Chen, Hwei-syin (2005), "Changes in Marriage and Family-Related Laws in Taiwan: From Male Dominance to Gender Equality", in: Lin, Wei-hung & Hsieh, Hsiao-chin ed., (2005), Gender, Culture & Society: Women's Studies in Taiwan, Seoul: Ewha Womans University Press, p389-416.


Changes in Marriage and Family-Related Laws In Taiwan:
From Male Dominance to Gender Equality

Heads
  1. Abstract

  2. Introduction

  3. Changes in Taiwan's Marriage and Family-Related Laws over the Last Century

  4. Marriage and Family-Related Law before 1895: The Qing Code

  5. Marriage and Family-Related Law during Japanese Rule: 1895 to 1945

  6. The Family Section of the Civil Law: 1945-1985

  7. Differences between Spousal Relationships of the Family Section of the Civil Law in Taiwan since 1949 and that of Traditional Chinese Law

  8. Spousal Relationships in Traditional Chinese Legal Codes as Male-dominant Relationships

  9. The Spousal Relationships of the Family Section of the ROC Civil law Emphasizing Gender Equality

  10. Marriage-Related Law in Taiwan in the Last Two Decades

  11. Promulgation of the Domestic Violence Prevention Law on June 24, 1998

  12. Conclusion: The Solution to Problems in Replacement of the Old Regulations by the New Ones-Respect and Equality

  13. Questions

  14. Bibliography


p389

Chapter 10

Changes in Marriage and Family-Related
Laws In Taiwan: From Male Dominance
to Gender Equality

Hwei-shin CHEN*

Abstract**

        This Paper discusses changes in marriage and family-related laws in
Taiwan (the Republic of China or ROC) from the historical
perspective of the local development of law. It takes into account
current laws closely concerned with marriages and women, the most
important of which is the family section of the ROC Civil Law that
took effect on May 5, 1931. This particular section determines
relationships between family members and, most significantly, those
between spouses and between parents and children.

        As Taiwan was under Japanese rule when the family section of
the Civil Law took effect in Mainland China, a discussion of the


 * 陳惠馨, Professor of Law, National Chengchi UniversityBack to footnote*

 **This English version was translated by Ling Han and Jeanne Tao.
English translations of Tang laws are from The Tang Code, translated by Wallance
Johnson (1979). English translations of Republican laws are from Kang (1970).
English translations of articles and additional articles of the ROC Constitution are
from the Taiwan Documents Project website (http://www.twiwandocuments.org/), as
of May 2001. Back to footnote**


p390

         Historical of Taiwan's marriage laws must examine the Japanese policy
on marriage and family matters in Taiwan. This policy was based on
the customs already in place, which in turn were greatly influenced by
the Qing code. Although the legal systems of the Qing government
were not the same as those of the Republic of China, they both
contained regulations about marriage and family. The family section
of the Civil Law, then, did not take effect in Taiwan until 1945, when
Taiwan came under the nationalist government. In mainland China,
which was take over by the Chinese communists in 1950, this section
was replaced by the "Marriage Law of the People's Republic of
China." Thereafter, the family section of the Civil Law only took
effect in Taiwan.

         Due to the special nature of Taiwan's development, this paper
focus on changes in marriage and family-related law in Taiwan, in
order to allow readers to understand changes in the legal status of
women. The discussion encompasses one hundred years of history and,
accordingly, the subject includes not only the family section of the
Civil Law but also the Domestic Violence Prevention Law, to help
readers understand how Taiwan has changed over the last century.
Through comparative analysis of traditional Chinese law and the
current family section of the Civil Law, readers can understand the
marital relationship as regulated by Taiwan's laws, and of the move
from a spirit of male dominance towards attempts to legislate more
complete equality of the sexes. Although the law has already been
changing gradually, in reality, traditions still influence daily life. A
gender equality society in Taiwan has yet to be achieved.


p391

Introduction

         Taiwan (the Republic of China) has been seeing changes in its
regulations regarding marital relationships, changes that are still
continuing to development today. The main impetus for such changes is the
conflict between the aim of the present marriage law and traditional
Chinese regulations of marriage already deeply ingrained in Taiwan.
Traditional Chinese law sought to realize the concept of man
(husband) as respected elder and woman (wife) as servile inferior,
with men responsible for outside matters and women for those only
within the household. Present law, on the other hand, struggles to
realize the type of marital relationship implied by the highest level of
law in Taiwan-the Republic of China (ROC) Constitution--
specially Article 7, which proclaims the principle of human equality,
and additional Article 10, Section 6, which declares the essential
social equality of the sexes.
1

         Yet, we find that the present law cannot actually changes society,
neither rapidly nor entirely. We are constantly confronted with the fact
that traditional moral concepts concerning spousal relationships have
been long rooted in the beliefs of most people in Taiwan. These
traditional concepts continued to affect the lives and attitudes of
Taiwan's people, as well as the status of women in general. It becomes
clear that neither the law's regulations nor the revisions of such
regulations can achieve the gender equality desired and pursued by the
present law.

