Title: Exploring the Capacity of Legal Persons under Public Law for Fundamental Rights: A Difficult Issue C
1Exploring the Capacity of Legal Persons under
Public Law for Fundamental Rights A Difficult
Issue Concerning the Nature of Fundamental
Rights
- Purport
- The German constitution Grundgesetz of 1949
went beyond the tradition by declaring explicitly
legal persons as entities holding fundamental
rights in Article 19 Subsection 3 of the
Fundamental Rights Chapter. This particularly
rare constitutional regulation aroused vehement
debate in Germany. But this is a common subject
in all modern constitutional states, Taiwan is
one among them. - Approach
- This paper, based on the German experience, will
examine the capacity of legal persons under
public law to hold fundamental rights in theory
and practice. - Achievement
- Suggestions on standards for the judgment of that
capacity will be submitted. This will open a door
to a new sight for local study.
- Chien-Liang Lee Shwu-Fann Liou, in
Interpretation of the Constitution in Theory and
Practice, Volume 4 (Dennis Te-Chung Tang ed.),
pp. 291-410 (May 2005).
2A Comparative Analysis of Taiwans Freedom of
Information Act 2005
- Dennis T. C. Tang
- Institutum Iurisprudentiae, Academia Sinica
- Taipei, Taiwan
-
- National Taiwan University Law Journal
- Vol. 35, No. 6, (2006) 37-115
- The due process requirements in a modern
administration can be roughly divided into three
categories impartiality, fairness and openness.
The first two have been codified in Taiwans
Administrative Procedure Act (TW APA) of 1999,
while the last was just shaped by the Freedom of
Information Act (TW FOIA) of December 2005. This
article endeavors for the first time to analyze,
in comparative perspective, the merits and
defects of the TW FOIA on one hand, and to
annotate the provisions on the other hand. - In addition to the introduction and
conclusion, this article contains five major
sections dealing respectively with the common
features of the FOIAs of the USA, UK, Canada,
Australia, Japan and Germany. Besides the
annotations, the article sums up a total of 18
specific proposals for future amendment in
conjunction with 10 tables.
3On the Validity of the Derogation Aspect of the
Forum Selection Clause
Kuo-Chang Huang , Institutum Iurisprudentiae,
Academia Sinica, Taipei, Taiwan National
Chengchi Law Review, 90 (2006) 301-354
- The Supreme Court in Taiwan recently issued
three decisions on the derogation aspect of the
forum selection clause in the context of
international litigation, with particular regard
directed to the validity requirements, the
exception to its prima facie validity, and the
default rule for its interpretation. Although in
agreement with the Supreme Courts upholding the
validity of such clause, the article argues that
the holdings in all three decisions should be
revised. With regard to the validity
requirements, the requirement that the judgment
issued by the chosen court will be recognized by
the Taiwanese court shall also be discarded. With
Regard to the exception, it is inappropriate to
recognize that the court with general
jurisdiction can assert jurisdiction irrespective
of forum selection clause appointing another
court to exercise jurisdiction exclusively. With
regard to the default rule, the forum selection
clause shall be interpreted as exclusive unless
the parties indicate otherwise.
4Balancing Between Individual Image Privacy and
Freedom of the Press- Analyses of Von Hannover
and Peck and Taiwanese Perspectives
- Fort Fu-Te Liao, Institutum Iurisprudentiae,
Academia Sinica, Taipei, Taiwan. - Chengchi Law Review, 91 (2006) 145-198
-
- Photographing individual and using of individual
image from surveillance videotapes involve the
protection, conflict and balance between right to
privacy and freedom of the press. Firstly, this
essay compares rules of rights between the ECHR
and Taiwanese Constitution to provide basis for
discussions on individual cases. Secondly, it
provides analyses on Von Hannover, which focuses
on balancing between private life and freedom of
the press. Thirdly, it further examines Peck,
reviewing the method and boundary administrative
authorities and the media may use individual
image. Its fourth part probes into Taiwanese
laws, and offers suggestions for amendments. The
last part provides conclusions. - It is argued that, because there has been no
particular provision in the Taiwanese
Constitution to protect right to privacy. It is
suggested that future constitutional amendments
should include right to privacy and take the two
judgments examined as model, Taiwanese laws can
be changed or inserted confirming governments
positive obligation to protect privacy, directing
the ways of media management laws, extending the
powers of the NCC, providing the system of
injunction and clarifying the ambit of right to
privacy.
Also in Fort Fu-Te Liao, Essays of Human Rights
Law (Angle Publisher, 2007), pp. 79-136.
5Interface between IP and Competition Law in
Taiwan
- What remains decisive for the determination of a
proper interplay between IP and competition law
is not an abstract economic analysis of the IP
regime as a whole but, rather, the value approach
each country needs to take for its own interest,
namely, whether to be comparatively more
pro-competition or more pro-IP in order to take
its development stages and core competitiveness
into consideration. This approach may vary over
time, as the development of the United States and
the European Union clearly shows a shift from a
weak patent and strong antitrust standing in the
1970s to a strong patent and weak antitrust
position in the 1990s. Every sovereign country
needs to make its judgment consciously. - Taiwan is by far a net importer of IP and plays a
key role in the world economy only as an original
equipment manufacturing center rather than an
RD, branding and licensing hub. Thus, in the
near future, it serves the Taiwanese national
interest best to take a slightly pro-competition
stance throughout its legislative, administrative
and judicial branches. Measured by that
yardstick, the parallel import regime in Taiwan
needs to be improved by allowing more choice for
consumers and more intra-brand competition that
truly reflects the goal of the WTO a globalized
world market that is beyond any market
segregation, whether by IP or not. - The handling by the TFTC of warning letters
issued by IP holders to third parties, requiring
that precautionary steps be taken before the
issuance of such letters is justified because it
reduces uncertainty in the market. The market
would be further better off had the TFTC demanded
that the whole of the court decision or the
expert opinion regarding patent infringement be
attached to the warning letter and that the
issuer must first have filed suit against the
actual infringer. - Last, but not least, experiences in Taiwan show
that, like all economic powers unchecked by
market forces, multinational conglomerates are
tempted to act in an inconsiderate and aggressive
way when exercising their IP rights, even to
conduct anticompetitive activities in the name of
IP rights and laws and contracts. To
counter-balance IP superpower and the possible
resultant misuse that suffocates market
competition and leaves the needs of consumers
unsatisfied, competition law in Taiwan has proven
to be of help.Kung-Chung Liu, The Journal of
World Intellectual Property, Vol. 8 No. 6
(November 2005), 735-760.