcing a foreign money judgment in Taiwan.
For more information about this topic, please contact Liu Yen-ling at ext. 543.
Tagged: Liu Yen-ling
09 June, 2009
Do Expatriates Need to Join the National Health Insurance Program?
The promulgation of the National Health Insurance Act in 1994 changed Taiwan from a country where most of the population did not have insured health care to one where most of the population enjoys a health care system that ranks among the best in the world. The program provides both dental and medical coverage, and its premium ratio is 6:3:1, paid by employers, employees, and the government, respectively.
Some expatriates assigned to work in Taiwan question whether they need to pay into Taiwan's national health insurance system. For example, the expatriate and his or her family already have private health insurance through their employer, or their assignment is on a short-term basis. They might have a preferred practitioner in one of Taiwan's neighboring countries and only plan on using Taiwan's health system in the case of an emergency.
According to the National Health Insurance Act, all foreign nationals with work authorization, an employment-based alien residence certificate, and employment contract with a Taiwanese company are required to join Taiwan's health insurance system from the day they start work. The penalties for employees for not participating in the system range from NTD 3,000-15,000 (approx. USD94-470). Employers who fail to insure employees and their dependents may be subject to a penalty of double any premiums due, as well as potentially have to refund any of the employer’s share of the premiums the employee had to pay by his or herself.
In some cases, an entity outside of Taiwan will send a foreign employee to the island in order to fulfill a construction, sales or technical contract. This expatriate, who has an employment contract with, and is receiving a payroll from an entity outside of Taiwan, will be required to join the health insurance program within four months after receiving their alien residence certificate and work permit. Since the foreigner's payroll comes from outside of Taiwan, he or she must apply for health insurance at a national health insurance office as well as pay the NTD 659 (USD 20) a month premiums. The government can in fact verify whether income is from a Taiwanese company by checking with the local tax administration.
It should be noted that expatriates who have private health insurance are still allowed to keep and use their policy if they join the national health insurance program. Many larger companies in Taiwan provide employees with additional health insurance via private insurance companies as an additional worker benefit.
For legal guidance on employment law in Taiwan, please contact Christine Chen.
Tagged: Christine Chen , employment , labor
08 May, 2009
Watson Wyatt's 2009 Employment Terms and Conditions Published
2009 Employment Terms and Conditions – Asia Pacific, published by Watson Wyatt, is a comprehensive overview of employment- and labor-related laws and regulations for legal or human resources professionals. The Taiwan chapter includes information on the island's new pension system and anti-discrimination laws, plus an updated sample employment contract. Winkler Partners is pleased to present a sample of the Taiwan chapter. The entire report can be purchased from Watson Wyatt Worldwide.
For legal guidance on employment law in Taiwan, please contact Christine Chen.
For help obtaining work permits and resident status for foreigners and PRC nationals, please contact Lloyd Roberts.
Tagged: employment , labor
10 April, 2009
Taiwan Chapter on International Licensing
Winkler Partners recently contributed to the Taiwan chapter for the Center for International Legal Studies and BNA Internationals' International Licensing publication ("International Licensing", BNA International Inc, London England, Supplement 23, March 2009.) The electronic version of the chapter can be found here.
For further information regarding international licensing in Taiwan, please contact Peter Dernbach at +886-2-2311-2345 ext. 222.
Tagged: copyright , IP , patent , trademark
10 November, 2008
Taiwan Trademarks 2009
Getting the Deal Through recently published its fifth edition of Trademarks, a volume in its series of annual reports designed to help general counsel, government agencies and businesses stay informed about increasingly complex trademark laws in 43 jurisdictions. Partner Peter Dernbach contributed to the Taiwan chapter*, which includes information on Taiwan's brand-new IP Court and proposed revisions to the Trademark Act.
For more information on trademark issues in Taiwan, please contact Peter Dernbach at +886.2.2311.2345 ext. 222.
*Reproduced with permission from Law Business Research. This article was first published in Getting the Deal Through – Trademarks 2009, (published in October 2008 – contributing editors Joseph Nicholson and Stuart Sinder). For further information please visit www.GettingTheDealThrough.com
Tagged: IP trademark
23 October, 2008
Taiwan M&A 2007-2008
Partner Steve Hanley recently contributed the Taiwan chapter1 to the second edition of The Mergers and Acquisitions Review, edited by Simon Robinson of Slaughter and May. The Review provides substantive introductions to M&A activity and relevant legal developments in 58 jurisdictions. The Taiwan chapter includes sections on the major laws affecting M&A activity in Taiwan such as the Business Mergers and Acquisitions Act, Taiwan's employment law regime, and the impact of Taiwan's ongoing opening to China.
For more information on M&A in Taiwan, please contact Steve Hanley at +886.2.2311.2345 ext. 620.
* Reproduced with permission from Law Business Research Ltd. This article was first published in The Mergers & Acquisitions Review, (published in September 2008 - editor Simon Robinson).
Tagged: corporate , Steve Hanley
07 July, 2008
Employment Terms and Conditions Asia Pacific (Taiwan 2008)
The Taiwan chapter of the 2008 Employment Terms and Conditions – Asia Pacific, published by Watson Wyatt, is a comprehensive overview of the island’s laws and regulations for legal or human resources professionals. The chapter includes information on new pension and equal opportunity requirements, health insurance and hiring requirements for foreigners. It also contains information on obtaining visas for Chinese professionals who need to visit Taiwan for business. We are pleased to present a sample of the Taiwan chapter. The entire report is available for purchase from Watson Wyatt Worldwide.
For help obtaining work permits and resident status for foreigners and PRC nationals, please contact Lloyd Roberts.
For legal guidance on employment law in Taiwan, please contact Christine Chen.
30 November, 2007
Act Governing the Provision of Judicial Assistance at the Request of Foreign Courts
Clients often ask whether foreign judgments can be enforced in Taiwan and how to serve foreign legal papers. The statutory basis for both processes is the Act Governing the Provision of Judicial Assistance at the Request of Foreign Courts, which is translated into English here by Paul Cox of the WP Translation Department. Text in square brackets “[]” is added by the translator for clarification or readability. The Chinese original is here.
An earlier translation appears in the out of print A Compilation of the Laws of the Republic of China (Taipei, 1961) vol. 1.
Act Governing the Provision of Judicial Assistance at the Request of Foreign Courts
(Promulgated 25 April 1963)
Article 1
Unless otherwise specifically provided by a treaty or a law, a court rendering assistance upon the request of a foreign court in a civil or criminal matter shall do so in accordance with this Act.
Article 2
Assistance rendered by a court upon request in a civil or criminal matter shall not violate any law or regulation of the Republic of China.
Article 3
The matter requested shall be transmitted in writing through a diplomatic agency.
Article 4
The home country of the requesting court shall declare that an ROC court encountering a same or similar matter and needing to request assistance ought to be rendered equivalent assistance.
Article 5
An assisting court serving process relating to civil or criminal litigation shall do so in compliance with the provisions of the ROC Code of Civil or Criminal Procedure concerning service.
[A foreign court] requesting service shall specify in the letter of request [i.e. letter rogatory] the name, nationality, and domicile, residence, or office or place of business of the person to be served.
Article 6
An assisting court investigating evidence relating to civil or criminal litigation shall do so in accordance with the purpose of the request and with the provisions of the ROC Code of Civil or Criminal Procedure concerning investigation of evidence.
