TAIWAN Law and Practice Contributed by: Peng-Kwang Chen, Pamela Huang, Claudia Huang and Ching-Tzu (Katie) Chang, Formosa Transnational Attorneys At Law
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 statu- tory 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 deci- sions have a high degree of persuasive authority among courts. The adversarial model is adopted in civil and criminal cases, where the initiation of proceed- ings and the presentation of evidence are left to the parties, and the judge acts as an impartial third party when adjudicating the cases. The court may launch ex officio investigations only if necessary to discover the truth. In contrast, the inquisitorial model is used in administrative cases. In order to ascertain the facts, administrative courts may decide to inde- pendently investigate the evidence and deter- mine 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 submis- sions and oral arguments, while the Supreme Court and the Supreme Administrative Court rarely hold oral arguments and make their deci- sions primarily by reviewing written submissions from the parties. 1.2 Court System Taiwan’s civil and criminal judicial systems con- sist 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 correcting 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 Divi- sion and the District Administrative Litigation Division), and the Supreme Administrative Court. Subject to the complexity 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 matter jurisdiction. Moreover, Taiwan strongly encourages pre-trial mediation as a matter of policy. Where pre-trial mediation is mandatory (including major com- mercial cases to which the Commercial Case Adjudication Act is applicable), the courts usual- ly commence the mediation proceeding no later than four months after the lawsuit is raised. The nature and complexity of the dispute, as well as the parties’ willingness to negotiate, are factors that affect the duration of mediation proceed- ings. If the parties fail to reach a settlement in the mediation proceeding, the court will then schedule the first trial hearing within one to two months after mediation ends. In contrast, for a lawsuit where pre-trial mediation is not statu- torily required, the court typically tries the case within one to two months. Regardless of whether pre-trial mediation is required or not, the trial of
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