         In the last decade, however, legal changes in prompting gender


 1 Article 7 of the ROC Constitution states: "All citizens of the Republic of China,
irrespective of sex, religion, ethnic origin, class, or party affiliation, shall be equal
before the law." Additional Article 10, Section 6, states: "The States shall promote the
dignity of women, safeguard their personal safety, eliminate sexual discrimination, and
further substantive gender equality."
Back to footnote1


p392

equality have appeared, most obviously in recent amendments to these
laws. This study attempts to investigate how, over the past hundred
years, Taiwan's marriage law (particularly the family section of the
Civil Law and the Domestic Violence Prevention Law) correspond
with changes in political power through different government controls,
how they undergo revisions, and how they are appropriated in order
for the relationship between husband and wife to move from the
traditional law, founded on the concept of male dominance, to the law
that seeks to realize the ideal of gender equality.2

Changes in Taiwan's Marriage and Family-Related Laws
over the Last Century

         As family law expert Chen, Chi-yen (1993) suggests in the first
chapter of Minfa qinshu xinlun (Reviews of Family Law): "Once moral
order is systematized by law in order to preserve national or public
order, a moral character of new meaning is brought with it" (117).
Examining the changes in Taiwanese law over the last hundred years,
we discover that marital and family relationships continually faced
different types of legal regulations and thus also faced significant
changes. The greatest and the most recent of these changes was the
family section of the Civil Law decreed on the mainland in 1931, the
content of which was unlike that of traditional Chinese law.

         However, in discussing this particular issue we must also note


 2 From my research, and from a historical perspective, the traditional moral notions
concerning spousal relationships are in actuality formed by the law and education.
Thus when the purpose of the law changes, these traditional moral concepts become
obstacles to some of these proposed changes.
Back to footnote2


p393

that this family section of Civil Law did not come into effect in
Taiwan until October 25, 1945 and it then became the basis for all
legal judgments made in court. As Taiwan was ceded to Japan during
the period 1895-1945, its marriage- and family-related laws of the
time were determined by the Japanese government in Taiwan.
Therefore, in order to understand the changes in marriage law in
Taiwan, one must first understand the relationship between the
evolving political situations and modifications in marriage legislation.

Marriage and Family-Related Law before 1895: The Qing Code

         In 1684, the Qing government set up a prefecture on Taiwan, which
was considered to be part of the province of Fujian and Taiwan's
government began to follow the Qing code (Shih, 1996: 179-180;
204-207).
3 Besides regulations in the household service and marriage
sections of marriage law, the Qing code also contained laws regulating
sexual assault in the violence and robbery section and the assault
section of the ethics and criminal codes. In addition, the Qing code
provided certain regulations concerning marriage between Taiwan's
Han people and Taiwan's aboriginal population. For example, Article
117 of the Illegitimate Marriage Arranged by the Elders, in the second
part of the laws pertaining to marriage, in the Household Section,
stipulates:

         Han people in Taiwan and Fujian shall not marry aboriginals;
offenders shall divorce. Han people shall be published with 100


 3 According to researchers, Taiwan officially became part of Qing territory in 1684;
however , further studies are still determine whether Qing laws were
implemented in the whole of Taiwan. During the Qing region, officials issued
orders three times banning the use of undeveloped lands. Han people found trespassing
those areas inhabited by native peoples could be killed. Why this was the practice of
the Qing government has yet to be researched.
Back to footnote3


p394

blows with the heavy stick for disobedience of such laws. Local
officials and interpreters shall be punished with a sentence reduced
one degree, each to receive 90 blows with the heavy stick. Area
officials who had knowledge of such acts but ignored them shall be
dealt with by the Ministry [of Punishments]. For those who have
already married and had children with the aboriginals., these
children shall immediately arrange to live with Han people and
cease to visit aboriginal areas; if these offenders still acted
inappropriately, thus they shall accordingly ne punished by 80
blows with the heavy stick
(Xüe, 1967: 314).4

Marriage and Family-Related Law during Japanese Rule: 1895 to
1945

         Around 1900, when the Qing government was woking on a series of
changes in the legal code, Taiwan was ceded to Japan as a result of
China's defeat in the First Sino-Japanese War.
5 Starting in June 1895,
Taiwan came under Japanese rule and Japanese regulations on
marriage were enacted. Because of this, Taiwanese people were not
able to participate in discussions preceding the radical changes in
Qing marriage and family-related law and the promulgation of the
family section of the ROC Civil Law. From then on, marriage and
family-related law in Taiwan gradually developed in a different


 4 This article is from the second year of Qianlong and was deleted during the first year
of Guangxu, by memorandum from the official Shen Bao-zheng. See Xüe (1967).
Special articles in the Qing code concerning Taiwan include military regulations on
illegal border crossing and illegal sailing, for example "Illegal Entry into Taiwan,"
"Residents of Taiwan committing crimes of lesser degree than punished by beatings
are excused from deportation," and "Residents of Taiwan committing crimes or
crossing borders illegally and who have no wives are ordered to return to home
provinces." (Vol. 3: 512-513)
Back to footnote4

