Skip to main content
SpringerLink
Log in

The Recent Development of Private International Law in Taiwan

  • Chapter
  • First Online:
Codification in East Asia

Part of the book series: Ius Comparatum - Global Studies in Comparative Law ((GSCL,volume 2))

  • 727 Accesses

Abstract

Taiwan’s “Act on Application of Laws in Civil Matters Involving Foreign Elements” (AAL) of 2010 marked a new milestone in the development of its private international law. It not only bridged the gap between the conflicts laws of Taiwan and both foreign and international codifications but also facilitated the international judicial harmony. The drafters considered the specific needs of the contemporary Taiwan society and kept the legislation in Taiwan’s unique track. It is hoped that the AAL will be enlightened through absorbing experiences in foreign jurisdictions, and the courts will soon be experienced in applying the new provisions and exercising their new discretionary functions.

This is a preview of subscription content, log in via an institution to check access.

Access this chapter

Log in via an institution
Chapter
USD 29.95
Price excludes VAT (USA)
  • Available as PDF
  • Read on any device
  • Instant download
  • Own it forever
eBook
USD 84.99
Price excludes VAT (USA)
  • Available as EPUB and PDF
  • Read on any device
  • Instant download
  • Own it forever
Hardcover Book
USD 109.99
Price excludes VAT (USA)
  • Durable hardcover edition
  • Dispatched in 3 to 5 business days
  • Free shipping worldwide - see info

Tax calculation will be finalised at checkout

Purchases are for personal use only

Institutional subscriptions

Notes

  1. 1.

    “Act on Application of Laws in Civil Matters Involving Foreign Elements” is an unofficial translation of “She Wai Min Shi Fa Lyu Shi Yong Fa”. Promulgated on June 6, 1953, the Act is composed of 31 articles without grouping them into chapters. For its text in German, see. Makarov, Quellen des internationalen Privatrechts, 3. Aufl., SS. 272–276 (Tübingen: J.C.B. Mohr, 1978).

  2. 2.

    Article 63 of the AAL of 2011 provides: “The present Act shall enter into force on the day after one year of its promulgation.”

  3. 3.

    The title of this Statute is pronounced as “Fa Lyu Shi Yong Tiao Li” in Chinese. It was put into effect on August 5, 1918. Its 26 articles were divided into six chapters: General Rules, The Disposing Capacity of Persons, Family Relations, Succession, Property Rights, and The Formality of Juridical Acts. For its texts in German and French, see A. N. Makarov, Quellen des internationalen Privatrechts, 2. Aufl., Band I, “10. China” (Berlin: Walter de Grueyter & Co., 1953).

  4. 4.

    Herbert H.P. Ma, General Part of Private International Law, 11th ed., p. 11 (Taipei: Ma, 1983).

  5. 5.

    Article 17 of the Common Programme of the People’s Political Consultative Conference of China, adopted on Sept. 29, 1949 at the First People’s Political Consultative Conference of China, calls for abolishing all laws and regulations and the whole judicial system established by the ROC (Nationalist) government. See Henry R. Zheng, China’s Civil and Commercial Law (Singapore: Butterworths, 1988), p. 1, footnote 1.

  6. 6.

    The Republic of China was established by the Constitution of the Republic of China and its Amendments, however the original state formed by this document is now composed of 4 separate entities. Taiwan has inherited the legal system of the “original” Republic of China. The Mainland, Hong Kong and Macao have developed separate and different legal systems for themselves.

  7. 7.

    In Feb. 2013, the ROC government adopted this author’s suggestion to replace the provisions on conflict of laws with a new provision to apply provisions of AAL mutatis mutandis to the questions involving the Mainland Area.

  8. 8.

    For a more detailed discussion, see Rong-chwan Chen, “A Boat on A Troubled Strait: The Interregional Private Law of the Republic of China on Taiwan”, 16 Wisconsin International Law Journal, 599–638 (1998); Rong-chwan Chen, The Current Situation and Practice of the Conflict of Laws across the Taiwan Straits (Taipei: New Sharing, 2003).

  9. 9.

    See Article 62 of the AAL of 2010.

  10. 10.

    Supreme Court Decision No. Tai-Shang 1913 of 2011 (3 November, 2011).

  11. 11.

