Academia Sinica Law Journal Issue No.31

Institutum Iurisprudentiae has published Issue No.31 of Academia Sinica Law Journal.

Web Link: https://dev.iias.sinica.edu.tw/en/publication_post/1410/9
 
Power-Conferring Norms and the Internal Point of View 
Jyr-Jong Lin
Abstract
This article explores H.L.A. Hart’s notion of the internal point of view and its relation to power-conferring norms. It is widely recognized that these two concepts respectively constitute penetrating critiques of classical positivist theories. But more importantly, joining these two ideas, as Hart himself suggested at one point in The Concept of Law, provides Hart’s theorizing of legal phenomena with revealing insights and powerful explanatory force. In Hart’s view, law is a social construct based on rule-following activities and exploring the operation of rules and rule-following activities from the rule-user’s perspective offers the most illuminating explanation of the normative aspect of such social practices. Therefore, recognizing power-conferring norms as constituting a distinctive norm-type irreducible to norms that impose duties, necessitates an elaborated account of the norm-user’s committed attitude that encompasses both types of norms. However, Hart’s account of the internal perspective, namely the critical reflective attitude, cannot adequately explain the committed attitude toward power-conferring norms. This article analyzes the different perspectives toward legal norms by investigating the speech acts performed by legal agents through different legal statements. Internal legal statements made in accordance with empowering norms are declarative speech acts that give rise to institutional social facts. The internal point of view toward a power-conferring norm is the practical attitude that shows one’s recognition of the normative roles, capacities, statuses, or relations determined by the norm. Furthermore, when one recognizes certain normative statuses or relations in accordance with a power-conferring norm, one is inclined to get the valid exercise of the relevant legal power and subsequent legal consequences generally recognized by others and to criticize those who fail to recognize such legal effects. On the basis of this conception of the committed attitude toward power-conferring norms, I reconsider the relation between the Hartian secondary rules.
KEYWORDS: power-conferring norms, the internal point of view, declarative speech acts, recognition. 

Recognition of Foreign Judgments on Matters of
Parental Responsibility and Child Adoption: 
A Comparative Study on Taiwanese Law, German Law, EU Law and
the Hague Convention
Wei-Yu Chen
Abstract
It is common for foreign judgments on non-contentious family matters to be recognized and enforced in Taiwan. In this regard, Article 49 of the Taiwanese Non-Contentious Proceedings Act and Article 4-1 of Compulsory Enforcement Act states that it shall be applied pursuant to Article 97 and Article 186 II of the Taiwanese Family Act. However, Article 49 of Non-Contentious Proceedings Act does not explicitly regulate the procedural aspect of recognition of foreign judgments and the aspect concerning its effects is also missing; the said provision does not seem to provide satisfactory solutions in regard to the conditions of recognition of foreign judgments. Hence, it is imperative to cover the lack of regulation and review the current rules of recognition of foreign judgments. Moreover, when it comes to foreign judgments on matters of parental responsibility or child adoption, the current statutory status becomes more problematic, since the principle of the best interests of the child revealed in Article 3 of the Convention on the Rights of the Child must come into play; this gives rise to the question of how the principle should function in concrete terms. In this vein, this article will first conduct a comparative study on the German, EU law and the relevant Hague Conventions. The result of this comparative study will then serve as basis for reviewing Taiwanese law on the recognition of foreign judgments, in particular with regard to the practical application of the principle of the best interests of the child. This article will conclude with guidelines for interpretation of Article 49 of the Taiwanese Non-Contentious Proceedings Act as well as proposals for legislative reform.
KEYWORDS: recognition and enforcement of foreign judgments, Convention on the Rights of the Child, best interests of the child, recognition by operation of law, public policy, the theory of effect extension.