[A foreign court] requesting investigation of evidence shall specify in the letter of request the names of the parties to the litigation, the types of evidentiary method, the names, nationalities, domiciles, residences, or offices or places of business of the persons subject to investigation, and the matters to be investigated. If it is a criminal case, a summary of the case shall be attached.
Article 7
If the letter of request and other relevant documents in a requested matter are in a foreign language, Chinese translations shall be attached, with annotations stating that they are true and accurate translations of the originals.
Article 8
Fees relating to service or investigation in a civil matter shall be as set forth in ROC laws and regulations applicable to assessment of fees. In a criminal case, fees shall be calculated on the basis of the actual expenditures of the assisting court, and reimbursed by the home country of the court that requested the assistance.
Article 9
This Act shall come into force from the date of its promulgation.
For questions about this translation, please contact Paul Cox at +886-(0)2-2311-2345 ext. 545.
Tagged: Paul Cox , translation
14 November, 2007
Winkler Partners Environmental Impact: Baselines 2004-2006
As part of a firm-wide commitment to reduce our environmental impact, Winkler Partners collects data reflecting its energy and resource conservation efforts compiled in a set of metrics. These include figures for electricity, gas and water use, measurements of waste and recyclables, as well as an overall carbon footprint that reflect the entirety of its business activities (including calculations of for carbon produce by transportation to and from work and overseas business trips).
While some preliminary sustainability efforts began at the firm as early as 2002 when its offices were moved to the current location, the collection of quantifiable data began in 2004. Therefore, 2004 serves as a baseline for comparison with future data. It should be noted that from 2004 to 2006 there were no significant changes in office facilities or equipment that would affect energy or resource use. Also during this period the number of staff has fluctuated minimally while revenue rose by approximately 30 percent. The following figures set out baselines for water, electricity, gas, and material resource use by the firm between 2004 and 2006.
Water
Winkler Partners has dramatically reduced its water use through basic conservation methods, with water use down almost 40% between 2004 and 2006. With the addition of water-efficient toilets and a rooftop catchment system for rainwater collection in 2007, we expect water use this year to drop 60% compared to 2004 levels and perhaps as high as 80% in 2008.
- 2005: 774 units of water saved over 2004
- 2006: 133 units of water saved over 2005
- 2004-2006 1681 units (1,681,000L) of water saved. (on 2004 baseline)
Electricity
Through simple conservation measures, Winkler Partners has been able to reduce its use of electricity by 15% between 2004 and 2006. Current figures for 2007 will likely see that number increase to 20% over the 2004 benchmark data.
Comparison of Electricity Use and Savings (2004-2006)
1 unit of electricity=1000 watt hours (Wh) =860 kilocalories (Kcal)
- 2005: 3220 units of electricity saved over 2004
- 2006: 15822 units of electricity saved over 2005
- 2004-2006: 22,262 units of electricity saved.(on 2004 baseline)
Gas
The use of natural gas at Winkler Partners increased substantially between 2004 and 2005 due to the addition of daycare facilities that now serve four preschool children. Since that time, however, conservation measures have helped reduce the amount of gas used and current figures show gas use in 2007 should return to 2004 levels.
- 2005: increase of 1001 units used over 2004
- 2006: 50 units of gas saved over 2005
- 2004-2006: overall increase of 151 units.
Waste and Recyclables
No program for sustainability would be effective without tackling the issue of material consumption. Winkler Partners has set a target to become a “zero waste” office and seeks to decouple material intensity from profitability. Metrics were only put into use this year so we are currently unable to assess the amount of progress made.
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For more information on the Winkler Partners substainability program, please contact Mark McVicar at +886-2-2311-2345 ext. 456
Tagged: Mark McVicar , sustainability
06 November, 2007
Non-compete Clauses in Employment Agreements
Once mainly found in the high tech industry, non-compete clauses are now routinely added by Taiwanese employers in a variety of industries. While employers should consider adding non-compete clauses as part of their general intellectual property protection strategy, both employers and employees should be aware that many non-compete clauses in Taiwan are drafted too broadly and may be void or only partially enforceable.
As a matter of Taiwanese law, the CEO (usually known as a "General Manager") of a company and members of its board of directors are prohibited from engaging in business activities that would compete with their company's own business while they are employed by or on the board of that company.
Although Article 15 of the ROC Constitution guarantees the right to work, Taiwan's Council of Labor Affairs and the courts have held that the freedom of contract and Article 23 of the Constitution permit employers and employees to agree to limit the employee's right to work with non-compete clauses. This limitation is however subject to the following principles:
- The employer must have an interest that is protected by the non-compete clause. If an employer does not have business secrets that it needs to protect, or if the alleged business secrets do not merit the degree of protection afforded by a non-compete clause, the employer may not bind the employee with a non-compete clause.
- There must be a likelihood that the employer's secrets will be disclosed because the employee changes jobs. If the employee is in a relatively junior position where she does routine work and can be replaced without undue difficulty, her employment by a competitor will not cause disclosure of business secrets and her right to seek new employment may not be restricted with a non-compete clause.
- The scope of the non-compete restrictions must be reasonable. This standard applies to the length of the non-compete restriction, the work to which it applies, the employers for whom the employee cannot work, and the applicable region. For example, an agreement in which the employee agrees not to work for another employer in the semiconductor in any capacity worldwide would be deemed unreasonable and therefore unenforceable. But if the same agreement provided that the employee should not accept employment with a competitor in Taiwan for two years following the end of the current employment relationship, the courts would tend to find the agreement enforceable. This reasonableness requirement along with the following consideration requirement are the most commonly fatal terms in non-compete agreements.
- The employee must receive consideration for his loss caused by agreeing to the non-compete clause. This should be in the form of a higher salary, stock option, or other forms of compensation specifically tied to the non-compete clause. It would be obviously unfair to require the employee to restrict his right to work without receiving something in exchange.
- Breaches of non-compete clauses must be substantive. When an employee breaches the non-compete clause in an employment contract, the breach must be malicious and in bad faith. Examples of substantive and enforceable breach would include leading an entire team of employees to a competitor or establishing a new competing firm using proprietary business processes, technology, or financial information. In theory, substantive breach should have bearing only on the determination of damages to be awarded rather than effective of the contract. In practice however, the courts have made the extent of the breach a factor in determining whether the non-compete clause is effective.
Both employers and employees should be aware that the courts have exercised considerable latitude in interpreting these principles in the contexts of different industries and individual corporate cultures. In some cases, the courts have used these guidelines to carve more reasonable non-compete terms out of employment contracts that the court has determined are excessively broad.
As Taiwan shifts to a more innovation-based economy, employment contracts that seek to protect intellectual property rights with non-compete agreements have taken on increased importance. Neither employers nor employees should lightly enter into such agreements, and if they do, the courts will be concerned that both parties have fully understood and discussed the need for the agreement and its specific terms in good faith.
Employment law is rapidly evolving in Taiwan, both human resource professionals and prospective employees should be especially cautious about mechanically applying standardized non-compete language that may not in fact be enforceable.
For more information on non-complete clauses and other employment law issues, please contact Liu Yen-ling at +886-2-2311-2345 ext. 543.
Tagged: employment , Liu Yen-ling
31 October, 2007
Foreign Professionals and Work Permits
Foreign professionals may legally work in Taiwan if they possess a bachelor’s degree from an accredited university and at least two years of work experience. Master’s degree holders are exempt from the work experience requirement, regardless of the industry in which employment is sought. Foreign nationals serving as company directors or supervisors that visit Taiwan to attend board or shareholders meetings only require a visitors’ visa, not a full work permit.
