1 Ellmann, Stephen, “Law and Legitimacy in South Africa,” 20 Law & Soc. Inquiry 401 (1995).Google Scholar

2 Pitman B. Potter, “Doctrinal Norms and Popular Attitudes about Civil Law Relationships in Taiwan,” 13 UCLA Pac. Basin L. Rev. (forthcoming 1995).Google Scholar

3 Winn, Jane Kaufman, “Relational Practices and the Marginalization of Law: Informal Financial Practices of Small Businesses in Taiwan,” 28 Law & Soc'y Rev. 193 (1994).CrossRefGoogle Scholar

4 See generally Merryman, John H., “On the Convergence (and Divergence) of the Civil Law and Common Law,” 17 Stan. J. Int'l L. 357 (1981); see infra part 1.C for further discussion of the assimilation of the German law tradition in the ROC.Google Scholar

5 Winkler, Edwin A., “Institutionalizarion and Participation on Taiwan: From Hard to Soft Authoritarianism? 99 China Q. 481 (1984); Jau-Yuan Hwang, “Constitutional Reform and Transition of an Authoritarian State: The Case of Taiwan 1986–1994” (S.J.D. thesis, Harvard Law School, 1995).CrossRefGoogle Scholar

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8 See, e.g., Jones, Carol A. G., “Capitalism, Globalization and Rule of Law: An Alternative Trajectory of Legal Change in China,” 3 Soc. & Leg. Stud. 195 (1994).CrossRefGoogle Scholar

9 Legal background here denotes both lawyers admitted to the ROC bar or at least one degree in law (bachelor, master, doctorate). Legal background was chosen as the relevant criterion, rather than simply admission to the ROC bar, because the pass rate for the bar exam was so low for so many years that counting only lawyers admitted to practice would overlook many with a serious interest in law. See infra sec. B.2 for an explanation of the ROC bar exam. The artificiality of this standard is apparent, however, in that Parris H. Chang (Zhang Xucheng) is not counted among those whose education may have reflected or fostered their commitment to opposition politics. Chang, a Taiwanese native, received a Ph.D. in political science from Columbia University and was on the faculty of Penn State University before returning to Taiwan in 1991 to enter politics as a DPP legislator.Google Scholar

10 We compiled these figures using the 1994 Legislative Yuan Directory of Legislators (Dierjie Lifaweiyuan Mingjian) (Taipei: Publications Dep't Secretary, Legislative Yuan, 1994). Of 92 KMT members of the legislature, 16 have legal backgrounds; of 50 DPP members, 15 have legal backgrounds; of 7 New Party members, 2 have legal backgrounds (i.e., about 29%); the 1 Social Democratic Party member has a legal background. In addition, 6 legislators showed no party affiliation, but none of them had a legal background. The New Party was founded in 1992 when some conservative members split with the KMT.Google Scholar

11 In 1987, of 31 DPP leaders, 9 (or 29%) had legal backgrounds. Alexander Ya-li Lu, “Political Opposition in Taiwan: The Development of the Democratic Progressive Party,”in Tun-jen Cheng & Stephan Haggard, eds., Political Change in Taiwan 123 (Boulder, Colo.: Lynne Rienner Publishers, 1992) (“Ya-li Lu, ‘Political Opposition’”). In 1984, of 31 members of the Central Standing Committee of the KMT, 3, or almost 10%, have legal backgrounds. Winkler, 99 Ch Q. 489.Google Scholar

12 The development of legal institutions in Taiwan under Japanese rule is dealt with in Tay-sheng Wang, “Legal Reform in Taiwan under Japanese Colonial Rule (1895–1945): The Reception of Western Law” (Ph.D. thesis, University of Washington, Seattle, 1992). Wang concludes that while Japanese law reforms introduced the people of Taiwan to Western legal institutions, under the conditions of colonial rule many fundamental liberal notions such as protection from arbitrary state action were excluded from the reforms. This experience differs from the experience of Republican China during the 1930s; however, the differences do not vitiate the following conclusions regarding modem ROC legal institutions drawn with reference to the mainland Chinese experience prior to 1949.Google Scholar

