Judicial Lawmaking and the Influence of Comparative Law
- Studies in Comparative Law and Legal Culture series
Edited by John O. Haley and Toshiko Takenaka
Chapter 4.1: The inf luence of Japanese law on Taiwan law
Taiwan law means, in this chapter, the law existing in Taiwan since 1895, when Taiwan became a colony in the prewar Japanese Empire. The periods of Dutch and Spanish rule (1624–1662) and Koxinga regime’s rule (1661–1683) were so short in Taiwan’s history that the ruled had not yet shaped their own political identity. For the next 212 years (1683–1895), Taiwan was ruled by a local government of imperial China and there was almost no Taiwanese political or cultural identity during that time. However, since 1895 a modern-style legal system was brought to Taiwan by the Japanese colonialists. More importantly, Taiwan became a specific jurisdiction within the whole Japanese empire, having its own laws and court system different from that of metropolitan Japan. The term, and concept of, “Taiwan law” thus emerged. Although Taiwan was regarded as a province of Republican China between 1945 and 1949, Taiwan has been constituted a de facto independent state since 1949, as mentioned below. Therefore, the law in Taiwan, officially named the Republic of China (“ROC”) law, can be called “Taiwan law” in the international community. Taiwan law is a member of the civil law family, of which the sources of positive law are statutes. The provisions in statutes are in essence the products of the legislature, in which various political forces make their compromise; however, they are written by legal terminology and often need to be interpreted for general application to individual cases in accordance with legal theories.
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