 5 Discussions on reforms in Qing law can be considered to have begun in 1894, after the
First Sino-Japanese War, but it was not until 1904, when the "Bureau of Legal
Reforms" was established, that the results of reforms actually appeared. See Hwang
(1998).
Back to footnote5


p395

direction compared to the mainland, presenting a forked development
in Chinese marriage legislation. However, when Taiwan was returned
to the Republic of China in 1945, the family section of the Civil Law
became the marriage and family-related law in Taiwan as a result of
political reform in the mainland. The family section was applied to the
mainland up until 1949, after which it only took effect in Taiwan and
beginning in 1950, Mainland China's marriage-related laws were
determined by the Marriage Law of the Communist government.

         During the Japanese occupation of Taiwan (1895-1945), cases
regarding family and inheritances in Taiwan were mainly resolved
according to Taiwan's old customs were in fact
deeply influence by the legal codes of the Qing government, Fijian,
and the Taiwan prefecture (Ministry of Justice, 1984: 4-5). At the
beginning of Japanese rule in Taiwan, most civil laws based on
Taiwanese customs. In 1922, according to Edict No. 406, "On
Implementation of Civil Law on Taiwan," Japanese Civil Law began
to be implemented in Taiwan. In addition, Edict No. 407, "On the
Special Cases of Implementation of Civil Law on Taiwan," stipulated:
"Only regarding family and inheritance matters of the Taiwanese
people, regulations of Sections 4 and 5 of [Japanese] Civil Law does
not apply; instead, Taiwan customs shall continue to prevail"
(Ministry of Jutice, 1984: 4-5). In reality, however, because most of
the judges in Taiwan at the time were mostly Japanese, with a few
exceptions of Taiwanese educated in Japan, they often interpreted such
customs in the light of their own modern legal education. Thus, even
though the family section of the Japanese Civil Law was never
officially implemented in Taiwan during Japanese rule, the spirit of
modern law had already begun to influence judgments in Taiwan's
marriage and family cases of the time (Chen, Chao-ju, 1999:18, 45).
For instance, the Qing code did not develop any system for divorce


p396

judgments, but according to statistics, we find that there 4291
mutual consent divorces and seven court divorces in 1906 in Taiwan
during Japanese rule, while no statistics for court divorces, absent
from the traditional legal system, can be found before 1905 (Ministry
of justice, 1984: 4-5).

The Family Section of the Civil Law: 1945-1985

         With Japan's defeat in 1945, Taiwan was reunified with China, and the
family section of the Civil Law promulgated on the Republican
mainland in 1930, began to be implemented in Taiwan. An
explanation of the process of the drawing up of this section of the
Civil Law is necessary at this point. In 1911, the modern legal system
submitted by the Bureau of Law and the Bureau of Constitutional
Compilation was promulgated by the Qing government. In the new
legal system, the items of the old law concerning inheritance, division
of property, marriage, and estate were listed as civil matters. Offenses
relating to these matters were no longer subject to punishment, while
other offenses that might occur between spouses, such as theft, sexual
assault and other ethical issues, and illegitimate marriage, were
punishable. The 1911 draft of the Civil Law was divided into five
sections: General Principles, Rights Over Things, Obligations, Family,
and Inheritance. Among these sections, General Principles, Rights
Over Things, and Obligations had already been submitted to Qing
courts. The two sections on family and inheritance were considered
matters of ethics rather than of law. According to the intention of those
in power at the time, these two sections were to be submitted to the
courts in consultation with the Bureau of Rites. As a result, when the
Qing government's control was eradicated, laws on family and
inheritance, as regulated by the Civil Law, had not yet been submitted


p397

to the Qing courts and thus had not been implemented at all.

         Just after the establishment of the Republic of China in 1912, the
Republican government had no way of promulgating and
implementing its legal code immediately; therefore, the president
stipulated in the Provisional Presidential Decree of March 10, 1912:
"As the current legal code of the Republic of China has yet to be
promulgated, all previously implemented laws, as well as the new
penal code, excepting those which contradict the system of the
Republic of China and have lost effect, shall temporarily apply and be
abserved." Owing to this, up until the family and inheritance sections
of the Civil Law were promulgated on October 26, 1930, all
regulations concerning marriage and family were taken from and
implemented according to the section on civil matters of the Qing
code (Chen, Hwei-syin, 1993: 13-14).

         In 1930, the ROC government announced the family section of
the Civil Law to regulated martial and family matters. The format of the
family section imitated the German and the Japanese systems
(regulating legal relationships between individuals), existing as a
section of the Civil Law (which is divided into five sections, with
General Principles, Obligations Rights, Property Ownership
Relationships between Individuals, Family Relationships and
Inheritance). The family section provided clear regulation of the
degrees of kinship, the important requirements and function of
marriage, and the responsibilities between parent and child.

