The current Taiwan Civil Code was a code originally enacted in Mainland China in 1930, where Taiwan was colonized by Japan. Later, this code was brought to Taiwan by ROC Kuomintang here and after and called it KMT government in 1945. In this part, we will look into the development of this Civil Code. On the other hand, the civil law, law in action applied to Taiwanese people, especially before 1945, will be introduced by Professor Yun-Ru Chen in the legal history section. China first began to grapple with the need to reform the legal system in earnest in the late Qing Dynasty in order to come to grips with new modernity called "Xinzheng". Traditional Chinese law had difficulty surviving when pummeled by modern western capitalistic governments. Particularly humiliating where China's military losses to Great Britain and Japan that clearly showed that China was no longer the world's most advanced nation. This shook the confidence of its rulers and citizens as they had always believed in the superiority of Chinese civilization. From the time of Opium Wars in the mid-19th century, when China was forced to open its door, Western capital and goods flow into the country. As a result, the peasant economy gradually disintegrated. Meanwhile, more capitalistic private industrial, and commercial sector developed in urban areas. Consequently, the new liberal bourgeoisie called for the recognition of their social status and better protection of their wealth, as well as, the formulation of new civil and commercial laws. These economic factors initiated a legal reform in the last decade of the Qing dynasty. With the dramatic changes in economic conditions, social conditions also began to change. For example, the Chinese kinship system with its family-based values and customs was transformed. With new schools and new scholars introducing Western learning and condemning Confucian ethics and philosophy. Aged old family values were regarded as obsolescent and feudal. Secondly, with the gradual disintegration of a traditional peasant economy, many peasants were displaced. This led to some adverse effects when they disengaged from family and clan and to leave the city for a new life. Consequently, the law fell behind at times and failed to meet new social conditions adjusting to new personal and family relations. It was imperative that the new system of norms be established. Influenced by the West, the Qing government decided to develop a new order based on western law. Many hoped that the law would bolster individual liberty and be respected. At the same time, the Qing State was forced to place the humiliating terms of judicial extra-territoriality on its political agenda. Extraterritorial jurisdiction in some Chinese ports meant that a foreign community settled in the ports concession areas under the authority of a foreign power with its own municipal government adjudicated by its own legal counsel. Extraterritorial courts use the same system of laws as used within foreign powers own boundaries. In China, it was widely held that the extraterritorial jurisdiction was an abasement on sovereignty. With Japan's success in abolishing this system by modernizing its laws, the Qing government had a desire to abolish the extraterritorial jurisdiction by remaking its own secured law. Therefore, the Qing government established the Law Codification Commission in 1902, which was entrusted to carefully and selectively revise Chinese laws with references to the western legal systems after in-depth deliberations. Essentially, this legal reform was through effort by the Qing rulers to save their reign. Hence, the legal reformers had to emphasize loyalty to the existing monarchy. With this in mind, little could be done in order to readdress the Chinese legal system by implementing a Western one. The commission revised the Feudal Qing Code to a more modern Criminal Law and drafted a separate Civil Code, which is called the Draft Civil Code of the Great Qing. It is notable that the civil code used the archetype of the German model via Japan. This can be seen from its statutory structure. It followed the German Burgerliches Gesetzbuch, which is the civil code of Germany by dividing the code into five books, namely first, general principles, and then law of obligations, law of things, family, and succession. In addition, the Qing's civil code draft followed the German approach when it's separated the Civil Code from a special commercial code. Next question is why China adopted civil law system rather than common law? Civil law had more influence on Chinese legal system than common law, when the country launched this legal modernization. There are a number of reasons for this. First, China introduced a civil law because the European continent was the rising center of capitalism. At the beginning of the 20th century, when the Qing government determined to reform the legal system, Britain's international status was declining, and a further reason for adopting a civil law system in China was a geopolitical one. Japan was the nearest modernized and westernized country to China. Japan's rise as a new power in the early 20th century led to China's legal modernization. It was convenient for young Chinese scholars to travel to Japan to study modern law. Since the two countries had similar legal traditions, values, languages, and history, the Chinese were heavily influenced by the Japanese means of adapting the German civil code to the country's legal tradition. Qing government began reforming it's legal system by inviting foreign legal experts to consult the government and help to reform its laws. Most of these experts came from Japan and helped the Qing government to examine, revise, and draft the country's laws, as well as teach laws in both public and private schools. Therefore, European continental countries through Japan strengthened their influence to China. Next, let's take a