Historical context
matters and in deciding marriages and the allocation of property for familial members. In accordance with Confucian precepts, discriminatory treatment was prevalent between government officials and the general citizens, between elders and younger people, between husbands and wives, between masters and serÂvants, and so on.
In addition, the emperors had full power to rule the land and could use their power to overrule laws as they wished. No other power or scheme was designed to provide a check or balance on the powers enjoyed by the emperors. The prevailing legal order required everyone to fulfil their own duties and not to ask others to carry them out. If there was a failure to perÂform such duties, an appropriate punishment would be imposed on the guilty party. The only exception to this rule was that emperors were never bound by it.Following the first Sino-Japanese War (1894-95) and under the terms of the Treaty of Shimonoseki, Taiwan was handed over by the Ching Dynasty to Japan. From 1895 Taiwanwas a Japanese colony. As Japan had already commenced its own domestic modernisation in 1890, it accordingly introduced into its colony the Western legal system model that formed the basis of the modern Japanese legal regime.
In the early period of Japan's rule of Taiwan (1895-1922), many Taiwanese resisted the occupation with violence. The Japanese Government decided to deal with the colony of Taiwan by using an approach that differed from that used with its other colonies on the Chinese mainland. A primitive form of the Western legal system was thus first brought into Taiwan by the then Japanese Government.
In the 1920s, Japan's policy towards the colony of Taiwan changed to weaken the Taiwanese people's consciousness about their own identity. As a result, more modernised legal frameworks were brought into Taiwan until 1931 when Japanese militarism came into being.
During this period, education was provided to a limited extent, with the Japanese language used in schools. Some elites were also admitted to study law and medicine in Japan. Some later returned to Taiwan to teach law or medicine or to practise medicine. Theywere not allowed to study political science. Freedom of speech and of association were not allowed for the Taiwanese people. However, people were not forced to speak Japanese or to wear Japanese clothes in their daily lives.As mentioned in the introduction to this chapter, in 1945, following the end of World War II, the Chinese Government resumed its governance of Taiwan and modern Chinese law was thus introduced to the island. In the late Ching Dynasty period and in the first years after the establishment of the ROC in 1911, codification had been in progress in mainland China. Many of the codes were drafted based directly on Japanese laws but were also indirectly on German (and sometimes Swiss) models. The legal framework brought into Taiwan by the ROC Government therefore had a strong German flavour.
Also as mentioned above, shortly after World War II and towards the end of the Chinese Civil War, the Communist Party began to govern the Chinese mainland, and in 1949 the Nationalist Government moved across to Taiwan. During its first four decades, the Nationalist Government feared possible sabotage by the Communist Party, declaring a â€?period of mobilisation for the suppression of Communist rebellion' and implementing martial law. It â€?froze' the application of certain constitutionally guaranteed freedoms and basic human rights and changed aspects of the form of government. Among these changes were indefinite terms of office for elected congressmen and the right of the President to be reÂelected for an unlimited number of terms. However, during this period, the United States of America was a close ally of Taiwan, and so the American legal system came to play an important role in influencing the content of Taiwanese law, especially in the areas of administrative and commercial law.
In 1987 Taiwan ceased the almost 40-year-long enforcement of martial law. The Taiwanese were allowed full autonomy to develop their democratic legal framework, particularly with regard to the protection of freedoms and rights. However, in terms of government structure and the basic legal framework for dealing with civil and commercial matters, there is little fundamental difference between the pre- and post-1949 legal regimes.
3