         Interestingly enough, the marriage and family values of the
family section of the Civil Law still take traditional Chinese moral
notions and concepts into account. Thus, one could say content of
this law simultaneously traditional yet westernized and the lawsuit
itself to some extent exhibits these contradictions. Listed below are
areas where the content of the family section of the Civil Law differs


p398

from traditional Chinese values:

(1)
Regarding the kinship between the families of the husband
and wife as equivalent, and rejecting the tradition of mere
paternal kinship, in which the wife's family and relatives are
treated differently.
(2)
Clearly stipulating in writing matters og property ownership
between husband and wife, taking the idea of unified
property as the property relationship between spouses and
explicitly stating that the wife has the right to freely use,
profit from, manage and dispose of her special property.
(3)
Stipulating the rights and the obligations, as well as the
exercise of parental rights, of each parent to their children
after divorce.
(4)
Clearly stating the rights and the obligations between parent
and child.
(5)
Clearly stating the maintenance rights and the obligations of
relatives.
(6)
Protecting, through guardianship, orphaned minors and
interdicted persons.

         However, the effectiveness of this law on the mainland from
1930-1949 still lacks in-depth research at present. Nevertheless, the
content of the decisions made in the mainland's Supreme Court or the
results of civil and criminal court conferences at the continued to
influence the practical situation of court decisions in Taiwan after
1949 (Chen, Hwei-syin, 1999: 14-45).


p399

Differences between Spousal Relationships of the Family
Section of the Civil Law in Taiwan since 1949 and that of
Traditional Chinese Law

         The family section of the Civil Law, which was promulgated on the
mainland in 1930, rests its basis in the principles of individuality and
gender equality as presented in continental European thought.
Formulating the section with precedence from European thought, the
family section of the Civil Law has different regulations on the social
status of husband and wife, parents and children, from traditional
Chinese laws. The following section further analyzes the part on
spousal relationships, which greatly influenced the social status of
women in traditional and modern legal regulations.

Spousal Relationships in Traditional Chinese Legal Codes as
Male-dominant Relationships

         An examination of the regulations of China from the Tang to the Qing
dynasties reveals much about the situation of martial and household
relationships in Chinese law. According to the Tang code, the
husband's status was that of a respected elder, while the wife was
considered inferior and of a younger generation.
6 The articles of the
Tang code also demonstrate clearly the notion of male dominance and
the unequal legal relationship between husband and wife.

For example, a husband's beating or killing of his wife results in
a reduced sentence, but if a wife sues, beats, or kills her husband, an


 6 In the Assaults and Accusations section of the Tang Code, the regulation "Accusing to
the Court Fifth-Degree Mourning Relatives of a Lower Generation or of the Same
Generation but Younger" explains: "Even though a wife is not a relative of a lower
generation or of the same generation but younger, it is right that she should be treated
the same as such persons."
Back to footnote6


p400

increased sentence is imposed. In the Violence and Robbery section of
the Tang code, the article "Plotting to Kill Second-Degree Mourning
Relatives of a Higher Generation or of the Same Generation but
Older" states that a woman's plotting to kill her husband or husband's
parents is punishable by decapitation. This sentence is the same as that
for plotting to kill one's own second-degree mourning relatives (elder
kin) by an ordinary person, as long as the person has motive for such
murder, there is no need to hesitate in sentencing him or her to death.

         If a wife beat her husband, her guilt was automatically
established, whether or not such a beating resulted in physical harm.
The penalty for this action was one year of penal servitude. According
to the Tang code, the normal penalty for regular assault was a mere
forty blows with a light stick, while inflicting physical injury was
punishable by sixty blows with a heavy stick. Obviously, if a wife
dared to hit her husband, the punishment imposed was several times
heavier than assaults by other people. On the other hand, if a husband
beat his wife, the penalties were reduced. If he inflicted bodily harm
on her, the punishment imposed was reduced by two degrees
compared to assault by others-only forty blows with a heavy stick.
Only when the husband's beating resulted in the wife's death was the
offense considered the same as a normal case of murder, which
resulted in decapitation. If the beating did not result in bodily harm to
the wife, then husband was innocent of the charge of assault.

         Although the Tang code was already so obviously founded on
principles of male dominance, the legal codes of Ming and Qing were
even more severe in their attitudes toward marital relationships. In the
Ming and Qing codes, Chapter 6, the Pena; code, Section 5, Litigation,
there is an article entitled "False Accusations and Slander," which
stipulates that the penalty for a wife's or concubine's lawsuit against
her husband is punishable by one hundred blows with a heavy stick


p401

and three years of penal servitude. If the husband was falsely accused,
the wife would be sentenced to death by strangulation. In "Assaults,"
Section 3 of the Penal Code, the article, "A Wife or Concubine Who
Beats Her Husband" states: "A Wife who beats her husband is
punished by one hundred blows with the heavy stick; afterwards the
husband is free to divorce his wife." If a wife dares "to intentionally
kill her husband, she is sentenced to death by torture (lingchi chusi)."