In most cases, the capital requirement for a company wishing to hire a foreign employee is NTD 5 million (approximately USD 152,000) for the first year. For companies established more than one year, the average annual revenue required for a period of time for up to three years is NTD 10 million (approximately USD 304,000). While there is no written requirement, companies are required, in practice, to maintain an annual revenue of NTD 5 million for foreign-invested companies or NTD 10 million for local companies for each foreign professional they employ. Additionally, a foreign white-collar employee must be given a minimum monthly salary of NTD 47,971 (approximately USD 1,500).
After a foreign professional is granted a work permit, they may then apply for a resident visa at a Taiwan embassy or trade office. After arriving in Taiwan, they should then apply for an Alien Residence Certificate (ARC) from the National Immigration Agency. The foreign professional’s accompanying spouse and children are also eligible for an ARC that allows them to live in Taiwan.
The spouse’s ARC, however, is not a work permit and does not automatically entitle that person to work in Taiwan. The spouse must also meet the requirements of and apply for their own work permit if they take up a job offer in Taiwan. Foreign professionals and their spouses should also be aware that volunteering is considered “work” in the eyes of Taiwan’s authorities. The penalties faced by employers (and human resource managers) for hiring unauthorized foreign workers can be quite severe, including both fines and jail sentences.
English teachers are not considered business executives and are subject to a different set of work permit rules and regulations. Chinese professionals who need to visit Taiwan for business purposes are also subject to a separate set of rules and regulations. For our comprehensive overview of employment in Taiwan, please refer to this year's Watson Wyatt Employment Terms and Conditions Asia Pacific (Taiwan).
For further information on application procedures for international or Chinese professionals to Taiwan, please contact Lloyd Roberts at +886-2-2311-2345 ext. 638. A list of the relevant fees is available here
Tagged: employment , labor
03 October, 2007
Certification Now Required for Organic Food in Taiwan
Michael Fahey
Over the past year, Taiwan has unveiled a new regulatory regime governing the certification of organic foods that will require all organic food products including organic poultry and meats to be certified and registered by February 2009. After this deadline, organic products that do not comply with the new certification or registration requirements will be subject to fines ranging between NT$200,000 (c. US$6000) and NT$1 million (c. US$30,000) for each violation. Under the new laws, the cabinet-level Council of Agriculture has significantly expanded powers of inspection and enforcement to back up those fines. In essence, the Council's role is shifting from away its traditional emphasis on supervising and guiding the development of new production technologies toward a more consumer-oriented regulatory role.
One unfortunate consequence of this new regulatory environment is that it threatens to take imported organic products off the market. Importers need to be aware that as of this writing (Oct. 2007) it is impossible to comply with the new certification requirements because the Council has not yet recognized any international certification bodies.
Background
Authoritative market figures for Taiwan's organic food industry are currently unavailable although officials at the Council have indicated that the new registration regime will enable them to begin publishing such figures by the end of the decade. Still, by all accounts, the market for organic food products in Taiwan is growing rapidly.
In 2004, for example, the Asia Chapter of the Organic Trade Association's Export Study noted that Taiwan had more than 1,000 independent specialist shops selling organic and natural foods. A more recent Chinese-language study by the Council from 2006 noted significant consolidation in the industry as the number of outlets decreased to 782 of which more than half were now members of chain stores such as Li-Ruhn (39 locations) and Cotton Fields (seven Taipei-area stores). Membership in a distribution coop for organic foods run by the Homemaker's Union and Foundation rose from 3,000 to 12,000 between 2001 and 2006. The density of retail outlets is the highest in Taipei City where there are more than 200 including one part of the wealthy eastern side of the city that boasts four chain outlets within 200 meters along Nanjing East Road.
At the same time, high-end gourmet supermarkets, a relatively new development in Taiwan, are exposing sophisticated consumers to a wide range of imported organic foods from North America and Europe. Taking note of these trends, the Uni-President Group, which runs Taiwan's ubiquitous 7-11 convenience stores and Starbucks, is now operating a chain of stores selling organic and other natural foods as well as online organic supermarket.
Current Regulatory Regime
Taiwan's legislature passed the Production and Certification Management of Agricultural Products Act (the "Act") at the end of 2006. The Act, which took effect on 29 January 2007, requires that all agricultural products including crops and livestock that are labeled as organic must be certified within two years. For organic products produced in Taiwan, this means certification by one of Taiwan's four accredited domestic certification bodies:
- Formosa Organic Agriculture Association
- Mokichi Okada International Association
- Taiwan Organic Agriculture Foundation
- Taiwan Organic Production Association
In fact these domestic certification organizations have been operating for a number of years and accredited by the Council since 2003. But since certification was recommended, rather than required, consumers questioned how organic many products on the market actually were.
Under the new required certification regime, Taiwanese certification bodies certify agriculture products as organic based on a set of standards known as the Certification Standards for Organic Agricultural Products and Organic Agricultural Processed Products (the "Certification Standards") that is attached as an appendix to the the Regulations Governing Certification Management of Organic Agricultural Products and Organic Agricultural Processed Products (the "Domestic Organic Products Regulations"). These are the enforcement rules to the Act that govern the registration and the labeling of organic food products produced in Taiwan. Regrettably, none of the acts and regulations promulgated or issued over the past year have been translated into English. Several of their direct predecessors are, however, available in translation online through the Taiwan Organic Agriculture Information Center.
The Certification Standards are divided into four major sections:
Crop Standards
Livestock Standards
Processing, Packaging and Distribution Standards
Common Standards
The Crop Standards, for example, require adequate fencing or buffering zones and a two or three year transition period for short term and long term crops respectively. There are also blanket prohibitions on the use of synthetic chemicals and all GMOs and their derivatives. Please note carefully that the translations linked above are based on an earlier version of the Certification Standards from 2003 although they are very close to the current regulations in substance.
Two attachments to the Certification Standards further set forth permissible limits for heavy metals in water, soil, and organic fertilizers as well as a list of permitted biocides.
Once a product has been certified organic by a domestic certification number, it may carry both the Certified Agricultural Standards ("CAS") Organic Mark and the organic mark of the certifying organization. Examples of the CAS Organic Mark with the marks of the four current domestic certification organizations on the right side of the href="http://info.organic.org.tw/supergood/">Taiwan Organic Agriculture Information Center's splash page. Each of the certification organizations also has a mark for products certified as transitional organic.
While the Certification Standards largely incorporate and unify standards issued in 2003, they are important because imported organic agricultural products must be certified by an accredited international certification organization whose certification standards must be deemed by the Council to comport with its Certification Standards for organic food products produced in Taiwan.
The Act gives the Council the authority to issue regulations governing certification of imported organic food products, which the Council has done in its "Regulations Governing Certification Management Imported Organic Agricultural Products and Organic Agricultural Processed Products." (the "Imported Organic Products Regulations"). Other than matters pertaining to accreditation of international certification bodies these regulations run in parallel with their counterparts for domestic producers.
