Introduction

Taiwan is also known as the Republic of China (ROC), which was established in 1911 when the Ching Dynasty was overturned by the revolutionary party led by Dr Sun Yat-sen. It was the first democratic republic in Asia.

Before long, after the establishment of the Republic, the Chinese Civil War broke out in the late 1920s between the government represented by the Nation­alist Party (Kuomintang or KMT) and the communists. Although the civil war was interrupted by the Sino-Japanese War¹ which was later to become part of World War II, it was resumed after Japan was defeated. In 1949 the Communist Party led by Mao Zedong won the Civil War against the Nationalist Government represented by Chiang Kai Shek and established the People's Republic of China (PRC). The Nationalist Government had to move across the Taiwan Strait to the island of Taiwan. Thus since 1949, the jurisdiction of the ROC extends only to the main island of Taiwan and the smaller islands of Penghu, Kinmen and Matsu, as well as quite a number of other very small islands. The total number of these islands is 76. Because of the ROC's current geographical location and jurisdictional reach, the term Taiwan is more frequently used to refer to it.

Taiwan has a population of 23 million living in a relatively small area of approximately 36 000 square kilometres. Ninety-eight per cent of the people are ethnic Han Chinese; of this figure 75 per cent are native Taiwanese (Ho-lo), most of whose ancestors moved to Taiwan from Fujian Province in China hundreds of years ago; a little more than 12 per cent are �mainlanders', who and whose parents or grandparents came to Taiwan with the Nationalist Government in 1949; and

1 The Sino-Japanese War started in 1937 and ended in 1945 when World War II also ended. about 10 per cent are Hakka people, whose ancestors came to Taiwan mainly from eastern Guangdong many generations ago.

Geographically Taiwan is located on the western rim of the Pacific Ocean. It is close to the south-eastern province of Fujian on the Chinese mainland and thus has been continuously and heavily influenced by China, from long before 1949. The relations between Taiwan and China have been constantly changing since 1949. In the first three decades of the separation of the two sides, they were hostile to each other, with Taiwan describing the other side as �rebellious' and the PRC claiming Taiwan to be a �renegade province'. Later, the two sides eased the tension and started cultural and economic exchanges. In recent years, more and more bilateral agreements of cooperation in different fields have been negotiated and signed, notwithstanding the fact that there are still different voices in Taiwan calling for a more comprehensive cooperative agreement to be signed. These voices have emerged basically because of differing perceptions of the PRC and of the relations the two sides should enjoy. Some Taiwanese fear that closer ties with China could lead to loss of identity for Taiwan or even ultimately to �unification' with China. It is the fear of many people in Taiwan that unification would destroy its democracy. Taiwan has a multi-party system, with various democratic elections held for posts within the different levels of government and legislature, including the presidential elections which are held every four years.

Notwithstanding that Taiwan has met the criteria set forth by art 1 of the Montevideo Convention on the Rights and Duties of States, namely, a permanent population, a defined territory, government, and capacity to enter into relations with the other states, it only enjoys legal recognition as a state from about two dozen countries throughout the world.

The legal system of Taiwan² is unique because it has been influenced by different legal systems throughout its history and affected by local custom in certain fields of law. In this way, it has been able to develop its distinctive institutional regimes to administer various legal matters. On the other hand it is not so unique, because modern principles of law, including the practice of the rule of law and intensive protection of human rights, have become embedded into the legal system, similar to the inclusion of these principles in most other legal systems in the developed world.

2 For more a detailed discussion about the legal system of Taiwan, see C Lo, The Legal Culture and System of Taiwan, Kluwer Law International, The Netherlands, 2006.

The major factors contributing to the current form of Taiwan's legal sys­tem include local custom as it evolved through different periods; the impact of Japanese rule during the colonial period; the 1946 resumption of jurisdiction of Taiwan by the Nationalist Government, which three years later moved to Tai­wan in 1949; and the modern influence of Western countries in the legal reform process. The legal system of and practice of law in Taiwan without doubt have been extensively exposed to external influences.

2