look at development in ROC period and the features of the ROC Civil Code. The Civil Code launched by the late Qing government was not followed from 1911 through 1928 by the Republic government despite the political instability with frequent changes in the government. During this time, the Republic government did not stifle the efforts to formulate a modern Chinese Civil Code. During this period, the Company Act, the Bankruptcy Law, and Negotiable Instrument Law were enacted and the Civil Code's legal structure was established. Immediately after the KMT government took power, it created a Civil Code Drafting Committee to draft a Civil Code. However, it was not until 1930 that the first Chinese Civil Code was promulgated. Having revised and re-examined the Qing's draft, the drafting committee drew on the experience of Roman law countries as Germany, Japan, and Switzerland to develop its civil law legislation. When the KMT Civil Code was drafted, the prevailing worldwide view was that social harmony took precedence over absolutist individual rights. This was virtually the same point of view as the traditional Chinese natural law philosophy that conciliation, mediation, and compromise, where the preferred ways of settling a civil dispute. As such, the ideological and theoretical foundation of the KMT civil code is "San Min Chu I", which was formulated and advocated by Dr. Sun Yat-sen. This concept is found in several of it's provisions. Let's take two clauses, for example. The first one is Article 17, Section 2, which provides that liberty may not be restricted unless it is contrary to public order, or good morals. The ROC Civil Code is highly similar to the German civil code. It was originated into five books, namely general principles, law of obligations, property law, family, and succession. This structure was exactly the same as Qing's Civil Code draft and was passed down from German model. One famous legal scholar of the period maintained that if one compare the German civil code to Chinese one, article by article, 95 percent of the provisions of the ROC Civil Code had their origin there. Finally, let's talk about the influence of this ROC Civil Code. Actually it is quite narrow since the majority of Chinese peasants living in rural areas knew little about the code. After the enactment of the ROC Civil Code in 1930, political turmoil and series of wars continued, making the codes application and enforcement extremely difficult. This Civil Code left China completely with the retreat of KMT government since 1947 and only applies in Taiwan despite experiencing numerous amendments afterwards. By so far, the property section, which means book 1 to book 3 of the Civil Code, has been amended three times. General principle amendment in 1982, the second one is obligation amendment in 1999, and property amendment in 2010. On the other hand, the family and succession of the Civil Code has been revised too many times, which will be explained further in Part 5 of this lecture. Here we only briefly talk about the revisions of property section. Since the ROC Civil Code was brought to Taiwan after World War II, it has undergone tremendous transformation despite originated from China. The ROC Civil Code got growing up in Taiwan and transform in response to both local and global situations. Therefore, in this lecture, I address the Civil Code after 1945 as the Taiwan's Civil Code. Whereas the ROC Civil Code means the code from its promulgation in 1930 through its abolishment in 1947 in China. With the outbreak of Chinese Civil War, Taiwan entered to a period of martial law declared by KMT government. It began on 20th of May, 1949 and ended on 14th July 1987. This 38-year long period was qualified as the longest imposition of martial law by a regime anywhere in the world at that time. The government was authorized to deny the right of assembly, free speech, and publication. The revision of the Civil Code might be considered a kind of localization and hence was very restricted. The 1982 reform of the general principle is an exception. The situation had not changed until the lifting of martial law in 1987. Not only a vibrant democracy, but also an independent judiciary, have been more responsive to citizen initiated law reforms. The rapid industrialization and urbanization, along with the rise of women's labor force, participation rates, further increase the incentive to revise the Civil Code. The revision in 1999 on torts, or say the book of obligation is an example of a meeting social needs. In traditional rule of torts, people are only responsible for damages caused by his or her intention or a negligence, and the plaintiff bears the burden of proving the negligence of the defendant. The new provisions, Article 191-1, 191-2, and 191-3, all adopted rules that have reversed this traditional evidentiary rule in certain categories of torts. It's creating a rebuttable presumption of negligence against the defendant's. Under this presumption, the tortfeasor faces the burden of proving to have met the standard of due care and report, the legally created presumption of negligence. Finally, a thorough legal reform on Book of Things, which is also called Property or Right in Rem took place in 2007 to 2010. Before 2007, there were 210 articles in the Book of Things, and only one of them had been revised since its enactment in 1930 in China. Compared to that after the 2010 revision, there were 277 articles in total. Eighty two new articles were added and 15 articles were deleted, and 135 articles were revised. The key points of this revision include legalization of a line of credit mortgages, clarification of joint mortgage liability, strengthening the function of registration, and reshaping the usufructuary right. After the history and development of Taiwan's Civil Code, next we will step into the content by giving a few examples of cases governed by civil law.
