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Executive Yuan Responses After the Referenda

2018.12.03

On November 24, Taiwanese citizen decided the island’s future by casting vote on the local election and 10 referenda, where seven of them reached the threshold of having a quarter of electorate support and the consent votes exceeded the different votes. This is the first time in Taiwan’s history that the referendum passed.

In short, the three propositions regarding Fukushima food ban, anti-coal and fire power plant, anti-air pollution proposed by KMT as well as the defining marriage as between a man and a woman under Civil Code, using means other than the Civil Code to protect gay marriage, and removing same-sex education from the junior high and elementary school curriculum propositions proposed by Alliance for Next Generation's Happiness passed the referendum. The Legislator Yuan’s policy deems to obey the result of these six referenda and enact or amend the law within two years.

On the other hand, the “abandon 2025 anti-nuclear policy” plebiscite has a direct effect on the law, meaning that Article 95-1 of The Electricity Act will be abolished automatically three days after CEC announced the result of the referendum. Yet the spokeswoman of Executive Yuan, Kolas Yotaka, stressed that the main text of the referendum only mentioned the abolition of Article 95-1; even after the votes on the ballot question passed, its validity does not force the government to postpone the decommissioning of nuclear power plant. As a matter of fact, the DPP government said they will continue to promote the policy of 2025 nuclear-free homeland.

As for the proposition 13, 14, 15 rejected by the voters on the island, namely, protecting same-sex couples receive marriage rights through Taiwan’s civil code, implementing the Gender Equality Education Act and competing in international sports as "Taiwan", the similar propositions could not be issued within two years. The draft bill on having law other than changing of the Civil Code to protect the rights of same-sex couples in co-habitation on a permanent basis shall be completed by Executive Yuan within three months, yet whether the lawmakers would accept it or even come up with another version remain unknown. As the Judicial Yuan stressed that the spirit of constitution elaborate on J.Y. Interpretation No. 748 must not be contradicted by the outcome of the forthcoming regulation, the LGBT supporters do not lose hope on having the right protected by separate regulations and they will continue to fight for marriage equality.

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Resident Doctors will be Subject to Labor Standard Act Next September

2018.12.03

Owing to the quality and quantity of medical services matters to the lives and health of the general public, medical doctors were not considered as ordinary labor due to their multi-characteristics and independence previously. Nevertheless, in order to improve the working conditions of doctors and ensure the safety of patients and the rights of people to seek medical care, the Ministry of Labor, in consultation with the Ministry of Health and Welfare, announced on November 30 that resident doctors will be subject to the Labor Standard Act on September next year, where doctors’ working hours will be regulated by Article 84 of the Act. In the meantime, the two ministries also plan to add issues related to Labor Standard Act, such as labor contracts, occupational disasters, retirement protection into the country’s Medical Act as the new amendments in a gradual manner to stabilize the operation of the medical system and ease up the impact on medical treatment during the reform.

According to the Ministry of Health and Welfare, the policy direction regarding the regulating employed doctors under the Labor Standard Act remains unchanged. Yet due to limited flexibility of the labor law for the special type of medical care and the comprehensive application of the labor law may threaten the relationship between doctors and patients, patient safety as well as the partiality Medical services, only resident doctors, who are undergoing training and limited in their autonomy and selectivity, are regulated by the Labor Standard Act next year. That is to say, resident doctors in private hospitals only, around 4 thousand out of a sum of 40 thousand doctors, on the island will benefit from the new policy. In line with the implementation of the applicable labor law, the ministry already completed the sample of employment contract for resident doctor and medical institutions, and clearly stated that the clauses shall be written; including training and workplace time, vacation, wages, occupational disaster rights, social insurance and benefits, assessment and reward and punishment, etc.

As for attending physicians, because of the high autonomy and diverse working styles, it is complicated to recognize the working hours. Dissent opinions constantly remain after dozens of meetings. In fear of having negative impact on traditional medical relationship which based on responsibility system, the frequency of handovers, the continuity of care, the limitation of clinical time and willingness of doctors to teach as well as raising medical disputes, the government decided to exclude attending physicians before clarifying doubts and come up to supporting measures. The Ministry of Health and Welfare has emphasized that it has actively studied the revision of the medical law and hold several meeting. It is planned to submit the draft to the Legislative Yuan for approval in the first half of 2019.

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Listed and OTC Companies Obliged to Set up Independent Directors and Audit Committees before 2022

2018.11.26

In order to strengthen corporate governance, the Financial Supervisory Commission (FSC) planned to expand the establishment of independent directors and audit committees. All listed companies and over-the-counter companies shall gradually complete the process of establishing audit committees and independent directors by 2022.

To be in line with international standard, FSC invited scholars and experts to plan a new blueprint for corporate governance in the next three years (2018-2020). The hearing, held on March 27 and April 24, revealed relevant measures to reach the goal of making the directors functioning effectively.  Among them, setting up independent directors and audit committees for all listed and OTC companies were believed to play a crucial role. The FSC issued a notice of the rule on October 27 this year. After the public notice period ended on November 9, a new administrative rule will be published in due course.

The FSC would promote the establishment of independent directors and audit committees in a step-by-step manner. From 2017 to 2019, financial holding companies, banks, ticket finance companies, insurance companies, securities investment trusts, integrated securities firms, and listed companies that have publicly issued shares are required to designate independent directors when the term of their current directors and supervisors expire. For those companies with a paid-in capital above NTD$10 billion, shall set up an audit committee to replace the supervisors before 2019. Companies with paid-in capital between 2 to 10 billion NTD shall complete the establishment before 2022.

On the other hand, the Ministry of Transportation also published an administrative rule on November 23, for airlines with a paid-up capital of more than 2 billion, at least one public welfare independent director must be set up in accordance with the new Civil Aviation Act Article 49-1, to promote the social responsibility of national airlines to safeguard flight safety and protect consumer rights. Those who violate the regulations could be fined up to NTD$3 million at or even forced to be suspended.

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CIP: Legal Aid for Indigenous People is Collective Right and will not Crowd Out Resources for Underprivileged

2018.11.26

A month ago, the spokeswoman of Executive Yuan, Kolas Yotaka, applied for legal aid to sue another lawyer in Legal Aid Foundation for offenses against reputation and this incident raised a controversy. In response to a request by several legislators to re-exanimate that the review of eligible aboriginal legal aid currently lack wealth constraint, the Council of Indigenous People (CIP) under Executive Yuan met up with Judicial Yuan and the Legal Aid Foundation to review the in-house practice of legal aid for aborigines on the 22nd of November. After the meeting, the CIP pointed out, "It is Indigenous people’s ethnic rights to accepting legal support and it will not crowd out the underprivileged people’s legal aid resources."

As CIP stated, based on the spirit of the Constitutional Amendments to protect the collective rights of the aboriginal people, the Council started to promote aboriginal legal aid measures since 2002. The applicant’s income has never taken into consideration, especially when Article 30 of The Indigenous Peoples Basic Law enacted in 2005, Article 31 of The Code of Criminal Procedure amended in 2013 and Article 5 of Legal Aid Act amended in 2015 all stipulated that aborigines have a cultural disadvantage in face of the judicial process. Consequently, the legal assistance practice for indigenous people is necessary to bridge the gap between the litigation system and the aboriginal culture. All participating agencies agree that the aborigines could accept legal support as their indigenous rights.

The CIP emphasized that it had confirmed with the Legal Aid Foundation that while the found of legal aid for the underprivileged has been taken from Juridical Yuan budget for the legal aid lawyer fee, the indigenous people who have not reached the income criteria of accepting general legal aid used the special budget from the Council of Indigenous People. Therefore, the legal resources that the poor entitled to have never been affected or crowded out.

"Indigenous people's rights are essentially collective rights, but the public easily misunderstood as personal welfare.”  Iwan Nawi, deputy chairman of CIP said, “After discussion with the Juridical Yuan and Legal Aid Foundation, we not only figured out the concept of the system but also make sure it will not influence the use of legal aid resources by people in need. Hence, we decided to maintain the current mode of cooperating and promoting legal aid. In the future, the effectiveness of legal aid will be reviewed collectively on the case by case basis to ensure the indigenous rights is fully protected.”

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A Milestone: Bill to Resolve Labor Disputes Passes Third Reading

2018.11.19

On the 9th of November, the Legislative Yuan approves a bill which enables efficient and labor-friendly settlement of labor disputes on third reading. This so-call“Labor Dispute Act”(勞動事件法) consisted of 53 articles in five chapters, which are the chapter of the general principles, labor mediation procedures, litigation procedures, preservation procedures, and supplementary regulations. Generally speaking, there are seven key points of the new Act.

1.Specialized trial system

Courts at all level shall set up special labor courts in order to deal with labor disputes.Expanding the scope of labor disputes

2.Expanding the scope of labor disputes

The bill defines labor disputes as disputes over rights and obligations based on labor laws, mutual agreements, working regulation, labor-management resolutions, labor contracts, labor customs, and other labor relations. In addition, conflicts between trade unions and its members, as well as disputes between students and business within the cooperative education framework are also subject to the new Labor Dispute Act.

3.The composition of the Labor Mediation Committee and special mediation procedures

The court shall employ experts with professional knowledge or experience in labor affair or the relationship between labor and management as the members of labor mediation committee. The labor mediation shall consist of a judge of the labor court and two labor mediation committee members.

4.Reducing litigation barriers for labors

In general, workers are unable to seek judicial relief because of their economic disadvantages and they are unable to afford litigation costs. The Act provides for a temporary exemption for labor and trade unions from two-thirds of court costs for litigations determining the employment relationship or requesting wages, pensions or severance fees. By lowering the threshold of the prosecution to a reasonable level, it could not only protect the litigation rights and interests but prevent the risk of abuse. Furthermore, considering that the employees may not be able to afford execution fee after the winning the lawsuit, the provision also stipulates that the under the circumstances where the target amount of execution exceeds NT$200,000, the employee would benefit from temporarily exempted of execution fee as well.

5.Accelerating judicial procedures

Generally, for labor court, the oral argument shall be held no more than a day; the first trial shall be concluded within six months. Yet some cases could be excluded from this provision due to the complexity of the case or the necessity of the trial.

6.Strengthening the function of dispute resolution

The Act also regulated that the mediation and trial procedures shall be carried out by the same judge, which can prevent the parties from repeating the statements and continue the proceedings on the basis of the labor mediation process.

7.Immediate and effective preservation for labor rights

Through the court mediation, trial procedures, and the obligation to explicit when applying preservation procedures, it hopes to reduce the litigation impact on the livelihood of the workers. Couple with this, under the new Act, the employer bears the burden of proof on the relevant documents.

In summary, the new Act is considered as the most tangible legal reform and a significant milestone of labor right on the island, as it would bring judicial justice closer to workers in future labor-management disputes. Ministry of Labor and Judicial Yuan are speeding up the administrative rules making process and prepare for the implementation. The Labor Dispute Act is estimated to take effect next year.

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First Court Hearing Held in Youtuber AmoGood Charged with Copyright Infringement

2018.11.19

The best-known Taiwanese youtuber, AmoGood(谷阿莫), is facing a lawsuit initiated by Walt Disney Company, Deltamac (Taiwan) Co., Autoai Design Co., KKTV Co., and Garage Play on the ground that AmoGood’s act of putting together the fragments of original movies as short clips constitute the violation of copyright law and he is therefore prosecuted by the public prosecutor. Taipei District held the first hearing on November 16, where AmoGood defended himself and expressed his disapproval of being sued.

AmoGood’s “Watching a Movie within X Minutes ” series are parodies of humorously summaries and comments on the movie’s plot and with hash-speaking voiceover. While the filmmakers condemn him of gaining profits from the clips,  the internet celebrity emphasized that it is a misunderstanding. In fact,  he was commenting on movies and educating other people who can't understand the connotation of the films.  It is neither for earning the profit, nor having interest transaction with YouTube. Meanwhile, AmoGood’s appointed attorney,  Jian, said that if the complainants did not fully obtain the right of adaptation or exclusive right of public transmission, the complaint might be illegal.

The judge asked the filmmakers and AmoGood whether they intended to reach compromise and settlement. Jian asserted that they would not rule out any means to resolve the dispute as soon as possible. However, it depends on the complainants’ conditions and what kind of obligations they expected the defendant to perform. Four filmmakers and their lawyers, who present in the court today, said that they are willing to mediate or do not exclude the option of entering mediation.

The famous youtuber made a self-produced film on the upon being prosecuted and responded on Facebook, arguing that his film is in line with the principle of fair use of online copyright, but he would respect the judge’s judgment in the end. He stressed that it islegal to quoted works that have been publicly released where necessary for reports, comment, teaching, research, or other legitimate purposes within a reasonable scope under Article 52 of Taiwan’s Copyright Act.

Nevertheless, the filmmakers who filed the complaint presented the "screen-by-screen analysis table" as evidence to prove to the prosecutor that AmoGood infringed the copyright. After the investigation of Taipei District Prosecutors Office, the youtuber was suspected of illegally adapting the movies and gaining commercial interest, and allegedly violated Article 92 of copyright law and was prosecuted in June this year as a consequence.

The audio-visual platform company KKTV stated that they respect intellectual property rights and striving to defend the original films. All litigation shall be handled by the judiciary and they would respect the final outcome decided by the judicial departments.

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J.Y interpretation No. 768:Consistutional to Dismiss Doctors with Dual Nationality from Government Hospital

2018.11.03

In 1979,  Mr. Jin-liang Liu had been hired by Taipei City Hospital Yangming Branch as a Medical Doctor and permitted to work as a Licensed Medical Personnel holding a public servant position later on. However, in 2012, the Department of Health of Taipei City Government discovered that Mr.Liu possesses Canadian nationality and therefore dismissed him under Article 28, paragraph 2 of Civil Service Employment Act, that said, “ Person who has condition below are not permitted to be in civil service: 2. Person who has both R.O.C and foreign nationality”.

Mr. Liu proposed a petition for constitutional interpretation after the lawful remedies for infringement of the right to work given by the Constitution have been exhausted. In his opinion, the Civil Service Employment Act that exclude dual nationality people from serving in public sector violated not only from the principle of clarity and definiteness of law but from the right of equality, granted by Article 7 of the Constitutions as well, since Article 7 declared that all citizens of the Republic of China, irrespective of sex, religion, race, class, or party affiliation, shall be equal before the law.

The Grand Justices of the Constitutional Court adjudged the petition and uninformed interpretation of statute on October 5, stating that the disputed regulation contradict neither to the principle of clarity and definiteness of law nor to the right of equality under J.Y interpretation No. 768.

First of all, with regard to the principle of clarity and definiteness of law, it is not difficult to understand from the legislative purposes, the literal meaning of the article itself and the current systematic interpretation. Whether the facts of the case is subject to the law and are foreseen by the regulated people can be confirmed by the court ruling; there is no violation of the principle of legal clarity. As a result, the dual citizenship physician is subject to the regulation. That is to say, the employment of Medical service shall be regulated by the Civil Service Employment Act unless, under certain circumstances, the other laws and regulations can be applied.

Second, the principle of equality prescribed by Article 7 of the Constitution does not mean a formal equality in an absolute and mechanical sense. Rather, it aims to guarantee the substantive equality of the people in the sense of equal protection under the law. The legislative body, based on the value system of the Constitution and the purpose of enactment, could consider the differences between the addressed subject areas and reasonably treat them differently. In this petition, the disputed fundamental right is the right to hold public offices. The state has a larger discretion on whether and which sector to hire foreigners as civil servants. Since the classification of occupations does not involve in the suspicious classification of equality review, it shall be applied to a rather lenient standard for constitutional interpretation.

Third, although the applicant of the petition was a doctor from the public hospital, the Constitution court believed it is more appropriate to interpret this case with the right to public service instead of the right to work, as doctors working in a government hospital shall be generally considered as civil servants.

Article 18 of the Constitution, the basis of  Civil Servant Employment Act,  regulated that the people shall have the right of taking public examinations and of holding public offices. Considering that trust and loyalty play a crucial role in civil servant working for the country, it is legitimate that the government showed less flexibility when it comes to the employment of civil servant. If the indirect restriction on the right of holding public offices aims to pursue important public interests and the applied method is substantively related to achieving the objective, it is not contradictory to the principle of proportionality.

In conclusion, ensuring the sense of loyalty and trust between public servants and the state is a legitimate goal. Dismissing civil servants of foreign nationality is considered as an appropriate method to protect the state interest, as it is difficult to adjudicate that the applied method does not have a reasonable relationship with the objective.  Thus, the execution of dismissing doctor who owns foreign citizenship from public servant position is constitutional. Article 28 of paragraph 1 and paragraph 2 of the Civil Servant Act is in compliance with Article 7 and Article 18 of the Constitution that reinforce the right to equality and the right to public service.

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New Rule Benefits 600,000 First-time Voters Take a Leave for Referendum

2018.11.03

Taiwanese citizens are to vote at ten referenda and the so-call nine-in-one elections on November 24. Since a major change was made last December, Taiwan voting age for referendums has been lowered to 18; over 600,000 first-time voters are eligible to take part in the referendum this year. However, it brings out an issue. With the original regulation, workers aged from 18 to 20-year-old are not permitted to take a leave since they are not granted for the right to vote for general election. As a consequence, the Minister of the Labor (MOL), Ming-Chun Hsu, stated that a new administrative rule will soon be published to enable first-time voters in privilege of taking a leave on the election day on October 22.

In response to the interpellation in the legislative, Hsu claimed that the Executive Yuan had already issued an administrative rule, stated that official leaves can be taken when it comes to referenda. MOL have been working on the administrative procedure to implement the policy by appointing the referendum day as the national holiday. The official statement will be released along with Central Election Commission’s announcement.

On the basis of the original Labor Standard Act Article 37, workers, who are qualified as voters, shall be granted a paid leave on the voting day. If employers incline to have their employees staying in their job position, a request has to be done in advance alongside with wages paid at double regular rate. However, the referendum was not considered as election in the Labor Standard Act previously, which causes to some of the workers, who aren’t voters of the local election but has the rights to vote for the referendum, cannot be in the privilege of taking a leave.

According to Qianyu Xie, the chief of the Department of Labor Standards and Equal Employment, the difficulties of setting up a new regulation for the leave on election day lies in the fact that the voting right does not necessarily apply to all workers. Only certain workers, who are qualified as voters, can be in the privilege of taking a leave. Those who are excluded from the voting right, such as Foreigner workers, part-time workers, are not qualified to take a leave or to get double-paid. Thus, the original regulation for National holidays or General holidays isn’t applicable in this case.

Xie further explained that, under the new administrative rule, if it happens to be a regular leave or holiday on the election day, there won’t be another compensatory leave; whereas workers can ask for a paid leave on the workday, or ask for a few hours leave of absence from work, and return at the post after voting. In this condition, the employer cannot disapprove of the leave or he must granted a double payment.

Thus, the MOL stressed that it is important for the management to inquire the employee whether he is willing to work on November 24 in advance. If a employer declines to grant the leave or pay for double wage, the violation of the law will result in a fine of NTD$20,000 to 200,000 as well as the pay-off for the employees.

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Eight Referenda May be Held Along with November Local Election

2018.08.31

Taiwan’s Referendum laws were changed last December, lowering the necessary signatures from the first benchmark stage from 0.1% of the electorate to 0.01%(1,879 people); for the second benchmark stage from 5% of the electorate to 1.5%(281,745 people); and the number of voters needed to vote in favor of a referendum proposal from 50% to 25%(4,695,748 people). On top of that, the new law includes the provision that Taiwanese citizens that have reached the age of 18 have the right to vote and the Referendum Review Commission, which used to give Cabinet-appointed commissioners the power to block topics they did not think were worthy of a referendum, was abolished.

Since the revised Referendum Act has taken effect on this January, dozens of progressive citizen groups have viewed plebiscites as a means of outgunning the conservative political opponents with superior resources. According to Central Election Commission(CEC), 18 proposals, which aims to be held to coincide with the local election in November were in the second stage. Eight proposals claimed to have surpassed the second threshold and were sent to the CEC this week.

Among them, the most eye-catching and dividing issue is about the gay marriage. The Grand Justices of the Constitutional Court ruled in May 2017 that preventing same-sex marriage was unconstitutional and gave a two-year deadline for its legalization, which would make the island the first place in Asia to do so. However, little progress has been made since then. The main opposing campaigner, Alliance for Next Generation's Happiness, submitted three petitions, namely, defining marriage as between a man and a woman under Article 972 of Civil Code, using means other than the Civil Code to protect the rights of two same-gender people to build a permanent life together, and removing same-sex education from the junior high and elementary school curriculum.

In response, the supporters of gay-marriage also issue a referendum against the conservative people, asking the public to vote to enshrine same-sex marriage in the Civil Code, which had reportedly collected around 330 thousand signatures.

