Sources of law and legal traditions

3.1 The Constitution as a source of law

Taiwan has a legal system largely dependent on codified laws. There are a number of sources of law, each of which has different characteristics.

One of the controversies is whether the courts are obliged or empowered to directly apply the Constitution as a basis for their judgments. Consider, for example, a case before the Council of Grand Justices of the Judicial Yuan, which is empowered by arts 78 and 79 of the Constitution to interpret the Constitu­tion and to unify the interpretation of laws and regulations.⁶ If the case has been filed by a party who has requested the Council of Grand Justices to review whether a Supreme Court decision and its application of law violate the con­stitutional guarantee of the basic rights of the people, the Council would be obligated to apply relevant Constitutional provisions when formulating its deci­sion. In this situation, the Constitution is a direct source of law for the Council to apply.

However, if it is a court handling a civil, criminal or administrative case, the situation might be different. For instance, whether the plaintiff is entitled to

5 An English translation of the Constitution and its amendments is available at Government Information Office, Republic of China and

6 The Interpretations of the Council of Grand Justices may be found at Justices of the Constitutional Court, Judicial Yuan. compensation based on contract or tort would have to be decided in accordance with the Civil Code, which included five parts enacted between 1929 and 1930, or other legislation dealing directly with the rights and obligations of parties with a contractual relationship or a relationship arising from a wrongful act.

The Constitution may sometimes still be relevant in private disputes. For instance, consider a legal action brought by a person alleging title to a prop­erty, in which the alleged �owner’ claims that the defendant infringed his or her property right and accordingly seeks compensation. If the defendant argues that the ownership of the infringed property lies with a government agency, the issue then is whether the government agency had acquired the property right. If the court is able to apply the Constitution directly in deciding the case, it might find that since the �taking’ of the property was in violation of the constitutional protection of a person’s property, then the property should still be held by the plaintiff. In such circumstances, a finding of a tort against the plaintiff’s property would be rendered and the plaintiff would be entitled to compensation. The Constitution would become, in such a case, a direct source of law in the civil matter.

3.2 Legislation and administrative regulations

The most important sources of law are those passed by the Legislative Yuan and published by the President. According to art 2 of the Standard Actfor Laws and Rules 1970, as amended (hereinafter the StandardAct), the name of a law maybe �law’, �statute’, �Act’ or �general rules’. To qualify as a law, the documents must have been through a three-reading procedure at the Legislative Yuan, with limited exceptional circumstances under which two readings are sufficient for the purpose of the legislative process. An example of this latter situation is the Tariff Schedule for Imported Goods, which the customs authorities refer to for levying import duties on products upon importation.

According to art 5 of the StandardAct, the following matters shall be provided by law: (1) those specifically instructed by the Constitution or laws to be provided by law; (2) those involving rights or obligations of the people; (3) those involv­ing the organisations of important agencies of the state; and (4) those other important matters that need to be provided by law.

But sometimes the distinction between the �matters involving rights or obli­gations of the people’ and �matters not involving rights and obligations of the people’ is not clear. If a matter concerns the rate of duties for imported goods, there must be legislation governing the rate and the collection of the duties. However, if it involves fees that must be paid for the use of certain government facilities, it is not that apparent that legislation is required.

Note also that in some situations, the legislation will specifically delegate the power to the executive agencies. Under such circumstances, the regulations issued by the government agencies based on delegated power will be considered to have the same legal effect as legislation passed by the legislative body. How­ever, further examination is necessary as to what kind of legislative delegation of powers can be considered as legitimate delegation of power. According to art 150, para 2 of the Administrative Procedure Law 1999, as amended, the reg­ulations shall in their contents explicitly list the legislative basis and shall not exceed the scope of legislative delegation of power and the legislative purpose. There are also a number of Interpretations issued by the Council of Grand Justices requiring the specificity of legislative delegation of powers. One of the examples is in Judicial Yuan (JY) Interpretation No. 313, issued on 2 February 1993, which states:

The imposition of administrative fines for violation of obligations arising from admin­istrative law concerns a restriction on the rights of the people. The conditions and amounts of such penalty shall thus be decided by law.

