Law Division

I. Academic Conferences

  1. Interpretation of the Constitution in Theory and Practice
    1. First Session: In recent years, the law division has actively promoted activities, exchanges, and collaborations within and outside of Academia Sinica. In 1997, the law division organized a two-day conference where scholars and practicing professionals were invited to participate. The conference provided both the academic and professional communities an opportunity to interactively discuss theoretical and practical interpretations of the constitution. Following much open and balanced discussion in terms of considering both academic and professional perspectives, conference participants recognized each other's areas of expertise, which initiated the consensus that they sought at a critical juncture during the conference.
    2. Second Session: In order to continue promoting research on constitutional interpretation, the law division organized a second Conference on the Theoretical and Applied Uses of Constitutional Law. This two-day conference ran from March 20-21, 1999, and was held at the Academia Sinica activity center. Topics covered at the conference included:
    1. Interpretation of the Constitutional System in Theory and Practice
      • A review and improvement of the constitutional interpretation process
      • Interpretation of the constitution in method and principle
      • Unconstitutional review system and democratic principles
      • Unconstitutional review system and the principle of the division of rights
    2. Constitutional Basic Foundations and Civil Basic Rights
      • Rule by law in theory and practice
      • Principles of equality in theory and practice
      • Fundamental rights' connotations and guarantees
      • Social transformation and constitutional order
Conference papers:

Keynote Address: President Wen Yueh-Sheng, "Constitutional Interpretation and the Protection of Human Rights and Liberties"
Presenter
Paper Topic
Hsu Zhong-Li
 Principles of equality and unconstitutional reviews from the perspective of high court explanations
Huang Jin-Tang
 Fundamental political rights: an analysis of the protection of the right to liberty
Lei Wen-Gui
 Unconstitutional reviews of gender equality in families: recent judicial explanations on principles of equality in Taiwan from the perspective of American feminism
Hsu Zheng-Rong
 Principles of equality in assuming public service positions in theory and practice: as based in France
Chen Ai-Er
 Objective legal regulations based on basic rights: a review of the problems in the area of "organizations and functions of procedural protection"
Lee Chien-Liang
 Basic rights and national protection obligations
Chen Chung-Sheng
 A review of the concept of "institutional protection" in the Supreme Court Justices' decisions in the Judicial Yuan
Shi Shi-Hao
 On the dual characteristics of the institutional protection and fundamental rights of the freedom of broadcast television in the context of Interpretation no. 361 of the Supreme Court Justices' decision in the Judicial Yuan
Lee Hong-Xi
 Preliminary explanations and analyses of Japan's constitutional review: an introduction
Chen Zhong-Fu
 The establishment of judicial explanations and theoretical legal models: an application of Weber's theories
Chen Chi-Yang
 The concept of rule of law under liberal and democratic constitutionalism in theory and practice
Chen Hsin-Min
 The rule of law and a retrospective of law: its concept and limitations
Lee Cheng-Shan
 A constitutional perspective of the non-infliction of harm regarding bodily rights
Chen Chih-Long
 The constitutionality of detention measures sentenced by District Attorneys: an analysis of unconstitutional argumentative methods for interpretation no. 392 and constitutional article no. 8
Xiao Wen-Sheng
 Remedying violations of fundamental rights
Lin Shan-Chin
 A discussion regarding fundamental rights violations
The conference papers were reviewed for inclusion in conference proceedings, which will be available for purchase at a later date.

2. Constitutional Choice Round Table

In recent years, the National Assembly held several public conferences regarding Taiwan's constitutional system. Subsequently, these conferences became a focus of discussion throughout the country. Given the importance of constitutional research in the law division, a one-day international conference entitled, "Constitutional Choice", was organized on May 31, 1999, at the Academia Sinica's activities center. Ten participants attended the conference, including scholars from France, Germany, the United States, as well as Taiwan. Conference papers are in the process of being organized into a conference preceedings or journal issue. Conference presenters and their topics included:

  1. Dr. Horst Bahro, Virtues and Vices of a Semi-Presidential Government
  2. Dr. Ernst Veser, Semi-Presidentialism-Duvergers Concept: A New Political System Model
  3. Dr. Richard Gunther, Multidimensional Assessments of Presidential, Semi-Presidential, and Parliamentary Systems
  4. All attendants: group and general discussion, with emphasis on Western experiences and national constitutional choice.
3. International Conference on the European Union in the Information Age and East Asian Intellectual Property Rights

Intellectual property rights not only "crystallizes" human intelligence, moreover, it increases corporate competition, industrial growth, and even a country's competitive machinery. However, protecting intellectual property rights is a limitless and endless task. It requires combining the efforts and knowledge of the industrial, judicial, as well as academic sectors. Moreover, these sectors must publicly agree to maintain close relationships with various international and regional intellectual property rights organizations. These actions will not only protect Taiwan's intellectual property, but allow Taiwan to meet the same international standards protecting other countries' intellectual property as well. The aforementioned areas and concepts are the basis of a discussion on "Foreign and International Patent, Copyright, and Competition Law" between the law division and the Max-Planck Institute for Foreign and International Patent, Copyright, and Competition Law. The Max-Planck Institute is not only in concurrence with the law division's perspective on these issues, but also has readily consented to jointly organizing a series of three conferences. Planned over a three-year period, the implementation timeline for the conferences is as follows:

Held from January 5-8, 1999, Dr. Cornish, a scholar and an authority on intellectual property rights law from Cambridge University, as well as a research fellow at the Max-Planck Institute, was invited as the first conference's keynote speaker. Also in attendance was Dr. von Mhlendahl, the deputy director of the European Union Trademark Bureau.Scholars from Germany, Japan, South Korea, Hong Kong, Singapore, Malaysia, Indonesia, Thailand, and Vietnam were also invited to participate. The first conference was jointly organized and sponsored by the Legislative Yuan's Fair Trade Commission, the Economics Ministry's National Bureau of Standards, as well as the Information Strategy Commission and Technology Law Center.

II. Law Division Academic Conferences

Date
Keynote Title
Keynote Speaker
6/12/1996
 On the improvement of the environmental impact assessment act
Dennis T. C. Tang
6/19/1996
 Relationship between local self-governance regulations and central government laws
Lee Chien-Liang
6/26/1996
 The concept of "Rechtsstaat" in Creamau Law: it's origin and development
Chen Shin-Min
8/30/1996
 From a socialist to a Rechtsstaat judicial system
Wu Qi-Yun
12/4/1996
 Coase's "From the Market and the Law": from the perspective of a legal scholar
Chien Tze-Shiou
1/8/1997
 Discussion of issues relating to cartels
Liu Kung-Chung
4/23/1997
 On the improvement of the current recycling system
Dennis T. C. Tang
5/28/1997
 Preliminary analyses of the principle of judiciary self-management
Lee Chien-Liang
6/4/1997
 Issues related to the legal system in post-1997 Hong Kong
Zhu Guo-Bin
8/6/1997
 The legal problems of so-called omnibus bills
Chen Shin-Min
9/17/1997
 Discussion on Fair Trade Law complaints and the Fair Trade Commission's inaction
Huang Ming-Jia
12/24/1997
 Re-evaluating and analyzing the implementation law of the general section in the civil code
Liu Kung-Chung
4/1/1998
 Franchise grants and merger controls on cable television in the US
Jiang Yao-Guo
6/3/1998
 Control of political party proportional representation and principles of election equality
Lee Chien-Liang
6/17/1998
 Discussion on declatory judgements: an analysis of the prospects of continuing declartory judgements (I)
Liou Shwu-Fann
6/24/1998
 On the tension of "trade and the environment"
Dennis T. C. Tang
7/8/1998
 Rate controls on cable television fees in the US
Jiang Yao-Guo
Date
Speaker
Keynote Title
10/28/1998
Lee Chien-Liang
 Special characteristics and legal system development of organization law in German universities
12/9/1998
Chien Tse-Shiou
 Law and Science: some lessons from the litigation of Bendectin in the U.S.
3/3/1999
Liu Kung-Chung
 Self-regulation and external regulation through the Fair Trade Law
3/17/1999
Chen Shin-Min
 The concept of rule of law in English and German legal theories: a comparative research of the rule of law and Rechtsstaat
5/26/1999
Dennis T.C. Tang
 Empirical studies on dissenting opinions within the Council of Grand Justices
6/23/1999
Liou Shwu-Fann
 Discussion on declatory judgements: an analysis of continuing declartory judgements (II)