On the other hand, the main opposing party Kuomintang (KMT) initiated another three referenda, the first of which is against the construction of Shenao Coal-fired Power Plant; while the second is banning Fukushima food import and the third is opposing the changes in air pollution act. The party asserted that they have gained a total of 1.45 million signatures for the three petitions.

The last referendum, scheduled to be sent to the CEC by 2nd of September, is purposed by the Olympic-medalist, Ji Zheng, to scrap “Chinese Taipei” for “Team Taiwan” on the 2020 Tokyo Olympics and it has succeeded in collecting more than 400,000 signatures. Nevertheless, there are still plenty of hurdles in the way of “Team Taiwan” joining the Tokyo 2020 Olympics, which include the Chinese Taipei Olympic Committee, International Olympic Committee and of course, the PRC Government. As a matter of fact, the Beijing's abrupt decision to cancel the 2019 East Asian Youth Games in Taichung and the ICO’s acceptation thereafter have unfortunately well proven the PRC’s dismay on the issue.

Consequently, millions of signatures for these referenda were gathered in CEC recently. As the Commission cannot examine the authenticity at once, only KMT’s referendum for anti-air pollution was accepted by August 30. While the Alliance for Next Generation and KMT claimed that certain political force interfered the process which results in temporary rejection, the CEC found 1% of signature from the deceased during the review process, and numerous signature are in the same handwriting, which would be sent to the prosecutor’s office for further investigation on whether these suspicious signatures constitute the offense of forging public document, a crime that could be sentenced for one to seven years imprisonment under Article 211 of Criminal Code of the Republic of China.

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Labor-management Meeting Records Required for Company Listing From 2019

2018.08.31

The Ministry of Labor(MOL) and the Financial Supervision Commission(FSC) has reached consensus on a labor right implementation reform. From January 1, 2018, the companies applying to listed on the centralized trading floor or over the counter trading places must first submit the records of labor-management meetings to Ministry of Labor. The MOL’s recipient of such records will become a compulsory document for official listing review.

Considering public concern on whether the corporations actually hold the labor-management meetings in accordance with the amendment to the Labor Standards Act, the government constantly counseling, assistance and supervision on companies in order to be in complaisance with the regulation. For instance, the MOL set a labor-management meeting record as a requirement for the company applying for the foreign worker permit. Along with the local government, the central authority also promote and train organizations to hold the labor-management meetings. Moreover, the Ministry has cooperated with Taiwan Stock Exchange(TWSE) and Taipei Exchange(TPEx) for reviewing listing and OTC company applications over a long period of time. Believing that public issued company shall bear more social responsibility, MOL had discussed with FSC, TWSE, and TPEx to amend the related regulation, which promulgated that, instead of examining the company’s labor-management committee register, the new measure requires company to first send the labor-management meeting record (including the prior notice of the meeting and attending the sign-up) and the current representative list of the labor-management meeting (including the reference letter) to the MOL, and subsequently, the company will obtain the letter of receipt issued by the Ministry, which shall be attached to the application for TWSE or TPEx’s review.

The authorityies stressed that, in order to mitigate the impact on the listing examination procedure, the reform will be divided into several stages. To elaborate, the grace period would be from the 1st of September until the end of 2018. Then the new law will come into force on the first day of 2019, and the required amount of the meeting record will be gradually increased. After October 1, 2019, the applicant company shall convene at least four meetings and other relevant documents of the regular labor conference hold on every three months that is a year before the date of delivery of the attachment.

The Labor Ministry has asked TWSE and TPEx a favor to prepare the propaganda and documents explaining the detail requirement of implementation and send them to the Public issued company, listed company at emerging stock market, securities firm and other related units. Conference for information would be held from next month. The public authorities welcome organizations in need to take part in the conference. Further information could be found on MOL’s website.

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PRC Publishes Regulation on New Residence Permits for Taiwanese in Mainland

2018.08.24

Subsequent to the People’s Republic of China’s official announcement of cancelling working permits for Hong Kong, Macao, and Taiwan residents in the Mainland China on 3rd of August, a new regulation on the application and granting of residence permits for Hong Kong, Macao, and Taiwan residents living in the Chinese mainland was published by PRC State Council on August 19 and will take effect on September 1this year. The PRC government asserted that they aim to provide more convenience in terms of study, work, business operation, and life for residents from Hong Kong, Macao, and Taiwan living in the mainland, and ensure their rights and interests.

It is worth noting that Article 19 of the regulation referred the Taiwan residents to as Chinese citizens residing in Taiwan, in compliance with PRC’s “Measures for the Administration of Chinese Citizens Travelling to or from Taiwan Region” and “Provisions on the Administration of the Employment of Taiwan, Hong Kong and Macao Residents in the Mainland”, which also excluded foreign residents holding Taiwan's legal resident permits from the regulation. The same rule applies to Hong Kong, Macao residents.

The applicants, who may apply for the permit on a voluntary basis, must have lived in the Mainland for more than six months and be able to provide proof of either stable job, residential address, or ongoing school attendance. The new residence permits will carry a new 18-number citizen identity code beginning with 830000 for residents from Taiwan, following the Mainland’s national standard. Obviously, PRC intends to grant national treatment toward Taiwanese people instead of having “One country, two systems” in this regard.

While the Mainland travel permits for Taiwan residents will be retained as the essential document to visit the Mainland, the new resident permits will play the role similar to the national ID card. The holders of PRC's new resident permit enjoy the rights, benefits or privileges identical to its mainland citizens in education, judicial administration, social security, housing, and healthcare, etc. The permit can be used to register vehicles, apply for driver's licenses, take professional qualification exams, purchase tickets online, check-in at hotels, and enjoy financial services.

In contrast with the Hong Kong and Macao government’s welcoming attitude toward the new policy as it cut the red tapes for its people, the Mainland Affair Council, which is the competent authority for the cross-strait issues in Taiwan, reminded Taiwanese that having the new resident permit may result in the loss of ROC nationality, based on Article 9.1 of Taiwan’s “Act Governing Relations between the People of the Taiwan Area and the Mainland Area”, which promulgated that the people of the Taiwan Area may not have household registrations in the Mainland Area or hold passports issued by the Mainland Area.

In addition, the Mainland Affair Council advised Taiwanese people working or studying in the Chinese mainland to take note of PRC’s development on fingerprint and facial recognition software to monitor those who challenge the harmony of Chinese society. In fact, the PRC new permits will contain the cardholder’s fingerprint information. The similar policy once appeared on Taiwan’s Household Registration Act, stating to the effect that the new ROC identity card will not be issued without the applicant being fingerprinted. It was later declared unconstitutional by The Grand Justices of the Constitutional Court in 2005 under J.Y.Interpretation No. 603, where such violation of the right of privacy was not considered necessary and relevant to the achievement of the purposes of the State’s major public interest at that time.

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NIA and Yilan Court Implement New Online Trial System for Detention

2018.08.24

With the inclination toward reforming the courts with e-technology, the Judicial Yuan formally announced the successful installation on the “Online trial system for detention cases”. National Immigration Agency(NIA) Yilan Immigration Detention Center and Yilan District Court will take the initiative to put the system into practice on the 21st of August 2018.

The system, actually the refinement of previous online administrative litigation system for continuation detention system, features on online trial, instant electronic delivery, paperless judgment, electronic stamp and digital signature. The authority considered that such 100% online judicial procedure could promote human rights and efficiency, as the alien could answer the distant court’s inquiries in time and it is estimated that, on average, he could receive the decision and obtain freedom a week earlier if the ruling says so.

Base on the Immigration Act, if an alien sentenced to forcible deportation due to visa expiration or criminal offense, he or she may be temporarily detained by the National Immigration Agency if a compulsory exit order is difficult or impractical to enforce. Prior to the deadline of the temporary detention and whether it is necessary to continue the detention sanction, the National Immigration Agency shall apply for a continuation of the detention period by submitting the reasons to the court no later than 5 days before the deadline.

In consequence, the courts always face a great number of similar cases with uncomplicated facts. For Yilan District Court, where 3,600 related decisions were made per year, it could save up to some NTD$200,000 of printing cost and fax fee after fully adapting the new system, not to mention other labor costs, detention cost as well as delivery cost.

The Judicial Yuan will thrive on promoting the online trial system for detention in New Taipei, Hsinchu, Nantou and Qiaotou local courts afterward, where large Immigration Detention Centers are located.

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Settlement Reached in Disputes over NTD$23.4 Billion Fine Between FTC and QCOM

2018.08.17

The Fair Trade Commission(FTC) and American Qualcomm Incorporated(QCOM) has reached a mutually agreed settlement before the Intellectual Property Court and therefore closed the Qualcomm's litigation challenging the FTC's decision on the violations of Taiwan's Fair Trade Act with a NTD$23.4 billion record-high fine, as Qualcomm allegedly monopolized over the chip market for several modem technologies that provide wireless data connectivity for mobile phones, and refused to license its technology to other industry players.

In short, Qualcomm, who agreed that the NTD$2.73-billion-paid monetary fine will be retained by FTC, promised to commit to Taiwan’s cellphone manufacture industry and carry out a 5-year investment as well as the obligation to report to FTC base on the settlement.

The Commission stated that Qualcomm consent to abide by the principle of good faith and fairness with handset licensees to Qualcomm’s cellular standard-essential patents (SEPs). Instead of requiring component-level licensing or setting specific financial terms, the resolution focused on endeavors that ensure good-faith negotiations for the benefit of licensees and SEP owners. During the negotiation, Qualcomm will continue to supply mobile data chips to the manufacturers and adopted the nondiscrimination principle when cooperating with local mobile phone makers and chip supplier.

Additionally, Qualcomm will launch a five-year industrial investment project in Taiwan, which will benefit the mobile and semiconductor ecosystem, SMEs and consumers, including 5G collaborations, new market expansion, start-up and university collaborations and the development of a Taiwan’s operations and manufacturing engineering center. The corporation will work with the FTC and Taiwanese government to implement these initiatives and investments.

Facing the public critic of having a “U-turn” policy on canceling enormous administrative fine, the FTC stressed that the investment has a huge and positive impact on the island’s R&D industry; the settlement is actually a win-win deal. As the competent authority of the competition law, FTC must take market mechanism and its economic benefits into account when issuing its administrative action. The administrative litigation approach may not be the best way to resolve the antitrust disputes under this circumstances.

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Country’s First Labor Act May Become a Thing of the Past Soon

2018.08.17

The Executive Yuan passed the abolition of the "Factory Act" on August 9, the decision will be sent to Legislative Yuan for reviews. The Factory Act was enacted in 1929 and implemented in 1931, it was the first labor law of the country. Back in the beginning of 20th century, when the International Labour Organization just established, the government all over the world had just started to enforce obligations on employers with state power. The Factory Act was a fairly progressive legislation at that time in Asia.

Over the years, the economic and social situation has changed rapidly. However, the Factory Act has not been amended since 1975 and the current relationship between labors and managements is completely different from the 1930s. After the implantation of the Labor Standards Act in 1984, labors protection has become a lot more comprehensive. Moreover, the provisions of the Factory Law on factory workers' welfare, factory safety and sanitary equipment, workers' allowances and pensions, factory meetings were correspondingly regulated by Occupational Safety and Health Act(1974), Employee Welfare Fund Act(2015) and Regulations for Implementing Labor-Management Meeting(2014).

To unify the applying decrees, the Ministry of Labor has consulted various local labor administrative authorities, experts and scholars whether to abolish the 90-year-old Factory Act. Concerning that the Labor Standards Act covered the subject of Factory Act, the Executive Yuan believed there is no need for the regulation to exist. The discard of the statute is very likely to be approved by Legislative Yuan afterward.

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New Precedents Set on Supreme Court’s RCA Ruling

2018.08.17

On August 16, the Supreme Court eventually delivered its final judgment on the notorious RCA case. 262 former RCA workers who have developed cancer or other illnesses and family members of the deceased workers will received a sum of NTD$500 million compensate, while for the other 226 workers, the compensation will be reconsidered by the High Court, as the disease has not developed yet or did not prove to have a causal relationship with the toxin exposure.

The attorney for the plaintiffs, Yong-Zhen Lin, didn’t consider such remand as defeated, instead, he believes the remand is favorable to the workers and pointed out several American pollution precedents where awards were made to plaintiffs without perceptible symptoms in the end.

Lin also comments on the court’s rejection of the defendant's core argument, which is the statute of limitations for the occupational injury claim was expired, by condemning the RCA’s refusal to reveal any information related to the chemicals and the industrial waste it used when the Environmental Protection Administration made the request in 1994. Couple with this, instead of placing the burden of prove entirely on the victims’ shoulder, the onus was partially transferred to the defendants to disprove the causation of damages once the injured party has proved it to a reasonable degree.

Besides the above-mentioned major arguments, the verdict also imposed liability on GE, Thomson, and Technicolor, which are RCA’s parent and successor corporations, referring to the principle that courts find corporation's shareholders liable for the corporation's actions. It is a rare application in Taiwan.

Overall speaking, the judgment on the industrial pollution set precedents for holding multinational conglomerates accountable for putting profits before employee safety and the environment.

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Taiwan Pilots Reach Legal Threshold For Strike

2018.08.10

On August 7, the Taoyuan Pilot Union opened voting on a strike for Taiwan’s two main airlines, China Airlines (CAL) and EVA Air. Among 1,426 Union’s members, 1,187 of its 1,212 members who had taken a ballot had cast their vote in favor of a strike while merely 20 members voted against it. That is to say, the Pilot Union has the legal right to call a strike from now on under Taiwan’s labor law, as over 50% of their eligible members voted on the proposal and the majority votes supported for it.

The Ministry of Labor pointed out that the pilots tried to negotiate with their respective management for improving working conditions and protecting aviation safety but the parties never reached any consensus on the issues. The government have interfered in the matter and urged to consultation since the Union’s announcement to hold the voting on June 27 but failed.

It is estimated that the voting will have a serious impact on the island’s transportation as statistics showed that the state-run CAL and privately held EVA airlines gained over half of the market share in the Taiwan’s civil and cargo air transport. Yet there was no immediate indication of when a strike might occur. The Unions stressed that they will not take advantage of President Tsai's trip to South America to stage a walkout as the CAL flight attendants did 2 years ago. In their view, taking strikes is not an objective but mandates for a better negotiation, especially when their employers deliberately neglected the pilot’s dissatisfactions of pilots' time off and how days off are defined.

Union officials still hoped for some sincerity and goodwill in the management’s attitude during the next discussions to reach agreements, otherwise, they would formally announce the walkout date by the end of August. Whether the country’s first airplane pilots strike would be scheduled on the Mid-Autumn Festival holiday remains unknown.

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Justice Delayed for 32 Years: Bing-kun Su Acquitted of Robbery and Attempted Murder

2018.08.10

In the early morning of March 23, 1986, two robbers that broke into a jewelry shop in Hsinchu took 32 pieces of gold ornament and almost killed the shopkeepers. Three months later, a furniture factory owner, Bing-kun Su, was arrested because the suspect who was tortured by the police accused him as the joint offender. Though the Hsinchu District Court found him innocent, the prosecutor appealed and the High Court condemned him guilty of robbery and attempt to commit homicide. The Supreme Court overruled Su’s appeal and a 15-year of imprisonment was unfortunately determined.

Consequently, Su had absconded for one decade. In 2000, then-president Chen Shui-bian exercised the power of granting amnesty for Su. However, he was still guilty from the legal perspective and was not entitled to any remedy. The chief-procurator had filed the extraordinary appeals four times and the four requests of the motion for retrial was made as well afterward, yet the Supreme Court did not open for any retrial until 2017. On August 8, 2018, the Supreme Court eventually dismissed the prosecutor’s appeal and overturned the 1987 conviction. After 32 years of struggling, Su finally receives the justice he deserved.

Presiding judge Ying-wen Zhou outlined several reasons why Su was suffered from the miscarriage of justice in the court’s oral decision Wednesday morning, including the falsified testimony and confession extracted after the defendants were tortured by the investigators. Second, the judge also blamed the prosecutor for not concerning about the quality, reliability, and sufficiency of the evidence that was being relied upon in the indictment. Finally, the principle of presumption of innocence was not upheld. The courts ignored the core of criminal procedure, that is, “innocent until proven guilty”.

“Su was wrongfully convicted more than three decades ago and had suffered a lot of physical pain and torment throughout this period. The panel greatly sympathizes with Su for what he has been through,” Zhou said in the oral decision before outlining what the court had heard during the course of the trial.

“I have been wronged for 32 years. I should have been happy about the non-guilty verdict, but I am not,” Su told the reporters after hearing the verdict. “Honestly, it has been too long in coming.”

This is the very first case that an amnesty person was acquitted of charges in Taiwan legal history. Without a doubt, the verdict is a moral achievement of our justice system.  The judges promised Su that the judicial and investigation departments will learn a lesson from his case to prevent the circumstances from happening again.

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Administrative Court Held Provisional Injunction Hearing on NTU President Appointment

2018.08.10

The Taipei High Administrative Court held the preliminary proceeding on August 6 for the provisional injunction with regard to permitting Chung-ming Kuan to take the position of National Taiwan University (NTU) President temporally before the dispute is legally settled. Several NTU students protested outside the court with the slogan “ Fight for NTU”, “Defending University Autonomy”, demanding the Ministry of Education to give NTU a new headmaster.

Kuan was legally chosen by NTU's selection committee on January 5 this year and was scheduled to take office February 1, but the Ministry of Education refused to confirm his appointment, instead of asking the school to elect a new president. The government had asserted a series of allegations against Kuan, including plagiarism, possible conflicts of interest in the selection procedure, and teaching in China that violated relevant regulations. However, the school stressed that Kuan is qualified and the procedures were fairly lawful. Both the ministry and NTU reaffirmed their stand and refused to back down. The controversy has resulted in the resignation of two Ministers of Education and still remains in deadlock today.

Wang, one of the three NTU students in graduate degree who applied for the provisional injunction, said that the University’s presidential vacancy has remained unfilled for over 400 days, resulting in defects on the value of NTU diploma and affected the university’s international visibility and corporate donations. The students hope the judge could order the Ministry of Education to approve Kuan to solve the disputes.

According to Wang’s advocate, the students’ right to education is a non-monetary claim. Since the applicants who filed the injunction have signed an administrative contract with NTU, the vacancy of the president constitutes incomplete performance. As the new semester is approaching, in the need for immediate disposition, administrative immediate coercion shall be executed.

On the other hand, the attorney representing education ministry argued that applying provisional injunction should comply with Administrative Litigation Act. The decision on whether accepting Kuan’s appointment is not an administrative act but an internal work instruction, which is not subject to filing an administrative litigation. On top of that, it is believed that the student applicants are not the interested person regulated by the Act; and there isn’t any serious damage nor the need for immediate disposition due to NTU’s presidential vacancy. The attorney requested the ruling to deny the motion.

While the applicants asked the court to summon NTU’s high-ranking officials to testify the difficulties encountered without a leader, the ministry’s advocate declared that there is no need to do so as the organizational procedure already assigned the vice-president to fulfilled the responsibility. Further discussion will be made in the collegiate bench, according to the judge.

In the meantime, the judge demanded the applicants to write a supplemental complaint to elaborate on the statement, the subject and the type of the future administrative litigation, and whether the students have right to request the Ministry of Education to make the president appointment under current law.

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MOFCOM to relax rules on the Administration of Foreign Investors’ Strategic Investment in Listed Companies

2018.08.03

On the 30th of July 2018, the Ministry of Commerce has issued the "Decision on Revising the Administrative Measures for Strategic Investment by Foreign Investors in Listed Companies", which is a draft for Comment that seeks public opinions until 29th August, 2018 (the "Draft").

This Draft deals with China’s A-share market and proposes several changes, which include cutting lock-up periods and lowering financial requirement for foreigners.

Strategic investments in A-share listed firms are currently bound by a three years lock-up period. However, according to the Draft, this period would be cut down to twelve months.

The current threshold to be an eligible foreign investor is to own abroad real assets with total amount no less than USD100 million, or to manage real assets with total amount no less than USD 500 million. The Draft lowers the thresholds to respectively USD 50 million and USD300 million. The Draft would apply to "strategic investment" from foreign investors. According to the Draft, such investment could be made via the issuance of new shares, via a transfer through agreement or tender offers.

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The People’s Bank of China (PBC) has released a Policy Document to Tighten Administration of Cross-border Financial Network and Information Services

2018.08.03

This Circular, entered into force as of 24th of July 2018, aims to increase the control on cross-border financial networks and information services.

According to the document published, any overseas financial network and information service providers, who is engaging in cross-border activities with a domestic service receiver (relevant banking financial institutions), shall submit requested information to the PBC at least 30 working days before the beginning of the activity. The PBC must be informed of the details of services provided in China, which includes name of clients and services provided. The overseas institution must also follow all Chinese domestic rules and regulations, such as PRC Cyber Security Law, Administrative Measures for Internet Information Services, and so forth.