Although legislation is the basic source of law applied by judges to decide cases, this does not mean that administrative interpretations have no role to play in case decisions. According to art 80 of the Constitution, judges shall render their decisions independently in accordance with the laws. An issue under this provision is, if there is an administrative interpretation of the provisions of a law made by an administrative agency in charge of the matter, whether the court should be bound by such administrative interpretation. JY Interpretation No. 137 of the Council of Grand Justices, issued on 14 December 1973, states: �When judges decide cases, they may not completely disregard administrative ordinances issued by relevant agencies interpreting laws or regulations of which the agencies are in charge. But the judges are still allowed to express their legal and appropriate views in accordance with the law.' A more clear statement is in JYInterpretation No. 216 of the Council of Grand Justices, issued on 19 June 1987:

Article 80 of the Constitution is explicit in its requirement that judges make their decisions independently in accordance with the law. When deciding cases, judges may apply administrative ordinances issued by relevant agencies interpreting those laws or regulations of which the agencies are in charge. The judges, nevertheless, may still express views different from the administrative ordinance in accordance with the law. They are not bound by such interpretations...

3.3 International treaties and customary international law

There are two aspects to the discussion of international law as a source of law.

Although some people in Taiwan consider that monism, which argues for the unity of domestic and international legal systems, should be the principle to follow, it is dualism that is actually practised, so that most international laws are required to be transformed into domestic laws so as to be applied. International law includes treaties and customary international law. The latter is generally considered as being capable of direct application by domestic courts or domes­tic law enforcement agencies. There may also be some international treaties or agreements capable of being directly applied. Such treaties or international agreements are considered self-executing in nature. Treaties of this kind include, for instance, the treaties of avoidance of double taxation; treaties of extradition; and treaties of friendship, commerce and navigation, some provisions of which grant private parties in the contracting countries the right of access to the courts.

Most other treaties or international agreements are non-self-executing. In other words, they must be transformed into domestic law through domestic legislation in order to be applied by the courts or law enforcement agencies. For instance, after the conclusion of an international agreement on the protection of intellectual property rights, there must be a domestic legislative process so as to incorporate the contents of the agreement into domestic intellectual property legislation. In this situation, the international treaty is only an �indirect’ source of law.

In the situation where a relevant treaty or agreement is the source of law and the court should apply it directly, a follow-up issue would be the hierarchy of such a treaty within the legal structure.

The Council of Grand Justices in its JYInterpretation No. 329 of 24 December 1993 holds this view on the role played by the Legislative Yuan in the conclusion of treaties:

The treaty mentioned by the Constitution refers to the written agreement concluded by the Republic of China with other countries or international organisations, including those using the title of treaty or convention, or using the title of agreement or other titles with the contents directly concerning important matters of State or the rights and obligations of the people and having effect as the law. For those using the title of treaty or convention or those using the title of agreement but with provisions subjecting them to approval, they, as a matter of course, should be submitted to the Legislative Yuan for determination. For other written international agreements, these should also be submitted to the Legislative Yuan for determination, unless their conclusions had been authorized by law or had been agreed to in advance by the Legislative Yuan, or unless the contents of the agreement are the same as those of domestic law.

3.4 Previous judicial decisions and precedents

In Taiwan precedents do not have the same legal effect as those under the Anglo- American legal system. Article 80 of the Constitution specifically requires judges to make their decisions independently and in accordance with the law. In other words, theoretically, the only source for their decisions should be laws passed by the Legislative Yuan and published by the President. As a matter of law, previous decisions from the same court or of higher courts do not have a binding effect on later decisions.

The real situation does not correspond with the theoretical assumption. Supreme Court decisions do enjoy a strong de facto binding effect for later cases. If a lower court does not follow the views expressed by the Supreme Court, the decision of the lower court is not likely to be maintained if a party appeals to the Supreme Court. In other words, precedents serve only as a psychological or subjective element in court decisions, but are not legally binding. As a matter of practice, not all decisions made by the Supreme Court are considered prece­dents. There is a screening process within the Supreme Court through which its decisions are reviewed periodically so as to choose those that may serve as precedent. Once a decision has been selected as a precedent, it bears specific legal meaning for future cases. According to the Supreme Court itself, violation of a precedent is considered violation of a law or regulation for the purpose of establishing a basis to appeal a case to the Supreme Court.

