A Study on the Application of Law to Civil Matter Involving Foreign Elements in Taiwan and China: A Focus on the Relationship of Obligation

• Main Authors: Yeh chu fong, 葉竹鳳
• Other Authors: 黃陽壽
• Format: Others
• Language: zh-TW
• Published: 2015
• Online Access: http://ndltd.ncl.edu.tw/handle/d74gnw

碩士 === 東吳大學 === 法律學系 === 103 === Civil disputes mushroomed between the two sides of the Taiwan Straits since the normalization of economic and trade transactions between the two. Yet, the applicability of the civil laws to civil disputes is still in disarray, to the extent that the legal expectation in handling civil disputes becomes low. In studying the stable sources of the applicability of law, this paper attempts to explore the issue from the legislation of the applicability of international law in relation to civil law for the settlement of disputes so as to probe the autonomy of the desirability of the parties concerned for regulation, the theories of most significant relationship of the USA, the reclassification of cause of action in agreement and the materialization of substantive justice in legislation and the deduction of the common principles of the latest international private laws. Further, the applicability of the laws related to Chapter IV of the newly amended Act Governing the Choice of Law in Civil Matters Involving Foreign Elements of Taiwan on “Obligation”, and to Chapter VI of the Act Governing the Applicability of Law in Civil Matters Involving External Elements in China on “Obligation and Right”. With these as the foundation, the applicability of civil laws in the civil litigations between the people on the two sides of the straits will be evaluated with reference to the Law for the Protection of Investment from Taiwan, and the mechanism for the settlement of disputes deriving from the signing of the ECFA between Taiwan and Mainland China. In addition, the interpretation of law by the People’s Supreme Court of China will be introduced to look into the legal foundation of choosing applicable law in the event of litigations in Mainland China due to the obligations of business from Taiwan. Finally, the requirement of the People’s Supreme Court in handling civil disputes involving foreign elements or disputes deriving from business contracts, and the special requirement of the legal proceeding of civil litigations involving foreign elements in China will be discussed. In the conclusion, the legal sources and the practice of applicable laws for civil litigations of Taiwan business in Mainland China and the possible direction for joint effort in the future will be presented. For Taiwan, the applicability of the statute governing the relations between the two sides of the straits will be introduced within the scope of the applicability of private laws in the region, and the applicability of the statute and the act involving civil disputes with foreign elements will be assessed. In Chapter III, Article 41-2 of the statute, which is currently in force, and the contradiction between the applicability of the statute and the Act Governing the Choice of Law in Civil Matters Involving Foreign Elements of Taiwan, will be used for assessing the relation of obligations as stated in the statute as reference for subsequent amendment of the statute. The old version of the cross-straits statute and the new version of the Act Governing the Choice of Law in Civil Matters Involving Foreign Elements of Taiwan will be compared and evaluated and the findings will be served as reference for governing the applicability of laws for the civil disputes between the two sides of the straits. Case study will be used to support the study and the result of the choice of law will be assessed for substantive justice so that the readers can understand the scope of law and the practice. In light of the increasing interactions and exchanges between Mainland China and Taiwan, cases involving Taiwan，Mainland China, and a third country or region will be on the rise. The laws chosen for handling disputes with litigation instituted in Mainland China or in Taiwan will be based on different standards, which will yield different results under different substantive laws. Since both sides of the straits expressed the intent of studying the parallel litigation consultation system to align with the mutual recognition of documents and the enforcement systems, it would be necessary for the people on both sides to be entitled to procedure justice and substantive justice in the event of litigation.