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Judicial Reform Foundation Calls on Evaluation Reform After Prosecutor Threatened Kindergarten Kids

2018.08.03

A week ago, media reported that a Hualien County prosecutor, Chun-yu Lin, took two police officers to a kindergarten on June 21 and 28, where surveillance camera showed Lin ordered teachers to stand aside as he bellowed and threatened kids aged 2 to 4 in an attempt to find out who had been bullying his daughter.  

The news hit the headline and the public was outraged as rumor has it that Lin would be transferred to Penghu District Prosecutors Office and earn a monthly wage of NTD$120,000. On August 1, the Ministry of Justices eventually clarified the rumor and formally suspended Lin from duty.

However, the discipline procedure for the prosecutors has been heavily criticized. Judicial Reform Foundation pointed out that a number of allegedly incompetent prosecutors were forced to transfer by Ministry of the Justices in the past when the prosecutors were “no longer suitable to continues to serve in their original region”. For instance, Zhong-hui Liu, a former prosecutor of Taitung District Prosecutor Office that was accused of losing her temper and screaming at the defendant and the clerk during the hearing, was once transferred to the Taoyuan by the Committee; another Prosecutor Chen in Tainan was transferred to Hsinchu District Prosecutor Office after he expressed unusual concern to the colleague who was responsible for a case where Chen’s relative was the defendant at that time. The Foundation therefore complained that regional transfer is not the solution to the problems. As a matter of fact, those misconduct prosecutors that are inappropriate to perform duties not only in their original office but everywhere else as well. It is not surprising that the general public is not confident with the quality of public prosecution as a result, the CEO of Judicial Reform Foundation concluded.

Take Lin’s case as example. According to the Judges Act, where the evaluation mechanism for judges and prosecutors are stipulated, whether Lin shall be dismissed from his post will be examined by Prosecutorial Personnel Review Committee, Control Yuan as well as the Court of the Judiciary.

The procedure is time-consuming and over-examined, especially when the efficiency Prosecutorial Personnel Review Committee was questionable. Since the establishment of the Review Commitee in 2012, there have been 58 applications; 49 decisions was made and merely 19 of them were forwarded in turn to the Control Yuan or Judicial Personnel Review Committee.

The lawyer Bo-xiang Yu, who was a member of the Prosecutorial Personnel Review Committee, claimed it is because the Committee mainly consists of judiciary members. Yu asserted that there have been several gross violations that were unimaginable, even unforgivable in societal representatives’ point of view, yet the judges and prosecutors were considerate in face of such cases and forgave the violators.

Yu was convinced that the Committee should be composed of more non-judiciary people to take public opinion into consideration. In the meantime, Judicial Reform Foundation suggested shortening the evaluation procedure by skipping the impeachment from Control Yuan in order to accelerate the process of firing unqualified prosecutors.

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Constitutional Interpretation: Common and Foreseeable Drug Reaction Not Eligible for Injury Relief

2018.08.03

Eleven years ago, an NTUH patient diagnosed with malignant lymphoma and non-tuberculous mycobacterium took Amikin as a proper usage of legal drug. She unfortunately suffered from the adverse drug reaction and resulted in permanent hearing loss. The patient tried to issue a drug injury relief, yet it was dismissed by the competent authority under Article 13, paragraph 9 of Drug Injury Relief Act, which said, “ Person who has the conditions below is not eligible for any drug injury relief:  9. The common and foreseeable adverse reaction from drug usage.” Believing that the right to life and right to health given by the Constitution was infringed and the lawful remedies for such infringement had been exhausted, the victim purposed the petition for constitutional interpretation.

The Grand Justices of the Constitutional Court adjudged the petition and uniformed interpretation of statute on July 27, declaring that Article 13, paragraph 9 of Drug Injury Relief Act contradict neither to the principle of clarity and definiteness of law nor to the proportionality principle. The regulation consistent with the contemplation of Article 10 of the Amendments to the Constitution, that is, state shall promote the national health insurance and pay special attention to social welfare activities such as social relief and aid on medical and healthcare.

J.Y.Interpretation No. 767 elaborates on why the disputed law is in compliance with the Constitution. Firstly, with regard to the principle of clarity and definiteness of law, the judges deemed the definition of the vocabulary “common” and “foreseeable”, in view of the individual circumstances of the case, could be understood by regulated people; and the phrase “adverse reaction from drug usage” was well-defined in Article 3 paragraph 4 of the same act. Besides, even if the patient and their relatives could not fully comprehend whether the drug-taking behavior meets the legal requirements on the injury relief, such essential knowledge could be reasonably expected to acquire from the doctor’s duty to inform, labels of the medicine bag or the package inserts.

Secondly, the subject of relief, the requirement for application and the range of qualification are part of the social policy which are the subjects to discretion to be made by the legislature. In concern of risk allocation, excluding someone on medication who can reasonably foresee the possibility of an adverse reaction from the remedy did not violate the proportionality principle.

Finally, it is legitimate to draw a line between qualified and unqualified victims in order to balance the financial situation of the Drug Injury Relief Fund so as to allocate the fund fairly and effectively.

Despite the fact that the restriction is not ambivalent to the spirit of ROC Constitution, the Justices advised the authorities to review on the condition of applying drug injury remedy to catch up with the development of the pharmaceutical industry and to take note of the sustainability and the public interest of Taiwan’s medicine injury relief system.  Furthermore, the social equalization principle, as well as the question of whether the social compensation is still reasonable, shall be carefully examined. There is no justification for expanding the interpretation of the condition of not entitled to any drug injury relief.

However, not all the Justices are satisfied with the conclusion. Five out of fifteen Justices filed their dissenting opinions, while another five of them wrote the concurring opinions respectively on the case.

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Speech Recognition Technology Leads Taiwan Court into New Era

2018.08.03

The Judicial Yuan held a press conference on July 31 and revealed a series of digital policies to reduce the burden of legal professionals, optimize the quality of trials, increase the transparency of the judiciary, and improve the public's trust in the state’s judicial system.

The revolution focuses on four aspects, which are upgrading hardware, progressing information systems and services, strengthening data security and reforming the court with e-technology. Among them, the introduction of speech recognition technology for the court successfully caught public attention.

Presently, it is the clerk’s job to dictate the court conversation. Hence, very often, the judges have to order pauses during the hearing and wait for the clerk to finish typing. After the adaption of speech recognition application project, all Chinese dialogues at the court - no matter in Mandarin, Taiwanese or Hakka - will be recorded by voice recognition system; the transcripts will be automatically and simultaneously generated to speed up the hearing. Application for voice differentiation and legal technological term models will be integrated with the Artificial Intelligence. During the trial, the clerks will use customized software to correct the mistakes and send the feedback to the AI with instant correction mechanism.

According to Judicial Yuan’s digital policy report, the implementation of the speech recognition project will be divided into four stages. One of the courtrooms in New Taipei, Taichung, and Pingtung District Court and High Court Tainan Branch were chosen respectively to install the system next year; the project is scheduled to be expanded to 186 courtrooms by 2020, to 364 rooms by 2021 and to all the courtrooms in the country by 2022.

In addition to speech recognition project, the Judicial Yuan also thrived on promoting Open Data Project and launching Big Data Analytics for jurisdiction. It is believed that the E-Judiciary project is a step towards modernization in Taiwan’s Legal System.

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CHT Fined NTD$200,000 for Using “Taiwan Mobile” as Search Keyword in Display Advertising

2018.07.27

The Fair Trade Commission delivered its adjudication on July 25 in the matter of Chunghwa Telecom Co., Ltd.(CHT) using the brand name of its main competitor, “Taiwan Mobile”, for keyword advertising. The title tag of the keyword ad, “Register 4G mobile phone on Taiwan Mobile and win weekly prizes - nearly 4,000 lucky winners and total prize value of over 10 million!”, was in fact linked to Chunghwa Telecom’s website. This violated Article 25 of Fair Trade Act and CHT received a pecuniary fine of NTD$200,000 as a consequence.

Keyword-targeted campaigns are used to advertise on the search network. The ads, shown when triggered by search queries, are displayed on the top of search results pages. If the search query includes keywords the company has specified for its campaign, its ad may show up in the sponsored links section. The Fair Trade Commission said that CHT asked its advertising agency to adopt “Taiwan Mobile” as one of the keywords for electronic advertising to enable people searching for that keyword to see CHT’s advertisement. CHT took advantage of its competitor’s endeavor to promote services for years as it lured the potential client to its website and increased the transaction opportunity. On the other hand, Taiwan Mobile, who did not hold the promotion, suffered from the customers’ misunderstanding of having such a promotion from the false advertisement. Extracting the efforts of others, CHT's ad constitutes a deceptive and obviously unfair conduct that was able to affect trading order, in violation of Fair Trade Act Article 25.

Considering CHT removed the disputed advertisement within two days and only 20 people clicked on it, the administrative fine was merely NTD$200,000. Actually, this is not the first time that the keyword “Taiwan Mobile” was misused. Back in 2016, Telecom Company T-star held a half-price promotion campaign and falsely took “Taiwan Mobile” as the keyword in display advertising, too. The ad was available for ten days and attracted 300 hits. Therefore, the Fair Trade Commission has slapped T-star with an NTD$600,000 fine at that time.

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Bank of Taiwan Set Up Legal Affairs Center and Improves Compliance

2018.07.27

In accordance with latest amendments of “Implementation Rules of Internal Audit and Internal Control System of Financial Holding Companies and Banking Industries” Article 32, personnel of legal compliance office at financial institute shall not be in charge of legal affairs unrelated to the planning, management, and implementation of the legal compliance system, or any affairs with conflict of interest. To comply with the new regulation, the Bank of Taiwan aggressively planned on organization restructuring and launched “Legal Affairs Center” under the Department of Planning on July 23, with the authorization from Ministry of Finances.

The Bank of Taiwan was founded as Taiwan's central bank in 1899, during Japanese rule. After the loss of Chinese Civil War by the KMT and its subsequent retreat to Taiwan, the Bank continues its central role as the central bank of the ROC until the Central Bank of China was re-established in 1961. It was governed by ROC Finance Ministry after 1998 and had issued Taiwan Dollar as well as New Taiwan Dollar until 2001. Currently, The Bank of Taiwan operates a total of 169 domestic branches as well as 12 international branches over four continents.

The Legal Affairs Center of the bank was officially opened by the chairman, Jye-cherng Lyu, who attached great importance to legal compliance. According to Lyu, as a 100% state-run cooperation, the Bank of Taiwan has the obligation to make organization restructuring in line with the government policies and regulatory amendments ahead of private banks. After the establishment of the new Legal Affairs Center, the task of legal compliance and legal services will be dealt by two independent and separate departments, which will reduce the risk of the breach of the law, enhance governance effectiveness of the cooperation, improve the risk management, and coordinate with Bank of Taiwan’s “The 5Ps of Business Theories”, especially in the aspect of “Portfolio-sound” and “Principle-based”.

In the meanwhile, Chairman Lyu stressed that the function of the legal affairs office lies in prevention and remediation of disputes. As the saying old goes, prevention is always better than cure. Hence, he encouraged the colleagues in the Legal Affairs Center acquiring knowledge and obtaining financial licenses to actively engage in research, provide legal advice and safeguard the rights of the banks themselves and their customers beforehand.

The amendments to internal control of banking industries regulation were triggered bya case in 2016 where New York State Department of Financial Services fined Taiwan’s Mega International Commercial Bank US$180 million for not cracking down on money laundering following the Panama Paper revelations. The bank was accused of aiding or turning a blind eye to shell companies. Mega Bank is alleged to have been warned by the New York State Department of Financial Services in 2013 about its actions but continued anyway, this despite initial claims by Mega Bank that the fines occurred because it did not properly understand American law well enough. The landmark case sent shock waves across Taiwan’s financial sector, prompting companies to place a high priority on improving compliance with renewed fervor.

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New Taipei City Government Filed Administrative Appeal for Reassessing Shenao Power Plant

2018.07.20

The environmental impact assessment of Shenao Coal-fired Power Plant was approved on March 14 that signaled a green light for the scheduled renewals and expansions to the facility, which many environmental groups and experts have voiced strong objection to. New Taipei City Government, in the fighting spirit of the prominent Taiwanese environmental lawyer Thomas Chan, supported the locals and file an administrative appeal on July 18. The local government demanded the central authorities stop intervening and revoke the approval of the assessment, stressing that the evaluation should be return to rationality and professionalism. The central government had better not overlook the New Taipei Government’s determination on safeguarding the nature and the health of its residences, as well as the power of public opinion.

Her-ran Liou, the Commissioner of New Taipei City’s Environment Department pointed out that scholars, experts, environmental groups, and citizens have issued numerous reasons for objection in succession, yet none of them were adopted by the authorities. As the newly-passed Air Pollution Control Act aimed to improve the quality of air in Taiwan and strengthened supervision of coal fuel, the government is accused of contradicting itself by first saying that it would combat pollution and then pass a review to restart the coal-fired plant, a measure reverses the global trend of banning coal and reducing carbon emission.

Liou urged the authorities not to turn a blind eye to the severity of air pollution from coal-fired power plants and the anxiety of local residences. He criticized the absurdity of officials’ claim of clean coal that has fairly slight impacts, the statement allegedly against their consciences. Adding that access to information of nation’s electricity supplement remained in chaos, Liou stated that while state-run Taiwan Power Company (Taipower) declared electricity shortage in northern Taiwan as the main reason of expanding Shenao plant, Primer Lai asserted that “Taiwan is not lack of electricity, but the surplus is not sufficient.” Coincidently, Taipower also affirmed that sometimes electricity generated in the north will be sent to the central part of the island on the same date, June 28, 2018. The local government expected authorities to clarify the rumors which gave rise to conflicts between economic development and environmental protection, preventing the self-differentiation of the country.

One of the attorneys representing New Taipei City, Xian-zheng Chen, reasoned the decision of issuing the administrative appeal. He believed that there are several major procedural defects in the environmental impact assessment. For instances, in the key meeting held on March 14, five of seventeen committee members are government officials, while the other eleven are experts and scholars who called for the reassessment. As the voting results were 8 vs. 8, the moderator Thomas Chan, who is also the Deputy Minister of Environmental Protection and the well-known environmentalist before taking his post, casted the deciding vote that “ask Taipower to revise its report and then approve the project”. Taipower is the proposing enterprises which are solely owned by the state, sharing a close operating relationship with competent government authorities. Therefore, the committee members representing the central government should disqualify themselves from the case concerned on the government’s motion and should not exercise their functions in the meeting, the attorney said.

Couple with this, although Taipower has the obligation to hold public hearings to gauge public opinion about the project, the company only asked a portion of the chiefs of village from New Taipei City’s Rueifang District (where the plant will be built) to “visit” the Linkou Coal-fired Power Plant and never had it open the discussions to the general public. And finally, the out-of-date source Ministry of Environmental Protection relied on to assess the environmental impact also arose controversy.

In reply to New Taipei City Government’s administrative appeal in high profile, Deputy Chan denounced the act of local government showing-off, believing that the public sectors are not entitled to file an administrative appeal according to Administrative Appeal Act, because neither the city government’s right nor their interest was unlawfully or improperly injured.

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Supreme Court Ruled on Romanian Card Skimming Appeal

In April 2016, a Romanian credit card skimming gang who came to Taiwan as tourists had fraud approximately NTD$ 7 million and transferred USD$150,000 abroad before nine of them were arrested. The Supreme Court dismissed the appeal and sentenced the convicts one to two years jail term on July 18.

The criminals led by Iulian Ciot first received fake credit cards as well as emails containing data from the magnetic stripe of the credit cards illegally collected by their accomplices overseas. They had copied all the details to another the card's magnetic strip, which then used by to make purchases or withdraw cash from ATM in the name of the actual account holder. The suspects acquired 10% to 30 % of fraudulent fortune as the commission of the offense, transferring the rest of money overseas to their accomplices for money laundering. As a result of this, they were also accused of concealing the origin of the unlawful activity and transferring the proceeds of unlawful activity to help others avoid criminal prosecution, which violated the Money Laundering Control Act.

The suspects were sentenced to ten to twenty years jail term in Primarily Court, then four to six year in the High Court as they later reconciled with the bank. However, the Supreme court partly dismiss the appeal and partly remanded the ruling of lower court, by given the reason that the original jurisdiction did not clarify whether the gang committed to successive offense. Under the current successive offense provision, if an offender, based on single criminal intent, commits several successive acts that violate the same legal interest and constitute the same of the criminal offense, the offender would only be punished as if only one criminal act had been committed, with a more severe penalty. Consequently, for the accusation of using the cloned credit cards, the court of the third instance remanded the case and ordered for further investigation; for the accusation of money laundering, the court overruled the appeal by ruling as it found such the appeal meritless.

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National Taxation Bureau Strengthens Inspection on Anti-tax Avoidance

With the trade liberalization and globalization, enterprises have adopted multi-transactional operation models and established affiliated companies around the world. To maximize their profit, it is common for cross-border enterprises to manipulate the price or condition between unincorporated enterprises and take advantage of the differences between the divergent tax systems or tax burdens of subsidiary company to avoid or reduce the total tax burden.

In order to comply with the trend of international anti-tax avoidance, the National Taxation Bureau of Kaohsiung stressed on the honest declaration by paying special attention to whether the multinational corporation has made irregular arrangements to circumvent the tax burden when it reviews the income tax settlement application for profit-making business. Several cases were fined by the authorities and disclosed to the public.

Case 1: Company A declared a triangular trade when filing the operating income, where the National Taxation Bureau noticed an enormous salary and travel expense. After requesting for the employee's salary list, work address, work content and business trip report, the bureau realized a number of employees were stationed to provide management services to the overseas affiliated company, but Company A never charged for the services fee. As a consequence, the taxation authorities decided to increase the company’s operating revenue as the tax base, based on "Regulations Governing Assessment of Profit-Seeking Enterprise Income Tax on Non-Arm's-Length Transfer Pricing".

Case 2: Company B sold the components manufactured by itself to foreign affiliated company at a low price, then asked the affiliated company to sell them after simple processing, thereby reducing the profit and tax burden of Company B in Taiwan. The bureau adjusted the operating income of Company B according to the same regulation mentioned above.

Case 3: Company C provided the R&D result to its affiliated corporation for manufacture and earned revenues, but Company C charged for neither remunerations nor royalty. The authorities calibrate the reported cooperation income as the company should receive the reasonable royalty.

Case 4: Company D funded controlled foreign company without asking for interest. Furthermore, it also guarantees for the foreign company to facilitate its financing application to the bank free of charge. After the evaluation, the taxation sector included reasonable interest and loan guarantees fee to Company D’s income tax base.

The bureau called for the profit-making business not to donating or charging incredibly low fee when providing goods or services to its affiliated company abroad, otherwise they may be subject to duty repayment in the future.

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Company Act Amendments Facilitate New Ventures Operation

2018.07.17

After Legislative Yuan passed amendments to the Company Act on July 6, the largest revamp in 17 years is completed for the purpose of improving corporate governance, strengthening the anti-money laundering mechanism and easing rules on fundraising on the island. The Minister of National Development Council, Chen Mei-ling, appreciated the revamp and issued a press release on July 8, expressing gratitude to Legislative Yuan’s support for the startup-friendly articles, drafted by the country’s administrative departments. Chen believed that the new amendments had a positive effect on assisting the young entrepreneurs and boosting the development of New Economic in Taiwan.

According to the press release, there are 10 major emendations of the Company Act that will  facilitate the new ventures with flexible operation. 

 

1. Permitting companies to register an additional title in a foreign language beside their Chinese name.

In response to both the domestic and foreign startup business’ need of registering companies with a foreign name, the policy would be beneficial to the international visibility of the firms and it would alleviate the expansion of Taiwanese business on the international market. 

 

2. Adding the video conference call as a legal way for shareholders' meeting

This would follow the trend of e-business and enterprise global layout and would cut down the transportation costs. 

3. Simplifying the meeting of the boarding procedure.

The non-public offering company may make the decision in writing to avoid the meeting fail to be convened for lack of a quorum, which would raise the board meeting’s decision-making efficiency. 

4. Reducing the minimum number of directors required for non-public offering company.

In the past, the Company Act required that every company shall have a minimum number of three directors in the case of non-public offering company. The amendment minimized the required number to merely one director, which would cut down the operation cost and greatly benefits the newly emerged business with few shareholders to maintain the right of management. 

5. Liberalizing regulations on distributing cash dividends.

While the old law stipulated that all companies issue cash dividends once a year, the new law allows such dividends distributed on a quarterly basis under the approval of the board meeting. 

6. Allowing non-public offering companies to decide issuing par value stock or non-par value stock.

A non-par value stock is the shares that have been issued without a par value listed on the face of the stock certificate. Therefore, the price is instead determined by the amount that investors are willing to pay, based on their perceived value of the issuing entity. The measure would appeal to the investors and would resolve the difficulty in startup enterprises’ funding collection. 