  1. Book Publications

    2. Interpretations of the Constitution in Theory and Practice

    (Institute of Social Sciences and Philosophy, Academia Sinica, book serial number 44: a series of studies related to systems, policies, and values)

    Liu Kung-Chung and Lee Chien-Liang, Editors

    Articles include:

    Title of Article
    Author
    The effectiveness and limitations of standards for constitutional interpretations of individual cases from a conformity theory perspective
    Su Chuin-Hiung
    An evaluation of concurrent appointment of the vice president as prime minister
    Tung Hsiang-Fei
    Evaluating Grand Justices' interpretation of the principle of administration in accordance with the law
    Liao Yi-Nan
    The function of remedies in Judicial reviews
    Chen Shin-Min
    Separation of powers resolved
    Dennis T.C. Tang
    Political issues and judicial reviews
    Lee Chien-Liang
    Division of power on the constitution between different jurisdictions
    Liou Shwu-Fann
    On the limitation of Supreme Court justices' authority in the Judicial Yuan towards government administrative agencies in terms of reviewing the administrative decrees and memorandums
    Xiao Wen-Sheng
    Criminal lawsuits and constitutional protection of legitimate legal procedures
    Chen Yun-Chai
    Regulating pornographic publications
    Fa Zhi-Bin
    The historical development of the protection of constitutional work rights
    Li Hsien-Chung
    The evolution of the concept of property rights in the Supreme Court justices' decisions in the Judicial Yuan
    Chen Ai-Er
    On the Supreme Court justices' decision no. 349 in the Judicial Yuan from the perspective of the protection of property rights
    Wang Wen-Yu
    Fundamental problems in city planning from the perspective of the Supreme Court justices' decisions in the Judicial Yuan
    Lin Min-Qiang
    Examining a framework for regulating Overseas Chinese businesses from a Fair Trade perspective
    Liu Kung-Chung

  2. Group Research Projects
Regulatory Reform: telecommunications, cable television, and the Internet

As humankind takes its first steps into the 21st century, the information age has already long been upon us; whether it is in our daily activities, work attitudes, corporate organization, or governmental policy-making, all have experienced tremendous transformations. Telecommunications, the electronic media, and the Internet have emerged as the three main pillars of the information age. Previously, aside from the Internet, telecommunications and the electronic media were regarded as industries under the management and control of individual governments. However, due to the rapid development of electronic information technology and globalization trends in recent years, traditional institutions and means of monitoring not only prove ineffective in addressing these areas, but also represent stumbling blocks for further development. As countries the world over gradually openly undergo management reform and abandon traditional "decree-like" governing methods, greater efforts are being made to adopt open market competition measures that effectively lead towards international cooperation. Finland can be cited as the most successful example of this new trend. After the World Trade Organization (WTO) passed an agreement to open up the telecommunications market, the European Union (EU) passed a similar directive that opened its respective telecommunications markets. However, under market-driven governing methods, one shouldn't have the impression that complete liberalization will naturally occur; rather, a competitive environment and thorough guidelines must be established in order for the market to work effectively. At the same time, it does not mean that there is no leeway for the consideration of noneconomically-based public interests. Rather, it indicates that these areas need to be more clearly defined and other worthwhile avenues should likewise be pursued. Due to the development of diverse technologies, telecommunications, the electronic media, and the Internet have displayed similar trends in terms of modern divisional or regional management methods, which has introduced an entirely new set of challenges. On the other hand, promoting market-driven governing methods does not necessarily imply that these measures will be effectively implemented. After all, opportunists are not easily dissuaded. Currently, the greatest issue is how to galvanize enough resources to effectively ensure for management reform.