         On the other hand, the same article stipulates: "If the husband
beats his wife, resulting in no serious physical injury, there is no
offense caused. For infliction of serious bodily injury or more severe
harm, the normal punishment is reduced by two degrees; first proceed
with interrogation-if the husband and wife are willing to divorce,
rule divorce; if they are unwilling to divorce, rule redemption by
payment; husband's beating wife to death is punishable by
strangulation." The Ming and Qing codes also include a part on
homicide, in Chapter 19, Section 2, in which the article "A Husband
Who Beats a Guilty Wife or Concubine to Death" stipulates: "A
husband who takes it upon himself to kill his wife or concubine for
their beating or cursing his grandparents or parents, shall be punished
by one hundred blows with the heavy stick. If a husband beats or
curses his wife or concubine and thus causes her to commit suicide,
there is no offense."

         These regulations stated explicitly that a woman who beat her
husband was to be punished immediately and also gave the husband
grounds for divorce. Yet a man who beat his wife was only subject to
punishment if the beating resulted in serious physical injury and his
punishment was further reduced from that imposed in normal cases of
assault by two degrees. The wife, however, was given no cause to
request a divorce. It is clear that the demands men and women could
make within the institution of marriage law regulations differed


p402
greatly between the sexes (chü, 1982: 106-115).

         After these laws had been enforced for one thousand years (from
the tang dynasty to the end of the Qing dynasty), they naturally
became extremely rigid. From the compilation of the Qing legal cases,
one can see a development in cases where a wife was still held fully
accountable for death or injury caused to her husband, even if it was
accidental, and therefore, the wife had to serve out such sentences as
the law dictated for intentional homicide or injury. For instance, in a
case where a husband was beating his wife wantonly and for no reason,
and the wife resisted and caused injury to him, or in another case
where a husband was chasing his wife in order to beat her and
accidentally tripped and died, the wives were given a deferred
sentence of strangulation (to be executed after a period of penal
servitude)(Chen, Hwei-syin, 1999:242-243).7

The Spousal Relationships of the Family Section of the ROC Civil
law Emphasizing Gender Equality

         In light of the above, traditional Chinese law, nineteen years after the
establishment if the Republic of China, was confronted by a
completely new development-the family section of the Civil law
promulgated by the ROC government on the mainland in 1930. The
family section is the fourth section of the government's Civil Law,
mainly regulating the legal relationships in marriage and family.
Formally, it was fashioned after the legal models of Germany and
Switzerland. The family section of the Civil law came into effect on


 7 In this particular case, citing from the caese of Qiuyan kiyao (Jurisprudence of Ching
Dynasty), a wife, because of an argument which resulted in her husband's suicide, was
given a deferred sentence of strangulation, and was only excused from execution in the
third year of Guangxu (Xüe, 1967).
Back to footnote7


p403

May 5, 1931 and divided marital and family matters into seven
chapters.

         The first chapter, "General Provisions," mainly defined kinship.
The second chapter, "Marriage," stipulated the important requirements
and the function of marriage, the function of the identities of married
persons, property ownership of married persons, and regulations on
divorce. The third chapter, "Parents and Children," categorized into
separate parts legitimate, illegitimate, and adopted children, regulated
the protective and educational relationship of parent and child as well
as the limits of authority concerning management of property. The
fourth chapter, "Guardianship," regulated the guardianship of minors
and of interdicted persons. The fifth chapter, "Maintenance,"
stipulated the obligations of kin and household members with regard
to the responsibilities of care giving and the standards regarding
maintenance. The sixth chapter, "Household," stipulated the
relationship between parent/guardian and dependents. The seventh
chapter, "Family Council," named the members of the council and the
method of convening meetings.

         The section of the Civil Law, in terms of content is still a
traditional legal system, although in terms of form, it is a westernized
one; thus, the section fundamentally still emphasizes traditional family
values. Nevertheless, the legal content of the chapter on marriage has
already gradually introduced the idea of gender equality into the
marital relationship, while the law also emphasizes the parent's duty to
protect and educated their minor children as being the core relationship
between parent and child.8 This particular legal content of the family


 8 This regulation is of great significance in legal history. In traditional Chinese law, the
relationship between parent and child does not change even when the child reaches
adulthood. The family section of the civil code, on the other hand, only regulated the
relationship between parent and minor child.
Back to footnote8


p404

section of the Civil law, influenced by the legislative models of
Germany and Switzerland, has already begun to move in the direction
of gender equality. For example, the first chapter, "General
Provisions," no longer divides kin into the categories of paternal
relatives, maternal relatives, and the wife's relatives. Instead, the
family section states that kinship is not differentiated by sex (between
husband and wife), but only between blood-relatives and
in-laws. Additionally, it provides a wife with the possibility of
obtaining property in its property ownership system, and offers a
husband or a wife the same possibility of obtaining a divorce
(National History Bureau, 1994: 393-417).

