Academia Sinica Law Journal Issue No.36

KEYWORDS:  artificial intelligence (AI), European Union, AI regulation, risk-based approach, transparency, accountability.

Does Taiwan’s Temporary Migrant Workers Scheme Lead to Forced Labour?:
Assessing Taiwan’s Human Rights Performance against ILO Practices and Two Conceptions of Unfree Labour
Ya-Wen Yang
Abstract
Does Taiwan’s low-skilled temporary migrant workers (TMWs) scheme lead to forced labour? This paper argues that it likely does. The significance of this inquiry cannot be overemphasised. If the TMWs scheme were a forced labour institution supported by state law, not only would the state have committed systematic human rights violations, but employers would also be involved in offences related to forced labour and human trafficking. Taiwan’s supply chains might face sanctions from trading partners.
This article investigates Taiwan’s TMWs scheme in light of the practice and interpretation under Convention 29 (C29) of the International Labour Organization (ILO). It first points out that ILO C29 has normative force upon Taiwan, even if Taiwan is not allowed to be an ILO member, because C29 has constituted part of the state’s human rights obligations under Article 6 of the International Covenant on Economic, Social and Cultural Rights. Second, this paper proposes two conceptions of unfree labour—the voluntariness model and the capabilities model—as the analytical framework to understand ILO’s trace to eliminate forced labour. While the voluntariness model only considers non-economic coercion as unfree labour, the capabilities model expands the conception to include economic vulnerability. This article highlights that the ILO’s focus has shifted from the voluntariness model towards the capabilities model, from preventing non-economic coercion towards eliminating exploitative working conditions and economic vulnerability. Finally, this article measures Taiwan’s TMWs scheme against practices under C29. It points out that the government tends to respond to the requirements of the capabilities model with the rhetoric of the voluntariness model. The result is insufficient penalties for forced labour offences, exceeding limitations on migrant workers’ freedom to change jobs, absence of legal labour standards, and institutional justification for migrant workers’ plight in debt bondage. To sum up, the forced labour risks of Taiwan’s TMWs scheme reflect the gap between how forced labour should be eliminated under the voluntariness model and capacities model.
KEYWORDS: forced labour, unfree labour, human trafficking, modern slavery, migrant workers, International Labor Organization (ILO), Forced Labour Convention, 1930 (No. 29), labour rights, debt bondage, capabilities approach.

Public Authorities’ “Inadvertent Insensitivity” towards Religious Freedom:
Taiwan’s Relevant Cases and Socio-Cultural Contexts
Rung-Guang Lin
Abstract
In this article, I argue that the state’s “inadvertent insensitivity” towards religious liberty protections, a concept proposed by the American scholar W. Cole Durham Jr., is an important and as yet unnoticed characteristic of Taiwan’s state-religion relations. I develop this argument through an examination of three cases involving the conflict between religious freedom and general statutory regulations. Based on the studies in the sociology of religion on the religious culture of traditional Chinese society, especially C. K. Yang’s famous work RELIGION IN CHINESE SOCIETY, I further point out that Taiwanese authorities’ inadvertent insensitivity towards religion corresponds with three aspects of the religious cultures of traditional Chinese as well as contemporary Taiwanese societies. Even though the state’s inadvertent insensitivity towards religion is a notable feature of Taiwan’s state-religion relations, it does not mean that such a feature is insusceptible to change. This article concludes with several normative recommendations aimed at transitioning the current situation of insensitivity towards religion to a mode where the state is more sensitive to people’s religiously based particular needs.
KEYWORDS: freedom of religion, religious autonomy, general statutory regulations, inadvertent insensitivity, state-religion relations, diffused religion, institutional religion.

A Preliminary Exploration of the Application and Significance of Cultural Defenses in Taiwan’s Indigenous Criminal Cases:
Empirical Legal Research in Hualien District Court
Keng-Wei Fan & Jun-Ru Lin
Abstract
This article focuses on the Hualien District Court as its observational subject, conducting an initial investigation into how judges in Taiwan’s criminal trial system decide on the application and scope of cultural defenses when faced with claims or relevant provisions brought forth by indigenous defendants. It aims to clarify how the current legal framework shapes judges’ application of cultural defenses and its normative significance. In other words, this article shifts its focus from theoretical introduction to the observation and interpretation of legal practices.
Firstly, through the analysis of judgments and interviews with judges and lawyers, this article finds that despite the diverse cultural conflict patterns between indigenous peoples and the national legal system, the application of cultural defenses is confined to specific case types for which legislators have already established decriminalization rules. In terms of case types, it appears that the judicial cultural imagination aligns entirely with the legislature. Furthermore, within case types with established decriminalization rules, this article also discovers that judges’ understanding of the rule’s criteria may vary depending on the case type. Moreover, such differences influence judges’ decision-making paths when applying cultural defenses, leading to a choice between mitigating sentences or acquittal. The article posits that these variations in cultural interpretation and application of cultural defenses can be attributed to the varying degrees of the regulation of legal norms within these specific case types. Factors that contribute to this variation include the nature of the criteria’s protective interests, the clarity of legal provisions, the quantity of criteria, and the substantive content of the criteria. In conclusion, this paper argues that the development of cultural defense is shaped through the interaction between internal practices in the courtroom and legislature. It differs from the development in its theoretical homeland, forming a practical and theoretical construct with distinctive local characteristics.
KEYWORDS: cultural defense, indigenous peoples, cultural convergence, forest collection, wildlife hunting, firearm possession, empirical legal research, law and society.