As Taiwan's development led to its promotion as an island of technology, the country found itself facing an overwhelming tide of responses. In an information-based society where there are no barriers in the transmission of vast amounts of inexpensive information, the standard of living and cultural quality of public life will naturally rise as well. In addition, in the process of developing Taiwan as an economic and trade center, bolstering Taiwan businesses' international competitiveness was vitally important. Consequently, fully utilizing information technology as tool by which to increase their competitiveness was the only course to follow for these industries. Of course, economic prosperity simultaneously created greater work opportunities, which likewise contributed to social stability.

Basically, the liberalization and internationalization direction Taiwan has promoted in recent years has established the necessary foundation for an information-based society. In the actual implementation of these mechanisms and timelines, however, it is doubtful whether it is possible to make further adjustments in order to increase the speed of development. Moreover, to do so requires in-depth, systematic analysis and applied research in this area. Otherwise, such actions will at best hinder the path of progress, or at worst create a loophole through which individuals with vested interests will capitalize. Consequently, it could result in a self-serving environment which governments must attempt to avoid at all costs.

  1. Research Goals and Focus

    2. The theme of the law division's research project is to promote the development of telecommunications, cable television, and Internet communication under the premise of avoiding conflict with public interests. This research project thus addresses how reformation of traditional directive-oriented management can be redirected towards market-oriented management. This form of control behavior includes public and private enterprises, market-based controls, business competition behavior controls, and consumer purchasing behavior controls. If one adheres to this development model, the concept includes market-entry control, business merger control, and moreover, passive restrictions against business mergers and takeovers, which actively involves forcing businesses to sign contracts or permitting competitors to have access to one's property. As for the control of consumer behavior among communication businesses, it focuses mainly on the management of telecommunications subscription rates, prohibition of inaccurate advertising, and protection of private information. Whether the aforementioned devices can be effectively and successfully administered and managed, depends to a great extent on the effectiveness of the administrative agencies. Can the administrative agencies faithfully discharge their duties? This issue becomes the key to the success or failure of reform. The research project will focus on the following subjects: (1) privatization; (2) market entry; (3) mergers and alliances; (4) restrictions on inappropriate cut-throat behavior; (5) cooperative and tolerant obligations; (6) price and consumer protections; (7) government administrative agencies and dispute settlement; (8) public interests; (9) technological integration; and (10) international settlements
  2. Research Methodologies and Procedures

Recently, the law division adopted comparative systematic methodologies as well as cross-disciplinary approaches. Governance reform began in the United States and the United Kingdom during the early 1980s. Due to the success of these reforms, as well as the collapse of the central economic system of the former Soviet Union, countries around the world have individually imitated and adopted similar adjustments in their own governments. As a result, a substantial amount of experience has been amassed, be it successes or failures, which have proven to be invaluable references. Given that the US and the UK were the earliest countries to implement management reform, their experiences are worthy of further study. Japan, Germany, and the European Union soon followed these two country's footsteps, and accumulated a respectable record in terms of governance reform. In particular, these countries' experiences are relevant to Taiwan in that their and Taiwan's legal system are both continental legal systems (a.k.a. European legal system). Thus, their reform experiences are worthwhile for Taiwan to examine in terms of how the legal system and governance reform mutually interact.

As for projects conducted by the law division's research fellows, it is necessary that their studies not only address Taiwan, but that they collect materials and conduct empirical research as well. Another unique aspect of the law division is its cross-disciplinary research. From the division's own experiences, the range of areas involved in governance reform is very broad, including law, economics, and technology. Consequently, every research project involves both law and economics research fellows. Moreover, within the overall project there are likewise several technology consultants in order to ensure that studies are not out of touch with technological developments. Law scholars predominantly focus upon aspects regarding the scope and range of governance. Economics scholars, aside from assessing the effectiveness of controls, evaluate the future prospects for each industry in Taiwan and the world. Finally, technology consultants primarily provide advice regarding the development of information and communications skills.

