LEGAL UPDATES

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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.

Learn more

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.

Read the article

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