13 Since prior to the Communist victory in 1949, the ROC governed all of China, analysis of the history of ROC institutions prior to 1949 requires the study of events on mainland China.Google Scholar

14 Kathryn Bemhardt & Philip C. C. Huang, “Civil Law in Qing and Republican China: The Issues,” in Bernhardt & Huang, eds., Civil Law in Imperial and Republican China (Stanford, Cal.: Stanford University Press, 1994) (“Bernhardt & Huang, Civil Law”); Macauley, “Civil Reprobate.”Google Scholar

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19 Alford, 72 Cal. L. Rev. at 1194; Gelatt, Timothy A., “Lawyers in China: The Past Decade and Beyond,” 23 N.Y.U.J. Int'l L. & Pol'y 751 (1991).Google Scholar

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21 For a summary of the literature dealing with this issue in the United States, see Galanter, Marc, “Predators and Parasites: Lawyer Bashing and Civil Justice,” 28 Geo. L. Rev. 633 (1994).Google Scholar

22 As China entered into trade relations with Western nations in the 18th and 19th centuries, foreign traders and missionaries demanded and were granted extraterritorial jurisdiction. Under a system of extraterritoriality, foreigners in China remained subject to the jurisdiction of the law and courts of their nation of origin and were exempt from the application of Chinese laws. Nations with imperialist aspirations divided china into “spheres of influence,” carving out “concessions,” or territories on Chinese soil that were subject to foreign, not Chinese, control in “treaty ports”—Chinese cities that were forcibly opened to foreign trade beginning with the Nanking Treaty of 1842 folIowing China's defeat in the First Opium War (1840–42). John King Fairbank, The Great Chinese Revolution 1800–1985 at 52 (New York: Harper & Row, 1986).Google Scholar

23 In 1902, a Law Compilation Bureau was established by the Qing government to translate and edit Western law codes and to begin drafting new laws for China. This bureau continued in existence in one form or another for almost 20 years, but the output was limited. The impact of its work was diminished, first, by the weakness and finally the fall of the imperial government in 1911 and, then, by the weakness of the succeeding Republican government. Ch'ien Tuan-sheng, The Government and Politics of China 248 (Cambridge: Harvard University Press, 1950).Google Scholar

24 This law department was later merged with the law department of Beijing National University, which became the preeminent law faculty in China at the time. W. W. Blume, “Legal Education in China,” 1 (6) China L. Rev. 305, 306 (1923) (Shanghai: Comparative Law School of China, Soochow University, reprinted 1975 by Oceana Publications, Dobbs Ferry, N.Y.).Google Scholar

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40 An estimate provided by the ROC Ministry of Justice, Aug. 1992.Google Scholar

41 Direct comparisons with the United States ratio of 1 lawyer to 500 persons are omitted as misleading becaw the number of lawyers serving on the bench is much lower in the United States than in civil law countries. Figures on number of lawyers for countries other than Taiwan are from Marc Galanter, “Pick a Number, Any Number,”Am. Law., May 1992, at 82, or Christopher Ocasal, “Pick Again, Professor,”Tex. Law., 20 April 1992, at 14. Population figures are from 1992 World Almanac Book of Facts. Google Scholar

42 John O. Haley, Authority without Power: Law and the Japanese Paradox 110–11 (New York: Oxford University Press, 1991). Although Haley's primary thesis has been widely criticized, his book contains many interesting insights into the Japanese legal system. See, e.g., Johnson, David T., “Authority with Power: Haley on Japan's Law and Politics,” 27 Law & Soc'y Rev. 619 (1993); Fujikura, Koichiro, “Administering Justice in a Consensus-based Society,” 91 Mich. L. Rev. 1529 (1993).CrossRefGoogle Scholar

