Exploring the Capacity of Legal Persons under Public Law for Fundamental Rights: A Difficult Issue C - PowerPoint PPT Presentation

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Exploring the Capacity of Legal Persons under Public Law for Fundamental Rights: A Difficult Issue C

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The German constitution 'Grundgesetz' of 1949 went beyond the tradition by ... providing the system of injunction and clarifying the ambit of right to privacy. ... – PowerPoint PPT presentation

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Title: Exploring the Capacity of Legal Persons under Public Law for Fundamental Rights: A Difficult Issue C


1
Exploring 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).

2
A 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.

3
On 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.

4
Balancing 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.
5
Interface 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.
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