|
It has been nearly sixty years since the Legislative Yuan promulgated the International Private Law (the "Law") which addresses choice of law issues in civil matters. Both international law and Taiwan's economic and social structure have changed drastically since then. Accordingly, in 1998 the Judicial Yuan assembled experts on the choice of law field to update the law. This effort led to the Legislative Yuan passing the draft amendments of the International Private Law on April 30, 2010. The amendment will become effective on May 26, 2011. Highlights of the amendment include:
|
| |
|
l |
Systematic Structure
|
| |
|
Prior to the amendment, the Law consisted of only 31 articles that were not organized into chapters. The amended Law consists of 63 articles, organized into 8 chapters to correspond with the Civil Code. The chapters, in order, are: General Principles, Subject of Rights, Formality of Juridical Acts and Agency, Obligations, Rights in Rem, Relatives, Inheritance, and Addendum. In combination with the Civil Code, the amended Law will provide a more comprehensive framework for choice of law issues in civil matters.
|
| |
|
l |
Provisions for Special Incidents
|
| |
|
Unlike its predecessor which applied the same standard to all the different kinds of incidents that give rise to the same type of legal claim, the amended Law has different rules for special kinds of incidents which give rise to the same type of claim. For example, Article 9 of the predecessor stipulated that the applicable law of obligation under torts should be the law where the tortuous conduct occurs. The amended Law, on the other hand, provides different rules for torts caused by the normal use or consumption of merchandise (Article 26), by unfair competition or limitation of competition (Article 27), and by publication, broadcast, television, internet, or other forms of media transmission (Article 28).
|
| |
|
l |
The Most Significant Relationship Principle
|
| |
|
The predecessor relied on formulaic factors to determine the applicable law, but it can sometimes lead to inadequate conclusions. The amended Law, on the other hand, conforms to modern international practices by adopting "the most significant relationship principle" in many provisions, such as Articles, 2, 4, and 28. Other provisions such as Articles 5, 17 to 20, 25, 43 to 45, 47, 48, and 50, apply this principle as an auxiliary standard for choice of law.
|
| |
|
l |
Doctrine of Autonomy of the Parties
|
| |
|
The doctrine of autonomy of the parties is only incorporated in Article 6 of the pre-amended Law, which stipulated that the applicable law of obligation arising out of juridical acts shall be decided by the parties' intention. In addition to Article 20 of the amended Law in respect of obligation arising out of juridical acts, the Law provides more contractual autonomy to the parties in Article 17 providing creation of agency, in Article 18 providing legal effects of the act under agency, and in Article 48 providing matrimonial property agreements.
|
| |
|
l |
Gender Equality
|
| |
|
The pre-amended Law ran against the principle of gender equality. For example, Article 12 provided that the applicable law of validity of marriage should be decided by the law of the husband's nationality. Likewise, husband's nationality is the connecting factor of Article 13 providing matrimonial property, Article 14 providing reasons of divorce, Article 15 providing legal effects of divorce, Article 16 providing legal status of children, and Article 19 providing legal relationship between parents and children. In the amended Law, for the purpose of gender equality, the applicable law of formation and legal effects of agreement of marriage (Article 45), formation of marriage (Article 46), effects of marriage (Article 47), reasons and legal effects of divorce (Article 50), legal status of legitimate children (Article 51) and the child born out of wedlock (Article 52) should be decided by the law of nationality of between the fiancé and the fiancée or between the husband and wife.
|
| |
|
l |
Protecting the Rights of Victims, Creditors, Children and Persons Entitled to Maintenance
|
| |
|
Under the pre-amended Law, the applicable law of obligation under torts should be the law where the tortuous act occurs. Article 25 of the amended Law concurrently applies the most significant relationship principle to the applicable law of obligation caused by tortuous act. The same principle applies to special torts in Articles 26 to 28 of the amended Law as well. This change in the Law will make it easier for victims to obtain remedies from tortfeasors.
|
| |
|
To protect the rights of the creditors, the amended Law stipulates that the applicable law of the legal effects of obligation assumption for the creditor should be determined by the law applied to the formation and legal effects of original obligation. Meanwhile, to avoid unexpected damage to the guarantor, the amended Law provides that the legal effects of assignment or assumption of obligation for the guarantor should be determined by the law applied to the formation and legal effects of the original security right.
|
| |
|
To protect the interest of the children born out of wedlock, Article 53 of the amended Law provides that the applicable law of acknowledgment should be the law of the children's nationality or the law of the biological fathers' nationality. To implement the principle of priority of the law of the children's nationality and protect the interest of the children, Article 55 of the amended Law provides that the applicable law of legal relationship between the parents and the children should be the law of the children's nationality.
|
| |
|
To protect the interest of persons entitled to maintenance, Article 57 of the amended Law provides that the applicable law of obligation to maintain should be the law of the nationality of the persons entitled to maintenance.
|
| |
|