43 Frank Upham has advanced a similar argument with respect to mediation as an elite-sponsored alternative to litigation in Japan, although his focus is on various areas of substantive law rather than on the structure of the legal profession. Upham, Law and Social Change in Postwar Japan 12–13 (Cambridge: Harvard University Press, 1987) (“Upham, Law and Social Change”).Google Scholar

44 Why the ROC public and candidates for the ROC bar examination should have accepted as legitimate a pass rate that varied from 0.5% to 5% during the years from 1950 to 1988, while the American public and candidates for various bar examinations in the United States accept as legitimate pass rates that vary, e.g., from a high of 90% in Idaho and Indiana to a low of 54% in California in 1990 is an interesting question. The tolerance in Taiwan of what appears from an American perspective to be an incredibly low pass rate may be due in part to the Chinese tradition of competitive examinations for service in the imperial bureaucracy. The imperial examination system required years or even decades of preparation, and the percentages of successful candidates was much lower than that of the modem ROC bar exam.Google Scholar

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46 Id. at 80–81. In 1990, 290 of 2,048 (10%) passed; in 1991, 363 of 3,258 (11%) passed; and in 1992, 349 of 3,269 (11%) passed.Google Scholar

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49 For decades, there were seven general law faculties in Taiwan: those in National Taiwan University, National Chengchi University, and National Chunghsing University were in public universities; those in Fujen University, Tunghai University, Soochow University, and Chinese Culture University were private. In addition, the National Defense Administration College operated a law school for military personnel. In recent years, Chung Yuan Christian University and Ming Chuan College have opened new faculties of law, and several other universities and colleges have applications to open faculties of law pending before the Ministry of Education.Google Scholar

50 The expression in Chinese, zuo houmen, or going through the back door, usually refers to using personal connections to sidestep the formal procedures for gaining access to resources, e.g. using bribery to influence litigation outcomes. However, lawyers in Taiwan use the expression to describe alternatives to the formal bar exam that, like the bar exam, are regulated by the Lawyer Law but, unlike the bar exam, permit the application of more subjective criteria or criteria that seem biased in favor of candidates whose allegiance to the KMT regime is more assured. See, e.g., You Ying-fu, Issues in Judicial Reform (Sifa Gexin ji Qita) 65 (Taipei: San Min Book Co., 1990) (“You Ying-fu, Issues in Judicial Reform”).Google Scholar

51 ROC Examination Statistics 1992 at 84–85 (cited in note 45). Among those qualifying with no examination, 1,672 persons (58%) were judges or prosecutors; 144 (5%) were law professors; 90 (3%) had doctorates in law; 14 (0.49%) were court clerks; 601 (21%) were military judges or prosecutors; and 361 (13%) were legislators serving for over 3 years.Google Scholar

52 Id. The total number of candidates for the magistrates/prosecutors exam is equivalent to the number of candidates for the regular bar exam; only a small handful of candidates sit for the biennual military judges exam.Google Scholar

53 As amended through 1984, the Lawyer Law, art. 1, provided that those with law degrees from accredited law faculties who have been full professors (zhuanren jiaoshou) for 2 years, associate professors (fu jiaoshou) for 3 years, or lecturers (jiangshi) for 5 years and who have taught law topics for 2 years, may be admitted to the bar without taking the bar exam after a investigation of the candidate's qualifications.Google Scholar

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58 See, e.g., John H. Merryman, The Civil Law Tradiaon 104 (2d ed. Stanford, Cal.: Stanford University Press, 1985).Google Scholar

59 See sec. II.A.2 for a discussion of the difference between mainlanders (waishengren) and Taiwanese (benshengren).Google Scholar