After certification, both sets of regulations require that before an imported organic food product can be labeled and sold as such in Taiwan, the product must be registered with the Council. Registration requires the filing of the following documents:
- Copy of business license
- Certification documents issued by accredited international certification body
- Certification of quarantine inspection for imported agricultural products
- Proposed Chinese labeling
- Other documents required by the Council
The certification documents issued by the accredited international certification body must include the following:
- Place of origin (farm or factory) and address
- Name of product, lot number, and, for processed products, percentage of organic raw materials used
- weight or volume
- Name of importer or buyer
- Name and address of certification agency
- Date of certification
The Council is also explicitly authorized to request a sample of the product for review and can reject a product for any of the following reasons:
- the product is a processed agricultural product that is less than 95% organic
- the product does not meet Taiwan's Certification Standards for organic agricultural products after it clears quarantine
- the applicant fails to provide a sample
- chemical pesticides, fertilizers, veterinarian medicines, or other chemicals were used in the production of the product in violation of Article 13 of the Act.
If it approves registration, the Council will issue documents authorizing labeling the product as organic. These approval documents will list the following information:
- name and address of importer
- overseas place of origin
- product name and lot number
- product weight and volume
- organic labeling approval code
All certification and registration documents and records must be retained for at least one year or for one year after the product's expiration date if applicable.
Labeling
Imported organic agricultural products must be labeled with the following information in traditional Chinese:
- Product name (including the word "organic")
- Raw materials
- Name of importer, contact telephone, and address
- Place of origin (approved country name in Chinese script at least 6 mm in height and width on lower front of package in a prominent location )
- Name of certification organization ( in Chinese script at least 6 mm in height and width on lower front of package in a prominent location
- Organic labeling approval code issued by Council on registration
- Other items announced by the Council
Only the seal or mark of the accredited certifying body may appear on the label, and all relevant documents should be submitted in a notarized Chinese translation.
Conclusions
While the new certification requirements for products labeled as organic should help protect consumers and increase acceptance of organic food products, importers of organic foods face a significant problem in that nearly half of the two-year grace period has already expired without the Council having accredited any international certification organizations. As a result, it is impossible at present for importers to comply with the new certification, registration and labeling requirements. The Council has indicated to Winkler Partners that they are waiting for importers or international certification agencies to apply to the Council for accreditation and that the Council will review such applications on a case by case basis.
observed that the Homemakers Union and Foundation's distribution coop for distributing organic foods has increased its membership from
Tagged: agriculture
28 September, 2007
Computer-Processed Personal Data Protection Act
The following is an unofficial English translation of Taiwan's Computer-Processed Personal Data Protection Act. The Chinese original may be found here. The Act was promulgated in 1995 and has not been amended despite significant technological and social changes in the interim.It should be noted that over the past decade, the Ministry has used its power under Article 19-3 to list a number of industries as subject to the Act. These include real estate agencies, certain classes of retailers, and employment agencies. As with most such legislation, there are also a set of important Enforcement Rules that govern many of the practical aspects of how the Act is administered.
Chapter I General Provisions
Article 1
This Act is enacted for the purposes of regulating Computerized Processing of Personal Data, preventing infringement on rights of personality, and promoting fair Use of Personal Data.Article 2
Protection for Personal Data shall be in accordance with the provisions of this Act; provided, where there are [relevant] provisions in other laws, the provisions of such laws shall apply.Article 3
In this Act the following terms shall be defined as follows:
- "Personal Data" means a natural person's name, date of birth, national identification number, special features, fingerprints, marital, family, education, occupation, health, medical history and financial status, social activities and other data which is sufficient to identify that person.
- "Personal Data File" means a set of Personal Data stored in electromagnetic recordings or other similar media for Specified Purposes.
- "Computer Processed" means the input, storage, editing, correction, indexing, deletion, output, transmission or other processing of data by means of a computer or an automated machine.
- "Collection" means acquisition of Personal Data for establishment of a Personal Data File.
- "Use" means the internal use, or provision to a third party other than the Subject, of a Personal Data File by a Public Agency or a Non-Public Agency which maintains such file.
- "Public Agency" means a central or local government agency which exercises government authority pursuant to law.
- "Non-Public Agency" means the following enterprises, organizations or individuals other than the agencies referred to in the preceding subparagraph:
(1) credit information business and organizations or individuals whose principal business is to engage in the Collection or Computerized Processing of Personal Data;
(2) hospitals, schools, telecommunications business, financial business, securities business, insurance business and mass media business; or
(3) other enterprises, organizations or individuals designated by the Ministry of Justice in consultation with the central competent authorities having jurisdiction [over the business of such enterprise, organization or individual].
- "Subject" means the person whose Personal Data is the subject matter [of Personal Data].
- "Specified Purposes" means the purposes prescribed by the Ministry of Justice in consultation with the central competent authorities for specified businesses.
Article 4
A Subject may exercise the following rights relating to his Personal Data in accordance with the provisions of this Act; such rights may not be waived or limited in advance by a special agreement:
- inquiry and request for review;
- request for duplicates;
- request for supplementation or correction;
- request to cease Computerized Processing or Use; or
- request for deletion.
Article 5
Where an organization or individual is retained to process data by a Public Agency or Non-Public Agency, the person who processes the data shall be deemed as personnel of the retaining party [for purposes of] the applicability of the scope of this Act.Article 6
Collection or Use of Personal Data shall be with respect for the rights and interests of the Subject, shall be undertaken a truthful and credit worthy manner and shall not exceed the scope of necessity for a Specified Purpose.Chapter II Data Processing by a Public Agency
Article 7
A Public Agency shall not engage in the Collection or Computerized Processing of Personal Data unless for Specified Purposes and in conformity with one of the following circumstances:
- within the scope of necessity for the fulfillment of its official functions and duties as provided by laws and regulations;
- with the written consent of the Subject; or
- there is no likelihood of injury to the rights and interests of the Subject.
Article 8
Use of Personal Data by a Public Agency shall be within the scope of necessity for the fulfillment of its official functions and duties as provided by laws and regulations and in conformity with the Specified Purposes of Collection; provided, Use outside of the Specified Purposes of Collection may be made in any of the following circumstances:
- such use is expressly provided by law or regulation;
- such use is legitimate and for internal use only;
- such use is to protect national security;
- such use is to promote public interest;
- such use is to avoid imminent danger to the life, body, freedom, or property of the Subject;
- such use is necessary for preventing serious damage to the rights and interests of others;
- such use is necessary for academic research and does not injure the major interests of others;
- such use is favorable to the rights and interests of the Subject; or
- such use is authorized by written consent of the Subject.
Article 9
International transmission and Use of Personal Data by a Public Agency shall be in accordance with relevant laws and regulations.Article 10
A Public Agency maintaining Personal Data Files shall announce, in the official gazette or by other appropriate means, the following matters; this shall also apply to any changes in such matters:
- file name of the Personal Data;
- name of the Public Agency maintaining the file;
- name of the Public Agency using the Personal Data File;
- basis and Specified Purposes for maintaining the Personal Data File;
- classification of the Personal Data;
- scope of the Personal Data;
- Collection method of the Personal Data;
- place to where the Personal Data is usually transmitted, and recipients thereof;
- direct recipients of international transmission of the Personal Data; and
- name and address of the Public Agency accepting applications for inquiry, correction, and review of the Personal Data.