The Legal Models of Corporate Social Disclosure:
The Perspective of Balancing Effectiveness and Constitutionality
Chung-Lin Chen, Chang-hsien Tsai& Kuan-Chia Liu
Abstract
Traditionally, the disclosure duty under securities regulation covers only the scope of financial information. However, with the development of the idea of corporate social responsibility, the history of multinational corporations’ misbehavior, the great power wielded by the multinationals, and the growth of advocating diverse public interests, mandated disclosure has gradually expanded into nonfinancial information related to environmental, social, and governance (“ESG”) performance. Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act in the United States, Directive 2014/95/EU and Regulation (EU) 2017/821 in the European Union are famous examples of such development. In Taiwan, several rules promulgated by the Financial Supervisory Commission, the Taiwan Stock Exchange Corporation, and the Taipei Exchange have also established social disclosure law. Against this backdrop, it is worth further noting that when including the nonfinancial disclosure requirement into the law, different countries have developed diverse regulatory models.
The purpose of this article is to explore the regulatory models from the angles of comprehensiveness, specificity, and compulsoriness, to analyze the strength and weakness of the different regulatory models in terms of effectiveness and constitutionality, and to offer suggestions for future legal reform. This article indicates that while effectiveness is an important goal, policymakers need to pay close attention to the challenge of constitutionality when formulating social disclosure law. Based on the comparative analysis of the different regulatory models, this article argues that the law in Taiwan could be reformed toward the following two tracks of ESG disclosure regulation. One track is specifically designed to pursue certain important governmental interests such as food safety and environmental protection and would be equipped with specific and highly compulsory requirements. The other track establishes a comprehensive reporting requirement but allows for flexibility in compliance by lowering the specificity and compulsoriness of the regulation.
KEYWORDS: social disclosure, corporate social responsibility, social transparency, ESG disclosure, nonfinancial disclosure, sustainability reporting, commercial speech.

Misinformation, Disinformation and the Courts’ Response in Taiwan:
An Analysis of the Social Order Maintenance Act Cases from 2007 to July 2020
Chun-Yuan Lin
Abstract
Misinformation and disinformation have become a severe threat to democratic politics. While governments are considering legislative and administrative countermeasures, the potential of judicial response has been underestimated. In Taiwan, the Social Order Maintenance Act was enacted to replace the Act Governing the Punishment of Police Offences as a tool of social control. Article 63, Section 1, Paragraph 5, which punishes rumor-spreading behavior, has become a legal basis to combat misinformation and disinformation, yet invites serious criticism at the same time. Is the said Article a way to continue the authoritarian social control from the past, or is it another step towards achieving further democratization? How have the courts responded to the challenges of misinformation and disinformation based on this Article?
This article conducts an empirical study on relevant judicial rulings available in the Judicial Yuan database and finds that the courts have been carefully protecting the freedom of speech in Taiwan’s changing society. Facing the challenges of disinformation and misinformation, the courts have developed divergent opinions. These developments suggest an underestimated role of courts in combating misinformation. Furthermore, the empirical study on judicial responses also sheds light on the legal response to misinformation: while protecting free speech is indispensable, the theory of free speech can be adapted to new contexts with efforts aimed at balancing the needs of listeners in the marketplace of ideas.
KEYWORDS: misinformation, disinformation, courts, the Social Order Maintenance Act, freedom of speech, the duty of fact-checking.

The Right of Refusal to Testify Based on the Nemo Tenetur Principle:
A Comprehensive Evaluation of Supreme Court Judgments
Chih-Jen Hsueh
Abstract
According to “nemo tenetur seipsum accusare,” which is expressly provided by Articles 181 and 186 Ⅱ of the Criminal Procedure Law, a witness can deny answering questions when he is afraid that he or his relatives will be accused or punished, and interrogators have to inform the witness of his right of refusal to testify. As to the application of the right of refusal to testify and the effect when interrogators violate the obligation of informing, the Supreme Court has been gradually accumulating consistent opinions in recent years, especially after the amendment of the Criminal Procedure Law in 2003. This article points out the risk of being accused, which might occur when a witness answers a specific question which might create, maintain, or strengthen the level of criminal suspicions of himself or his relatives, and this risk won’t be diminished just because the witness has been sentenced, confessed, or been clearly investigated. While judges, prosecutors, and police are questioning the witness, they should properly inform the witness regarding their right of refusal to testify once there is a factual basis that shows he has the right. If interrogators violate the obligation of informing the right, according to the Article 158-4 of the Criminal Procedure Law, the witness’s testimony can’t be used in the process of accusing the witness himself or his relatives, but the testimony can be used against the defendant. If the witness commits perjury because interrogators violate their duty to inform the witness of his right of refusal to testify and the witness mistakenly believes he has an obligation to testify, it will not affect the validity of the deposition and the witness will not be guilty of perjury. Based on the points mentioned above, most judgments of the Supreme Court are worthy of affirmation, while some arguments and conclusions of a few judgments need to be re-examined.
KEYWORDS: nemo tenetur seipsum accusare, right of refusal to testify, the risk of being accused, the obligation of informing, suppression of evidence, theory of right field, deposition, perjury.