    In Judgments No. Tai-Shang 251 of 2010 and No. Tai-Shang 2125 of 2010, the Supreme Court held that the cases involved with any foreign company are cases with foreign elements and the domestic courts should explain in their judgments whether they had jurisdiction over the cases or not and should investigate into the evidence on which they base not to exercise their jurisdiction. In Judgment No. Tai-Shang 1804 of 2011, the Supreme Court ruled that as no provision about international jurisdiction is included in the AAL of 1953, through the reference of Article 30 of it, Articles 1, 2, and 15 of Civil Procedure Act can applied to grant Hsin-Chu District Court the jurisdiction over the litigation in question.

  12. 12.

    Rong-chwan Chen, “The New Picture of the Private International Law: A Bird view on the AAL of 2010,” 156 Taiwan Law Journal 11–41 (Jul., 2010).

  13. 13.

    Herbert H.P. Ma, Private International Law: General and Special Parts, p. 63 (Taipei: Ma, 2004).

  14. 14.

    Tieh Cheng Liu and Rong-chwan Chen, Liu and Chen on Private International Law, 5th ed., p. 483 (Taipei: San-Min, 2010).

  15. 15.

    For a general discussion on conflicts justice and material justice, see Rong-chwan Chen, “New Way of Thinking in Private International Law Legislation: Material Justice in Conflicts Rules,” 89 Taiwan Law Review 50–61 (2002).

  16. 16.

    “Where an alien of no capacity or limited capacity to act under his/her national law is of full capacity under the law of the Republic of China (Taiwan), he/she shall be regarded as of full capacity to act for his/her juristic act that has performed within the Republic of China (Taiwan).” Article 10 Paragraph 3 of the AAL.

  17. 17.

    “The formalities of a juridical act shall be governed by the law applicable to that act. However, the formalities that satisfy the requirements of the law of the place where the act was done shall be effective.” Article 16 of the AAL.

  18. 18.

    “Whenever the parties to a civil matter evade being governed by the compulsory provisions in the law of the Republic of China (Taiwan), such compulsory provisions shall still be applied.” Article 7 of the AAL of 2010.

  19. 19.

    For the conflicts problem of divorce in Taiwan, see Rong-chwan Chen, “Conflict of Laws of Divorce: Judicial Practice and Legislative Development of Taiwan,” in K. Boele-Woelki, T. Einhorn, D. Girsberger & S. Symeonides (Eds.), Convergence and Divergence in Private International Law—Liber Amicorum Kurt Siehr, pp. 193–220 (The Netherlands: Eleven International Publishing, 2010).

  20. 20.

    Supreme Court Resolution of the 4th Meeting of Judges in April, 1978.

  21. 21.

    Supreme Court Decision No. Tai-Kan 449 of 1985.

  22. 22.

    “When the intention of the parties is unknown, if both parties are of the same nationality, their national law shall be applied; if they are of different nationalities, the law of the place where the act was done shall be applied; if the act was done at different places, the law of the place where the notice of offer was issued shall be regarded as the place where the act was done; if the other party did not know the place where the notice of offer was issued when the offer was accepted, the place of the offeror’s domicile shall be regarded as the place where the act was done.” “If the place where the act was done provided in the preceding paragraph spans over two or more countries, or it does not belong to any state, the law of the place where the obligation was performed shall be applied.” Article 6 Paragraphs 2 & 3 of the AAL of 1953.

  23. 23.

    Rong-chwan Chen, “The New Autonomy in the Private International Law: The Principle of Party-autonomy in the AAL of 2010,” 186 Taiwan Law Review 147–168 (Nov. 2010).

References

  • Act Governing Relations between Peoples of the Taiwan Area and the Mainland Area. (July 31, 1992)

    Google Scholar 

  • Act Governing Relations with Hong Kong and Macao. (April 2, 1997)

    Google Scholar 

  • Act on Application of Laws in Civil Matters Involving Foreign Elements. (June 6, 1953)

    Google Scholar 

  • Act on Application of Laws in Civil Matters Involving Foreign Elements. (May 26, 2010)

    Google Scholar 

  • Chen, Rong-chwan (1998) A Boat on A Troubled Strait: The Interregional Private Law of the Republic of China on Taiwan. Wisconsin International Law Journal 16:599--638

    Google Scholar 

  • Chen, Rong-chwan (2002) New Way of Thinking in Private International Law Legislation: Material Justice in Conflicts Rules. Taiwan Law Review 89:50--61