The classification of Personal Data as set forth in subparagraph 5 of the preceding paragraph shall be prescribed by the Ministry of Justice in consultation with the central competent authorities having jurisdiction over the relevant business.Article 11
The following Personal Data Files may not be subject to the provisions of the preceding article:
- files relating to national security, diplomatic and military secrets, overall economic interests, or other major matters of national interest;
- files relating to cases under examination by Grand Justices of the Judicial Yuan, cases under examination by the Committee on the Discipline of Public Functionaries, and matters concerning court investigation, trial, judgment, execution, or processing of non-litigious matters;
- files relating to crime prevention, criminal investigation, execution of a criminal punishment, corrective or protective measures for the offenders, or prisoner's post-incarceration protection;
- files relating to administrative punishment and compulsory execution thereof;
- files relating to administration of border entrance and exit security examination or refugee examination;
- files relating to taxes and collection thereof;
- files relating to personnel, daily duties, salary, sanitation, benefits, or related matters of Public Agencies;
- files specially provided for experimental Computerized Processing;
- files to be deleted prior to public announcement in the official gazette;
- files in which only the name, domicile, exchanges of money and things with the Subject are recorded as a necessary part of official business contacts;
- files separately created for internal use by the personnel of a Public Agency solely for the discharge of their public duties; or
- other files specifically provided by law.
Article 12
Upon request by a Subject, a Public Agency shall reply to inquiries about the Personal Data Files it maintains, permit review of such files, or make duplicates thereof; provided, this shall not apply in any of the following circumstances:
- the Personal Data File may not be made public pursuant to the preceding article;
- the Personal Data File is likely to cause interference with the fulfillment of public functions and duties; or
- the Personal Data File is likely to injure important interests of a third party.
Article 13
A Public Agency shall maintain the accuracy of Personal Data and make timely corrections or supplements ex officio or upon request by a Subject.When a dispute about the accuracy of Personal Data arises, a Public Agency shall, ex officio or upon request by the Subject, cease Computerized Processing and Use of such Personal Data; provided, this shall not apply where such Personal Data are required for execution of duties [of the Public Agency], and the [aforementioned] dispute is noted, or the written consent of the Subject has been obtained.
When the Specified Purpose of Computerized Processing of Personal Data no longer exists or the time limit thereof expires, a Public Agency shall, ex officio or upon request by a Subject, delete or cease Computerized Processing and Use of such data; provided, this shall not apply where the data is required for execution of duties [of the Public Agency], change of their purposes is made in accordance with this Act, or the written consent of the Subject has been obtained.
Article 14
A Public Agency shall maintain a register which sets out the matters announced pursuant to Article 10-1 of this Act; the register shall be made available to the public for inspection.Article 15
A Public Agency shall process requests made by a Subject in accordance with this Act within thirty days [upon receipt of such request]. If the request can not be processed within such time limit, the applicant shall be advised of the reasons therefor in writing.Article 16
It is within the discretion of a Public Agency to determine the fees it will charge for inquiries or reviews of Personal Data, or for duplicates thereof.
The amount of the fees referred to in the preceding paragraph shall be determined by each [concerned] Public Agency.Article 17
A Public Agency maintaining Personal Data Files shall designate special personnel to take exclusive responsibility, in accordance with relevant laws and regulations, for matters relevant to safety maintenance and to prevent burglary, alteration, destruction, disappearance, or disclosure of Personal Data.
Chapter III Data Processing by Non-Public AgenciesArticle 18
Unless for a Specified Purpose and in compliance with any of the following circumstances, a Non-Public Agency shall not engage in the Collection or Computerized Processing of Personal Data:
- written consent from the Subject is obtained;
- the Non-Public Agency has a contractual or quasi-contractual relationship with the Subject and there is no likelihood of harm to the rights and interests of the Subject;
- such Personal Data is already public and there is no harm to the important interest of the Subject;
- [the Collection or Computerized Processing of Personal Data] is made for academic research and there is no harm to the important interest of the Subject; or
- [the Collection or Computerized Processing of Personal Data] is made pursuant to the relevant laws and regulations in connection with Article 3-1-7-2 of this Act and special provisions of other laws.
Article 19
A Non-Public Agency not registered with and licensed by the competent authority with jurisdiction over such agency shall not engage in Collection, Computerized Processing, international transmission, or Use of Personal Data.A credit information business and an organization or individual whose principal business is to make Collection or Computerized Processing of Personal Data shall obtain permission from the competent authority with jurisdiction over such business organization or individual and shall obtain [appropriate] registrations and licenses therefor.
Registration procedures, conditions of permission, and fee standards contained in the preceding two paragraphs shall be determined by the central competent authority for specified businesses.
Article 20
Applicants for registration referred to in the preceding article shall file an application stating the following items:
- applicant's name, residence or domicile; and, if the application is a juristic person or non-juristic organization, its name, principal office, branch office, or business place, and the name, residence or domicile of its representative or administrator;
- names of Personal Data Files;
- Specified Purposes of maintaining Personal Data Files;
- classification of Personal Data;
- scope of Personal Data;
- duration of maintenance of Personal Data Files;
- Collection method of Personal Data;
- scope of Use of Personal Data Files;
- direct recipients of international transmission of Personal Data;
- name of person responsible for maintaining Personal Data Files; and
- safety maintenance plan of Personal Data Files.
Changes in the above items shall be applied for within fifteen days after change of such item occurs. If a business is terminated, the termination of registration shall be applied for within one month after the termination of operations takes place.When application for termination of the registration in the preceding paragraph is filed, the method of disposal of the Personal Data maintained by the applicant shall be reported to, and approval for such method shall be obtained from, the competent authority with jurisdiction over the applicant.
The Specified Purposes under Article 20-1-3 and classification of data under Article 20-1-4 shall be prescribed by the Ministry of Justice in consultation with the central competent authorities for specified businesses.
The standard for the safety maintenance plan of Personal Data Files as set forth in paragraph 1, subparagraph 11 and the method of disposal in paragraph 3 [all of this Act] shall be prescribed by the central competent authority for specified businesses.
Article 21
When the registration application in the preceding paragraph is approved, a Non-Public Agency shall announce the matters set forth in paragraph 1, subparagraphs 1 through 10 of the preceding article in an official gazette and publish them in local newspapers.Article 22
A Public Agency shall maintain a register which sets out the matters contained in paragraph 1, subparagraphs 1 through 10 of Article 20; the register shall be made available to the public for review.Article 23
Use of Personal Data by a Non-Public Agency shall be within the scope of necessity for the Specified Purpose of Collection; provided, Use beyond the Specified Purpose may be made in any of the following circumstances:
- such use is to promote public interest;
- such use is to avoid imminent danger to the life, body, freedom, or property of the Subject;
- such use is necessary for preventing serious damage to the rights and interests of others; or
- such use is authorized by written consent of the Subject.
Article 24
In any of the following circumstances, the competent authority for specified businesses may restrict international transmission and Use of Personal Data by a Non-Public Agency:
- such transmission and use involve major matters of national interest;
- such transmission and use are subject to special provisions of an international treaty or agreement;
- the receiving country lacks proper laws and regulations to adequately protect Personal Data, such that the rights and interests of the Subject are likely to be injured; or
- [Personal Data] is indirectly transmitted to or used [through] a third country to evade this Act.
Article 25
A competent authority for specified businesses may, if it deems necessary, send officials with identification documents to order a Non-Public Agency which is subject to permission or registration by such competent authority to provide relevant data or give other necessary cooperation in relation to matters provided in this Act; such officials may visit the Non-Public Agency to conduct inspection. Upon detection any data violating this Act may be seized.
The Non-Public Agency shall not evade, hinder, or refuse the order, inspection, or seizure set forth in the preceding paragraph.Article 26
The provisions of Articles 12, 13, 15, 16-1, and 17 shall apply mutatis mutandis to a Non-Public Agency.
