YHE LEGAL CULTUIE AND SYETEM OF TAIWANPDF电子书下载

Chapter Ⅰ A Brief Legal History and Branches of Powers of Government:Transplantation and Creation 1

Ⅰ. A Brief History of the Legal Framework of Taiwan 1

Ⅱ. Separation of Five Powers 4

Chapter Ⅱ Basic Elements of Justice System in Taiwan: The Courts, Bench,Bar and Legal Education 11

Ⅰ. Court System 11

A. Levels of Courts 11

B. Administrative Courts Compared with Ordinary Courts 13

C. Some Improved Features of the Court System in Taiwan 14

D. Independence of Judges 15

E. Declaration of Unconstitutionality of Law by Judges 17

Ⅱ. Prosecutors' Offices 19

Ⅲ. Appointment of Judges and Prosecutors 19

Ⅳ. Bar 20

Ⅴ. Legal Education 21

Chapter Ⅲ The Council of Grand Justices: An Important Design to Guard the Constitution 25

Ⅰ. The Power of Council of Grand Justices to Interpret:An Important Role in the Legal System of Taiwan 25

Ⅱ. The Intervention of Legislative Practice to Ensure Constitutionalism: Two Interpretations with Particular Importance 27

Ⅲ. The Grand Justices as the Arbitrator of Political Problems 31

Ⅳ. The Grand Justices as Advisor for Certain Social Problems 33

Ⅴ. The Council of Grand Justices as the Constitutional Court 35

Ⅵ. Issues for Further Reflection and Future Reform 35

Chapter Ⅳ Sources of Law: The Precedents Being Merely a Psychological and Subjective Element 37

Ⅰ. The Constitution as a Source of Law 37

Ⅱ. Legislation and Administrative Regulations 39

Ⅲ. International Treaties and Customary International Law as Sources of Law 41

Ⅳ. Previous Judicial Decisions and Precedents 42

Ⅴ. Customary Practices 44

Ⅵ. Underlying Legal Principle (General Principles of Law) 44

Chapter Ⅴ The Constitution of the Republic and Human Rights Protection in Progress 45

Ⅰ. General Introduction 45

Ⅱ. The Preamble of the Constitution 46

Ⅲ. Some Basic Constitutional Principles 47

A. Republican System 47

B. Rule of Law 48

C. Emphasis on Social Welfare 48

Ⅳ. The Legal Relations between Taiwan and Mainland China under the Constitution 48

Ⅴ. Basic Rights Guaranteed by the Constitution 49

Chapter Ⅵ Administrative Law Being an Important Scheme to Govern Administrative Activities 59

Ⅰ. The Principle of Administration Based on Law 60

Ⅱ. Principle of Proportionality 61

Ⅲ. Procedural Due Process and Right to Be Heard 62

Ⅳ. Transparency 62

Ⅴ. Prevention of Misuse of Administrative Guidance 64

Chapter Ⅶ Some Essential Elements Governing Civil Relations, Including Principles of Morality and Good Faith 67

Ⅰ. A General Description of the Civil Code 67

Ⅱ. The Role of Public Order and Good Morals in Civil Matters 68

Ⅲ. Non-misuse of Right and the Principle of Good Faith 70

Ⅳ. Legal Capacity of Assuming Rights and Obligation 72

Ⅴ. Statute of Limitation 74

Chapter Ⅷ Some Principles of Contract Law: Basic Rules Governing Economic Activities 77

Ⅰ. General Framework of Contract Law in the Civil Code 77

Ⅱ. Capacity of Parties to Conclude a Contract 77

Ⅲ. Agency 79

Ⅳ. Expression of Intent to Contract 80

Ⅴ. Interpretation of Expression and Pre-drafted Contractual Terms 82

Ⅵ. Offer and Revocation of an Offer 83

Ⅶ. Acceptance and Revocation of an Acceptance 84

Ⅷ. Requirement of Meeting of Minds 85

Ⅸ. Preliminary Contract and Primary Contract 86

Ⅹ. Rewards 87

Ⅺ. Earnest Money (Deposit) and Penalty 87

Ⅻ. Obligations of Performance and the Situations of Non-performance 89

ⅩⅢ. Change of Circumstances 89

ⅩⅣ. Rescission of a Contract 90

ⅩⅤ. Compensation for Damage 91

Chapter Ⅸ Various Typical Contracts with Some Reflecting the Social and Economic Activities in Taiwan 93