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62 In 1985, of 115,900 lawyers in West Germany (190 lawyers/100,000 population), 17,000 (15%) were judges; 33,600 (29%) were government lawyers; 48,300 (42%) were attorneys in private practice or notaries; 15,000 (13%) were in-house counsel; 2,000 (2%) were law teachers. For the same period in the United States, of 618,800 lawyers (249/100,000 population), 21,700 (4%) were judges; 53,000 (9%) were government lawyers; 460,200 (74%) were in private practice; 76,600 (12%) were in-house counsel; 7,300 (1%) were law teachers. David S. Clark, “The Organization and Social Status of Lawyers,” in IX World Conference on Procedural Law: General Reports (1991). Equivalent data for the ROC were not available at the time of writing, so comparisons to the ROC are based on information gathered in interviews with legal professionals in Taiwan.Google Scholar

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67 Lawyer Law, as amended through 1984, arts. 40–45. Formerly, art. 2 also provided that any attorney found guilty of sedition (a popular crime before the repeal of martial law in 1987 and the sedition law in 1992) was disbarred for life.Google Scholar

68 Lawyer Law, as amended through 1992, arts. 41–43.Google Scholar

69 Hu Hui-ning, Fakiqiyehjia Lin Min Sheng (Biography of Min-sheng Lin, Legal Professional) (Taipei: Mingdan Publishing Co., 1994). Min-sheng Lin founded the Taiwan Intemational Patent and Law Office, one of the oldest Taipei law firms specializing in transactional/ consulting style of law practice. He was also a leader of the reformist lawyers.Google Scholar

70 Id. Min-sheng Lin was chosen to lead the new board.Google Scholar

71 Id. According to one of the reformist members of the TBA involved in the incident, a complaint was made to the Taipei prosecutor's office that the organizers of the public criticism of Hau and the Social Order Maintenance Act were committing sedition. The prosecutor determined that the TBA members were merely expressing their opinions (they had taken out a full page ad in the China Times, a leading daily paper, styled as a legal opinion interpreting the events at issue) and declined to proceed with the prosecution.Google Scholar

72 Trubek et al., Global Restructuring 14 (cited in note 48).Google Scholar

73 New York is a popular bar exam state for students from Taiwan because New York requires only a US. LL.M. degree if the candidate has a law degree from his or her country of origin and imposes no residency requirement.Google Scholar

74 At the time this article was written, this had not yet been done.Google Scholar

75 You Ying-fu, Issues in Judicial Reform 87–99 (cited in note 50).Google Scholar

76 A sizable minority within the ROC advocates Taiwanese independence and the founding of a Republic of Taiwan, rejecting the assertions of both ROC and PRC leaders that Taiwan is inextricably a part of China. The question of whether Taiwanese society is historically and culturally distinct from Chinese society is not considered here.Google Scholar

77 The study of non-Western societies by Western social scientists must always be conducted with the knowledge that “the sameness of language” in describing Asian and Western institutions and concepts “masks significant differences in assumptions and values.” Andrew Nathan, “Tiananmen and the Cosmos: What Chinese Democrats Mean by Democracy,”New Republic, 29 July 1991, at 31. For a survey of the literature on the relationship between Chinese culture and Westem culture, see Nathan, Andrew, “Is Chinese Culture Distinctive—A Review Article,” 54 J. Asian Stud. 923 (1993).Google Scholar

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83 Other significant ethnic or subethnic groups in Taiwan include the Malay-Polynesian aboriginals who settled centuries prior to the arrival of any migration from China and the descendants of Hakka-speaking Chinese settlers who came to Taiwan from Guangdong Province. The aboriginals today constitute only 1–2% of Taiwan's population; Hakka speakers constitute 12–15%; waishengren, another 12–15% and minnanhua speakers most of the remainder. Marc J. Cohen & Emma Teng, eds., Let Taiwan Be Taiwan (Washington: Center for Taiwan International Relations, 1990).Google Scholar

84 See, e.g., Marshall Johnson, “Classiliation, Power and Markets: Waning of the Ethnic Division of Labor,”in Denis Fred Simon & Michael Y. M. Kau, eds., Taiwan: Beyond the Economic Miracle (Armonk, N.Y.: M. E. Sharpe, 1991).Google Scholar