7. Modifying the rule of the retention bonus.

To assist the company to retain employees, the recent regulation expanded the agency paying the retention bonus to its holding company and subordinate company employees, as an additional incentive to retain key staffs. That is to say, when making the profits, the parent/subsidiary company is able to assign treasury shares or new share warrants to the valuable employees of the subsidiary/parent company. Since the new venture usually attracts its worker with stock-based compensation, the new regulation would advance the firm’s ability to keep their essential staff. 

8. Authorizing shareholders to form a contract or a trust as a strategy to align with each other in the voting procedure.

The operation of shareholders' voting right has is various as a result, which may motivate innovation. 

9. Enabling non-public offering companies issue several kinds of preferred stock, such as multiple voting shares, golden shares, non-voting convertible participating preferred stock and participating preferred stock with directorship.

The implications are increasing the flexibility of operation and maintaining the right of management for founders to prevent the overflow funding from taking over the decisive power. 

10. Abolishing the total company bond limit and adding a variety of new bonds issued, e.g. “convertible bonds” and “equity warrant bonds.”

Very often, Silicon Valley startup companies use a convertible note, structured as loans with the intention of converting to equity, as a means of delay establishing a valuation for that startup until a later round of funding or milestone. The measure is popular to fund the new venture among angel investors. 

Chen stressed that with the rapid development of the digital economy, Taiwan must provide an excellent investment climate in order to build an innovation-based economy. The amendment of the Company Act would trigger the development of new ventures as a step for building Taiwan's New Economy movement. 

Other important reforms include:

a.    The Datong clause

Shareholders owning a more than 50% stake in a company for more than three months are eligible to convene the special shareholders' meeting.

b.    The SOGO clause

If the owner, proxy or an employee of a company provides falsified information and therefore convicted for breaching the Criminal Law, the Ministry of Economic Affairs (MOEA) may revoke his stakeholder registration, with or without the request from stakeholders. 

c.    The anti-money laundering clause

Board directors, supervisors and managers, as well as shareholders with at least a 10 % stake in a company, need to declare their involvement in the company. First-time violators will be subject to a fine ranging between NT$50,000 and NT$500,000.

More information

https://www.ndc.gov.tw/News_Content.aspx?n=114AAE178CD95D4C&sms=DF717169EA26F1A3&s=5246ACD2F2BE5498

Ministry of Economic Simplifies Company Registration Process

2018.07.17

The Ministry of Economic recently announced several amendments to “Regulations Governing Company Registration and Recognition”, which considerably simplified the procedure of company registration. Documents such as the Comparison Table of Amended Articles of Incorporation, the Board meeting attendance book, Certificate of death and the CPA Power of Attorney are no longer required in the firm registration process.

In addition, the application form was obliged to affix both the company seal and the representative stamp previously. The recent revision enables the corporation to submit the form with the signature of the representative to replace two stamps. The pliable adaptation making it more convenient to apply for company registration.

On top of that, for foreign corporations, the requirement of attaching Chinese translation to any legal document written in a foreign language was relaxed. As long as the authorization is capable of understanding the foreign document, the company does not need to provide the translation. The Ministry of Economics has also released a number of templates of related documents in English to help foreign corporations starting a business on the island.

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NDC Launched Personal Data Protection Office

2018.07.06

On July 4, principal officials of the National Development Council(NDC), National Communication Commission(NCC), Ministry of Justice and Financial Supervisory Commission had gathered for the opening ceremony of Personal Data Protection Office. The office will be in charge of coordinating personal data protection related issues between government agencies in Taiwan, promoting the adequacy of cross-border transmission of personal data to the European Union, and strengthening the consistency of personal data law enforcement.

During the speech at the opening ceremony, Chen Mei-ling, the Minister of the Cabinet-level NDC, had remarked that big data and information sharing has become an irreversible trend in the era of the digital economy, and information flowing on the global scale is a major challenge for personal data protection. With the entry into application of the EU’s General Data Protection Regulation(GDPR) in May, there is a new set of data protection rules for all organization operating in the EU, wherever they are based. As a result, numerous non-EU countries re-examine their own personal data regulations. For example, significant progress has been made to bridge the differences between Japan's data protection act and the GDPR, in order to gain adequacy of the protection of personal data from the European Commission, Chen said.

After reported their relevant measures in response to the implementation of GDPR on May 24, the NDC was ordered by Premier Lai to establish an office, which aims to make the necessary preparations to negotiate for an adequacy decision not yet completed by the government. The Personal Data Protection Office is a task force constituted of legal, information and EU specialists from NDC. It is set up to focus on two specific goals:

1.

GDPR adequacy of the protection of personal data

The European Commission has the power to determine, on the basis of article 45 of Regulation (EU) 2016/679 whether a country outside the EU offers an adequate level of data protection, whether by its domestic legislation or of the international commitments it has entered into. In order to assist the cross-border transmission of personal data between Taiwanese enterprises and EU, the government has initiated the adequacy talks with the Commission. Chen had led a delegation to visit the EU at the end of May this year and formally expressed Taiwan’s inclination to apply for adequacy recognition. NDC has also invited relevant associations and scholars to discuss the preparation for adequacy. The Data Protection Office will take over the assessment report on the government’s GDPR compliance.

2.

Reviewing the Personal Information Protection Act and integrating data protection between government agencies

Previously, no single institution was responsible for the management of personal data protection in Taiwan, which resulted in several inter-ministry conflicts. NDC reiterated that the task force office will be responsible for reviewing personal data protection related regulations and inter-ministry coordination, in order to enhance the enforcement of the Personal Information Protection Act. 

To keep up with the trend of international development of the digital economy, the office will also strive to improve the overall data protection level in Taiwan, leading the island towards the new milestones.

 

More information here

Ministry of the Interior Responds to the Media Criticism on Naturalization Regulations

2018.07.06

Recently, the difficulty for foreign residents to naturalize is revealed by Taiwanese media, as it is reported that a contributive priest had taken three to four decades to acquire the ROC citizenship. In this regard, the Ministry of the Interior released a press statement on July 2 to clarified such misunderstanding, since the amendment of the Nationality Act in 2016 has greatly simplified the process of naturalization for high-level professionals whose specialties are deemed to serve the interests of the ROC. 

According to the statement, before the 2016 Amendment, the Foreign nationals who have made special contributions to the ROC must provide a certificate of loss of original nationality within one year from the day of approval of naturalization. It may be the reason why foreign nationals are more reluctant to apply for the ROC citizenship in the past. It is possible that the priest did not ask for naturalization in his earlier for this reason. Based on the Nationality Act, legally resided in the territory of the ROC for 30 or 40 years is not a requisite for the acquisition of nationality.

Since May 2017, the Ministry of the Interior has asked the local government for a survey on the contributive foreigners’ intention of naturalization. Household Registration Office, along with officials from National Immigration Agency, has taken the initiative to offer doorstep service for those who are willing to naturalize and has assisted them with the naturalization application, residing, household registration and receiving National ID card, which takes around 10 days for the whole process. To date, 48 foreign nationals with the special contribution to Taiwan have successfully naturalized, including the well-known representative basketball player, Quincy Davis, who gave up his American Nationality in 2011.

In response to media reports on the "difficulty of naturalization of elite athletes", the Ministry of the Interior pointed out that 50 high-level professionals in the technological, economic, educational, cultural, art, sports have acquired Taiwanese nationalities since the 2016 Amendment and one of them is a football coach, making it evident that the hardship for elite athletes to apply for naturalization is exaggerated by the social media.

The press also criticized the naturalization policy on the foreigner married to a ROC national. The Ministry responded that a 3-year residing period required prior to the application is no stricter than other foreign nationality law, with which generally regulated a 5-year requisite period. Besides, the certificate of possessing sufficient property is no longer required for the foreign spouse to apply for naturalization. As for those whose ROC spouse was deceased or devoiced, a self-written statement of job responsibilities and incomes is already adequate for the same application.

While the Hague Convention of 1930 admitted the authority of each state to determine who are its nationals, it yet facilitated the freedom of renunciation or waiver in certain cases of dual nationality. The single nationality principle is favored in the convention to avoid the conflicts of rights and obligations caused by dual nationality. The Ministry of the Interior emphasized that, due to the limited resources of the country, Taiwan has always adopted the principle of single nationality for the naturalization of foreigners, with the exception of dual citizenship. Public opinions on fully open up to dual nationality involves major change in the state policy. Thus, the Ministry of the Interior will continue its research on the issue to fulfill the needs of the ever-changing social reality of Taiwan.

More information here

New Public Pension Systems Came into Force on July 1

2018.07.06

According to the pension reforms for civil servants, teachers and military veterans which came into force last Sunday, the 18% preferential interest rate on savings accounts will be scrapped over a period of 2.5 years and 10 years, for civil servants and veteran retirees respectively. As president Tsai Ing-wen commented, the implementation of the new pension systems "marked the beginning of a new era", in which the viability and sustainability of the pension system can be ensured, and the term “annuity bankruptcy” will become a thing of the past.

Lin Wan-yi, the Minister of State in charge of pension reform, said that the reform will defuse the government pension program from bankruptcy crisis. Despite its impact on a number of individuals, Lin claimed that the reform is a giant leap for the sound development of the state system; individuals' pension loss is a less significant issues compare to it. Lin also added that the reform enables the younger generation to collect their pension benefits for years to come. Future generation can, therefore, avoid facing the exacerbation of the government's fiscal position and determine its ability to realize other policy objectives.

Three pension reform bills, approved by Legislative Yuan in June 2017 and 2018, came into effect on July 1, 2018. There are two major changes in this year's reform, namely, the gradually adjusting downwards 18% for the savings accounts and reducing the income replacement ratios. 

For civil servants and public faculty retirees who receive a monthly annuity payment, the astonishing 18 % annually for the savings accounts will be deducted from 18% to 9%, and from 9% to 0%, by the end of 2020 and 2021 respectively. For retirees who receive the lump-sum retirement payment, a 6-year sunset period is adapted. The pension will become 12%, 10%, 8%, 6% by 2018, 2021, 2023 and 2025 correspondingly. 

Pension plans are all based on salary and years of employment. The income replacement rate for public servant retirees who serve 15 years is set at 45%, with a decrease of 1.5% per year until it reaches 30%; for retirees who serve 35 years is set at 75%, with a decrease of 1.5 % per year until it reaches 60%. A minimum monthly pension payment of NT$32,160 is also secured for public school teachers and civil servants. Finally, the final salary pension system will gradually be replaced by the 15-year career average pension system after the reform.

As for military personnel, Defense Minister Yen De-fa said that the new pension program for military personnel, prioritized the rights and interests of mid-level and junior officers, is expected to boost recruitment as Taiwan transits to an all-volunteer force. As a consequence, the separate pension reform bill for military personnel set the minimum monthly pension for retired military personnel at NT$38,990. Under the bill, the income replacement rate for military retirees who serve 20 years is set at 55%, with an increase of 2% for every extra year of service beyond 20 years until it reaches 95% for noncommissioned officers and 90 % for commissioned officers.

The 18 % preferential interest rate will be phased out over 10 years for retirees who receive a monthly annuity payment; those who receive a lump- sum retirement payment will see the interest rate cut to 12% in first two years and reduce to 6% 7 years later. The reform will not affect those whose pensions are less than NT$38,990 per month.

More information on this article

Taiwan passed the “Foundation Act”.

2018.06.29

The Legislative Yuan passes the draft articles of “Foundation Act”. Before the Act, there were no general statues on the foundation; this is the first overall regulative act of foundations in Taiwan. 

 

In the past, the mechanisms regarding the establishment and management of foundations were lack of regulations unity and precision, but only general principles stated in Civil Code. The competent authorities of foundations were also confused in its hieratical in management. Furthermore, the suggestions of transparency on foundations in Taiwan were notified by the Asia/Pacific Group on Money Laundering, APG, which the regime of anti-laundering and anti-terrorist financing are two of the most important aspects in Foundation Act. The foundations are divided into two types: one is the “Government Funding” the other is “Private Funding”. The Act also includes mechanisms of “Human Resource, Accounting, Auditing, Financing, and Information Transparency.” 

The following are the brief introduction: 

 

A. Government Funding v. Private Funding.

The competent authority will conduct strict scrutiny on government funding foundation, minimum scrutiny will adapt to private funding foundations. 

 

B. Regulations on corporate governance and conflict of interest.

Regulations on the directors and ombudsman of the private funding foundations, including the number of seats, terms, and qualifications (§§39-47). Reframing the foundations of improperly transferring of funds by fraud or conspiracy. Code of conduct for directors and ombudsman, including violation of enrichment and corruption and conflict of interest. (§§14-16) 

 

C. Mechanisms of Accounting, Auditing, and internal control.

The options for funds held and utilized (§19); the foundation shall establish the Accounting department; Auditing department is required when the funds of foundation or annual income reach a certain amount; the financial report shall be certified and Duly Filed by a certified public accountant. (§24) 

 

D. Information Transparency and phase in the regime of anti-laundering.

Principles for public-opening of the financial report of the foundation. The working projects, financial report and the working report shall be filed to the competent authority for checks and documents. Risk Evaluation reports shall provide if the foundation is planning to perform its duty in regions be identified in the high-risk list of laundering or terrorist-financing, along with its working project and budget proposition. (§§25, 26) 

 

E. Risk management for laundering and terrorist financing.

The competent authority shall identify the foundations which are risked in its characteristic of laundering or terrorist financing. Those foundations are identified shall subject to risk evaluations, inspections and shall take training on anti-laundering lessons. (§27) 

 

F. Foundation withdrawal.

Elements for foundation termination (§30), foundation merging (§§34-37), mechanisms for suspension (§66), and foundation withdrawal or force termination mechanisms for government funding foundations (§58). 

 

G. Public Concerning issues. 

 

Directors and ombudsmen of government funding foundations shall have no compensation in general and double-position is prohibited (§52). Payment standards for clerks and practices in the foundation (§53).

The funds and estates inherited from the succession of Japanese colonial government shall establish foundations in order to hold and utilize these funds. Foundations established based on the inheritance from the Japanese colonial government succession, shall be deemed “government funding” foundations. 

 

Policy Clarified:

As the concerning disputed regarding article 68, disputes concerning the foundations that once to be “government funding”, but becoming “private funding” since receiving funds from the private sector, the competent authority may inject capitals to fill-up the gap. The authority may initiate capital injection once the foundation is determined either as deviated from its founding purpose or lack of capacity to perform its duty on public good or be used as a tool of regulatory evasion. But this mechanism is not a “Buy Back” but rather making the prescribed foundation under a strict scrutiny. 

 

As for whether the religious foundation shall under the scrutiny of the Act, the Legislative Yuan and the public opinion has not reached any consensus. The religious groups will not be regulated under the Foundation Act. This issue is under high debate, the religious groups are having concerns on the issue of information transparency and financial report. The religious group and foundation will be regulated under the Act of Religious Group which is yet to finish the draft.

Legislative Yuan passes the “Air Pollution Control Act”.

2018.06.29

The EPA described that the Air Pollution Control Act embrace several regulatory mechanisms for air pollution control including “Good Neighbor Clause”, “Pollution source control”, “Mobile source air pollution”, “standard of finds”, “deprivation of illegal benefits” and “Whistleblower”. 

 

For the “Good Neighbor Clause”, the article 7 of the Act requires the municipal government to cooperate with the policy-making and law enforcement of air pollution. The designated factory shall also provide with the contingency plan under article 33. The competent authority shall identify and list the harmful or excessive quantities of substances including gases, particulates, and biological molecules with evaluation reports. Factory shall comply with the standards of emission and adopt the best pollution control process to the best extent of its capability. The finds for violation would be calculated on a daily base. 

 

For “Good Community Clause”: The municipal government may designate certain vehicles-free or prohibit of high pollution vehicles region or area under article 40. Vehicles and motors over 10 years will be under strict inspections on its emission, for those who fail to comply would be disqualified of his driving permits. 

 

The finds and penalty are also reiterated in the Act, the polluter would face a maximum life sentence for causing death through air pollution. The upper limits of the finds for air pollution is up to 30 million NTD for the single violation but proportionality is also added in as discretion of the authority.

Supreme Court opens session on RCA case.

2018.06.25

The RCA Case, a notorious occupational injury, is the verdict of the highest amount of damages in the records of Taiwan civil litigation. Since last year, the Court of Appeal had allocated damages of an amount equivalent to 710 million NTD for the 486 victims of the RCA pollution. The Supreme Court opens oral argument on 21 June. The members RCA victims’ association had urged the Supreme Court directly decide on the merits of the case rather than just revoke and return. 

 

Despite a demand to have “Live-Stream” session, the Supreme Court has decided not to have the session live-streamed due to lack of authority and legitimacy, In addition, regarding the autonomous of the petitioners and the confidentiality of the evidence, the session should not be stream online. 

 

The occupational injury broke out in 1992 when the RCA factory had been accused of dumping unprocessed toxic wastewater into the underground water which caused an environmental catastrophe. The workers within and the neighbors began to show collective body injuries like cancers and unidentified diseases which were deadly. Since then, almost a thousand workers resulted in cancer and nearly two hundred had perished. The RCA had shut down the factory since the incident broke out and left Taiwan. But the “Taiwan Association for Victims of Occupational Injuries and the Association for R-C-A victims” had formed up to file a suit at domestic court to Thomson-CSF, GE, and RCA for damages. 

 

It is rare for the Supreme Court to open oral arguments session, which the both parties presented several arguments regarding issues of the causation, related injuries, burden of proof, prescription and Lifting the Veil. The advocates presented international academic researches and American case laws to support that the organic solvents, with a high potential, would lead to cancers. The advocates urged the Court to loose the standard of causation and to adopt the standard of “Moral Evidence” in public nuisance litigation. The Supreme Court would deliver its judgment on August 16.

More information here

Draft articles for Labor Dispute Settlement Act.

2018.06.25

The Executive Yuan passed the draft articles of the Labor Dispute Settlement Act on 21 this month, would move to the Legislative Yuan for reading. 

 

The Primer described that the draft article is based on the policy of Judicial Reforms; one of the policies is to establish a court specialized in labor disputes. This court would combine civil litigation, compulsory enforcement, and Labor Standards Acts which would also contain specific statues of the court to have the labor disputes settled in just and receiving the result within a reasonable time. The following are the brief introduction of these draft articles:  

I. Chapter I General Principles:

A. Purpose of the law, the sequence for application and hierarchic. (§§1~3, 15)

B. Each judicial level shall establish a specialized labor dispute chamber or institute. (§§4, 8)

C. Jurisdiction, consultant, and advocate, standards for subject-matter, cost of the court and judicial aids. (§§5~14) 

 

II. Chapter II Mediation Proceedings:

A. Pre-conditions, jurisdiction, and joint process for labor disputes mediation. (§§16~19, 22)

B. Establish of Mediation Committee, rules of mediation and terms reconciled. (§§20, 21, 23~27)

C. The consequence for mediation is adjudicated as failed by the Committee. (§§29~31) 

 

III. Chapter III Litigation Proceedings:

A. Single oral argument. (§32)

B. Rules for the Court’s discretions on elaboration, investigation, evidence contract, the burden of proof and other discretions of the court. (§§33~39)

C. Non-performance of Union as a submission, confirmation base on consensus, public announcement and provisional measures. (§§40~45) 

IV. Chapter IV Perpetuation of Evidence

Adjudication on evidence perpetuation for improper practice, perpetuation with security and special provisional measures. (§§46~50) 

V. Chapter V Annex

Labor disputes, the perpetuation of evidence and jurisdiction issues for cases at trial before the enacted. (§§51~53) 

As scholars described, the new law would provide benefits for both parties in labor disputes: 

A. Practical Proceedings for Mediation

The Mediation composed of one judge and two councils to establish as a Committee, having one judge as the member of the Committee would provide authorities and a better understanding of the case if litigation is needed eventually.

Mediation shall perform within 40 days after the establishment, and the Committee shall deliver its decision after 3 times of mediations. Both parties shall file their submissions and evidence before the second mediation. If the mediations were failed to have a final result, the judge-participated would trial for the very case. 

B. Litigation Proceedings

Since the judge at trial was the member of the Committee, thus, the submissions shall be delivered within a single session of oral argument. The judge may also open an investigation if needed. 

C. Provisional Measures

If the worker been laid-off, the worker could file a suit for recognition of employment and argued for improper practice. If the court should find the prima facie of the merits exist and no substantial grounds from the employer. The Court may order provisional measures on payments and the worker could return and continue his/her position before the final result. 

D. Shifting the Burden of Proof

Disputes regarding payments within the period of employment, e.g. retire pension, severance pay etc., should be determined as compensation related to the employment. Should the employer deny such a payment but rather insist as a gift (Bonuses), the employer should bear the burden of proof.The records of working hours shall be determined as a basis of overtime calculation. Should the employer deny the determination of overtime hours, the employer should bear the burden of proof.

More information here

Société Générale is permitted to issue the financial bond in NTD.