         Of course, it cannot e denied that several regulations that are
unfair to women still exist in the family section of the 1930 Civil Law,
such as the one which privileges the husband regarding the rights and
the obligations of protecting and educating children (old Article 1089
of the Civil Law), or another regulation which stipulates the husband's
right to manage the shared property of a married couple. In this case,
the husband has the right to use and receive profits from property that
originally belong to his wife, however the wife does not have
reciprocal rights over the husband's property (Article 1019 of the Civil
Law).

Marriage-Related Law in Taiwan in the Last Two Decades

         After the family section of the Civil Law came into effect in Taiwan,
over nearly forty years it faced great social and economic changes as
well as the real presence of the idea of gender equality gradually
emerging in society. Traditional Chinese concepts deeply rooted in the


p405

Civil Law were challenged, a phenomenon which caused the Family
section to undergo revisions five times between 1996 and 2002. Each
revision represented a clash and reconciliation between traditional and
modern regulations. Confronted by the conflicts between traditional
and modern values embodied in the law, legislators and judges in
Taiwan in the last decade have not only made positive changes to the
Family section but have also passed other legislation, such as the
Domestic Violence Prevention Law of June 24, 1998, or have
interpreted the law on order to fulfill the goals of human and gender
equality, as intended by Taiwan's Constitution. We can say that in the
early 1990s, Taiwan's legislators, judges, and legal scholars began an
attempt to adjust, through their legal professions, marital relationships
between men and women from male dominance, in the traditional
moral order, to gender equality.

         In reality, western countries have also experienced enormous
changes concerning marriage and family legislation in the past century.
For example, Germany legislators during the latter half of the century
have made great changes to the portions most commonly used in the
family section of German Civil Law, due to the transformations in
moral attitudes and economics in the lives of the German people.
Therefore, in the new Germen Family Law, important sections are
comprised of the principles of gender equality and the protection of
the rights and the interests of children (Coing, 1987:113-121;
Kirchmeier, Mühlens, Knittel, and Greßmann, 1999).

         Concurrently, what concerns legal scholars in Taiwan today is
how they will work through legislation and interpretation of
the law in order to make the family section of the Civil Law conform
with the intention of the Constitution, which is the goal of real
equality of the sexes. What follows is an explanation of the most
important changes.


p406

Changes in the Family Section of the Civil Law

         Around 1970, because of the transformation in Taiwan's position in
the international arena, social structure, economic development, and
public attitudes, the Ministry of Justice recommended and initiated
amendments to the law. After 244 amendment meetings, a draft of the
amended family section was finally put forward in 1982 and passed on
June 3, 1985 (National History Bureau, 1994). The goal of the
suggested revisions of the draft was to protect intrinsic moral concepts,
fulfill the principle of gender equality, amend the system of property
ownership between husband and wife, and strengthen the protection of
the rights and the interests of minors, illegitimate children, and
adopted children. However, because these changes could not
completely eliminate traditional Chinese patriarchal concepts, this
revision was unable to realize the notion of equality between the sexes
or to guarantee the benefits due to children. Thus, this revision did not
actually amend many of the regulations that conflicted with the
principle of gender equality in the family section of the Civil Law.
9

         We can also see from the actual decisions being made in the
courts that traditional moral notions about men and women, husbands
and wives, are still influencing the lives and attitudes of people every
day, and thus, the equality sought by the law has not been achieved.
Evidence of this can be seen in the actual decisions made in court,
such as the following divorce case in which the judge believed:

         Although, during the time when plaintiff and the accused were
living together, the accused beat the plaintiff on two occasions, the
first in January 19XX, the second on May XX of the same year, the
two incidents did not occur closely in terms of time, moreover, the


 9 This can be seen from the fact that the old regulation of Article 1089, the so-called
'father's priority,' was not revised, and from to current regulation of Article 1018,
stating that unified property is to be managed by the husband.
Back to footnote9


p407

Second incident was caused by the plaintiff's negligence of preparing
milk for the infant to drink. As there was a reason for the occurrence,
the accused did not intentionally beat the plaintiff
(Chen, Hwei-syin,
1999:252).10

         In yet another case, the judge decided:

         As the injuries sustained by the plaintiff consist of contusions in
upper and lower lips and a bruised right knee, which are minor
injuries, it is difficult to determine whether the cause of such injuries
was an intentional beating by the accused allegedly occurring on
X/X/XX; therefore, it is he opinion of this court that there has been
no intentional physical abuse resulting from their cohabitation, and
thus the request for divorce is refused.
11

         On May 28, 1992, the second Amendment of the Constitution
added an Additional Article 18, Section 3: "The State promote
dignity of women, safeguard their personal safety, eliminate sexual
discrimination, and further substantiate gender equality."12 In July
1994, Jiang Qiu-rong and Zhang Pei-jun, with the assistance of non-
governmental women's organizations, called for a re-evaluation of the
constitutionality of Article 1089 of the Civil Law by the Council of
Grand Justices; this article was cited in the decisions of their cases
(Tai shang zi Decision No. 428 in 1994 and Tai shang zi Decision No.
817 in 1989). At the same time, 147 members of the Legislative Yuan
demanded, through the Judicial Yuan's Grand Justice Trial Law, an
investigation by the Council of Grand Justices into the
constitutionality of Article 1089 of the 1930 civil law, part of which


