Academia Sinica Law Journal Issue No.32

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Institutum Iurisprudentiae has published Issue No.32 of Academia Sinica Law Journal.

Journal's Link: https://www.iias.sinica.edu.tw/en/publication_post/1491/9

Articles
On the State Liability for “Public Service Fault” in France
Pi-Fang Wang
Abstract
According to Article 2 of the State Compensation Law in Taiwan, the State shall be liable for any damage arising from the intentional or negligent act of any government employee that infringes upon the freedom or rights of any person. The doctrine holds that this kind of liability belongs to negligence liability and subrogation liability. By contrast, the French law adopts State self-liability and objective liability. The “administrative liability for fault” in France is based on the “public service fault”: if there is a wrongful operation or organization in a public service, this fault is directly attributed to the State, which shall be liable for the damages. This article argues that the French law provides more comprehensive protection for the injured, and serves as a model for the reform of the State Compensation Law in Taiwan.
KEYWORDS: state liability, negligence liability, administrative liability for fault (responsabilité administrative pour faute), public service fault (faute du service public or faute de service).

Traditional and Emerging Approaches to Promote Competition Policies:
Moving from Competition Advocacy Towards Market Investigations
Richard Li-Dar Wang
Abstract
In contrast with competition law that passively safeguards competition against derogation, competition policies are aimed at erasing competitive obstacles and positively promoting competition. Traditionally, competition policies have been promoted through competition advocacy, which is the mainstream approach and could be further divided into sheer advocacy, comprehensive policy and incremental policy models. Ever since the emergence of market investigations in the United Kingdom, competition agencies have started to have direct authorities to erase competitive obstacles, and market investigations have arisen to be a new approach to promoting competition policies. The Digital Markets Act of the European Union combines market investigation procedures with ex ante industrial regulation over digital platforms with a gatekeeper position, and involves the competition agency as a joint enforcement authority of this Act, thus generating a new model of market investigations. Based on the historical hermeneutical approach, this article is aimed at exploring the international evolution of approaches to promoting competition policies. It first explains the three models of the traditional mainstream approach, i.e. competition advocacy, then looks closely at the emerging approach of market investigations. The present article interprets the institutional design of market investigations in the United Kingdom, together with the retail banking investigation as a prominent example which led to the dawn of open banking. It further analyzes the basic framework of the Digital Markets Act and the three types of market investigation procedures devised therein. Finally, for the purpose of clarifying necessary measures to accommodate the market investigation scheme, this article uses Taiwan law as a reference to examine which type of ancillary measures should be considered while the scheme is actually put into practice. It finds that mandatory investigation power and formal hearings for parties play a pivotal role with regard to the effectiveness and legitimacy of market investigations.
KEYWORDS: deregulation, pro-competition, market liberalization, competition agency, administrative process, administrative investigation, digital, competition law.

Discrimination after Death? An Empirical Study on Gender Preference in Distributing Estates by Will
Sieh-chuen Huang, Yun-chien Chang & Su-Li Her
Abstract
This article uses two types of data to examine whether Taiwanese people favor male successors over female successors in distributing estates. Administrative data published by the Ministry of the Interior and the Ministry of Finance are comprehensive yet aggregate in nature. Analysis of the administrative data reveals that the value of immovable property acquired by male successors is higher than that acquired by female ones. Compared with court judgments, reconciliation, mediation, and agreement of division of inheritance among successors, acquisition of immovable property through wills shows more male preference. In addition, the values of total and net estates given to female successors are much lower than those given to male ones.
This article also uses a unique data set of 1,793 Taiwanese wills to conduct the first large-scale, quantitative study of wills in Taiwan. These wills are not statistically representative but are rich in information. Our analysis of the will data shows that less than 2% of the studied wills exhibit obvious gender preference (either favoring male successors or favoring female successors while excluding successors of the other gender from benefiting from estates). If we change to a broader definition, that is, to say a will has a male/female preference by looking at whether its beneficiaries are male/female only, wills with a male preference account for 35% of the wills, whereas wills with a female preference account for 12%. Furthermore, male testators show more male preference than female testators, and testators over 75 years old reveal more male preference than testators under the age of 75. Where the wills were drawn up does not produce a statistically significant difference.
KEYWORDS: patriarchy, gender equality, wills, immovable property, disclaimer, notarize, authenticate.

Between Status and Contract:
The Channelling Function and the Development of Taiwanese Marriage Law
Li-Ju Lee
Abstract
After several rounds of amendments since the 1990s, the Taiwanese Family Code has departed from its traditional patriarchal roots and embraced the idea of gender equality by imposing gender-neutral rules and adopting a bargaining model. However, even though the Taiwanese marriage law seems to have embarked on a journey of “from status to contract,” the reformed family law does not turn the traditional marriage into an egalitarian contract. In fact, the individualized or privatized marriage law remains more a “status” than “contract” as most married couples are still bound by their gender roles and attached to the legal status of marriage. This article explores the development and the nature of the Taiwanese marriage law and argues that the status/contract dichotomy fails to explain the social/legal construct behind the marriage status, especially the legal supremacy enjoyed by the marriage institution and the important role played by social norms. While incorporating a bargaining model into the Family Code may not suffice to rattle the patriarchal structure, the author suggests that the recent social and legal changes and the decreasing channelling function of family law may post serious challenges to the marriage “status”.
KEYWORDS: Taiwanese family law, marriage institution, from status to contract, channelling function, patriarchal family, gender equality, relational contract, freedom of marriage.

Reviews
The Tyranny of Efficiency:
A Critical Review on the Methodological Thesis in Professor Yun-chien Chang's INTERPRETING PRIVATE LAW: A SOCIAL SCIENTIFIC APPROACH
Kuan-Ting Chen
Abstract
With the exception of Professor Yun-chien Chang’s INTERPRETING PRIVATE LAW: A SOCIAL SCIENTIFIC APPROACH, discussions on law and economics in Taiwan rarely focus on methodological questions. This paper aims to reflect on its methodological thesis.
By analyzing the concept of efficiency, this paper points out efficiency is not a value that Professor Chang ostensibly claims competes with freedom or other first-order values. Professor Chang indeed presupposes that efficiency is the only tyrannical value in the first-order values in his book. This paper explores the concept of welfare introduced by Professor Chang to avoid criticism and then criticizes Louis Kaplow’s and Steven Shavell’s welfare theory that is introduced and points out the undesirable theoretical consequences of adopting it. In addition, through analyzing the structure of welfare, it is clear there are some gaps to be overcome in invoking the concept of welfare to replace the second-order efficiency. Though not entirely opposing Professor Chang’s aim to integrate economic analysis into legal thinking, this paper attempts to reveal its potential weaknesses and clarify ambiguous areas that need to be improved.
KEYWORDS: economic analysis of law, law & economics, methodology, efficiency, welfare, Kaldor-Hicks standard, Pareto standard, first-order value, second-order value, social sciences of law.