2018.06.15

For the government’s renewable energy policy, the FSC decided to phase in the concept of “Green Bond”, encouraging the domestic banks to have its own financing capacity on the area of renewable energy by cooperating with foreign banks. Thus, the “Foreign Bank Issuing NTD Financial Bond in Taiwan” launched on 17 April this year. 

 

Société Générale as one of the top financial and banking service companies in France, to be the first foreign bank to issue NTD financial bond according to the regulation above. The total volume of bonds is estimated at 15.6 billion NTD dollars. This term of offering funds would be devoted to the infrastructure, off-shore and inland wind farm, solar power and other green energy investment projects. The Société Générale has applied Green Bond OTC (over-the-counter) in TPEx, the subjects would be the “Professional Investors” describe in “Regulations Governing Offshore Structured Products” article 3 (3). 

 

The FSC is looking forward to having more domestic banks and foreign banks to cooperate and join the green energy financing policy.

More informations here

Amendments to rules of Private Participation in Infrastructure includes social welfare security and shopping malls.

 

2018.06.15

The Ministry of Finance had released several amendments to the “Enforcement Rules of Act for Promotion of Private Participation in Infrastructure Projects” to respond to the new round of infrastructure investment policy. The amendments took effect on 8 this June.

The new amendments include:

1. “Sewerage projects” shall include the sewers and affiliated facilities reserved for the treatment of household and industrial wastewater, which these projects are opened to private participation.

2. “Sanitation and Medical facilities” has expanded the original vaccine production facilities to all medicine factories, which allows private participation of patent technologies, management operates to devote in the domestic sanitary industries.

3. “Long-Term Care Centre” been added to the scope of social welfare facilities and which the investment project of it is exempted from several evaluations from central authorities.

4. Private participation of “Shopping Malls” projects are not limited to off-shore islands.

The Ministry to anticipate these new amendments along with the new round of investment policy would attract civil funds and private participation to devote to the infrastructure and social welfare constructions.

More informations here

Amendments to Insurance Act: the disabled shall have the right to claim the life insurance.

2018.06.15

The amendments to the Insurance Act has taken effect on 13 this June, from now no, all the insurance related documents and information shall substitute all the terms of “Handicap (殘障in Chinese)” to “Disabled (失能in Chinese)” for the principle of non-discriminate in CRPD. The former description of “mental disordered (精神障礙)”, “mental disability (精神缺陷)” and other descriptions regarding the people with mentally impaired, shall substitute as whether he is in the commencement of “Guardianship (受有監護宣告)”. All the documents and information, e.g. Contracts, telephone calls, notice and informed, shall substitute these terms immediately.

Before these amendments, the disabled would only to claim the burial expenses in life insurance; other death benefits were invalid (for the sake of preventing moral hazard). For the amendment of §107-1, only the insured died under guardianship, the beneficiary shall be prohibited to claim the death benefits, other disabled insured would able to have life insurance and the beneficiary would be able to claim. 

In addition, the amendment to §146-5, open for insurance companies to join and invest on social welfare industries, would exempt from the restriction of §146-1 (3)&(4), and restrictions on the numbers of seats of insurance enterprise or its representative serve as director or supervisor of the invested company.

More informations here 

Ministry of Labor responds to the suggestions of expertise working hours in “2018 Taiwan White Paper”.

2018.06.11

Regarding the suggestions in “2018 Taiwan White Paper” released by the AmChan Taipei, which AmChan suggested that supervisory and administrative personnel or professionals with a certain salary level may exempt from the current legal restrictions on working hours. The Ministry of Labor responded that the “Labor Standards Act” is the fundamental protection for all employees. The Ministry would take this suggestion into consideration and would carefully evaluate the potential resolutions.

The Ministry of Labor described that the current Labor Standards Act adopted the flexible overtime scheme of 2-week, 4-week, and 8-week. The employer could apply one of the overtime schemes to which he sees fit according to article 32(1), (2) of the Act; there are rules for exceptional situations like natural disasters and emergencies as well. Additionally, the employees could arrange his leaves by negotiating with the employers according to the law. For workers with no fixed places, there are guidelines for workers with this characteristic keeping the records of working hours and arrangements for leaves and rest.

For positions with special characteristics not suitable for general regulations, should adopt the regime of article 84-1 of the Act. Despite the article allowed the employees of certain areas listed by the central administrative authority, may exempt from several rules in the Act. But still governed by principles of normal working hours no more than 8-hours per day and overtime not exceeding 40-hours per week.

Article 30(5) of the attendance record which is the obligation of the employer to keep the record as the ground for workers to claim their rights in the Act. The form of attendance record is not limited to the punch clock records but anything, any form that could serve as keeping records of working hours, e.g. documents signed, data resend, records of GPS…etc.

More information here

Ministry of Labor: “Three Pillars” to improve the status of foreign workers livelihood.

2018.06.11

Concerning several major incidents reflects the hardship of foreign workers’ livelihood in Taiwan. In the meeting held by Minister Hsu, which the Workforce Develop Agency made reports regarding the inspection, and several cases of labor conditions violations, the Minister committed that the Ministry would launch the “Three Pillars” projects to improve the condition of foreign workers:

The Ministry would launch a series of labor, fire, construction, occupation security inspections subjected to employers with more than 30 foreign workers, dormitory within the factory, and institutions with complaint records. The inspection project is expected to launch around mid-June.

A total reform of the livelihood condition of Type B foreign workers (Employment Service Act, §46(1) (8~11)), including dormitory and meals conditions. Regarding the urge for the separation of dormitory from the factory, the Ministry of Labor would make a further evaluation with Ministry of Economic for alternatives.

The municipal authorities should have regular inspections on whether the employer violates the guidelines on foreign worker care-taking. The authority should notify the employer’s violation for improvement. And considering incident of multi-violations on different aspects like “Occupational Safety and Health”, “Labor Inspection”, “Fire Services”, “Building”, the Ministry of Labor would soon make amendments to the rule of labor inspection. It is expected to have a full-powered adjudication on employers who have multi-violations for municipal authorities.

Other than labor inspection regime, the Ministry had placed additional 75 members of Consultants to investigate on foreign workers living conditions. This June, the Ministry also launched a new website that combines multiple aspects for foreign workers and available for English, Vietnamese, Thai, Indonesian…etc. and online legal consultation available on ( https://fw.wda.gov.tw/wda-employer/ ).

More information here

Amendments to standard form contracts for electronic payment and services.

2018.06.11

The FSC has concluded several amendments to the mandatory provisions of standard form contract for electronic payment and institution business. The FSC announced the draft version of the amendments and receiving feedbacks.

The FSC held a consult meeting with related government authorities, customer protection interest groups, experts on electronic payment and customer protection, concluded several draft amendments to the guidelines on standard form contract and performance of the business. The followings are the brief introductions:

A. Adding the definition of “Payment via agreed linked deposit account”: (shall mean the service where in conducting its electronic payment business, an electronic payment institution gives a financial institution at where an user opens his/her account (referred to as "the financial institution holding the account" hereunder)an account payment deduction instruction according to the agreement between the user and the financial institution to transfer funds from the user's deposit account with the financial institution for the electronic payment institution to collect payment from the user and record the payment amount and the fund transfer activity under the user's electronic payment account ("e-payment account"). The mechanisms of the operation are as follows:

(1)"Direct link mechanism" means the mechanism where an electronic payment institution gives a financial institution holding the account a payment deduction instruction directly to transfer funds from the user's deposit account.

(2)"Indirect link mechanism" means the mechanism where an electronic payment institution gives a dedicated deposit account bank a payment deduction instruction indirectly through the financial information service enterprise or clearing house to which the bank is connected to transfer funds from the user's deposit account with the bank)

Definition of “Integration and conveyance of receipt/payment information for recipient users”: (shall mean an electronic payment institute is entrusted by recipient users and other institutes to provide terminal equipment or application program for integrating and conveying receipt/payment information.)

B.  Setting an upper limit on the amount of automatically deposit of value per day.

C. Adding conditions and restrictions on users are found to have using anonymous, false ID, shell company or refuse to provide required documents for identifying and verifying its identity.

D. For users of credit deposits, NTD shall be the only currency allowed. And the deposit value shall not be allowed to transfer or withdraw between the e-payment accounts.

The draft amendments would be accessible online and the FSC is receiving comments and feedback from the public within 60 days after the announcement.

More informations here

Comparison between Taiwan’s Personal Information Protection Act and the EU GDPR.

I. Material Scope

A. GDPR:GDPR applies to the processing of personal data in the context of the activities of an establishment of a controller or a processor in the Union, regardless of whether the processing takes place in the Union or not.

B. Taiwan PIP act:PIP act are applicable to the government agency and the non-government agency, when they collect, process or use the personal information of the citizens of the R.O.C. outside the territory of the R.O.C.

II. Definition

A. GDPR:

“Personal data” means any information relating to an identified or identifiable natural person (data subject), and including the online identifier. (GDPR art. 4)

B. Taiwan PIP act:

“Personal Information” includes all information which may be used to identify a natural person, both directly and indirectly. (PIP art. 2)

III. Processing of special categories of personal data


A. GDPR:

Processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of  genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person's sex life or sexual orientation shall be prohibited. (GDPR art. 9) Except for substantial public interests and necessities.

B. Taiwan PIP act:

Personal information of medical records, medical treatment, genetic information, sexual life, health examination and criminal records should not be collected, processed or used. However, six situations are not subject to the limits.

IV.Individual Rights

A.Right to be forgotten

1. GDPR:

The data subject shall have the right to obtain from the controller the erasure of personal data concerning him or her without undue delay and the controller shall have the obligation to erase personal data without undue delay in certain situations.

2. Taiwan PIP act:

The rights of personal information should not be waived in advance or limited by a specific agreement; agency should ensure the accuracy of personal information, and correct or supplement it, ex officio or upon the request of the Party. (PIP art. 3, 11)

B.Right to data portability

The data subject shall have the right to receive the personal data concerning him or her, which he or she has provided to a controller, in a structured, commonly used and machine-readable format and have the right to transmit those data to another controller without hindrance from the controller to which the personal data have been provided. However, Taiwan PIP has not yet included this special idea of data accessibility to the data subjects. The Taiwan authority will take this mechanism into reference.

V.The duty of the data processor.


A. GDPR:

1.Data protection impact assessment

Where a type of processing, in particular, using new technologies and taking into account the nature, scope, context, and purposes of the processing, is likely to result in a high risk to the rights and freedoms of natural persons, the controller shall, prior to the processing, carry out an assessment of the impact of the envisaged processing operations on the protection of personal data.

2. Designation of the data protection officer

Article 37 of the GDPR regulates the controller and the processor shall designate a data protection officer. Taiwan PIP and its implementing regulations only regulate the government / non-government agency should implement its own data protection plan and contingency policy. 

VI.Competent Authority


A.GDPR:

Member State shall provide for one or more independent public authorities to be responsible for monitoring the application of the GDPR.

B.Taiwan PIP act:

The regime of Taiwan PIP has distributed the obligations into each competent authority in the Executive Yuan. With mechanisms of inspection, correction notice, and fines.

VII.Cross-border transmit

A.GDPR:

1.A transfer of personal data to a third country or an international organization may take place where an adequate level of protection is confirmed by the EU Commission.

2. Transfers subject to appropriate safeguards

a.binding corporate rules in accordance with Article 47

b. standard data protection clauses adopted by a supervisory authority and approved by the Commission.

c.an approved certification mechanism pursuant to Article

3.Derogations for specific situations

B. Taiwan PIP act:

When the non-government agency transmits personal information internationally, the government authority in charge of the subject industry may limit its activities. Where it involves major national interests; Where national treaty or agreement specifies otherwise; Where the country receiving personal information lacks proper regulations.

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The Executive Yuan: Ministries shall be well-prepared to the “General Data Protection Regulation GDPR” of the EU.

The European Union has enacted its latest data protection regulation (General Data Protection Regulation GDPR) which the applicable and effected scope has been the largest every-since. Since EU has been a close partner on international trade, Primer Lai instructed every Ministry to be well-prepared.

 The Executive Yuan described that Taiwan has its own “Personal Information Protection Act” but the regime is quite different. The regime of GDPR consists of an independent central authority, but Taiwan has no independent authority but distributes the obligation to each competent authorities. The Executive Yuan would instruct the National Development Council to establish the independent office to coordinate the data protection regime and issues regarding the implementation of GDPR.

 The latest GDPR is focusing on implement the EU’s data protection policy to a larger and globally extent, includes all the enterprises (established in or outside Europe) providing products and services to the citizens residing in EU or utilizing EU citizens’ information. Concerning the cross-border transmitting, the GDPR holds a restrictive policy. Thus, personal data transmitting may only be allowed in exceptional situations with elements fulfilled. E.g. enterprise may transmit such kind of data within its restrictive structure and with the approval from the competent authority in EU; or acquired the consent from the data owner. Additionally, in the regime of GDPR, EU may evaluate the adequacy of personal data protection in the third-party country. EU may allow cross-border data transmitting with the third-party country only if the country fulfilled certain adequacy. 

The National Development Council said that the “Personal Information Protection Act” of Taiwan was referred to the EU “Data Protection Direction”, but the regime of Taiwan still lacks a central competent authority to coordinate issues concerning data protection. The first step is to establish an independent office of data protection, the Council has set-up a web page for the GDPR introduction, and the next step is to promote the policy of data protection adequacy. 

 

More here

Comparison between Taiwan’s Personal Information Protection Act and the EU GDPR.

VIII. Material Scope

A. GDPR:

GDPR applies to the processing of personal data in the context of the activities of an establishment of a controller or a processor in the Union, regardless of whether the processing takes place in the Union or not.

B.Taiwan PIP act:PIP act are applicable to the government agency and the non-government agency, when they collect, process or use the personal information of the citizens of the R.O.C. outside the territory of the R.O.C.

IX. Definition

A. GDPR:

“Personal data” means any information relating to an identified or identifiable natural person (data subject), and including the online identifier. (GDPR art. 4)

B.Taiwan PIP act:

“Personal Information” includes all information which may be used to identify a natural person, both directly and indirectly. (PIP art. 2)

X. Processing of special categories of personal data

A. GDPR:Processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of  genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person's sex life or sexual orientation shall be prohibited. (GDPR art. 9) Except for substantial public interests and necessities.

B. Taiwan PIP act:

Personal information of medical records, medical treatment, genetic information, sexual life, health examination and criminal records should not be collected, processed or used. However, six situations are not subject to the limits.

XI.Individual Rights

A.Right to be forgotten

1.GDPR:The data subject shall have the right to obtain from the controller the erasure of personal data concerning him or her without undue delay and the controller shall have the obligation to erase personal data without undue delay in certain situations.

2. Taiwan PIP act:The rights of personal information should not be waived in advance or limited by a specific agreement; agency should ensure the accuracy of personal information, and correct or supplement it, ex officio or upon the request of the Party. (PIP art. 3, 11)

B.Right to data portabilityThe data subject shall have the right to receive the personal data concerning him or her, which he or she has provided to a controller, in a structured, commonly used and machine-readable format and have the right to transmit those data to another controller without hindrance from the controller to which the personal data have been provided. However, Taiwan PIP has not yet included this special idea of data accessibility to the data subjects. The Taiwan authority will take this mechanism into reference.

XII. The duty of the data processor.

A. GDPR:

1. Data protection impact assessment

Where a type of processing, in particular, using new technologies and taking into account the nature, scope, context, and purposes of the processing, is likely to result in a high risk to the rights and freedoms of natural persons, the controller shall, prior to the processing, carry out an assessment of the impact of the envisaged processing operations on the protection of personal data.

2. Designation of the data protection officer

Article 37 of the GDPR regulates the controller and the processor shall designate a data protection officer. Taiwan PIP and its implementing regulations only regulate the government / non-government agency should implement its own data protection plan and contingency policy. 

XIII. Competent Authority

A.GDPR:

Member State shall provide for one or more independent public authorities to be responsible for monitoring the application of the GDPR.

B. Taiwan PIP act:The regime of Taiwan PIP has distributed the obligations into each competent authority in the Executive Yuan. With mechanisms of inspection, correction notice, and fines. 

XIV. Cross-border transmit

A. GDPR:

1.A transfer of personal data to a third country or an international organization may take place where an adequate level of protection is confirmed by the EU Commission.

2.Transfers subject to appropriate safeguards

a. binding corporate rules in accordance with Article 47

b.standard data protection clauses adopted by a supervisory authority and approved by the Commission.

c.an approved certification mechanism pursuant to Article 42.

3. Derogations for specific situations

B.Taiwan PIP act:

When the non-government agency transmits personal information internationally, the government authority in charge of the subject industry may limit its activities. Where it involves major national interests; Where national treaty or agreement specifies otherwise; Where the country receiving personal information lacks proper regulations. 

More Information here

The Court’s notice may now publish online.

The Legislative Yuan has passed several amendments to the Code of Civil Procedure. Before, the notice of the Court must be published in the newspaper, after these amendments the notice may publish online, making it convenient for the people. 

The Code of Civil Procedure has not been renewed for a long time which the notice of the Court shall only be published in the newspaper. For nowadays, this is impractical for the civil litigation, that is most of the Court’s notice is published on papers not familiar to the public. Thus, the amendments of Court’s notice, including originating document(§44-2), constructive notice(§151), public summon(§542) and reporting period of right(§543), the applicant may choose to publish on the Court’s website as a public notice. These amendments will enter into force within 6 months after announcement. 

Concerning to the notice of public enforcement, notice for auction may also publish online(Public Enforcement Act §§65, 84). Insolvency procedure and non-contentious proceedings may also subject to this new policy.

 

The Executive Yuan: Ministries shall be well-prepared to the “General Data Protection Regulation GDPR” of the EU.

The European Union has enacted its latest data protection regulation (General Data Protection Regulation GDPR) which the applicable and effected scope has been the largest every-since. Since EU has been a close partner on international trade, Primer Lai instructed every Ministry to be well-prepared. 

The Executive Yuan described that Taiwan has its own “Personal Information Protection Act” but the regime is quite different. The regime of GDPR consists of an independent central authority, but Taiwan has no independent authority but distributes the obligation to each competent authorities. The Executive Yuan would instruct the National Development Council to establish the independent office to coordinate the data protection regime and issues regarding the implementation of GDPR. 

The latest GDPR is focusing on implement the EU’s data protection policy to a larger and globally extent, includes all the enterprises (established in or outside Europe) providing products and services to the citizens residing in EU or utilizing EU citizens’ information. Concerning the cross-border transmitting, the GDPR holds a restrictive policy. Thus, personal data transmitting may only be allowed in exceptional situations with elements fulfilled. E.g. enterprise may transmit such kind of data within its restrictive structure and with the approval from the competent authority in EU; or acquired the consent from the data owner. Additionally, in the regime of GDPR, EU may evaluate the adequacy of personal data protection in the third-party country. EU may allow cross-border data transmitting with the third-party country only if the country fulfilled certain adequacy.

 The National Development Council said that the “Personal Information Protection Act” of Taiwan was referred to the EU “Data Protection Direction”, but the regime of Taiwan still lacks a central competent authority to coordinate issues concerning data protection. The first step is to establish an independent office of data protection, the Council has set-up a web page for the GDPR introduction, and the next step is to promote the policy of data protection adequacy. 

 

NCC: A Two-Million Fine for Chunghwa Telecom.

The National Communications Committee described that according to art. 73 of the “Regulations for Administration of Mobile Broadband Businesses”. A business operator who failed to maintain its service quality or mal-functioned management that sufficed impairment to customers, the operator would subject to fines once the operator shall not improve within a period of time described by the NCC. Chunghwa Telecom launched the “Unlimited Mobile Internet Plans for NTD $499” (so-called “The 499 Furious”), Chunghwa Telecom had not fully prepared for the anticipated crowds of customers which caused poor service quality, telephone-service, App-service broke down, long cue-up and amounts of contract disputes. NCC filed a notice for improvement on 11 May, but until the end of the promotion (15 May), Chunghwa Telecom failed to improvement anyway. The other two business operators, FETNET and TaiwanMobile, released similar promotion as well. Both of them were notified of improvement but neither of them complied.

 NCC gathered the three telecom business operators for promotion project reports, in order to clarify the chaos and furious among the market. The operators described that they had not expected to have such amount of customers who want to get this plan, causing long cue-ups, poor service quality, and overtime for employees. And many customers complained about disputes regarding contract termination. As the above-mentioned situations, Chunghwa Telecom as the first and the largest number of customers and complaints should bear the responsibility of causing chaos in the market and costs among society, shall subject to a fine of two million NTD and 600 thousand NTD for the other two operators. 

NCC reiterated that telecom business operator bears social responsibility for its characteristic as infrastructure. Despite the business, operators are free to set its own price to the extent of its discretion. But Chunghwa Telecom released such exaggerative promotion, causing so much trouble and disputes among customers, business market and the society which also revealed its lack of knowledge of management and internal control. NCC thereby decided a higher fine to Chunghwa Telecom, for its reckless business operation.

