Women and Justice: Jurisdiction


Sexual Assault Crime Prevention Act (2015)

Sexual violence and rape

The Sexual Assault Crime Prevention Act (the “SACPA”) defines and aims to prevent sexual assault crimes and protect the rights of victims. The SACPA sets out the responsibilities and competencies of relevant authorities which include drafting and implementing policies and regulations, supervising and investigation incidents, producing statistics of sexual assault incidents, and establishing a national archive of sexual offenders. It also prescribes several requirements, some of the more notable ones being the establishment of Sexual Assault Prevention Centers, having all students in middle and primary schools undergo at least four hours of courses on sexual assault prevention, and obliging certain personnel to report suspected sexual assault incidents within 24 hours. Sexual assault offenders are liable to pay a fine. In certain cases, they may be ordered to receive physical and psychological treatment or counselling education. Sexual assault offenders must also register their information with, and regularly report to, the police. Repeat offenders may be imprisoned or institutionalized.

Domestic Violence Prevention Act (2015)

Domestic and intimate partner violence

The Domestic Violence Prevention Act (the “DVPA”) was established in order to prevent acts of domestic violence and to protect the interests of victims. The DVPA defines domestic violence offenses and the family members who might be implicated, specifies the responsibilities and tasks of the various competent authorities, and governs issues such as civil protection orders, criminal procedure, the interests of any minors involved, protection of and support for victims, and educational and prevention measures. Breaches of the DVPA will result in the imposition of a fine or imprisonment.

Act of Gender Equality in Employment Act (2016)

Employment discrimination, LGBTIQ, Sexual harassment

The Act of Gender Equality in Employment (the “AGEE”) was enacted to protect gender equality in the workplace and promote the spirit of gender equality as enshrined in Article 7 of the Constitution. Chapter II of the AGEE provides that employers shall not discriminate against employees because of their gender or sexual orientation when hiring, evaluating, promoting, providing education, training and welfare, paying wages and in the case of retirement, discharge, severance and termination. Employers must also implement measures for preventing and correcting sexual harassment and establish complaint procedures and disciplinary measures. Employers who are found to be in violation of the AGEE may be fined between N.T. $20,000 and $1,500,000, depending on the offence. The names and titles of offenders and their supervisors will also be put on public notice and they will have to make improvements within a specified period. Failure to do so will result in further punishment.

Gender Equity Education Act (2018)

Gender discrimination, Sexual harassment, Sexual violence and rape

The Gender Equity Education Act (the “GEEA”) aims to encourage respect for gender diversity, eliminate gender discrimination and promote substantive gender equality through education. The GEEA charges the competent authorities (as well as schools) with establishing gender equity education committees whose tasks include drafting regulations and policies, coordinating resources, supervising gender equity-related activities and promoting research and development of curricula, teaching and assessments. Under the GEEA, schools must provide a safe, gender-fair learning environment by respecting, giving due consideration to, and not discriminating against prospective students, students, faculty, and staff of different genders. Schools shall strive towards this objective by taking steps such as integrating gender equity education into their curriculum, providing gender equity education when training new staff members, reporting known incidents of sexual assault, sexual harassment or sexual bullying within 24 hours and promptly handling and investigating such cases. Schools and any principal, faculty or staff member found to be in violation of the GEEA may be subject to a fine. Persons may also be dismissed or discharged from employment.

Sexual Harassment Prevention Act (2009)

Employment discrimination, Sexual harassment

The Sexual Harassment Prevention Act (the “SHPA”) aims to prevent sexual harassment and protect the rights of victims. It empowers and places a positive obligation on governmental authorities to, among other things, draft and implement sexual harassment prevention policies and regulations, specify standards, investigate and mediate disputed sexual harassment cases, and promote education and awareness on sexual harassment prevention. In addition, organisations, troops, schools, institutions and employers have a responsibility to prevent sexual harassment and the foregoing organisations can discharge such responsibility by organising regular educational training, setting up appeal channels, and taking effective corrective measures. The SHPA also sets out a complaint and investigation procedure for victims of sexual harassment as well as a conciliation procedure for parties involved in a sexual harassment incident. Persons found guilty of sexual harassment may be subject to a fine and/or imprisonment, depending on the severity of the incident and the identity or position of such persons.

Domestic Case Law

J.Y. Interpretation No. 617 Constitutional Court of Taiwan (2006)

Gender-based violence in general

Article 235 of the Criminal Code provides for criminal penalties for people who distribute, broadcast or sell “obscene” material, and to people who manufacture or possess obscene material “with the intent to distribute, broadcast or sell.” The Court held that the term “obscene” is not an indefinite “concept of law,” but rather includes material containing, among other things, violent or sexually abusive content. As such, the Court held that the law is a reasonable restraint on free speech and free publication. Thus, the law is constitutional and bans, among other things, material that includes violent or sexually abusive content.