The fee standard of a Non-Public Agency applying mutatis mutandis Article 16-1 shall be prescribed by the central competent authority with jurisdiction over such agency.Chapter IV Compensation for Damage and Other Remedies
Article 27
A Public Agency violating the provisions of this Act so as to injure the rights and interests of a Subject shall be liable for compensation; provided, this shall not apply where such injury is due to natural disasters, accidents, or other causes of force majeure.The injured party, though having [only] suffered non-pecuniary injury, may nevertheless claim an appropriate amount of monetary compensation ,and if there is damage to reputation, appropriate measures may be requested to restore such reputation.
The total amount of compensation for damages prescribed in the preceding two paragraphs shall be between Twenty Thousand New Taiwan Dollars and One Hundred Thousand New Taiwan Dollars for each event to each person; provided, this shall not apply where there is evidence to support a higher amount of damages.
In case of compensation for injuries to a Subject [or a number of Subjects] due to one single cause and fact, the aggregated amount of compensation shall not exceed Twenty Million New Taiwan Dollars.
The claim for compensation set forth in the second paragraph [of this Article] shall not pass to another person through transfer or succession; provided, this shall not apply to a claim for monetary compensation which has been acknowledged by contract or upon which an action has been commenced.
Article 28
A Non-Public Agency which violates the provisions of this Act so as to cause damage to the interests of a Subject shall be liable for compensation; provided, this shall not apply where it can be proven [by such agency] that there was no willful or negligent act.The provisions of paragraphs 2 through 5 of the preceding article shall be applicable to claims for compensation made pursuant to the provisions of the preceding paragraph.
Article 29
A claim for compensation shall be extinguished two years after the time when the injured party becomes aware of the damage and [can identify]the person liable for compensation; or after five years from the time when such damage occurs.Article 30
In addition to the provisions of this Act, compensation for damages shall be governed by National Torts Compensation Act in the case of Public Agencies, and the Civil Code in the case of Non-Public Agencies.Article 31
If a Subject meets with refusal from a Public Agency in exercising the rights specified under Article 4, or a request is not processed within the time limit prescribed in Article 15, the Subject may, within twenty days after the refusal or expiry of the time limit, request in writing the supervising authority [of the Public Agency in question] to take proper action.The supervising authority referred to in the preceding paragraph shall, within two months after receipt of the request, notify the applicant in writing of the result of its action.
Article 32
If a Subject meets with refusal from a Public Agency in exercising the rights specified under Article 4, the Subject may, within twenty days after the refusal or after the expiry of the time limit, request in writing the competent authority with jurisdiction over such agency to take proper action.The competent authority referred to in the preceding paragraph shall, within two months after receipt of the request, notify the applicant in writing of the result of its action. If the request is deemed to be reasonable, an order shall be issued to request the Non-Public Agency to rectify its act.
Chapter V PenaltiesArticle 33
A person who intends to profit through acts in violation of the provisions of Articles 7, 8, 18 and 19-1, 19-2, Article 23, or of a restriction order issued in accordance with Article 24 of this Act, and who thereby causes damage to others shall be punished with imprisonment of up to two years, detention, or in lieu thereof, or in addition thereto, a fine of up to Forty Thousand New Taiwan Dollars.Article 34
A person who intends to pursue the illicit gain for his own or a third party, or to cause injury to the interest of another party, by engaging in the illegal output, interference, alteration, or deletion of a Personal Data File, or otherwise unlawfully impairs the accuracy of a Personal Data File, thereby causing damage to another party, shall be punished with imprisonment of up to three years, detention, or a fine of up to Fifty Thousand New Taiwan Dollars.Article 35
A public functionary, who on account of office, opportunity, or methods available in the discharge of duty, commits the crimes set forth in the preceding two articles, shall be subject to criminal punishment set forth in the preceding articles with such punishment increased by fifty percent.Article 36
Prosecution for offenses under this Chapter may be instituted only upon complaint.Article 37
Where more severe punishment is stipulated by other laws for the commission of an offense under this Chapter, the provisions of such other laws shall govern.Article 38
In any of the following circumstances, the competent authority for specified businesses may punish the responsible person by a fine of Twenty Thousand New Taiwan Dollars to One Hundred Thousand New Taiwan Dollars and request such agency to rectify its act within a specified time period. In case no rectification is made within the time period, the preceding fine will be imposed for each violation until rectification is made.
- Violation of the provisions of Article 18 of this Act.
- Violation of the provisions of Article 19-1 or 19-2 of this Act.
- Violation of the provisions of Article 23 of this Act.
- Violation of the restriction order issued under the provisions of Article 24 of this Act.
In case of a serious violation of subparagraphs 1, 3, or 4 of the preceding paragraph, the permission granted or registration made under this Act may be revoked or canceled.Article 39
In any of the following circumstances, the competent authority for specified businesses may request [a concerned agency] to rectify its act within a specified time period. In case no rectification is made within the time period, the responsible person [of the agency] shall be punished with a fine of Ten Thousand New Taiwan Dollars to Fifty Thousand New Taiwan Dollars for each violation until rectification is made.
- Violation of Article 20-2 of this Act.
- Violation of Article 21 of this Act regarding publication in local newspapers.
- Violation of Article 22 of this Act.
- Violation of Article 26-1 for which Articles 12, 13, 15 and 17 are applicable mutatis mutandis.
- Violation of the fee standard under Article 26-2 of this Act.
In case of a serious violation of subparagraphs 1, 2, 3 or 4 of the preceding paragraph, the authorization or registration pursuant to this Act may be revoked or canceled.Article 40
For each instance of the following, the competent authority for specified businesses may punish the responsible person [of a concerned agency] by a fine of Ten Thousand New Taiwan Dollars to Fifty Thousand New Taiwan Dollars:
- failure to comply with the method of disposal approved by the competent authority for specified businesses under Article 20-3 of this Act;
- violation of the provisions of Article 25-2 of this Act; or
- Failure to rectify conduct within a time limit specified pursuant to Article 32-2 of this Act.
In case of a serious violation of subparagraphs 2 or 3 of the preceding paragraph, the authorization or registration pursuant to this Act may be revoked or canceled.Article 41
Nonpayment of a fine imposed under this Act beyond a notified time limit shall be subject to compulsory execution by the court.Chapter VI Supplementary Provisions
Article 42
The Ministry of Justice shall be responsible for the coordination and contacts in connection with matters relating to the execution of this Act; rules governing such coordination and contacts shall be prescribed by the Ministry of Justice.Where there is no competent authority for a specified business, the Ministry of Justice shall handle matters which are required by this Act to be handled by a competent authority for specified business.
The Ministry of Justice and the competent authority for specified businesses may, if necessary, retain a public-interest organization to process the registration and announcement for the Collection, Computerized Processing, and Use of Personal Data by Non-Public Agencies or for the administration of other matters relating thereto.
Article 43
[Operations] of Collection or Computerized Processing of Personal Data prior to the effective date of this Act, which pursuant to the provisions of this Act are required to obtain registration or authorization, should file [for such registration or authorization] within one year after this Act becomes effective.Enterprises, organizations, or individuals designated by the Ministry of Justice in conjunction with the central competent authority with jurisdiction over such enterprises, organizations or individuals pursuant to Article 3-1-7-3 of this Act, shall obtain registration or authorization within six months from the date of such designation.