In addition, the law division organizes a conference each academic year. On the one hand, these conferences allow research fellows within the same field to interact, while on the other, encourages the exchange of ideas and affirmation of theoretical and empirical studies.

  1. Law Division Research Fellows: Accomplishments and Directions
(1) Current research projects (2) List of Literary Publications
  1. Journal Articles (published or accepted papers)
  2. Books and technical reports
  3. Other
    1. Current research projects

      2. Study on the humanization of national organizational law

    2. List of Literary Publications
  1. Journal Articles (published or accepted papers)
  2. Books and technical reports
  3. Environmental Laws and Decrees (English translations)
  4. Chinese Translations of Foreign Language Articles
    1. Current research projects

      2. Right to Invasive Behavior Law and Scientific Evidence

      Civil Law and Economic Analysis of Law

    2. List of Literary Publications
    1. Literary Publications
    2. Conference Papers
    3. Other
(1) List of Literary Publications
    1. Literary Publications
      1. Liu Kung-Chung and Siew Yu-Juan, December 1993, "Competition Law and Copyright" (in Chinese), Cross Straits Copyright Conference, pp. 59-68.
      2. Liu Kung-Chung, March 1994, "A Comparative Study of the German Competition Laws Regarding Sec. 19 of the Fair Trade Law" (in Chinese), Euroamerica, vol. 24, no. 1, pp. 49-86.
      3. Liu Kung-Chung, July 1994, "Study on Article 24 of the Fair Trade Law", Fair Trade Journal, vol. 2, no. 3., pp. 1-30.
      4. Liu Kung-Chung, September 1994, "German Limited Competition Prevention Law according to regulations appropriated on the market industry" (in Chinese), Dong Hai University Law Journal, no. 8, pp. 163-187.
      5. Liu Kung-Chung, March 1995, "Study on Article 5 of the U.S. Fair Trade Commission Act" (in Chinese), Journal of Social Sciences and Philosophy, vol. 7, no. 1, pp. 159-190.
      6. Liu Kung-Chung, July 1995, "The Limits of Comparative Advertising" (in Chinese), Fair Trade Journal, vol. 3, no. 3, pp. 1-17.
      7. Liu Kung-Chung, September 1995, "An Analytical Comparison between the Fair Trade Law and the Consumer Protection Law" (in Chinese), Journal of Social Sciences and Philosophy, vol. 7, no. 2, pp. 1-19.
      8. Liu Kung-Chung, March 1996, "Monopolization, Attempted Monopolitization and Combination or Conspiracy to Monopolize under the Sherman Act" (in Chinese), Euramerica, vol. 26, no. 1, pp. 61-88.
      9. Liu Kung-Chung, March 1996, "On Prohibiting Monopolies from Abusing Their Market Power" (in Chinese), Journal of Social Sciences and Philosophy, vol. 8, no. 1, pp. 227-263.
      10. Liu Kung-Chung, May 1996, "Study on the Judicial Remedy in the Import Relief of European Union and the USA" (in Chinese), Maoyi DiaoCha, vol. 1, pp. 85-97.
      11. Liu Kung-Chung, October 1996, "Study on the 'Business Correction' Practice of the Fair Trade Commission" (in Chinese), Fair Trade Journal, vol. 4, no. 4, pp. 1-13.
      12. Liu Kung-Chung, October 1996, "Study on the Confusion of Trademarks" (in Chinese), National Taiwan Law Journal, vol. 26, no. 1, pp. 195-228.
      13. Liu Kung-Chung, January 1997, "The Application of Market Survey in Trademark Law and Fair Trade Law," National Taiwan University Law Journal, vol. 26, no. 2, pp. 173-195.
      14. Liu Kung-Chung, April 1997, "Study on Cartels and Related Issues" (in Chinese), National Taiwan University Law Journal, vol. 26, no. 3, pp. 237-261.
      15. Liu Kung-Chung, July 1997, "Legal Analysis of the Privatization of Government-Owned Enterprises" (in Chinese), Journal of Social Sciences and Philosophy, vol. 9, no. 2, pp. 73-100.