 After receiving the adjudication from NCC, Chunghwa Telecom to announce it would pursue for remedy at Administrative Court.

Read more here

Higher Fines for The Unqualified Insurance Business Operator.

The Legislative Yuan had passed the regulations regarding fines for unqualified or unregistered insurance business operator, fines up to 30 million NTD maximum. Insurance broker, manager, notary performing insurance business without relevant licenses shall subject to a fine of maximum 9 million NTD. 

The new amendment to Insurance Act art. 168-1 & 167-4, insurance broker, agency, manager, and notary who refuse to offer information or to be found that destroy or cover of documents during the competent authority’s inspection. Or operators to be found false documenting of fiscal report, false or deny replying, shall subject to a double among of fines respect to every violation. Other amendments to the business scope of an insurance company which insurance company may operate trust funds, loans, and other financial businesses base on the classification according to its Capital Adequacy Ratio.

(Legislative Yuan Meeting No. 12, 15 May 2018.)  

Foreign Worker Welfare and Occupational Security Inspection.

Considering the Taiwan International Labor Association urge for the “Separation of Factory and Dormitory” and “Information + Conversation”, the Ministry of Labor is planning to launch a series of inspections and policies review. 

1.    The welfare of Foreign Labor: the Ministry will review on the policies related to the livelihood care-taking and the Dormitory regulations. The Ministry of Labor would cooperate with the Ministry of Economic to take the suggestion regarding the separation of factory and dormitory into consideration and to form-up which policy as soon as possible. 

2.    Information Accessibility: The regulations of foreign labor livelihood care-taking should translate into different languages and should have them uploaded online, for foreign workers easy and friendly access to the information. 

3.    Regulation Review: The Ministry would further review on the regulations regarding the employer who violates article 54 of the ‘Employment and Service Act’, which the Ministry is planning to add-on several obligations on the employer concerning the security of the workers and fines for violation of which duties.

 4.    Inspection Launch: the Ministry has launched a series of inspections regarding the “PCB Factory Fire Hazard Prevention and Contingency Plan”. The Ministry will inspect the fire-hazard risk management on PCB factories with hazardous chemical storages.

More information here

Information Security and Management Act.

2018.05.21

 

The Legislative Yuan has passed the “Information Security and Management Act” to foster the policy and the infrastructure of national information security. Entities other than government authorities which designated by the competent authority would have to submit its InfoSec contingency plan as well. The entity that failed to report InfoSec incident, would subject to a fine of 300 thousand to 5 million NTD.

 According to article 3 of the Act, information security is to prevent threats from unauthorized access, utilize, control, information leak, destroy, revise, delete or other damage. To put the integration, confidentiality, and utility as top priorities. Critical infrastructure includes tangible and intangible assets, systems and networks, where catastrophic result would occur once if the infrastructure breaks down. The competent authority would designate the entities which subordinate this definition.

The competent authority shall consult with the relevant authority, civic groups and field experts before the designation and ring-fence the obligation of InfoSec. Entities would subordinate to a different level of InfoSec obligations according to the level of risks. The provider or holder of designated entities should submit its InfoSec contingency plan to the competent authority which the entities would subject to its auditing.

 

More information here 

Draft article ''Regulations to FinTech Coaching and Development''

The FSC to announce the draft article of “FinTech Coaching and Development Act” which the formal version will release soon. 

The “FinTech Development and Innovation Experiment Act” was released the early this year and took effect last month. The “Regulations to FinTech Coaching and Development” is here to provide coaching instructions and technical assistance for applicants who wish to invest and participate in FinTech business. There are 5 chapters with 17 articles, the following are the brief introduction: 

A.      The scope of developing coaching: The competent authorities may provide assistance to the financial entities, corporates, groups or individuals who apply FinTech in their business. Assistance includes legal compliance coaching, FinTech clusterforming InfoSec guidance and other assistance regarding the application procedures.

B.      FinTech development: The competent authority should hold seminars related to FinTech in a regular term. And may provide FinTech clusters or offices with preference rental.

C.      FinTech Sandbox: The competent authority may encourage the entities to apply Fintech Sandbox for product evaluation.

D.      FinTech Park and management: Authority may establish FinTech Park or Cluster for gathering businesses and entities. The operation and management of the park may coordinate with the experienced company or legal person.

 

More information here 

FSC: Draft amendments for Security Transaction Act.

2018.05.14

The FSC has several policies as prolonging the transfer period of the Treasury Stock to the employee, Remuneration Committee for Primary Listing and Foreign Emerging Stock companies, regulations for remuneration committee. In addition, the amendments contend several parts regarding legal compliance and fines for violations.

The followings are brief introductions for the amendments:

A. Prolonged the transfer period of Treasury Stock to the employee:

Considering the transfer period for buyback shares for employees and the time for applying stock option certificates, the FSC amend the period of “3 years” to a “5 years” period in the art. 28-2 of the Security Transaction Act. And also considering the power of major shareholders who owned over 10% of the shares, the new amendment forbids the shares held by the major shareholder be sold during the buyback period.

B. Cooperate Governance

1.Companies of the primary listing and foreign emerging stock shall establish Remuneration Committee for corporate governance.

2. Fines for primary listing and foreign emerging stock companies who fail to establish the Committee; and several operation guidelines for the Committee.

C. Mechanisms for supervision:“Improvement Notice”, “Necessary Measures” for the issuer, a security firm and service dealer. (art. 39, 65, 66)

D.Legal Compliance:

1.    Heavier fines for violation:The violation of Security Transaction Act would seriously undermine the interest of both the shareholders and the market. The upper limit of fines would up to 4.8 million NTD for a single violation. The FSC may also order the entity to correct within a prescribed time. (art. 178)

2. Fines for sub-entities violations:

i. Amendments to art. 178-1 of regarding the violation types of the security dealers, security services, security firms, stock exchange or over-the-counter securities exchange. Any violation of the subsidiary regulations would subject to a fine of 240 thousand to 4.8 million NTD and certain compulsory measures from the FSC. (Amendment 178-1)

ii. The target of fine would be directed to the entity (dealer, firm, service entity) that violates the law.

E. Supplements:Public Offerings besides financial entities duly audition and attest by a certified public accountant, recognition by the supervisors is no longer needed for the mid-term financial report. (art. 14-5)The FSC to announce that these amendments would be opened to the public online with commentary, anyone with questions or suggestions is free to contact the FSC for more information.

More information

Draft articles for ''Unmanned Vehicle Innovation and Experiment Act''

2018.05.21

The Ministry of Economic released the draft articles for Unmanned Vehicle innovation and experiment act. The Ministry described that due to the variety of the unmanned vehicles and multiple ways of business, there must be standard regulations for business and entities to comply. Unmanned vehicles may exempt from supervision during the period of sandbox test drives with this innovation experiment act. Subsidiary regulations may also form according to the result of sandbox test drives, creating a friendly regulatory environment for unmanned vehicle business. The Unmanned Vehicle Act includes self-drive car, vessel, and drone may apply for sandbox test drive. Business entities may enjoy regulate-free environment during the sandbox period. 

The Ministry provided that the experiment could be divided into two stages. The first stage is the experiment of the technology, service, and operation of the unmanned vehicle. If the competent authority deems aspects where amendment or legislate is necessary, the applicant may further go on to the second stage—regulatory experiment. An applicant who applies for regulatory experiment may benefit from the customize regulation that results from the second stage of sandbox experiment. The total period of first and second stage experiment, the applicant may have a period of 4 years maximum. For applicant applies for Sandbox experiment may enjoy the single-window regime where all the procedures and process for application is coordinated.

 The draft article has concluded through the Executive Yuan Assembly, now is sent to the Legislative Yuan for passing which is expected to be the priority discussion in the next term of consultation.

More information here 

Preannouncement of the ''Banking Act'' amendments

2018.05.14

The FSC to announce that due to the current trend of banking supervision policies, the FSC would focus on the Non-Compete clause for the responsible person, anti-money laundry and terrorism financing, compulsory measures to violations…etc. The followings are the brief introduction to the amendments:

A. The competent authority may instruct the clauses of Non-Compete, conflict of interests, and trade secrets regarding the responsible person.

B. Considering the principle No. 13 of the “Core Principles for Effective Banking Supervision” from Basel Committee on Banking Supervision and the Suggestion No. 40 from Financial Action Task Force FATF, the competent authority should conclude treaties or agreements with foreign competent authorities regarding the share of information and cooperation on a reciprocal basis.

C.Mechanisms for supervision: competent authority should have the power and mechanism to take compulsory measure when violations occur.

D.Fines for violation would be significantly lifted, and the discretions would be given to the competent authority.

E.Credit Card business would be subjected to fines for violating the rules and the entities that running the credit card business would be the target of fines.

The announcement of the amendments to Banking Act would be opened to the public online within 30 days. For more information please contact the FSC or reach for the website for commentaries.

More information

"Internet-Only Bank' policy is on the way.

2018.05.07

 

The FSC to announce its policy on the “Internet-Only Banks” in the vision of “Digital Finance 3.0”. The FSC described that the current trend of the financial industries is devoting to the development of FinTech. The FSC is planning to introduce the innovative “Internet-Only Banks” system into the financial market soon. This new policy is referred to the research on regime and practice of online-only banks in Japan and Korea, the followings are the brief introduction to this new policy:

 1. Concession: According to the market environment of Taiwan, the FSC is planning to issue two “Internet-Only Bank” concession in the market. For ensuring the compatibility to some extent.

2. Paid-in capital: Giving the newly established banks would have to sustain the operational risks and capital needs in the early stage, the “Internet-Only Bank” concessionaire shall provide with paid-in capital of NTD $10 billion. To ensure the ability of risk management and the future extension.

3. Business scope: the Internet-only bank shares the same business scope as a normal bank. Normal banks can have online business and operations, which the internet-only banks are allowed as well.

4. Qualifications:

A. There must be at least one Bank or FHC as a member of the initiators; with more than 50% of the Internet-only bank shareholding (or reached within a specific time). This is to ensure the Internet-only bank would have the finance and banking professions, and the ability to cooperated with the domestic financial industries.

B. Principles for major shareholders

i.With good faith and integrity, be able to explain the relationship between the bank, complying with the restrictions on concurrent posts held by the responsible person, and other financial business that could support the operation of the bank.

ii.Providing the management strategy and models of cooperation with the financial institutions.

iii.With no negative impact on its financial management and the public interest.

iv.The major shareholders should provide with static plans development of business, and the arrangements for the benefits of employees.

v.Accessibility to the investment structure of the Internet-only bank’s share.

vi.Accessibility to the financial, business status evaluation report within three accounting-years after the major shareholders held the shares of the Internet-only bank. (The major shareholders should declare his only evaluation report.)

vii.For major shareholders with no financial profession; e.g. professionals in FinTech, digital marketing… should provide his own strategy of business operation.

5.Principles for supervision:The internet-only banks share the same characteristic as normal banks but only differ in its mechanisms, thus, shall subject to the same supervision regime of banking. For example Legal compliance, customer data security, information security, anti-money laundry, and corporate governance.

6.Liaison Office:

Internet-Only Bank is required to have only one central liaison office for customer services, branch offices are not required. 

The FSC said that there are several rules and regulations amendments required, including regulations for financial bank establishment, FHC investment management rules, and guidelines for domestic branch offices… the FSC will complete these amendments and will receive the applications of establishing whenever the reference regulations are ready.

More information here

Foreign investors are welcome to apply the Authorized Economic Operator Certificate.

2018.05.14

The Bureau of Custom said that the rules for applying AEO certificates are amended according to the recent economic policy. Any foreign companies with branch office and operate in Taiwan are welcome to apply. According to the amendment, ratified foreign company with a branch office in Taiwan and operational capital over 300 million NTD, is exempt from the element that requires applicant established over 3-year. A foreign company with AEO certificate enjoys the privilege of customs facilitation.

The Bureau of Custom describes that there are about 707 certified AEO companies since the policy launched in 2009.

More information 

Financial Technology Development and Innovative experimentation Act

The FSC released the “Financial Technology Development and Innovative Experimentation Act”(FinTech Act as follow) along with three subsidiary regulations: Manage Regulations, Application, and Evaluation Meeting Operation Rules, and Rules for Disputes Settlement have completed the process of the announcement, should launch on 30 April. 

The FSC described that the Manage Regulations and the Operation Rules are adjusted and revised according to the results of the advisory conference held by the FSC and reference authorities. The FSC held several discussion meetings with the financial industries,For more information: fintechcenter@fsc.gov.tw 

The Application forms are ready for download on the website of FSC. The Center for “Financial Technology Development and Innovative” provides legal consultation for this new policy, interested industries may request for information and guidelines to speed up the application. 

In addition, the FSC has cooperated with the Ministry of Economic. For venture business which process the ideas of FinTech but yet to develop, could apply for legal consultation in the “Innovation Sandbox” established by the Ministry. Then, the FSC would support the venture business’s application.

More information here

US Department of Commerce issues affirmative preliminary anti dumping duty determinations.

2018.05.07

U.S. Department of Commerce announced the affirmative preliminary determinations in the antidumping duty investigations of imports of polyethylene terephthalate (PET) resin from Brazil, the Republic of Indonesia (Indonesia), the Republic of Korea (Korea), Pakistan, and Taiwan. There are two institutions been identified by the Department of Commerce, the Commerce calculated a preliminary dumping rate of 11.89 percent for mandatory respondent Far Eastern New Century Corporation/Far Eastern Textile Ltd./Worldwide Polychem (HK), Ltd. Commerce calculated a preliminary dumping rate of 9.02 percent for mandatory respondent Shinkong Synthetic Fibers Corporation. Commerce determined a preliminary dumping rate of 10.99 percent for all other producers and exporters of PET resin from Taiwan. 

The U.S. is the secondary export market for PET products, the export goods are the materials for PET bottles. The US has already deployed a 6.5% of custom on the PET material; the antidumping investigation would have a major impact on Taiwan’s PET industries. 

The antidumping investigation is appealed by several American companies: DAK Americas LLC、Indorama Ventures、M&G Polymer and Nan Ya Plastics Corporation, America. The merchandise subject to these investigations is properly classified under subheadings 3907.61.0000 and 3907.69.0000 of the Harmonized Tariff Schedule of the United States (HTSUS). In 2016, imports of PET resin from Brazil, Indonesia, Korea, Pakistan, and Taiwan were valued at an estimated $51.7 million, $35.7 million, $24 million, $34.1 million, and $109.8 million, respectively. 

Commerce is scheduled to announce its final determinations on or about September 17, 2018. If Commerce makes affirmative final determinations, and the U.S. International Trade Commission (ITC) makes affirmative final determinations that imports of PET resin from Brazil, Indonesia, Korea, Pakistan, and Taiwan materially injure, or threaten material injury to, the domestic industry, Commerce will issue antidumping orders. If either Commerce or the ITC issue negative final determinations, no orders will be issued. The ITC is scheduled to make its final injury determinations approximately 45 days after Commerce issues its final determinations, if affirmative.

Fact sheet from Department of Commerce.

More information here

Professional practicers who choose to adopt the Expense Standard, may plus 1% on the standard tax deduction.

2018.05.07

The Taxation Bureau described that the Ministry of Finance released the policy of adding 1% to the Expense Standard deduction of the professional practice income and other expenses for last year. This tax deduction policy is for the rising expenses (OT payment, shifts added, new recruits…) according to the labor law reform in 2016. For that office or firm who do not keep the Book and adopted the Expense Standard of the Ministry, may add 1% on the standard deduction (not include payment of the National Health Insurance). The declaration of “Regulatory Impact of professional practice income and expenses” is necessary when adopting this tax deduction policy. Declaration includes: 

1.Effective Labor Insurance and National Health Insurance for the employees.

2.Withholding tax for employee’s wage according to the Income Tax Regulations. 

The Bureau described that two categories have added on to the list of Expense:

1.Lawyer: 50% of the practice income of the Legal Aid cases as expenses.

2.Western-medical doctor: 78% of the vaccine (not covered by the Health Insurance) income as expenses.

More information here

Instant food inspection launch.

2018.05.07

To unfold the policy of “Five-Gates of Food Security”, the FDA is going to launch a series of inspection to business and companies with instant food products.The FDA described that the inspection would focus on whether the business has adopted the practice guideline in “The Regulations on Good Hygiene Practice for Food” (GHP).

 The FDA suggested that business or industries with instant food products should devote to the management of the food-making process, working environment, anti-contamination, and storage. If there is any violation of the regulation or practice guidelines and fail to make improvements within a specific of time, shall subject to a fine of NTD 60,000 to 200 million (Food Safety art. 8 Sanitary Control). Violation discovered during the random inspection, and fail to make improvements shall also subject to a fine of NTD 30,000 to 3 million (Food Safety art. 17 cleansers, food utensils, food containers or packaging).

More information here

Amendments to anti-money laundering and countering terrorism financing for the insurance industry

2018.05.07

The FSC has made amendments to the “Directions Governing Internal Control System of Anti-Money Laundering and Countering Terrorism Financing of Insurance Sector” article 5, for enhancing the internal control of the insurance agent or broker.

The FSC described that the Committee is supervising insurance agent companies or brokers to comply with its instruction concerning anti-money laundry/ terrorism financing and risk control. The FSC further made a draft article to the “Directions” and is expected to take effect soon. Introduction to the draft article: 

1.The insurance agent companies or insurance broker companies of certain sizes (annual turnover over NTD $50 million) not only should identify and assess money laundering and terrorist financing risks mentioned in article 5, but also should perform risk assessment update mechanism in place to ensure that risk data are kept up-to-date.

2.The insurance agent companies or brokers under certain sizes would be designated by the FSC through Administrative Rules (announcements) to comply with the instructions of risk identifying, evaluation and management report within its industrial associations. 

All the assessment and evaluation works shall provide its final report and improvement plans and shall submit the reports to the competent authority for records.

More information here

Draft articles for Jury Participation in Felony Cases.

2018.04.23

The Executive Yuan to announce the draft articles regarding the jury participation in the trial. The jury would participate in the trial of felony cases that sentence over 7 years and manslaughter cases, except for cases concerning drug use and juvenile delinquencies. The Executive Yuan described that the purpose of jury participation is for transparency of judicial process and to restore the faith of justice among the civil society. 

The duties of the jury are to uphold the facts, applying the law, and deciding the penalty. The jury shall apply to the Code of Conduct of Judges, who shall perform their duties in good faith, without any prejudice and impartiality, shall make his/her own decision independently. The Trial Court would content 6 Juries and 3 Judges, the decision of whether the suspect is guilty or not, should be determined by over 2/3 of guilty votes. The decision of penalty shall be determined by half of the votes.As regarding the juries are not professions in legal practice, it is a heavy workload for the juries to examine the indictment and dossiers. Thus, the policy for jury participation would apply the system of “Indictment-Only”. 

**Insights:The Jury Participation system in Taiwan is rather distinguished from the jury system of Anglo-Saxon. But a system that is similar to the system of French “La Cour d’Assises” which jury participates in the trial of felony cases and enjoys the equal value of veto with the Judges. However, the testing period of Taiwan to apply the jury system encounters lots of problems. Including lack of legal profession, prejudice, illogic opinions… and it is also a concern of selective choosing the category of crimes. The jury system could put the credibility of Trial Court at risk, once the problems remained. 

More information here

Draft amendments to the ''Insurance Act'' and ''Compulsory automobile Liability Insurance Act''.

2018.04.23

The amendments to the Insurance Act are for the purpose of synchronizing the regulations with the “Convention on the Rights of Persons with Disabilities (CRPD)”. Most importantly, is to embody the principle of “Non-Discrimination” into the insurance regulations in order to make the protection of the disabilities to the greatest extent. 

Brief introductions of the amendments to Insurance Act: 

1. Wordings revise: Wording changes in the Insurance Act, delete the wordings of “mentally impaired”, “diminished mental capacity”, replace by the wording of “commencement of guardianship”. And several wordings regarding the disabilities to incapacities.

2.Investment in social welfares: The insurance company could invest in the social welfare institutions and industries, and which are no longer limited by the representatives and voting rights in the Board of the invested enterprise. (Amendments to the Insurance Act §146-5)

 Brief introductions of the amendments to the “Compulsory Automobile Liability Insurance Act”: 

1.Competent authority wording revise. (§3)

2.Compulsory issuing or representing the insurance documents/cards during the inspection of police officer and the Bureau are no longer required. (§19)

3.When a proposer establishes a duplicate contract for this insurance either the proposer, or the insurer that issued the insurance contract with the later date of effect, may revoke the contract with the later date of effect; and the insurer shall return the premium (expenses needed to ensure the soundness of this insurance may only be the deduction from the return premium). (§22(3))

4.Wording revises the disability to incapacity.