Where [the operation] fails to file an application or authorization is not obtained within the time limit prescribed in the preceding two paragraphs, it shall be deemed that the registration has not been obtained or authorized.
Article 44
The Enforcement Rules of this Act shall be prescribed by the Ministry of Justice.Article 45
This Act shall become effective on the day of its promulgation.
Tagged: privacy , translation
15 September, 2007
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 EnglishThe 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 TerminologyBesides 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:
- 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.
- 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.
- 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.
- 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").
- Business Mergers and Acquisitions Act, Art. 4(1)(ii).
Paul Cox heads the Winker Partners Translation Department.
Tagged: Paul Cox , translation
11 September, 2007
Chinese Professionals in Taiwan
An important but sometimes overlooked factor in China’s explosive economic growth has been the over US$150 billion invested in China by Taiwanese businesspeople and the 750,000 Taiwanese who have followed those investments and settled in China. Despite a lack of direct air and sea links between China and Taiwan, and significant restrictions on who can travel to Taiwan from China, the flow of human resources in the other direction is set to increase after a series of incremental liberalizations and policy shifts by the Taiwanese government.
Tagged: immigration , labor
08 August, 2007
AILA's Global Immigration Guide: A Country-by-Country Survey, Taiwan Chapter
1.How many categories of temporary work permits or temporary work visas for foreign nationals are available?
The main categories of temporary work permits for foreign nationals are: specialized or technical workers; executives; teachers in public or registered private schools; foreign language teachers in cram schools; sport coaches and athletes; religious, art and entertainment workers; ship workers, workers for the marine fishing industry; domestic helpers; workers for jobs designated bythe relevant central competent authority in relation to major public construction projects or the needs of economic and social development; and other specialized experts approved by the central authorities...
Tagged: immigration , labor , work permits
15 June, 2007
Taiwan IP Office Proposes Overhaul of Trademark Act
The Taiwan Intellectual Property Office (TIPO) has proposed substantive revisions to the current Trademark Act (the Act). The proposals seek to expand protections for rights holders, simplify administrative and licensing procedures, enhance dispute resolution mechanisms and codify certain principles that have been common in practice but heretofore not specifically addressed in the Act...Download Full PDF
Tagged: IP , trademark
14 April, 2007
Articles Featured in Computer Law & Security Report
"First Criminal Convictions for Browser Hijacking" and "Taiwanese Courts Divided on Legality of File-Sharing Business", by Marcus Clinch and Chih Shan Lee, featured in Computer Law & Security Report.
Tagged: IP , Shan Lee
19 March, 2007
New National Immigration Administration to Handle Alien Resident Certificates
The beginning of 2007 marked the opening of Taiwan’s National Immigration Administration (NIA), which absorbed many responsibilities and personnel from National Police Agency, Ministry of the Interior, as well as airport and harbor police forces. The government has touted the NIA as a streamlined...Download Full PDF
Tagged: employment , immigration , labor
01 January, 2007
Employment Terms and Conditions Asia Pacific (Taiwan 2007)
Since 2001, Winkler Partners has contributed the Taiwan chapter of Watson Wyatt's Employment Terms and Conditions — Asia Pacific. This is a comprehensive overview of Taiwan's employment laws and regulations for legal or human resources professionals. Topics covered in detail include the ongoing liberalization of Taiwan's labor market, employment contracts, hiring of foreign nationals, new pension and equal opportunity requirements, health insurance, and termination.
While primarily intended for professionals in the field, the chapter also provides much useful information for international professionals working in Taiwan's high tech sector.
- For legal guidance on employment law in Taiwan, please contact Christine Chen.
- For help obtaining work permits and resident status for foreigners and PRC nationals, please contact Lloyd Roberts.
Tagged: employment , immigration
08 December, 2005
From 301 Watch List to Leading Light -Taiwan's Copyright Turnaround
Just three years ago, when Taiwan was on the Office of the US Trade Representative's (USTR) Special 301 Priority Watch List, the US copyright industry estimated that its losses from copyright piracy in Taiwan reached a high of $847.9 million. Although Taiwanese authorities declared 2002 the year of IP protection, the results were mixed. Industry associations and local government officials openly discussed ways to tackle copyright infringement, but piracy investigations and prosecutions were not keeping pace with infringing activities...Full PDF Article
Tagged: copyright , IP
01 December, 2005
Two Contradictory P2P Decisions
"Two Contradictory P2P Decisions" featured in TOPICS magazine.
Tagged: IP
01 January, 2004
Building and Enforcing Intellectual Propery
The environment for building and enforcing intellectual property rights in Taiwan has continued to evolve apace since Taiwan’s accession to the World Trade Organisation (WTO) in January 2002. In 2003, there have been substantial revisions to the Patent, Copyright and Trademark Acts and numerous high-profile programmes to bolster the government’s efforts at combating IP infringement. President Chen Shui-bian pronounced 2002 as the Action Year for IPR Protection; the successor to that campaign, the Comprehensive Three-Year Action Plan for IPR protection, was implemented in January 2003. Taiwan is trying to establish itself as a healthy environment for the... Download Full PDF
Tagged: IP , trade
01 October, 2003
Taiwan's IP Regime in 2003
Innovation Meets Infringement: Taiwan's IP Regime in 2003, by Peter J. Dernbach , as published in the October 2003 edition of Asian IP.
Tagged: IP
02 July, 2003
Major Media Law Reform on the Agenda
Major Media Law Reform on the Agenda, as published in Business Law Bulletins...Download Full PDF
Tagged: broadcasting
01 July, 2003
New Copyright Law Passed by Legislature
New Copyright Law Passed by Legislature, from Asialaw, July/August 2003.
Tagged: copyright , IP
01 June, 2003
Securitization in Taiwan Off to a Strong Start
As anticipated, market participants are responding very positively to the implementation of a new legal framework for securitization in Taiwan...Download Full PDF
Tagged: finance , securities
New Trademark Law Improves Protection
New Trademark Law Improves Protection, by Peter J. Dernbach, from Asialaw, June 2003.
Tagged: IP , trademark
01 May, 2003
Taiwan's Unsolicited Proposal Approach: Risks and Rewards
Taiwan's Unsolicited Proposal Approach: Risks and Rewards, as published in Business Law Bulletins...Download Full PDF
Tagged: commercial , trade
Combatting Cross-Border Counterfeiting
Combatting Cross-Border Counterfeiting, from Asialaw, May 2003.
