Women and Justice: Location

Domestic Case Law

J.Y. Interpretation No. 728 Constitutional Court (2015)

Harmful traditional practices

The court petitioner, the eldest daughter of a registered successor of an “ancestor worship guild,” was prohibited from inheriting the status of successor after her father’s death due to internal regulations of the guild, which only allow male heirs .” The lower courts dismissed the petitioner’s claims, and the Constitutional Court affirmed. The court held that the internal regulation of the guild was not a “statute” or “administrative regulation” and was therefore ineligible for a petition of interpretation on constitutionality under the Constitutional Interpretation Procedure Act. The court also found that Article 4 of the Statutes Governing Ancestor Worship Guilds, which stipulates that “for the guilds that existed before the promulgation of the Statutes, whether a person is a qualified successor to a guild should be determined by its internal regulations,” was not unconstitutional because the provision does not provide gender as a criterion for determining the status of the successor, and the objective is to preserve the stability of the law and to uphold the principle of prohibiting retroactive law. Moreover, the enactment of internal regulations for guilds should be respected based on freedom of association, property rights, freedom of contract, and the autonomy of private law. Therefore, even though the disputed provision may constitute differential treatment in substance, because it is not arbitrary it is not in conflict with the principle of gender equity nor does it infringe women’s right to property. However, the Constitutional Court urged relevant government agencies to review the related law to ensure that they are keeping pace with the times, taking into consideration the State’s positive duty to protect women under the Constitution, the principle of stability of law, changes in social conditions, and the adjustment of functions within an ancestor worship guild, so as to conform to the principle of gender equality and the constitutional intent to safeguard the people's freedom of association, property rights, and freedom of contract.

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. 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. 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.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.

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.