Study of the Legal System concerning the Taiwan-Chinaand China-Taiwan Interrelationship

• Main Authors: Kuei-Hsin Wu, 吳奎新
• Other Authors: Huan-Rung Huang
• Format: Others
• Language: zh-TW
• Published: 2004
• Online Access: http://ndltd.ncl.edu.tw/handle/582pe3

碩士 === 銘傳大學 === 社會科學院國家發展與兩岸關係碩士在職專班 === 92 === The current condition between Taiwan and China is largely the consequence of history. After the separation between them for 30 to 40 years, they opened up themselves for exchange. Likewise, legal problems such as trade between the Strait, investment, transactions of unmovable properties, marriage, adoption, inheritance, followed. Solving the legal controversies between the Strait is an urgent issue. Although both sides of the Straight are countries using continental legal systems, Mainland China is employing a socialist legal system and Taiwan continues to use the European continental law, constituting dramatic discrepancies between the legal systems in both political entities. The paper aims to study the legal system concerning the interrelationship of Taiwan-China and China-Taiwan after the opening up for exchange. This research begins with inter-regional conflicts of law theory, then it continues to examine whether inter-regional conflicts of law can be employed as a reference for the legal conflicts for both sides of the Strait. Concerning actual decrees, Taiwan has announced the “Statute Governing the Relations between the People of the Taiwan Area and the Mainland Area” to recognize both sides of the Straits as two political entities practically. With inter-regional conflicts of law theory as the foundation, Taiwan employs legislative means to promote a series of institutions and guidelines to handle inter-Strait affairs, to lay the groundwork for the legal affairs for both sides of the Strait. Meanwhile, China insists that the relationship between China and Taiwan is as a Central Government and Regional Government, unwilling to accept the fact that Taiwan is a political entity. Therefore, in theory China attempts to use the slogan of “one country two political systems” to handle the situations. However, the China Government does not actually govern Taiwan. Under the circumstances that “one country two-political” systems is inapplicable; it is unable to employ current domestic laws of both entities as a reference to settle legal matters. As the special conditions concerning the legal matters of both sides of the Straits, it seems that the legislation of special law and the employment of the interpretations and guidelines announced by the Highest People’s Court of China as ad hoc handling principles are practical manners. In this research, after comparing the legal systems concerning civil, criminal, administrative, and execution matters of both sides of the Straight, it discovers that the legislation of both political entities are both based on the “one China principle.” However, due to the political factors, both entities apply their laws in conservative manners. Therefore, this research suggests that both political entities should acknowledge the fact of the split, to interpret the “one China” issue flexibly and ensure to settle legal matters in legal manners. Further, Mainland China should make law and order to regulate the inter-regional relationships promptly. Concerning the entities, mutual trust and the spirit of peace and equality should be adopted regarding the civil, criminal, administrative, and legal execution, in order to improve the current legal regulations, allowing both sides of the Strait to build up the environment of perpetual peace and equal the principles of fairness and justice.