Tagged: IP
01 January, 2003
Taiwan's Telecommunications and Broadcasting/Media Industries: The Legal and Regulatory Environment
Telecommunications liberalization in Taiwan began in 1990 with the opening of value-added networks to competition. Change in the telecommunications industry was truly advanced, however, by the rollout of the so-called "three telecommunications laws" in 1996 that paved the way for industry privatization, deregulation, and—equally important to maintaining a fair and
competitive market—re-regulation. This package of reforms included amendments to the Telecommunications Law, enactment of the Organic Statute for the Directorate General of Telecommunications, and the enactment of the Organic Statute for Chunghwa Telecom Company, Ltd. (“Chunghwa Telecom”). The legislation brought about the privatization of the formerly state-owned Chunghwa Telecom, and the Directorate General of Telecommunications (the “DGT”), which has in the past played a conflicting dual role as both operator and regulator, saw its function narrowed, in theory, to industry regulation...Download Full PDFTagged: broadcasting , telecom
Brief on Tatan LNG Supply Procurement Tender
The bid awardee is required to supply LNG from 1 Jan 2008 to 31 Dec 2032 through a land-based LNG receiving terminal built in northern Taiwan for the 4,000 MW Tatan combined cycle power plant. Bids will be processed in accordance with Taiwan's Government Procurement Law. The lowest bidder under the ceiling price will win the contract in accordance with the tender specifications...Download Full PDF
Tagged: energy
Getting The Deal Through: E-Commerce, Taiwan Chapter
1 General
1 How can the government’s attitude and approach to Internet-related issues best be described?The Taiwan government has placed creating a friendly e-business environment in Taiwan among its top priorities. In its effort to boost the local economy and to transform Taiwan into an Asia Pacific Regional Operations Centre and regional telecommunication centre, as well as to conform to APEC’s ‘paperless trading’ action plan, the government has embarked on constructing a National Information Infrastructure, implementing government projects, as well as reforming laws and regulations to create a better environment for e-commerce. The government’s most recent initiative has been to promote the development of a ‘knowledge-based economy’...Download Full
PDF
Tagged: investment , trade
Intellectual Property in Taiwan
Intellectual Property in Taiwan, IP Profiles 2003.
Tagged: IP
01 October, 2002
Taiwan's Changing IP Environment
Taiwan's Changing IP Environment, Building and Enforcing Intellectual Property Value, October 2002.
Tagged: IP
03 January, 2002
Taiwan Chapter, Getting the Deal Through: Merger Control 2002
The Fair Trade Law of 1991 (FTL), amendments to which were promulgated in February 1999, and the Enforcement Rules to the FTL...Download Full PDF
Tagged: trade
01 January, 2002
Taiwan Chapter, Getting the Deal Through: Telecoms 2002
Taiwan's desire to enter the WTO has been the driving force for the privatization and liberalization of Taiwan's telecom's industry... Download Full PDF
Tagged: telecom
Taiwan Chapter, Getting the Deal Through: Mergers and Acquisitions 2002
The common forms of business combination in Taiwan include mergers and asset or business acquisitions...Download Full PDF
Tagged: investment
IP Protection in Taiwan 2002: The Year in Review
Intellectual Property Protection in Taiwan: The Year in Review, an article that originally appeared in IP Profiles 2002.
Tagged: IP
01 December, 2001
WTO at Last for Taiwan—Implications of Changes to the Lawyer Law
Taiwan's twelve-year bid to join the World Trade Organisation finally bore fruit on November 11 2001 when ministerial delegates of the WTO approved Taiwan's application exactly 23 hours after approving China. Accession is expected to occur on January 2 2002. The adjustment will be substantial as the nation will be required to further liberalise its economy and implement new laws. Perhaps one of the biggest changes will be the changed regime for foreign lawyers in Taiwan...Download Full PDF
Tagged: Miscellaneous
Taiwan WTO Survey: Getting a Head Start on Reform
A former high ranking official at Taiwan's Council of Economic Planning and Development recently commented that Taiwan has very little to do in the way of reforms in banking...Download Full PDF
Tagged: finance
01 October, 2001
Sweet Domain Name Victory for M&M's
Mars has successfully fought off a local company’s attempt to register a domain name similar to its M&M’s trademark. This case, the first decision of Taiwan’s newly-established domain dispute resolution panel, will give hope to famous trade mark owners, argues Sylvia Shiue.
Taiwan’s newly established domain dispute resolution panel made its first decision on August 6 2001. The panel decided in favour of Mars against the respondent, Champion Technology Corp’s registration of the domain name, “m-ms.com.tw”...Download Full PDF.
Tagged: IP
01 April, 2001
Is Taiwan on a Priority Path?
Over the past decade, Taiwan has gone from intellectual property pest to promising pupil and back again if we are to judge by the Special 301 lists on intellectual property rights announced each year by the United States Trade Representative (USTR).
April 30 is the date for the decision, and all signs are pointing to the probability that Taiwan's status will be “upgraded” from the Watch List, where it has found itself since an out-of-cycle August 1998 review, to the more serious Priority Watch List. While an "upgrade," in Special 301 parlance, is not a positive occurrence, there may be a silver lining, and the authors are optimistic that this year’s Special 301 process may portend brighter days ahead for IPR protection in Taiwan...Download Full PDF
Tagged: commercial , IP
Immigration and Nationality, Center for International Legal Studies, Taiwan Chapter
Taiwan (the Republic of China or ROC) is located off the coast of southeast China. It occupies a land area about the size of The Netherlands—approximately 36,000 square kilometers. A population nearing twenty-one million makes Taiwan one of the most densely populated countries in the world...Download Full PDF
Tagged: employment , immigration , labor
Court Extends the Boundary of Use
The Taiwan High Court has ruled that a trademark, which does not appear in the traditional forms, such as packaging, constitutes use, so long as the trademark is identical to wherever it appears...Full PDF Article
Tagged: IP , trademark
01 March, 2001
New Tool to Help Domain Nameowners Hold on to Their Names
A domain dispute resolution policy is the third method domain name owners can now use to retain use of their domain names in Taiwan. It shares a lot with ICANN's policy.
Taiwan Network Information Center (TWNIC) on January 30 passed its Domain Name Dispute Resolution Policy. Although the policy went into effect on March 1, the dispute resolution mechanism isn't likely to begin functioning until late March. As explained in a previous issue of IPASIA ("Arbitration bodies to bring order to domain name disputes", Vol 13 Num 10,), the policy is intended to create a more effective channel for Taiwan country-code top-level domain name (ccTLDs--.tw) dispute resolution than courts or the Fair Trade Commission (FTC), which up to now have been the only channels of redress for those seeking to take action against cybersquatters in Taiwan...Download Full PDF
Tagged: commercial , IP
01 November, 2000
Giving Taiwan Investors a DAM
Finally, a bit of good news for Taiwan's battered stock markets. Funds from discretionary accounts should start to pour into the markets by the end of the year following the legalization of the Discretionary Account Management (DAM) industry this summer. And with estimates of the total size of the market ranging from NT$1 trillion to NT$4 trillion, firms are rushing to enter the market...Download Full PDF
Tagged: bonds , finance
01 May, 2000
Permanent Residency Status: Is It Worth It?
For decades, you have probably seen Taiwanese friends and colleagues wading through the procedure of getting a green card in the United States. Now the tables are turned and foreign nationals in Taiwan are being offered the chance to apply for Permanent Residency status in Taiwan...Download Full PDF
Tagged: employment , immigration , labor
01 April, 2000
What's in a Name? An Issue of Quality
Educating people in alcohol consumption is an important issue. Whether it concerns the current government and industry efforts concerning “drunk driving” and informing people about the dangers, consequences and costs of the risks involved in drinking and driving or knowing what it is that consumers are buying—strength, type, etc.—which compliments other efforts currently underway to inform people what exactly they are drinking and encourage responsible drinking...Download Full PDF
Tagged: commercial , IP
01 January, 2000
Taiwan as a Regional E-Commerce Location
Few countries in the world have a greater stake in the development of e-commerce than Taiwan. The export-driven economy is betting on Internet appliances to move beyond the personal computer era...Download Full PDF
Tagged: investment
- "Personal Data" means a natural person's name, date of birth, national identification number, special features, fingerprints, marital, family, education, occupation, health, medical history and financial status, social activities and other data which is sufficient to identify that person.
- name and address of importer
- the product is a processed agricultural product that is less than 95% organic
