TAIWAN Law and Practice Contributed by: Peng-Kwang Chen, I-Ming Chen, Pamela Huang and Claudia Huang, Formosa Transnational Attorneys At Law
Formosa Transnational Attorneys at Law 136, 13th Floor Jen-Ai Road
Section 3 Taipei 106 Taiwan
Tel: +886 2 2755 7366 Fax: +886 2 2755 6486 Email: ftlaw@taiwanlaw.com Web: www.taiwanlaw.com/en
1. General 1.1 General Characteristics of the Legal System The legal system in Taiwan is based on civil law. The legislature enacts laws through statutory procedures, while courts make judgments pursuant to codified statutes. In practice, lower courts frequently follow the legal opinions issued by higher courts. The Supreme Court’s decisions have a high degree of persuasive authority among courts. The adversarial model is adopted in civil and crimi- nal cases, where the initiation of proceedings and the presentation of evidence are left to the parties, and the judge acts as an impartial third party when adju- dicating the cases. The court may launch ex officio investigations only if necessary to discover the truth. In contrast, the inquisitorial model is used in adminis- trative cases. In order to ascertain the facts, adminis- trative courts may decide to independently investigate the evidence and determine the facts without being bound by the requests of the parties. In practice, legal process in the lower courts is usually conducted through both written submissions and oral arguments, while the Supreme Court and the Supreme Administrative Court rarely hold oral arguments and make their decisions primarily by reviewing written submissions from the parties.
1.2 Court System Taiwan’s civil and criminal judicial systems consist of three levels of courts: the District Court, the High Court, and the Supreme Court. Both the District Court and the High Court engage in fact-finding, whereas the Supreme Court’s scope of review is limited to cor- recting errors of law in the judgments made by lower courts. For administrative cases, there are two levels of courts: the High Administrative Court (which includes the High Administrative Litigation Division and the District Administrative Litigation Division), and the Supreme Administrative Court. Subject to the com- plexity and amount claimed in a particular matter, the court of first instance in an administrative case may be the District Administrative Litigation Division or the High Administrative Litigation Division. Appeals are to the High Administrative Litigation Division or the Supreme Administrative Court. There are also specialised courts and divisions for cases related to intellectual property rights, major commercial disputes, juvenile or family issues, and labour disputes. These specialised courts/divisions are designed to enhance judicial expertise. They have special procedural rules tailored for their subject mat- ter jurisdiction. Moreover, Taiwan strongly encourages pre-trial medi- ation as a matter of policy. Where pre-trial mediation is mandatory (including major commercial cases to
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