    Google Scholar 

  • Chen, Rong-chwan (2003) The Current Situation and Practice of the Conflict of Laws across the Taiwan Straits. New Sharing, Taipei

    Google Scholar 

  • Chen, Rong-chwan (2010) Conflict of Laws of Divorce: Judicial Practice and Legislative Development of Taiwan. In K. Boele-Woelki, T. Einhorn, D. Girsberger & S. Symeonides eds. Convergence and Divergence in Private International Law—Liber Amicorum Kurt Siehr, Eleven International Publishing, The Netherlands

    Google Scholar 

  • Chen, Rong-chwan (Jul., 2010) The New Picture of the Private International Law: A Bird view on the AAL of 2010. Taiwan Law Journal 156:11--41

    Google Scholar 

  • Chen, Rong-chwan (Nov. 2010) The New Autonomy in the Private International Law: The Principle of Party-autonomy in the AAL of 2010. Taiwan Law Review 186:147--168.

    Google Scholar 

  • Liu, Tieh Cheng and Chen, Rong-chwan (2010) Liu and Chen on Private International Law. 5th ed San-Min, Taipei

    Google Scholar 

  • Ma, Herbert H.P. (1983) General Part of Private International Law. 11th ed. Ma, Taipei

    Google Scholar 

  • Ma, Herbert H.P. (2004) Private International Law: General and Special Parts. Ma, Taipei

    Google Scholar 

  • Makarov, N. (1953) Quellen des internationalen Privatrechts. 2. Aufl., Band I, “10. China” Walter de Grueyter & Co., Berlin

    Google Scholar 

  • Makarov, N. (1978) Quellen des internationalen Privatrechts. 3. Aufl., J.C.B. Mohr, Tübingen

    Google Scholar 

  • Supreme Court Decisions: No. Tai-Kan 449 of 1985, No. Tai-Shang 251 of 2010, No. Tai-Shang 1804 of 2011, No. Tai-Shang 1913 of 2011, No. Tai-Shang 2125 of 2010

    Google Scholar 

  • Supreme Court Judgments: No. Tai-Shang 651 of 2007, No. Tai-Shang 846 of 2007, No. Tai-Shang 1804 of 2007, No. Tai-Shang 611 of 2008, No. Tai-Shang 835 of 2008, No. Tai-Shang 1838 of 2008, No. Tai-Shang 1941 of 2008, No. Tai-Shang 1695 of 2009, No. Tai-Shang 2333 of 2009, No. Tai-Shang 1365 of 2010, No. Tai-Shang 1714 of 2010, No. Tai-Shang 2386 of 2010, No. Tai-Shang 2444 of 2010, No. Tai-Shang 964 of 2010, No. Tai-Shang 251 of 2010, No. Tai-Shang 552 of 2011, No. Tai-Shang 2125 of 2010, No. Tai-Shang 2193 of 2010, No. Tai-Shang 1804 of 2011

    Google Scholar 

  • Supreme Court Resolution of the 4th Meeting of Judges in April, 1978

    Google Scholar 

  • Taiwan Code of Civil Procedure. (Feb. 1, 1935, amended on July 2, 2003)

    Google Scholar 

  • Zheng, Henry R. (1988) China’s Civil and Commercial Law. Butterworths, Singapore

    Google Scholar 

Download references

Author information

Authors and Affiliations

  1. College of Law, National Taipei University, 67 Min-Sheng E. Rd. Sec. 3, Taipei, 104, Taiwan, ROC

    Prof. Rong-chwan Chen

Authors
  1. Prof. Rong-chwan Chen
    View author publications

    You can also search for this author in PubMed Google Scholar

Corresponding author

Correspondence to Rong-chwan Chen .

Editor information

Editors and Affiliations

  1. College of Law, National Taiwan University, Taipei, Taiwan

    Wen-Yeu Wang

Rights and permissions

Reprints and permissions

Copyright information

© 2014 Springer International Publishing Switzerland

About this chapter

Cite this chapter

Chen, Rc. (2014). The Recent Development of Private International Law in Taiwan. In: Wang, WY. (eds) Codification in East Asia. Ius Comparatum - Global Studies in Comparative Law, vol 2. Springer, Cham. https://doi.org/10.1007/978-3-319-03446-1_19

Download citation

Publish with us

Policies and ethics

Search

Navigation