      16. Liu Kung-Chung, Shi Jun-Ji, Chu Yun-Peng, January 1998, "A Critical Review of Anti-Dumping and Its Relation to the Fair Trade Law" (in Chinese), National Sciences Council Research Journal on the Humanities and Social Sciences, vol. 8, no. 1, pp. 37-57.
      17. Liu Kung-Chung, January 1998, "Study on Products or Service Relating to Trademark Law" (in Chinese), National Science Council Research Journal on Humanities and Social Sciences, vol. 8, no. 1, pp. 21-36.
      18. Liu Kung-Chung, April 1998, "Theory and Practice of Merger Control" (in Chinese), Maoyi DiaoChal, vol. 6, no. 2, pp. 1-38.
      19. Liu Kung-Chung, June 1998, "Examining the Structure of Laws for Regulating Overseas Undertakings from the Perspective of Fair Competition" (in Chinese), Interpretation of the Constitution in Theory and Practice, (Liu Kung-Chung, Lee Chien-Liang co-editors), pp. 487-518.
      20. Liu Kung-Chung, July 1998, "A Review and Analysis of the Implementation of the General Section of the Civil Law" (in Chinese), National Taiwan University Law Journal, vol. 27, no. 4, pp. 259-291.
      21. Liu Kung-Chung, November 1998, "On the Regulatory Mechanism of Information, Communication, and Media in Digital Convergence" (in Chinese), Zixunfawu Touxi, pp. 67-75.
      22. Liu Kung-Chung, April 1999, "Discussion on Fair Trade Commission Administration Settlement in Practice and its Legal Theory" (in Chinese), Lawyer Magazine, no. 235, pp. 68-74.
      23. Liu Kung-Chung, June 1999, "Unfair Competition Law in Taiwan", International Review of Industrial Property and Copyright Law, vol. 30, no. 4, pp. 377-402.
      24. Liu Kung-Chung, "The Protection of Well-Known Marks in Taiwan" (in Chinese), also published as "The Protection of Well-Known Marks in Asia" (Kung-Chung Liu/Christopher Heath, co-editors; currently undergoing publication in English by Kluwer).
      25. Liu Kung-Chung, October 1999, "Deregulation and Competition Rules of Professionals" (in Chinese), Lawyer Magazine, no. 241, pp. 66-93.
      26. Liu Kung-Chung, December 30, 1999, "Review of the Policy and Regulation of Telecommunications Reform" (in Chinese), Conference paper at the Conference on Regulatory Reform (II).
      27. Liu Kung-Chung, January 2000, "Study of the Protection of Computer Program Related Inventions Under the German Patent Law" (in Chinese), Socioeconomic Law and Institution Review, vol. 25, pp. 393-425.
      28. Liu Kung-Chung, January 2000, "The Protection of Well-Known Marks Under International and Foreign Law" (in Chinese), Intellectual Property Rights, no. 13, pp. 1-16.
      29. Liu Kung-Chung, March 2000, "The Protection of Computer Program Related Invention Under the Patent Law" (in Chinese), The Taiwan Law Review, pp. 139-149.
      30. Liu Kung-Chung, "The Protection of Well-Known Marks According to Trademark Law" (in Chinese), The Taiwan Law Review (accepted for publication).
      31. Liu Kung-Chung, "On Deceptive, False and Misleading Labeling and Advertising," Fair Trade Journal (accepted for publication).
      32. Liu Kung-Chung, "On the Market Entry Regulation of Fixed Network Communication" (in Chinese), Zixunfawu Touxi, (accepted for publication).
    1. Current Research Projects

      2. Progressive and Continuous Development Strategic Mechanism and New Legal System Reform: a national responsibility

      Study on Idle/Negligent Financial Systems

    2. List of Literary Publications
    1. Books
    2. Scholarly Articles
    3. Journal Articles
    4. Completed Research Projects
    5. In-process Research Projects
    6. Academic Conferences
    7. Administrative Law and Applied Research