Learn more about it here

Quash the '' Reinstatement pending period'' in life insurance contract

2018.04.23

The FSC Bureau of Insurance announced the policy of quashing the pending period in life insurance contract. The Bureau makes amendments to the “Contract Guidelines of Life Insurance Products” article 67 and 15-2. The Insurer (insurance company) shall no longer put the pending period (generally 30~90 days) in the health insurance contract for cancers or dread diseases plans. The Policyholders are eligible for their coverage without waiting 30~90 days as previously required as long as the Policyholders qualify the elements of reinstatement. 

The Insurance Bureau described that the pending period generally exists in the initial period of the cancers or dread disease plans. In the first 90 days of the insurance contract, the policyholders could not claim for their insurance coverage. Thus, the pending period shall not address again when the policyholders applying for reinstatement, according to the principle of article 116 of the Insurance Act.This new amendment shall have instance effect; policy terms shall be revised right after this announcement. 

Last but not least, the amendment to the Guidelines §15-2 is to readdress the right of revoke in the life insurance over 2 years. Although the right of revoke has already existed in most life insurance products among the market. But this amendment is to readdress the right of revoke shall be granted to the policyholders whether the physical report is required in the terms or not.

 **Insights:The quashing of the pending period after reinstatement would not equate to the eligibility of insurance coverage. According to the Insurance Act §116, the insurance contract shall be suspended after 30 days of the receiving notice of premium due. Where the proposer applies for reinstatement more than six months after the date of suspension, the insurer may, within five days from the date on which the proposer applies for reinstatement, require that the proposer furnish proof of insurability for the insured, and the insurer may not refuse reinstatement unless the insured's degree of risk has undergone a change that is sufficiently material as to justify refusal to insure. This is the legislative policy of preventing the situation of “Adverse Selection”. Doctrines suggested that the appearance of major changes in the insurability (e.g. disease diagnosed) should be distinguished between the time of suspension and reinstatement. Once the instance appeared before the suspension, the policyholder still eligible to the coverage. However, if the instance appeared during the suspension and the time applying for reinstatement (suspend more than 6 months), the insurer could refuse the application.

 

More information here

Explanations concerning the annual leaves extended to the following year.

2018.04.13

 

Question 1: Whether the extension of unused annual leaves could set in a period that less than a year (e.g. 3 months, 6 months)? Whether the agreement of extension could be renegotiated?

The Ministry of Labor: 

The unused annual leaves could extend until the following year according to the agreement reached by employers and workers. The extension period is only limited to not exceed one year and extension period could be renegotiated as long as both parties are agreed. Last, the unused annual leaves until the end of the extension period, wages shall be paid to the workers. The unused leaves shall not extend to the third year.

Example: Employer and Workers agreed to have the Calendar Year (Fiscal Year: 31 December) as the reference point for annual leaves. And agreed to have a 3 months extension for the unused leaves in the following year. Worker A has 14 days of annual leaves in 2018. He left 10 days leaves unused and he has an extension of 3 months for the unused in 2019. However, he still has 5 days left until the extension period expired. There are two ways to solve this problem, one is to pay the 5 days wages to the Worker A, the other one is to reach another agreement with Worker A to further extend the 5 days leaves but the extension would not exceed the end of 2019.

Question 2: For the wages of unused annual leaves, how do these wages be recognized in the “Average Wage”?

The Ministry of Labor:

“Average Wage” means the figure reached by taking the total wages for the six months preceding the day on which an event requiring that a computation be made occurs, divided by the total number of days in that period. The “Total Wage” means wages for the six months preceding the day on which an event requiring a computation. 

To determine whether the wages for unused annual leaves to be computed in the “Average Wage” or not is decided by the “terminate date” of leaves. Only the termination date was in the 6 months calculate base, could the wages of the unused leaves be recognized in the Average Wage. However, the paid wages for the unused annual leaves belonged to the “original year” of the leaves. The question of how these days of wages could be distributed in the calculation of Average Wage is not regulated by law. The employer and workers could reach an agreement on this issue through negotiation.

Example:

As the above example, if the Worker A were to be fired by his employer on 1 April 2019, he still has 5 days unused leaves to be paid, then: 

His Average Wage would be calculated in the base of 6 months, from 1 October 2018 to 31 March 2019. And because of his unused leaves are the leaves in 2018, the termination date is in the 6 months base. His wages paid for the unused leaves could be calculated in his Average Wage. But the question of how these days (paid wages) be recognized in the period between 1 October to 31 December 2018, is to be negotiated by both parties.

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Reforms for ratifying patent extension.

2018.04.13

The Ministry of Economic has released the new amendment of the “Regulations for Ratifying Extension of Patent Term”. The new amendment is to put the procedure extension of the patent term more accessible to the patent right owner.

 The Ministry described that the period of domestic and/or foreign clinical trials conducted for obtaining a pharmaceutical approval from the central authority. The “domestic and/or foreign clinical trials” referred shall be limited to those sent by the Specific Patent Agency to the central competent authority and confirmed by the latter for issuing the pharmaceutical approval. Thus, whether the applicant had applied extension based on these clinical trials in a foreign is no longer relevant. As a result, the documents of foreign approval of extension are no longer required in the domestic application. (Amendment to§§5, 7).

The field tests for agrichemicals approvals, the applicant shall conduct at least three times of field tests according to the Agrichemical Field Test Regulations §5. However, the previous regulations stated that the applicant who applies an extension of the patent term during the period of field tests, sequential characteristic in these field tests are required for period recognition in applying for an extension. This regulation has caused certain difficulties in proving the sequential characteristic among the tests. Thus, the amendment to the regulation revokes the requirement of sequential characteristic, but applicant would only apply for extension base on the longest period of field tests.

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Draft articles for '' Prevention of Medical Blunder and Disputes Settlement''.

2018.04.13

The FDA of R.O.C. passed the draft articles of “Prevention of Medical Blunder and Disputes Settlement” (translated). 

The medical blunder incidents are rapidly rising these years, the relationship between doctors and patients are tensed as well. And it is even a torturing process of the endless litigation procedures for both the blundered doctors and heartbroken patients. Thus the goal of the medical reform starts from the amendment to the “Medical Care Act”. Amendment to the article 82 of the Act, is focusing on the clarifying the legal elements and discretions for upholding a criminal responsibility. The case concerning damages would be determined in the professional point of view in these reforms. And the regulation for “Prevention of Medical Blunder and Disputes Settlement” is the subsidiary regulation of article 82 of the Act. Three principles would be the goal of the medical reforms: 

Solicitude and Communication:

Medical institutions with more than a hundred beds should establish the working group of Solicitude and Communication. Institutions under 99 beds, clinics could designate its members or employ experts to take on this service. The purpose of the service is to have an instant react upon the medical blunder, providing care, solicitude for patients and family members, offering explanations and risk control. (Draft article 5)

Disputes Settlement:

Municipal Departments of Health shall establish Dispute Mediation for both civil and criminal case within 3 months (extension allowed) (draft article 9, 12, 13). The central authority should establish ad hoc facility provide expert’s opinion and issue pinpointing during the Mediation or Trial. (draft article 4, 25).

Blunder Prevention:

Medical Institutions shall establish regimes for Patient Security and Risk Management, and which are not characterized as blame-finding. The goal is to analysis, control, and report whenever a medical blunder occurs. And rearrange the systematic flaws in the institution. The central authority shall establish ad hoc investigation groups when serious blunder occurs. (draft article 31, 32, 33) .

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FSC: Master Layout Plan for Corporate Governance 2018-2020

2018.03.30

The FSC said that the commission will devote itself to promote these projects within the next three years. The followings are the projects in this MLP 2018~2020: 

1. Emphasizing Corporate Social Responsibilities in corporate governance: The goal is to put corporate social responsibilities into its internal governance. The FSC will evaluate corporations through on-site inspection and fill the question list to credit their governance performance. 

2. Optimizing the efficiency of the Board: The efficiency of the Board would largely effect on the corporate’s performance. The FSC is planning to adopt the system of “Governance Agency”. The efficiency of the Board could be improved with the assistance of Governance Agencies. The financial industries and listed corporate with annual paid-in capital over 10 billion NT dollar will be the first to adopt this agency system, and other listed corporates would be asked to establish Audit Committee and Independent Director system. 

3. Shareholder Activism: The FSC appealed that in the light of recent E-Voting policy, the listed corporates shall adopt the candidates’ nomination system in the election of the Directors. And the FSC encourages financial industries to sign “The Code of Stewardship” and attend the shareholders’ meeting. The goal is to have over 50% of the listed corporates to sign the Code. And reach up to 70% of financial investor attendance to the shareholders’ meeting. 

4. Information Transparency: The English information of listed corporates is yet to improve. The FSC would push the listed corporates with over 30% of foreign investment or capital over 10 billion NT dollar to provide its financial statement in the English version. Furthermore, the CSR report should render pursuant to the format of GRI Standards and corporate should release more than its financial information. 

5. Legal Compliance: The FSC will launch the reforms of “Security Transaction Act”. For those who violate the code of conduct of auditing/remuneration committee, the violators will subject to fines under Security Transaction Act.  

Information here

 

 

EU initiated safeguard measures investigation into cerain steel products.

2018.03.30

The EU Commission has initiated a safeguard investigation on imports of a number of steel products into the EU. The Commission describes that from 2013 to 2017, the 26 steel products imported into EU has increased 65% (from 17.80 million to 29.30 million tons). This phenomenon showed a trend of global overcapacity in steel products. The Commission has controlled certain evidence that could prove the overcapacity of import steel could do harms to the EU industries. The statistic shows that the import products are reducing the market share of EU’s steel products and the prices of import goods are lower than the like products in EU. In the light of the third countries are asking for trade remedies and the US has initiated section 232 of the Trade Expansion Act, the EU Commission would also initiate an investigation on whether the US is causing trade diversion.

A safeguard investigation must normally be completed in 9 months but, in exceptional circumstances, may be extended to 11 months. Safeguard measures can take various forms, e.g. increased customs duties or quotas (including tariff quotas). Quotas are normally set at least as high as the average level of imports over the last 3 representative years.

Contact: TRADE-SAFEGUARD-STEEL@ec.europa.eu

According to the EU statistic, the major import countries of steel products are India, China, and Turkey. Steel products from Taiwan cover 5.47% of total import, rank 7. Most products are the stainless steel and clad steel.

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The attendance records could take a variety of forms.

2018.03.30

The Ministry of Labor clarified the doubts among the public that whether attendance records could have different forms. It is a misunderstanding that the law would only accept traditional “clock in” or “sign in” as records. But attendance records could have a variety of forms as long as this form is accepted by both employers and employees. 

The Ministry described that the attendance records are the important dossier for wages and working hours. The records are also a focusing checkpoint during labor inspection. However, the form of attendance records are not limited to the tradition “clock in”, but companies could apply any forms to keep the records where they see fit. For example, the computer logs in/out, GPS records(transportation industry), online clock in, or other kinds of App that could keep the records are applicable under the Labor Standards Act. 

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The indictment should be disclosed to the public after the Trial Court.

2018.03.23

The Executive Yuan meeting has passed the draft amendments to “Court Organization Act” raised by the Judicial Yuan. And one of the amendments, article 83, stated that indictment should disclose to the public after the Trial Court which allows the public to oversight the judicial process. Furthermore, establishing the “Grand Chamber” in the Supreme Court, the Supreme Court could unify the legal disputes and critical case laws through the Grand Chamber. The Grand Chamber’s determination would serve as an authority on legal opinions. 

The disclosure of indictment should read as two different concepts: “Indictment-Only Doctrine” and “Disclosure of Indictment”. Since 2006, Taiwan is planning to adopt the “Indictment-Only Doctrine” but which the current system of Taiwan is the “Indictment with the Dossier & Evidence”. The former one is the criminal law system of Anglo-American, which is once the prosecutor decided to charge a suspect, the indictment would only contain brief information about the suspect and the facts of the case.

Evidence would only present to the Court during the hearing procedure. But the system of Taiwan is that the indictment presented to the Court would attach all the evidence and detail explanation of the case. Thus, the issue of “Disclosure of indictment” should be read in the content of the two systems stated above. As once the indictment is revealed to the public or revealed before the trial. It would affect the impartiality and violate that general principle of law: “Presumption of Innocence”. Thus, to balance the interest of judicial transparency and the general principle of law, the content of the indictment and the timing of disclosure are crucially important. While the amendments this time, only touches the timing of disclosure but the choice between the two systems is yet to discuss.

Reference

Remove the threshold for establishing aero transportation.

2018.03.23

The Ministry of Transportation made several amendments to the “Regulations of Civil Air Transport Enterprise”; reconstruct the threshold for establishing aero transportation enterprise. 

This amendment concerns the threshold for establishing the aero transportation service, because the past qualification was focusing on the experience of applicant: e.g. an applicant’s company should establish at least 5 years, the applicant should have at least 5 years of experience in international trade or transportation service, and an annual revenue of more than NT$6 billion etc. With this new amendment, the threshold stated above has been removed. But new threshold has been added on that applicant must possess a financial certification and a qualified profession in aero service. An applicant who wishes to apply service on domestic routes should present a financial certification more than NT$1.5 billion; international routes should present a certification of more than NT$6 billion. 

New established company should comply with the “Regulation” §5, the sponsors of this company should process at least 3 years’ experience in civil air services and deliver its operational plans, air routes to be served, fleet of aircraft, estimated volume of load, forecast of revenue and expenditure, plan to raise capital to the CAA. And applicant should have at least three airplanes under the new company.

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Video/Mobile games with loot box should disclose the odds.

2018.03.22

Since online video game released, video game becomes a promising market all around the world since then. And recently, mobile games are growing more than ever these years. However, consumer disputes are also a major problem among these mobile games. 

The Consumers’ Foundation (Chinese Taipei) said that the foundation has received more than a hundred consumer disputes among mobile games. Most of the disputes are issues around the internet quality and the loot boxes. Consumers who spent penalty of money on the mobile game but experience lags and crashes, or consumer buying loot boxes but not getting the items that he expected. The issue of the game with loot boxes is constantly challenged all around the world. And not just for the disappointed gamers but loot box is concerned as “gambling” in many countries. For example, Belgian Gaming Commission launched an investigation on whether loot boxes of the video game Star War Battlefront II and Overwatch are gambling behaviors. Although legal scholars do not think these loot boxes would fulfill the definition of gambling since these items do not have a secondary market value. But the function of loot boxes would lure the consumers, especially children and teens, would lure them into spending money irrationally. Thus, Japan and Hong Kong are regulating the loot boxes in games, from regulating the game company to disclose the odds, to prohibit certain kind of odds settings. Last year, the Apple Company released its new version of App Store Review Guideline § 3.1.1: “Apps offering “loot boxes” or other mechanisms that provide randomized virtual items for purchase must disclose the odds of receiving each type of item to customers prior to purchase.” 

The Foundation thus suggested that Taiwan should follow up the global regulations on video/mobile games. The “Guideline of Online Game Standard Form Contact” should add on the odds of loot boxes and give the guideline a whole review on the outdated regulations, in order to protect the consumers on these disputes.

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Draft articles for Criminal Code

2018.03.12

The Ministry of Justice and the Executive Yuan has drafted several amendments to the outdated regulations of the Criminal Code, for better adaptation to the modern society.

 “Confiscation” in Chapter 5-1 of the general provisions:In the cases of the proceeds of crime were to be found after the judgment delivered, and the proceeds of crime belonged to the offender or another third party, confiscation could not deliver independently. This delay of justice was causing awkward situations and contradicted to the principle of offenders shall not process those proceeds. Thus, the amendment to article 40 adding the confiscation could be delivered independently. (§40)

 To the felonies with death results, the limitation of prosecution period has amended from 30 years to indefinitely. (§80)

 “Seal” stated in article 139, was only to the properties and real estate that concerned. There has been a loophole for documents of provisional measures. Thus, the amendment fixes this loophole by addingthe definition of “seal” including provisional measures delivered by public servants. (§139) 

Regulations of “Fine”:The upper limits of fine are amended for adapting to the economic situations of modern society. The upper limits are amended to $10 thousand, $20 thousand, $30 thousand and $50 thousand according to the penalty of crimes convicted. (§§276, 277, 281, 284, 320 and 321.)

 For the person who is in his occupation or profession should perform his due caution and circumspect to the surrounding during his practice. He who also bears a heavier penalty for injury by accident or manslaughter than a normal person. However, the nature of this crime and the spirit of interest protection are not justified by differentiating the offender by whether he is in occupation. Furthermore, from time to time, it is very confusing when defending whether the offender was in his occupation or not. As a result, it is for the best to amend and remove the difference between penalties for the crime of injury by accident and manslaughter under the principle of equity. And allowing the judges to have a broader discretion in determining the penalties case by case. (§§183, 184, 189, 276 and 284. )

The cases of homicide to the offenders’ ascendant which were the absolute death penalty or life imprisonment in the past. The Ministry is planning to amend this rigid regulation by giving discretion for the judges to determine the offender’s penalty according to the actual case. And several amendments to factors for reduction of penalties.  

Chapter 23 Offence of Injury:

Heavier penalties for fight and attack in groups (§283); remove the offense of deliberate spreading venereal disease (§285) by combining the offense in general case of injury, remove the regulation of compulsory treatment for venereal disease. Adding a category of torture of infant and manslaughter by torturing infant (§286).

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Central Bank of ROC: clarification of Regulatory Sandbox

2018.03.12

The Central Bank of ROC made some clarification of Regulatory Sandbox for the misunderstanding and concerns among the media. The Central Bank said that:The meeting concerning the FinTech innovation and its subsidiary regulations, the wording of the draft articles only listed “New Taiwan Dollar” as the assets for utility. However, the Central Bank has suggested that foreign currency (with equal value) should be included in the regulation and utilized in the Sandbox.

1. The amount of contract, transaction and credit risk shall not exceed $100 million NT dollar (with equal value)

2.Financial commodity, whether investment or non-investment services shall not exceed $250 thousand NT dollar.

3.Insurance premium and service charge shall not exceed $100 thousand NT dollar, or the insured amount shall not exceed a million NT dollars.

 As for the business of consumer finance under $50 thousand dollars, there is no necessary for foreign currency to run in the business in the market of domestic consumer finance. Thus, the Central Bank remained that foreign currency would not open for consumer finance in the near future.

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EU-Taiwan Offshore Wind Power Certification Seminar on Mar 14

2018.03.12

Taiwan is now facing a challenge of transitional energy policy; this Seminar is a crucial starting point for the Offshore wind power industry. By this seminar which is organized by MOEA, EETO, and EBRC, is going to share the experience and possibility of future cooperation. 

The Bureau of Standard described that Taiwan is just starting to have a whole scale renew of energy policy, and the offshore wind power is a prosperous investment for the natural condition of Taiwan Strait.

 Since the offshore wind power industry is technic and capital intensive, the financial support is the major concern for most investors. Thus, the Bureau of Standards, Metrology & Inspection (MOEA) is expected to find its position in impartial third party accredited certification (including Project Certification, Marine Warranty Survey, and Due Diligence.) and the competent authority of green energy industries.

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Tax inspection on Tabaco and alcohol launch in April

2018.03.05

The Taxation Bureau announced that random tax inspections are going to launch in April. This time will focus on Tabaco and Alcohol. Companies should review themselves on tax reports and tax paying. If there is any remaining duty that fails to list on the return, should recover the tax by the end of March.

Anti-evasion is the goal of this year’s inspection, companies without business registration or product registration; wholesaler and agency with unusual transactions; uneven records among the materials and the return; and unusual pricing. The following are notices from the Bureau:

1.Companies without business or product registration.

2.Uneven records of products produced and tax return.

3.False labeling of the ingredients. 

4.Taste wine or internal sales without declare. 

5.Wine as gifts without declaring. 

PRC released several national treatments for Taiwan citizen.

2018.03.05

The Taiwan Affair Office of PRC has released several national treatments for Taiwan citizen this week. There are 31 clauses which provide companies of Taiwan to enjoy the same condition as PRC companies, also allowing Taiwanese companies to join in the “Made In China 2025” policy which provides several tax incentives, national developing projects, infrastructure projects and government procurement. The treatments also provided Taiwanese companies to have the right to apply land use or subsidiary for transferring company to the north-west of China. Financial policies are also provided.

Furthermore, China has open 134 national exams to Taiwanese citizens, whoever qualified is allowed to practice in PRC. Taiwanese citizens are also allowed to join in the “Thousands”, “Millions” funding projects of cultural development and several professional unions. The movie, publication industries are also on the list. 

The Council has described that the clauses in “Several Treatments” has three major aspects:

1.Taiwan companies jointly with PRC companies enjoy the incentive treatments in the policy of “Made In China 2025”.

2.The “Several Treatments” is designated to Taiwan’s unique status, for example, special industries cooperation zones are focused on Taiwanese company to transfer the bases to the north-west of PRC. Mechanisms for the Taiwanese company to join the project of “One belt One road”. Taiwanese movie and entertainment industries are opened to the market.

3.The “Several Treatments” covers a major aspect of Taiwanese citizens, including industries, taxation, land use, employ, education, culture, medical and movie… the Council said further treatment is expected to release in the future.