Ⅰ. Purchase/Sale Contracts 93

Ⅱ. Gift 94

Ⅲ. Lease 95

Ⅳ. Loan 96

Ⅴ. Employment Contract 97

Ⅵ. Contract of Hire for Work 98

Ⅶ. Tourist Contract 99

Ⅷ. Entrustment Contract (Contract of Mandate) 100

Ⅸ. Carriage 101

Ⅹ. Partnership 102

Ⅺ. Private Association of Mutual Aid 103

Ⅻ. Suretyship 104

Chapter Ⅹ Unjust Enrichment and Management of the Affairs of Another without Mandate: Creating Rights and Obligations without Contract or Wrongdoing 105

Ⅰ. Unjust Enrichment: Quasi Contract? 105

Ⅱ. Managing the Affairs of Another Without Mandate 108

Chapter Ⅺ Torts: Certain New Types of Tortious Acts to Reflect the Development of the Society 113

Ⅰ. A Right Being Infringed or Injured 113

Ⅱ. The Existence of an Act Being Intentionally Committed or Negligently Performed 114

Ⅲ. Legal Impermissibility 115

Ⅳ. Damage or Loss Suffered by the Plaintiff 115

Ⅴ. Causal Link between the Act and the Damage Suffered 115

Ⅵ. Breach of Legislative Provisions Protecting Others 116

Ⅶ. Special Types of Torts 116

A. Joint Tortious Act 116

B. Public Employee's Liability 116

C. Statutory Representative's Liability 117

D. Employer's Liability 117

E. Hirer's Liability 118

F. Possessor's Liability for Animals 118

G. Owner's Liability for Construction 118

H. Manufacturer's Liability for the Product 119

I. Driver's Liability 119

J. Liability for the Risk Created 119

Ⅷ. Damages 120

A. Compensation of the Actual Damage 120

B. Compensation of Specific Spending or Other Losses 120

C. Compensation of Non-property Loss 120

Chapter Ⅻ Consumer Protection Framework in Taiwan: High Level of Protections for Weaker Parties 121

Ⅰ. Consumer Protection Act 121

Ⅱ. Some Provisions in the Civil Code 125

Ⅲ. Some Provisions in the Fair Trade Act 126

Chapter ⅩⅢ Property Law: A Number of Traditional Property Rights Established to Meet the Needs of the Society 129

Ⅰ. The Principle of Property Rights Being Fixed Only by Statutes 130

Ⅱ. The Principle of Publicity 130

Ⅲ. The Principle of Public Trust 131

Ⅳ. The Types of Property Rights 132

A. Ownership 132

B. Superficies, Yung-tien, Servitudes, and Dien 134

C. Mortgage, Pledge and Retention 134

Chapter ⅩⅣ Family Law and the Law of Inheritance: with Chinese Tradition Playing Certain Roles 137

Ⅰ. Family Law 137

A. Definition of Relative 139

B. Marriages and Engagements 139

C. Property Arrangement of the Couple 141

D. Divorce 141

E. Parent-Child Relations 142

F. Custodian 144

G. Maintenance of Relatives 145

H. Family 145

Ⅱ. Law of Inheritance 146

A. Inheritors 146

B. Effect of Inheritance 147

C. Limited Inheritance and Giving-up of Inheritance 147

D. Last Will and Testament 148

Chapter ⅩⅤ The Prevention of Domestic Violence Law: An Important Change of Traditional Domestic Relations 149

Ⅰ. Some Traditional Concepts about Domestic Relations 149

Ⅱ. Rules Governing Domestic Relations Prior to the Prevention of Domestic Violence Law and the Background of Enacting the Law 150

Ⅲ. The Scope of Protection under the Prevention of Domestic Violence Law 151

Ⅳ. The Application and the Issuance of Protective Order 152

Ⅴ. Civil Protective Order 152

Ⅵ. Criminal Procedures 153

Ⅶ. Preventive and Therapeutic Measures 154

Ⅷ. Additional Positive Effects Arising from the Law 154

Chapter ⅩⅥ Civil Procedure and ADRs: The Dispute Resolution System Being in Line with International Practice 157