The Supreme Court does not decide cases as constituted by the full Supreme Court. There are panels, each of which is composed of five judges, to review individual appeals. Thus it is likely that different panels will hold different views on specific issues. In order to coordinate the possible differences, there are a number of methods in place. The above-mentioned precedent-selection process is one of them. Another one is through internal meetings to reconcile differing views. Thus, in addition to the Supreme Court decisions, there are resolutions decided by the General Meeting of Civil Panels, the General Meeting of Criminal Panels and other internal meetings similar in nature. The opinions adopted in the meetings also have a very strong de facto effect.

In addition to the precedents serving as de facto sources of law, the Interpre­tation of the Grand Justices has an effect of source of law. This is because an interpretation of the Constitution should have the same effect as the Constitution itself and a unified interpretation of laws and regulations should also bind all government agencies and the people of the land. There is a clear indication in the reasons of the JY Interpretation No. 477 that the Interpretations themselves can be directly applied by the various levels of courts:

Ifthe application for interpretation is Aledbyjudgesofvariouslevels in accordance with JYInterpretation No. 371 and if this Yuan is to interpret that the related law is inconsis­tent with the Constitution, this Yuan may express the proper contents consistent with the Constitution for the court to apply in a timely manner, to avoid a prolonged delay pending the amendment of the law. The required amendment by an interpretation to be completed within a short period of time is practically difficult...

3.5 Customarypractices

Customis a source of law in some areas, but not in others. Forexample, no person should be subject to criminal punishmentwithoutprior legislation clearly making an act a criminal offence (nullum crimen sine lege). It follows that custom can never be a source of law for criminal matters. However, the situation is different when considering civil cases, in which custom is a supplemental source of law, based on Civil Code, art 1, different parts of which were enacted from 1929 to 1930.

To qualify as custom, the �custom’ must meet the following four criteria:

(1) it must be with respect to a matter not specifically prescribed by legislation;

(2) the �custom’ must have been practised time and again and continuously by a large proportion of people in the society over an extended period of time;

(3) people must have considered such custom as being a norm in nature and willing to be bound by it; and (4) it may not be contrary to public order and good morals. Chi-ssu-kung-yeh^,s, property-owning ancestral worship associations, are a salient example of Taiwanese custom. During the periods of the Ching Dynasty and Japanese colonisation of Taiwan, there were many chi-ssu-kung-yeh^, s. These associations owned property (usually an ancestral hall and a rice paddy field) that were protected so as to avoid division among offspring in the future. The chi- ssu-kung-yeh’s were created to help those migrating from the far-off mainland to honour the memory of their ancestors. Under the Civil Code and the Code of Civil Procedure of 1930, as amended, only natural and juridical persons were recognised as subjects enjoying rights and assuming obligations as well as entities capable of engaging in litigation. However, given the widely practised custom of chi-ssu-kung-yeh^,s in Taiwan, administrators of the association were given legal status for the purposes of engaging in civil litigation on behalf of their association. The Statute of Chi-Ssu-Kung-Yeh was enacted in 2008 to formally recognise the legal status of the chi-ssu-kung-yeh as a juridical person with some conditions, including its formal registration with government agencies. The new law means that offspring will no Iongerjointly own ancestral property; instead it is owned by the chi-ssu-kung-yeh as a juridical person. This reflects the great changes in Taiwan's social structure in recent decades and the diminishing function of the chi-ssu-kung-yeh.

3.6 Underlying legal principle (general principles of law)

Underlying legal principles or the general principles of law refers to the objective legal reasons generally considered the basis for interpreting or applying laws. In civil cases, it is clear that the underlying legal principles are a source of law. Article 1 of the Civil Code provides that, for civil matters, if there is no provision in the law, the custom shall be applied; if there is no such custom, the underlying legal principles (translated as �general principles of law') shall form the basis of application.

The underlying principles in criminal law should also be a source of law. However, the function of the underlying civil principles and that of the underlying criminal principles are completely distinct. For civil matters, the underlying legal principles include making inferences from non-related provisions so as to apply a provision to situations beyond originally contemplated for the provision. Foreign laws or precedents may also come into play in the domestic judicial process as underlying legal principles, as long as they do not conflict with legal provisions and the social situation locally. Due to their legal nature, the underlying legal principles for civil matters play a role in supplementing the lack of a provision. Thus the principles are more like gap-fillers in civil matters.

However, for criminal cases, the underlying legal principles serve more as a means of legal interpretation. The lack of a criminal penalty in the legislation may not be supplemented by any underlying principle so as to make a person criminally liable.

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