J.Y. Interpretation No. 666 Constitutional Court of Taiwan (2009)

Gender-based violence in general

Article 80, Section 1, Sub-section 1 of the Social Order Maintenance Act establishes administrative penalties of detention and a fine for any person who engages in sexual conduct or cohabitation with the intent of obtaining financial gain. The Court noted that a transaction for sexual conduct necessarily involves two people: the person engaging in the conduct with the intent of obtaining financial gain, and the other person who provides consideration for the conduct. The law at issue only punishes the former party by focusing on the subjective intent of the person seeking financial gain from the sexual transaction. The Court also noted that the former party is more likely to be female. Thus, the Court held that the law essentially targets and punishes females who participate in financial transactions for sex. As such, the Court held that the law’s focus on the subjective intent for financial gain violates the principle of gender equality in Article 7 of the Constitution. The Court decreed that the provision would become ineffective upon two years after the issuance of the decision.

J.Y. Interpretation No. 457 Constitutional Court of Taiwan (1998)

Gender discrimination

The Regulations for the Handling of the Government Owned Housing and Farmlands Vacated by Married Veterans after Their Hospitalization, Retirement or Death distributes plots of state farmland to veterans. Section 4-III of the Regulations provides, “If the surviving spouse of the deceased veteran remarries but without issue or has only daughter(s), the land and housing shall be reclaimed unconditionally upon the marriage of the daughter(s); and the rights of the veteran may be inherited by his son, if any.” The Court explained that the government can allow a veteran’s surviving dependents to continue using and farming the state land distributed to veterans, and can extend the term “dependents” to a veteran’s children. In doing so, however, the government should consider the children’s ability to earn a living and cultivate the land, and must keep in mind the principle of gender equality enshrined in Article 7 of the Constitution and Article 10-VI of the Amendments to the Constitution. The Court held that Section 4-III of the Regulations violates this principle because it limits the right of inheritance of a deceased veteran to the veteran’s son without regard to the son’s ability or marital status. Thus, the Court held that Section 4-III of the Regulations discriminates against a specific group of women on the premise of marital status and sex. As such, the Court held that the government must revise Section 4-III of the Regulations to remove the discriminatory provision.

J.Y. Interpretation No. 147 Constitutional Court of Taiwan (1976)

Divorce and dissolution of marriage

Article 1001 of the Civil Code provides that spouses have a “mutual marital obligation to cohabit” absent legally justifiable reasons for not cohabiting. The Court held that a husband’s taking of a concubine violates the “marital obligation of fidelity” and qualifies as a legally justifiable reason for the wife not to cohabit with the husband. Thus, the Court held that a husband’s taking of a concubine releases his wife from her marital obligation to cohabit, but only for the period during which he maintains the concubine.

J.Y. Interpretation No.365 (1994)

Gender discrimination

Article 1089 of the Civil Code, which stipulates that in situations of parental disagreement in exercising parental rights over a minor, the father has the right of final decision, is in violation of both Article 7 of the Constitution (stating that both sexes are equal under the law) and Article 9 of the Amendment (eliminating sexual discrimination).  Therefore, Article 1089 should be examined and amended.  The current Article is void within two years of this interpretation.

J.Y. Interpretation No.372 Supreme Court of Taiwan (1995)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Sexual violence and rape

A Supreme Court holding that "although a spouse who has suffered unbearable mistreatment in cohabitation is entitled to sue for divorce, this does not include cases where the other party temporarily loses control and overreacts to the spouse's misconduct" is not unconstitutional.  To determine what constitutes "unbearable mistreatment in cohabitation," the courts should take into account the degree of the mistreatment, education levels, social status, and so on, determining if the degree of mistreatment goes beyond the violation of personal dignity and security that would be tolerated by most spouses.  Even with regards to cases where a "party temporarily loses control and overreacts to the spouse's misconduct," the precedent does not exclude applying the above factors to determine whether such overreactions threaten the continuity of the marriage.

J.Y. Interpretation No.410 Supreme Court of Taiwan (1996)

Gender discrimination, Property and inheritance rights

A Supreme Court precedent from 1966 held that property obtained by a wife during the continuance of a marriage, but which cannot be proved separate property or contributed property, belongs to the husband.  The amendment of the Civil Code in 1985 under the authority of Article 7 of the Constitution emphasizes gender equity and invalidates this Supreme Court precedent.

J.Y. Interpretation No.554 (2002)

Gender-based violence in general

The legislature may enact a law restricting freedom of sexual behavior within the system of marriage (such as by making adultery punishable under criminal law), but only if the restrictions are not overly severe in violation of the principle of proportionality embodies in Article 23 of the Constitution.  In particular, the offense must be indictable only upon complaint, and no complaint may be instituted if the spouse has connived against or forgiven the offending party for the offense.

J.Y. Interpretation No.559 (2003)

Domestic and intimate partner violence

In the case of protection orders involving monetary payment, the Domestic Violence Prevention Act explicitly authorizes the agency empowered to execute such orders and sets forth procedures and methods or doing so, in keeping with Constitutional requirements.  However, for protection orders not involving monetary payment, the Act provides only general authorization of police agencies without procedures and methods, so the Act must be amended to fulfill the Constitutional requirement of specific and explicit authorization by law.