Ⅰ. Civil Procedure 157

A. Some Basic Principles Adopted in the Code of Civil Procedure 157

B. Determination of Jurisdictions 158

C. Judges Withdrawing from Conducting Particular Cases to Avoid Conflict of Interest 160

D. The Types of Civil Litigation and the Parties of a Case 160

E. Counsels in Litigations 161

F. Evidence 162

G. Hearings 164

H. The Concentration of Hearings 164

Ⅱ. Arbitration as an Important ADR in Taiwan 165

A. Arbitration Agreement 166

B. Arbitrators and Formation of an Arbitration Tribunal 166

1. The Qualifications of Arbitrators 166

2. Appointment of Arbitrators 167

3. Ethical Requirements of Arbitrators 167

4. Disclosure Requirements 168

5. Withdrawals 169

6. Arbitration Proceedings 169

a. Place and Venue of Arbitration and Time Limit of Completing an Arbitration Procedure 169

b. Procedures 169

c. Amiable Compositeur 170

7. Enforcement of Arbitration Awards 170

8. Intervention by the Court on the Awards 170

9. Foreign Arbitration Awards 171

a. Definition of Foreign Awards 171

b. Enforcement of Foreign Awards 171

Ⅲ. Mediations Conducted by the Arbitration Institution and those by the Public Construction Commission 172

A. Mediations Conducted by the Arbitration Institution 172

B. Mediations Conducted by the Public Construction Commission (PCC) 173

Chapter ⅩⅦ Intellectual Property Laws: A Western Concept Fitting Smoothly into Eastern Society 175

Ⅰ. The Lack of Intellectual Property Concept in Traditional Society and the Introduction of Such Concept and Laws into the Society 175

Ⅱ. The Current Legal Framework 176

Ⅲ. Copyright Law 177

Ⅳ. Trademark Law 179

Ⅴ. Patent 180

Chapter ⅩⅤⅢ The Law Governing the Domestic Market: The Backbone of the Open Economy in Taiwan 185

Ⅰ. The Enactment of the Fair Trade Act in an Age of Economic Growth 185

Ⅱ. Scope of the Fair Trade Act and Some Important Competition Rules and Typical Cases 186

Ⅲ. Authority in Charge and Its Law-Enforcement Strategies 188

Chapter ⅩⅠⅩ The Rules Governing External Trade: A Relatively Free Market of Taiwan 193

Ⅰ. Foreign Trade Policy and Law 193

Ⅱ. The Anti-dumping Regime of Taiwan 194

Ⅲ. Re-examination of the Anti-dumping Policy from a Competition Perspective 196

Ⅳ. Suggested Reform of the Anti-dumping Law from a Competition Perspective 199

Chapter ⅩⅩ The Government Procurement Law: A Law Governing a Major Part of Economic Activities in Taiwan 203

Ⅰ. Background to Enacting a Modernized Procurement Law 203

Ⅱ. Some General Principles Governing Procuring Activities 204

Ⅲ. Different Types of Procuring Methods 206

Ⅳ. Specification and Qualification 208

Ⅴ. Prevention of Bid Rigging 209

Ⅵ. Disqualified Suppliers 210

Ⅶ. Turn-key, Assignment of the Contract, and Joint Tendering 212

Ⅷ. Awarding the Contact 213

Ⅸ. Bid Challenge 213

Chapter ⅩⅩⅠ Labour Protection Regime in Taiwan: Another Indication of Modernization of the Society 217

Ⅰ. Some Backgrounds 217

Ⅱ. Working Conditions 218

Ⅲ. Working Environment 219

Ⅳ. Equality of Works for Both Genders 220

Ⅴ. Protection of Workers from Being Massively Laid off 220

Ⅵ. Labour Union 221

Ⅶ. Labour Insurance 221

Ⅷ. Helping the Employment of Workers and Those Unemployed 221

Ⅸ. Labour-Employer Dispute Resolution 222

Chapter ⅩⅩⅡ Criminal Law and Criminal Procedure: With Improved Adversarial System in Place 223

Ⅰ. Criminal Law 223

A. The Principle of Crime and Criminal Punishment Being Defined Only by Legislation 223

B. Prescriptive Jurisdiction of the Criminal Code 224

C. The Establishment of a Crime 225

1. Meeting the Required Elements Constituting a Crime 225

2. Being Illegal 225

3. Being Subjectively Responsible 225

D. Penalty 226

E. Some Combined Punishments 228

1. Imaginative Competing Offences 228

2. Correlative Offences 229

3. Consecutive Offences 229

F. Specific Listed Offences 229

Ⅱ. Criminal Procedure 230

A. General Introduction of the Criminal Procedure in Taiwan 230

B. Arrest and Detention 231

C. Evidence Rules and Due Process 231

D. Burden of Proof and Self-incrimination 233

E. Cross Examination 233

F. Plea Bargain System in the Code 233

G. Some Observation on the Recent Changes to the Criminal Procedure 234

Chapter ⅩⅩⅢ Concluding Remarks 235

Index 237