 10Kaohsiung District Court Civil Decision No. 107, 1990.Back to footnote10

 11 Hsinzhu District Court Duhunzi Dcision No. 450, 1990. The beating of wives by
their husbands was continually unchecked until the Domestic Violence Prevention
Law was passed on June 24, 1998, prohibiting such acts.
Back to footnote11

 12 This article is now Additional Article 10, Section 6.Back to footnote12


p408

states that, "if the vies of the parents on the exercise of rights over
their minor children differ, the father's view prevails." Finally, in
September 23, 1994, the Grand Justices, in Grand Justice
Interpretation No. 365, declared:

         The section [of Article 1089 of the Civil Law] stating that the
father's view prevails when the views of the parents on the exercise
of rights over their minor children differ, is inconsistent with the
intention of Article 7 of the Constitution-that people, regardless of
sex, are equal before the law-and the Constitutional Amendment to
Article 9, Section 5-that the State shall eliminate sexual
discrimination. Therefore, this section should be examined and
amended, and shall lose effect after two years from the date on
which this Interpretation is declared.

         From this point on, the work of amending the family section of
the Civil Law began to be realized. At present, the Legislative Yuan
has already completed four revisions of the family section. The first
revision, on September 25, 1996, concerned the regulations on the
exercise of parental rights over minor children, and child support and
custody over minor children by divorced parents. Now, according to
the law, what provides the child with the greatest benefit is the
standard for such consideration, rather than giving priority to the
father.13 In the revised Article 1055-1055.2 and 1089, the Civil Law
affirms the "Best Interests of the Child Standard" emphasizes by
regulations on the welfare of children. Article 1055, Section 1 and 2
stipulate:

         Regarding the responsibilities or exercise of child support and


 13 Revisions include: amendment of civil code, Articles 1055 and 1089, deletion of
Article 1251, and addition of Article 999.1, 1055.2, 1069.1, and 1116.2.
Back to footnote13


p409

custody over minor children of divorced parents, the divorced
parents shall reach an agreement as to whether one or both of them
shall carry out such responsibilities. For those who do not reach an
agreement, the court shall decide which parent shall be responsible,
through consultation with concerned organizations, social welfare
organizations, or other interested parties, or through the court's
authority. For those whose above agreements are not in the best
interests of the children, the court shall correct such agreement
through consultation with responsible organizations, social welfare
organizations, or other interested parties, or through its own
authority; to ensure the greatest benefit for the children.

         In addition, Article 1089, Section 2 now stipulates: "When the
views of the parents on the exercise of rights over their minor children
differ, the court shall be consulted and shall settle disputes in the best
interest of the children." Such revisions have legally guaranteed the
rights of the obligations of women, whether married or divorced, to
child support and custody, as those for male spouses, rejecting the
priority offered to male spouses (fathers) previously by the old
regulations of the Civil Law.

         The second recent revision of the family section, on June 17,
1988, consisted of: (1) adjusting the restrictions on marriage of close
kin (Article 983); (2) deleting the restric6ions on woman's marring
during a marriage-waiting period, and also on a woman's marrying a
lover from an adulterous affair which was the cause of a previous
divorce judgment (deleting Articles 986, 987, 993, and 994); (3)
revising regulations on spouses taking surnames, adding regulations
for spouses returning to original surnames after having changed them;
(4) revising regulations on the residence of a husband and wife. Now
Article 1002 of the Civil Law on longer stipulates that the wife's
residence is necessarily that of the husband's, but rather a husband


p410

and wife's domicile is that which is agreed upon by them.

         The third revision, on April 21, 1999, amended the wording of
Article 1067 in correspondence with the criminal code's additional
regulation on rape. The fourth revision took place on January 19, 2000,
and amended regulations on choosing a legal guardian of a minor.14
Among the proposed revisions of the family section of the Civil Law
under consideration by the ROC's Legislative Yuan for the future are
revisions of regulations concerning property ownership after marriage
and regulations on divorce. Revision of Taiwan's laws on gender
equality will continue on into the future. Regardless of how they will
be revised or how they will be implemented, the principles of equal
legal positions of husband and wife are already matters of great
concern in the revision at present. Such revision will only cease after a
large majority of society is satisfied with the status of gender equality
in the law.

Promulgation of the Domestic Violence Prevention Law on June
24, 1998

         The promulgation f the Domestic Violence Prevention Law in 1998
caused great change in an area of Taiwanese law that previously
acquiesced to the existence of domestic violence. This legislation
altered the attitudes of many people who had previously believed in
the non-criminality of domestic violence, by checking the worsening
situation of domestic violence. At present, women benefit most from
this law. Article 2, Section 1 of the Domestic Violence Prevention Law


 14 Through the revision of this regulation, the status of each parent's kinship in the
guardianship of children is the same. This regulation was revised mainly to ensure
more complete protection of children orphaned during the earthquake on September
21, 1999 in Taiwan.
Back to footnote14


p411

states: "The so-called Abuser mentioned in this Law is any Family
Member who behaves in an unlawful way and is physically or
emotionally abusive towards other Family Member." Article 3
stipulates: "The so-called Family Member mentioned in this Law can
be any of the following, including their minor children: (1) spouse or
ex-spouse, (2) current or former husband or wife, parent or guardian,
or their dependents, (3) current or previous next of kin, related by
blood or marriage, (4) current or previous relatives within four
degrees of kinship, related by blood or marriage."