Information in chinese here and here

New labor reforms launched this week.

2018.03.05

The new labor reforms of “Labor Standards Act” launched this Thursday. As the Ministry of Labor described there would be no conditioning period for these reforms, business entities much apply to the regulations immediately and the labor inspection is expected to launch later this month. 

The Ministry reaffirmed the principles of these new labor reforms: Normal Working Hours (8 hr. /day, 40 hr. /week), “Two-days rest per week”, the total amount of OT hours (46 hr. /month, 138 hr. / 3 months), and payment for OT (hourly charge) remain the same. The rest period between shifts remains 11 hours by principle, but only in the exceptional situations and through collective bargaining, can this rest period be changed into “no less than 8 hours”

 The Ministry also released the Enforcement Rules for the Act and the several supplement interpretations of the shifts arrangements and the list of designated industries for leave arrangements. 

The industries which have been designated by the Ministry for capable of adopting arrangements for shifts and leaves in exceptional cases, the process of reporting to the authority and bargaining with the union would still be necessary before they could adopt the arrangements. Industries who wish to adopt arrangements could use theonline reporting system.  

Moreover, the Ministry new added several industries for capable of adopting flexible working hours on the list (§30(3)): Wedding photographer, Metro transportation, Track diver. Special type of worker (§84-1): Tour guide, Undertaker of burial. 

 

Labor inspection 


The Ministry said that due to the heavy workload of the coming spring break, labor inspection is expected to launch at the end of this month and will focus on the industry of transportation. For example, the authority has emphasized on adopting “double-diver” for high way buses. And the company should keep the divers’ working records in detail. The following are the labor inspection preview from the Ministry:

1.Industries related to public security: (transportation, medical service, daycare center, securities…)

2.Companies under labor claiming. 

3.Industries adopting exceptional situations arrangements: (government controlled enterprise, energy supply, oil industries, tour travel…)

4.Companies with violation records, heavy workload or excessive OT records.

Informations in chinese

Administrative Court: China Airline violated the Free-Rider clause.

2018.02.26

The Taipei High Administrative Court has delivered the judgment concerning the strike of flight attendants. The Taoyuan Flight Attendants Union (TFAU) initiated a strike on 23 June 2016, over the overtime work and harsh labor conditions. The TFAU and China Airline held a collective bargaining on 25, over the outstation allowance. The China Airline promise to improve the condition of outstation allowance and these conditions only enjoyed by the members of the union (TFAU). However, the members of China Airline Employees Union (CAEU) were granted the same condition of outstation allowance as the TFAU by China Airline. Thus, the Ministry of Labor adjudicated that China Airline violated the collective agreement [the Free-Rider clause] between TFAU. The China Airline filed a suit against the Ministry to Taipei High Administrative Court for revoking the adjudication. 

The Court held that the collective agreement between TFAU and China Airline owns a contractual duty. And it is an achievement of TFAU that shares only between the union members which is the very spirit of “Free-Rider clause”. However, China Airline granted the same condition of outstation allowance to the CAEU which has never initiate strike or bargain, violated the Free-Rider clause. And causing a lowering-rate of new recruits joining the TFAU. The Court holding that China Airline indeed violated the collective agreement and Labor Union Act §35(1)(5)—Improper influence.

However, the Court held in its judgment concerning the collective bargain. The Court held that the collective agreement between TFAU and China Airline was not a proper “Collective Agreement” under the law. Thus, the parties were only binding by its contractual duty which has been criticized for its unusual reasoning of the Court.

Informations in Chinese.

Taiwan aiming to accelerate financial law reform.

2018.02.26

The National Development Council has taken efforts to initiate “financial law reform” and “public discussion platform for new regulations” since last October. The Council described that since Taiwan has been critiqued for its late outdated, rigid regulations on financial industries, this platform is aiming to collect opinions from every aspect of industries. One with ideas or comments on new policies or law reforms can upload post their suggestions onto the platform and the Council would respond and take necessary measures to these reforms. The Council has also started to initiate the financial law reforms from every aspect. From now on, the Ministries of Executive Yuan would have to re-evaluate the post regulations and shall deliver monthly evaluation report. 

Since last October, the Executive Yuan has done several reforms of regulations and law. The following are the brief introduction of these reforms:

1.       The FSC has recognized Venture Capital as a financial related business, and allowing banks to have VC investment. The FSC also allows online insurance and opening bank account through the Internet.

2.       The Ministry of Finance released several tax incentives to the small business who adopted Mobile-Pay instruments. The FSC also allows credit cards to connect with Mobile-Pay.

3.       In the stock market, the FSC allows “E-commerce” be listed on the stock market. In order to solve the problem of funding which has been bothering investors for a long time. The MOST allow government researchers to serve as the director of venture company and removes the limits on the percentage of technical value share for government researchers. 

As for the innovation industries, the National Development Council has also put efforts to improve the investment environment. The Council described that the policy toward innovation industries is “negative list”, and the Council would support all the innovation industries who wish to invest Taiwan. 

Informations in Chinese.

Anti-Money Laundering Policy for Certified Public Accountant

2018.02.26

The FSC has released a series of regulations for public accountants to comply with the anti-money laundering and counter-terrorist policy since last June. And the FSC aiming to take the evaluation of Asia-Pacific Group on Money Laundering (AGP). 

The FSC has set up an online section: anti-money laundry and counter-terrorism for the public to understand the regulations. Several workshops and training programs were held for the public accountants to understand thelegal compliance. The FSC would further establish an Anti-Money Laundering Office in Executive Yuan to coordinate the works between FSC and public accountants.

Informations in Chinese

Draft amendments to the "Securities Transaction Tax" Act

2018.02.09

The Executive Yuan had passed several draft amendments to the Securities Transaction Tax Act. These amendments will be delivered to the Legislative Yuan for further discussions. The Primer Lai instructed the FSC and notified the Legislative Yuan to have this issue fully discussed and completed as soon as possible. 

The Ministry of Finance described that the previous tax cut policy on “Day Trading”-transaction tax rate to 1.5‰-has received positive feedback on boosting the stock market. Thus, this temporary tax cut policy will be prolonged to 2021.

The draft amendments briefing:

Day Trading tax cut policy will be prolonged to 2021; A securities dealer who sells its own securities may also participate in Day Trading. However, the dealer shall be subjected to the transaction tax accordingly. This amendment shall be effected from 28 April 2018 to 27 April 2021.

Information in Chinese

The US imposed safeguard measures on crystalline silicon and solar power products.

2018.02.09

The United Stated CBP has released a global Quota Bulletin for solar power crystalline silicon photovoltaic cells.

According to the United States Trump administration's decision released on 23 January, the import of solar power products has caused damages to the US solar power industries. Thus, the Trump administration decided to impose safeguard measures including cells and modules for a period of 4 years. A 30 percent tariff will be imposed on imported solar cells and modules in the first year, declining to 15 percent by the fourth year. The measure allows 2.5 gigawatts of unassembled solar cells to be imported tariff-free in each year. Starts from 7 February 2018. 

The followings are the brief introduction from the consultant of Ministry of Economic:

  1. The “solar power crystalline silicon photovoltaic cells” is classified as Chapter 85 of Commodity HTS-6.
  2. Import cells within quota shall declare HTS 9903.45.21.
  3. Import cells beyond quota shall declare HTS 9903.45.22.
  4. If the cells imported within quota were subjected to anti-dumping or countervailing, the importer shall bear the taxation as well. The anti-dumping duty rate the US imposed on Taiwan is now 3.56%-4.2%. The anti-dumping duty rate the US imposed on China is now 26.71%-165.04%, countervailing duty rate 27.64%-49.21%.
  5. Importers shall declare their importation through Automated Commercial Environment (ACE).
  6. The CBP will take the quota amount when the goods are actually imported and with the complete declaration.

In addition, Taiwan has requested World Trade Organization consultations with the US over the decision to apply harsh tariffs on all crystalline silicon photovoltaic cells globally. Further information.

Information in Chinese

The Act for Recruitment and Employment of Foreign Professional is officially in effect.

2018.02.09

The act for recruiting and employment of foreign professionals are officially in effect on 8 February. This would be a milestone for the Taiwan working environment and hope to bring new horizon for Taiwan industries. These are the brief introduction of the new policy and linkage for all relevant access.

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1. The qualification of “foreign special professionals” has revealed.

Because this Act is focusing on the “Special” professionals, the qualification was not yet released and remained unclear. However, the qualification has finally revealed for each profession field. Applicant who met with one of the qualifications could be deemed as special professionals. For example:

  • Technology: unique talents or outstanding R&D ability or cutting-edge technological fields as software applications, software technology, nanotechnology, optoelectronics, information, and communication…etc.
  • Economic: professional technical capabilities related to crucial products, key components, or service models of industries…
  • Financial: professionals in financial technology, e-commerce, digital economy, technology management, and green energy technology, etc.

There are several fields like Education, Art & Culture, Sport, Law and Architecture. But be aware, some of the fields requires the applicant to meet “all” the qualifications listed, for example, the “Law field”.Qualification List

2. Incentives

  • Employment Gold Card Permits: Gold Card provided to special professionals with Work Permit, Residency and multi-reentry permit all-in-one card. And job-seeking visa.
  • Tax exemption: the first three years starting from the year when he/she for the first time has resided in the R.O.C. for a full 183 days of the year and has had an annual salary income of over NT$ 3 million, one half of the amount of the salary income exceeding NT$ 3 million of each such year may be excluded from the gross amount of consolidated income of the year for the assessment of individual income tax.
  • Several incentives on Health insurance, retirement pension and permanent residency for spouse and children.
  • Professionals like freelance artiste or professions in the field of cuisine, movie, animation who has not obtained bachelor’s degree, the application process is on the way.

3. Residents of Hong Kong or Macau

There are several amendments to the “Hong Kong and Macau residents Applications for entry and residency in Taiwan Area” and the terms for professionals in Hong Kong and Macau is also applicable for special professionals under the Act.

Information in Chinese

Taiwan foreigner recruitment act is on the way

2018.02.02

The Premier has declared that the act for “Recruitment and Employment of Foreign Professional Talent” shall take effect on 8 Feb. 2018; supplement mechanism shall be introduced as soon as possible. The Executive Yuan has designated “Contact Taiwan” as the single website for foreigners to get access to every related application. Foreigners could get access to applications like work permits, alien residency and get access to resources of government authorities through the website. 

The National Development Council described that the foreigner recruitment act is focusing on foreigners with professional skills and talent. Taiwan provides several incentives on residency, permanent residency, retirement pensions and family members for foreigner who wishes to work in Taiwan. 

For further information please find our Blog post.

Information in Chinese

The Ministry of Labor has announced several industries applicable for "exceptional situations" and rules clarifications

2018.02.01

Regarding the shifting period of §34 (2)

After several examination and evaluation of the Central Authority, state-owned enterprises such as Taiwan Railway, Tai-Power, Tai-Sugar and CPC Taiwan. Due to their special condition within their human resources and internal structure, the Ministry approved that the state-owned enterprises could apply to exceptional shifting arrangements during their transitional period of labor reforms: the rest period of workers “no less than 8 hours between shifts”. And this exceptional arrangement should be terminated immediately as soon as the approved time expired. 

Regarding the designated industries of §36(4):

The Ministry has listed several industries that are applicable to this exceptional arrangement on regular leave: Employers could arrange the regular leaves and rest period within “7-days”. But an employee may not work consecutively more than 6 days. The designate industries which may apply to the exceptional arrangements should possess either one of the following factors: Time, Location, Characteristic and exceptions.

For Further information on the list please find: Ministry of Labor announcement 

Regarding flexible working hours within 8 weeks §30(3):

The Ministry has demonstrated several industries like “wedding photographer”. There are multiple events in the traditional wedding ceremony of Taiwan. Thus, wedding photographers would always have to make special arrangements during their regular working hours.

“Metro Transportation industries”: there is peak/low season, and off/rush hours in the transportation industries. The facilities maintenance and regular transportation share the different concept of working hours. Thus, the employers could make flexible working-hour arrangements between 8 weeks. 

Special type of workers §84-1:

The tour guide is a special type of worker that he/she is responsible for the safety and travel of the clients at all time. It is hardly possible for the tout guide to take regular leaves and rest period during travel. The undertaker of burial is also a special type of worker due to its procedure of services and interaction with clients. Thus, the Ministry has approved that tour guide and undertakers of burial could apply to the flexible arrangement of §84-1. Workers may arrange their own working hours, regular days off and shall not subject to the restrictions imposed by Articles 30, 32, 36, 37 and 49 of the Labor Standards Act.  

The Ministry made further clarifications on disputes among the labor reforms. The Ministry has declared that application for exceptional situations will have to submit to competent authorities and the Ministry for approval. The designated industries will have to apply to the conditions sets out for them. 

The Ministry and local competent authorities will review the application on a case-by-case basis. There must be an exceptional situation exist could the industry apply exceptional arrangements in the specific week. The Ministry also reaffirmed that worker shall not work consecutively more than 6 days except for working abroad, on warships, on aviation, in national exams or public facilities maintenance. 

Information in Chinese

Draft amendments to "Enforcement Rules of the Labor Standards Act"

2018.01.24

The Legislative Yuan has passed several amendments to the “Enforcement Rules” of the Labor Standards Act to supplement for the latest labor reforms. These amendments will be taken into effect on March. And the Ministry of Labor is gathering opinions from the market for these amendments. 

The Ministry described that the principle of “Two-day rest per week” remains untouched, but only by adding several mechanisms for both the employers and employees as flexibilities to some extends. And as for the controversial issues such as 3 monthly overtime(OT) hours, records system, OT for compensatory leaves and deferred annual leave are explained in the enforcement rules. The following are the brief introductions to these amendments: 

  1. As for the exceptional situations of shifting the total amount of OT hours among three months, this mechanism should only apply to a consecutive three months period. (Enforcement §22)
  2. An employer who wishes to apply for “exceptional situations” of Labor Act shall report to the municipal authorities at least one day before application. (Enforcement §22-1)
  3. The mechanism of “OT hours for compensatory leaves”, employer shall apply either one plan stated as following: (Enforcement §22-2)

    1. Plan A: the mechanism of “OT hours for compensatory leaves” should be regarded as annual leaves which the compensatory leaves should be taken by the end of the year (whether the business applies to the calendar year, accounting year… etc.) and be paid as wages accordingly once the compensatory leaves not taken.
    2. Plan B: The compensatory leaves should be taken by the end of every 31 December. And wages should be paid accordingly once the compensatory leaves not taken.

  4. One “regular leave” in a week should be viewed in a calendar week. The employee shall not ask the employees to work consecutively more than six days. (Enforcement §22-3)
  5. The employees who choose to defer their remaining annual leaves to the next year, they should prioritize their deferred annual leaves in the second year. (Enforcement §24-1)
  6. The employer shall specify the period of exceptional arrangement and workers shall have the right to know.

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Income Tax Reforms

2018.01.18

The Legislative Yuan had passed the income tax reforms this week. As the Ministry of Finance described these reforms are focusing on building a fairness taxation environment, optimizing the taxation procedures and boosting the incentives for investors. The following are several major aspects of this new reforms: 

  • Tax cut for salary income

The Standard Deduction for individual income tax has raised to NT$120,000 from NT$ 90,000. Additional benefits and deduction for mid-low income and family with children.

  • Incentives for expatriate

The highest individual income tax rate (net income over NT 10 million dollars) reducing the rate to 40%. (45% before the reform).

  • Incentives for investors

A. Dividends for individual domestic resident can choose either way to declare:

   1. The dividends would be collected through individual income tax, 8.5% of the dividends would be granted as a deduction. (maximum NT$ 80,000/unit deduction; only apply to dividends under NT$ 940,000/year).

    2. The dividends would separate from the individual income tax, tax rate at 28% of the total dividends.

B. Business Income Tax rate

    1. Raising the tax rate of business income to 20%.

    2. Reducing the tax rate of undistributed profit from 10% to 5%.

    3. 21% of dividends withhold of foreign investors.

C. No business income tax for Sole Proprietorship, Partnership. Only tax on their individual income tax.

 

More information

 

The Ministry of Justice is planning to adopt "Grand Chamber" in the judicial system

2018.01.17

The Ministry of Justice passed several draft articles to the organization acts, adopting the system of “Grand Chamber” to the final trial. The goal is to ensure the consistency of legal opinions. Additionally, case law without the full text of the judgment will no longer be adopted; case law with the full text of the judgment will be recognized as authorities. 

It has been long discussed that the Supreme Court and Supreme Administrative Court, due to their heavy loading of cases, contradictions happened between each other and among different Divisions. It brought inconsistency and unpredictable risks to the legal opinions and the parties involved. Thus, the Ministry of Justice is planning to adopt the system of “Grand Chamber” among Divisions of Civil Law, Criminal Law, and Administrative Law, to coordinate the legal opinion and to decide on cases with opinion contradictions. But it is not meant to create another trail for cases. 

Cases go to the Grand Chamber would be divided into two types: Cases with contradictions and Cases with general principles. The former would be cases that contradictions between the Supreme Court and Divisions. The case would be decided by the Grand Chamber after the Meeting of Division, the Chamber will be the final decision of this contradiction. The latter would be the case with general principles of which should be decided by the Grand Chamber for the purpose of consistency. The Grade Chamber would only decide on the legal opinion but will not apply to the facts. It is the court who gives the final judgment of the case.

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Taxation Incentives for Mobile Payment

2018.01.12

The Ministry of Finance announced standards for business to adopt mobile payment and released several taxation incentives. The goal is to have 90% coverage of mobile payment in business and stores before 2025. The following are the brief introduction to the standards and tax incentives: 

  • Qualification: brick and mortar business (small company), which allow customers to pay through mobile devices, and agree to provide information to mobile payment provider and taxation bureau for auditing.
  • Taxation incentives: qualified applicants may enjoy business income tax rate at 1% and not required to issue invoices until the end of 2020.
  • Application opened: 12 January 2018 ~ 31 December 2020.

Learn more

Patent Linkage System for Generic Drugs

2018.01.08

The Legislative Yuan has passed several amendments to “Pharmaceutical Affairs Act” which mainly focuses on the patent linkage system in order to keep pace with the global pharmaceutical management.

These new amendments introduce a patent linkage system which is similar to the “Orange Book” (Hatch-Waxman) of the USA. When new drugs introduced to the market, by the disclosure of patent information, the generic drugs would stay of license approval for a period of 12 months, providing generic drug-makers an opportunity to resolve patent disputes before new generic drugs are launched on the market. The first application filer who successfully challenges the validity of a pharmaceutical patent enjoys 12 months of market exclusivity. This is to encourage the domestic generic drug-makers to challenge the patent of generic drug-makers.

Other amendments are the data exclusivity, providing the patent drug for new indication a 3-year data exclusivity and another 5-year if clinical trial data provided.

More information

Bill of Financial Technology Innovation and Experiment Act

2018.01.08

The Legislative Yuan has passed the “Bill of Financial Technology Innovation and Experiment Act”. The applicant could exercise FinTech experiments like product testing and new business pattern within a period of 1 to 3 years with the approval from the FSC.

According to article 4 of the Bill, any natural person, wholly owned or joint ventures and legal persons could apply for FinTech experiment, including one who wishes to engage in financial business through innovative business patterns. The authority would decide whether the application is to be approved within 60 days. 

In addition, the applicant would be granted 1 year period for the experiment, and maximum 3-year extension if necessary. If the contents of the experiment involved certain aspects related to authorities other than FSC, the FSC could approve the application jointly with the authorities related according to article 25. During the experimental period, the applicant shall exempt from all (or partial) regulations and regulatory responsibilities.

More information

Several Amendments to Standards Withholding Rates

2018.01.08

The Ministry of Finance described that for the purpose of providing a fair environment of dividends taxation, capital neutrality and to discourage tax evasion, the Ministry has announced several amendments to the “Standards of Withholding Rates for Various Incomes”. Tax payable for net dividends or profit distributed shall be withheld at a rate of 21% of the amount distributed or payable by the foreign shareholders.

The gap of dividends withholding between the taxpayer who is not residing or enterprise not having any fixed place of business within the territory of the ROC (legal entity and shareholders total rate at 33.6%) and the taxpayer who is residing in ROC (total rate at 49.68% ) was luring the domestic shareholders to conduct tax-evasion by transfer of status.

Thus, the Ministry adjusted the dividends withholding rate of foreign shareholders to 21%. And made amendments to the article 23-1 of “Statute for Industrial Innovation”, to establish a “pass-through” taxation regime. 

More information

Taiwan Foreign Recruitment Act

2017.12.12

The Legislative Yuan just passed the “Act for the Recruitment and Employment of Foreign Professional Talent” (“Talent Act” as followed) by the end of October. Since the Talent Act has not yet take into effect, we give you a quick insight of this new law and its features for foreign talents who wish to work in Taiwan or even wish to apply for permanent residency in Taiwan.

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