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86 Julian Baum, “First Generation Tycoons,”Far Eastern Econ. Rev., 30 Dec. 1993–6 Jan. 1994, at 60.Google Scholar

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88 A recent poll, conducted and released by the Mainland Affairs Council (a quasi-governmental agency that handles Taiwanese contacts with mainland China) in October 1994 found that 3.7% of those surveyed favored reunification as quickly as possible; 18.9% favored maintenance of the status quo while working toward reunification; 36.6% favored maintenance of the status quo at present with no preference for reunification or indm dence (depending on future developments); 12.7% favored maintenance of the status quo forever; 7.1% favored maintenance of the status quo while working toward independence; and 4.6% favored independence as quickly as possible. “Most Taiwanese Prefer Status Quo in Mainland Relations,” China Economic News Service release, 4 Nov. 1994 (available on NEXIS).Google Scholar

89 Joseph A. Schumpeter, Capitalism, Socialism and Democracy 269 (3d ed. New York: Harper & Row, 1962).Google Scholar

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104 John Kaplan, The Court-Martial of the Kaohsiung Defendants 77 (Berkeley: University of California Press, 1981). One of the most disturbing developments was the still unsolved murder of Lin Yi-hsiung's mother and two daughters while Lin was incarcerated.Google Scholar

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106 since 1967, the mayor of Taipei and since 1978, the mayor of Kaohsiung, the two largest cities in Taiwan, have been appointed by the central government rather than elected in order to prevent the election of non-KMT politicians to those positions. Gold, State and Society 91 (cited in note 35).Google Scholar

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113 Gold, State and Society 117 (cited in note 35).Google Scholar

114 Upham, Law and Social Change (cited in note 40). Upham describes the mercury poisoning of Minimata by the Chisso Corporation, how the citizens of Minimata responded with a combination of direct political action and litigation, and how the controversial and startling victory of the pollution victims in court produced systemic reforms in the regulation of environmental disputes.Google Scholar

115 Winn, 12 Md. J. Int'l L. & Trade (cited in note 64).Google Scholar

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123 “Soap Opera Judge's Anti+Corruption Message Wins Chinese Hearts,” Agence France Presse release, 4 June 1994 (available on NEXIS). Something of a modem successor to the mantle of Bao Qing-tian is Ma Ying-jeou, Justice Minister, who an opinion poll found to be the most popular government official in Taiwan in March 1995 with a public approval rating of 78%. “Taiwan Pleased with New China Policymaker,” Reuters World Service release, 30 March 1995 (available on NEXIS). Minister Ma has initiated several highly visible crackdowns on corruption in public life in Taiwan since his appointment in 1993. In 1994, 341 of Taiwan's 883 city and county council members were indicted on vote-buying charges; in 1995 prosecutors have determined that at least 42 of Taiwan's 84 golf clubs, including President Lee Ten-hui's club, have misused or appropriated public lands. Many observers find Minister Ma's attempts to stamp out the rampant corruption in Taiwanese society quixotic, however. Jesse Wong, “Taiwan Justice Minister Fights Flouting of Laws,”Asian Wall St. J. Weekly Ed., 17 April 1995, at 1.Google Scholar

124 The survey polled 1,215 persons polled 110–14 June 1994. In response to “Do you think that you have to give a bribe or use personal connections to win a law suit?” 35% of respondents said that a bribe was not necessary, 22% said usually not necessary, 27% said usually necessary, and 11% said always necessary. However, those with more education tended to be more cynical than those with less education. Bribes were viewed as unnecessary by 51% of those with only primary school education but by only 11% of those with more than one degree. Bribes were viewed as usually necessary by 30% of those with more than one degree but by only 16% of those with primary school education. Shen Xuying, “Hongbao dang dao, qingtian rang lu!” (Will Bribery Push Justice Aside?), Tianxia Zazhi (Commonwealth Magazine), 1 July 1994, at 27.Google Scholar

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