         The Domestic Violence Prevention Law has had the effect of
checking the situation of domestic violence in Taiwan. In this law, we
can see that the nation has been working positively through its police
forces and its courts to prevent domestic violence. Apart from the fact
that police forces can step in immediately and stop domestic violence
from occurring, more importantly, it enforces the provisions of
restraining orders and the practice of criminal procedures to lawful
punish those who are guilty of domestic violence.

         When the court issues a restraining order, as indicated in Articles
13 and 14, Section 2, it should keep the following important issues in
mind:

(1)
Article 13, Section 4 orders the abuser to stay away from 'the
home, school, workplace, or other designated places
frequented by he victim or other designated family
members.' At present, however, it is not clear how judges are
to decide on the actual distance to be kept by the abuser from
these places.
(2)
Section 3 and 5 prohibit the abuser from disposing of or
loaning out real estate or other property, such as automobiles
or other necessities for use at work, school, or in everyday


p412

life, which the abuser is ordered to hand over to the victim.
This regulation limits the rights of the abuser, and is thus a
special regulation in property law, but in practice, whether
this will run into difficulties is yet to be observed.
(3)
Regarding the aim of rehabilitating abusers stated in Section
9, currently all related professionals lacks the training and
qualifications to allow this goal to be achieved.
(4)
Article 15, Section 1, concerning the issue of temporary
restraining orders, stipulates: "Once a police officers has
established the fact of domestic violence by going to the
household or receiving a statement over the phone, and there
is sufficient reason to suspect that the victim is in grave
danger, except for those cases which have reasonable cause, a
written temporary restraining order should be issued within
four hours…" The problem here is, in actual cases, it is not
clear by what standards police officers should judge whether
the victim is in grave danger, and there have been cases in
which abusers have killed victims of domestic violence
immediately after police officers left the sites of the incident
of domestic violence. How to let frontline police officers
know about the criteria to judge these situations should be the
work of Domestic Violence Prevention Centers.

         Despite the flaws of the Domestic Violence Prevention Law,
from 1998 (or following the important regulations of June 24, 1999)
up to today, it has exerted great influence on Taiwanese society. It has
facilitated the establishment of Domestic Violence Prevention Centers
by the central government in Taipei and Kaohsiung and also by
twenty-one other local governments. It has, on the one hand, allowed
the nation's law enforcement (particularly the police and the courts) to


p413

intervene in and prevent domestic violence, and, on the other hand,
allowed frequent victims of domestic violence to seek varied forms of
assistance through Domestic Violence Prevention Centers.15

Conclusion: The Solution to Problems in Replacement of
the Old Regulations by the New Ones-Respect and
Equality

         In the last decades, through changes to the family section of the
Civil Law and the promulgation of the Domestic Violence Prevention
Law, power relationships of men and women in marriage in Taiwan
have undergone several changes, which have also influenced the
position of women in the household and in society at large. The
current legal system has basically sought equality between men and
women both in the household and in society. This could be
demonstrated by the promulgation of the Gender Equality in
Employment Law in 2001, the promulgation of the Prevention of
Sexual Assault Law in 1997, and the Ministry of Education's
promotion of the draft of the Gender Equality in Education Law since
2001. The objectives of these laws contradict traditional social
relationships of male dominance-men as respected elders and
women as servile inferiors, with men responsible for outside matters
and women for those within the household, and the traditional
exclusion of the latter from public affairs.

         Of course, in actuality, we can see that the law and its regulations
alone cannot change the attitudes of society; so, other changes in the


 15 Domestic Violence Prevention Law, Article 8. Back to footnote15


p414

society, such as social, economic, and culture changes in social
concepts, are necessary for gradual and total transformation of social
and familial relations between men and women. From a historical
point of view, traditional moral notions relating to husband-wife and
parent child relationships were actually transmitted through law and
education. Therefore, when the law has conflicting aims and if the
content of education cannot change along with the law, then traditional
notions will continue to be reinforced by the educational systems and
become an obstacle to the effectiveness of the law.

         In order to realize the principle of gender equality, provided by
the law, we must promote this particular spirit within the educational
system as well. Only when the majority of society fully recognizes
and identifies the goal of gender equality, stressed by the current law,
can a new relationship of mutual respect and mutual caring between
men and women be forged.

Questions

  1. What has the legal status of women been under different
    government administrations in Taiwan?
  2. What are the new provisions, promulgated over the past twenty
    years, that affect women's legal status in Taiwan?

Bibliography