Taiwan

Domestic Case Law

司法院大法官會議第807號解釋 (J.Y. Interpretation No. 807) Constitutional Court of Taiwan (2021)

Employment discrimination

The Court found that Article 49(1) of the Labor Standards Act, which prohibits female workers from working at night, violated the Constitution’s gender equality rule. One of the purposes of the article is to protect female workers' health. However, it is a requirement for all workers, and there is no reasonable ground to exclude male workers from this requirement. Another purpose of the article is to protect female workers' safety at night. Based on the Constitution, the state is obligated to take various possible protections, including imposing some obligations on employers to provide safe transportation or dormitories to those female workers. However, instead of protecting female workers' safety at night, the article completely prohibits female workers from working at night, limiting female workers' freedom and right to work at night. Thus, it is unconstitutional.

勞動基準法第49條第1項限制女性勞工於夜間工作之規定，違反憲法第7條保障性別平等之意旨。本條其中一項立法目的，係保障女性勞工之健康，惟此種需求係所有勞工之需求，並無合理理由將男性勞工排除在外。本條另一項立法目的係保障女性勞工夜間工作之安全。基於憲法增修條文規定，國家應有義務採取各種可能之安全保護措施，包括使雇主提供安全交通工具或宿舍予女性勞工之義務。然而，系爭規定竟全面禁止女性勞工於夜間工作，致女性原應享有並受保障之安全夜行權變相成為限制其自由選擇夜間工作之理由，因此系爭規定應屬違憲。

司法院大法官會議第452號解釋 (J.Y. Interpretation No. 452) Constitutional Court of Taiwan (1998)

Gender discrimination, Property and inheritance rights

Article 1002 of the Civil Code in 1998 stipulated," The residence of the wife shall be that of the husband…; nevertheless, in case there is an agreement that the residence of the husband shall be that of the wife…, the agreement shall be upheld." This article was against the principle of equality and proportionality of the Constitution. Though the article allows the husband or wife to make an agreement about their residence, it failed to take into consideration that if a husband refuses to make such an agreement with his wife or if an agreement cannot be made, the wife has no choice but to accept her husband's domicile as hers. This article also failed to consider the wife's freedom to choose her residence; thus, it is unconstitutional.

1998年民法第1002條規定：「妻以夫之住所為住所…，但約定夫以妻之住所為住所…，從其約定。」此一規定因違反平等原則及比例原則而違憲。雖該條賦予夫妻一方得另行約定住所，但如夫拒絕為約定或雙方協議不成時，妻即須以夫之住所為住所。該條規定亦未考慮妻應有選擇住所之自由，故而違憲。

司法院大法官會議第457號解釋 (J.Y. Interpretation No. 457) Constitutional Court of Taiwan (1998)

Gender discrimination, Property and inheritance rights

The Regulations for the Handling of the Government Owned Housing and Farmlands Vacated by Married Veterans after Their Hospitalization, Retirement or Death distributes plots of state farmland to veterans. Section 4-III of the Regulations provides, “If the surviving spouse of the deceased veteran remarries but without issue or has only daughter(s), the land and housing shall be reclaimed unconditionally upon the marriage of the daughter(s); and the rights of the veteran may be inherited by his son, if any.” The Court explained that the government can allow a veteran’s surviving dependents to continue using and farming the state land distributed to veterans, and can extend the term “dependents” to a veteran’s children. In doing so, however, the government should consider the children’s ability to earn a living and cultivate the land, and must keep in mind the principle of gender equality enshrined in Article 7 of the Constitution and Article 10-VI of the Amendments to the Constitution. The Court held that Section 4-III of the Regulations violates this principle because it limits the right of inheritance of a deceased veteran to the veteran’s son without regard to the son’s ability or marital status. Thus, the Court held that Section 4-III of the Regulations discriminates against a specific group of women on the premise of marital status and sex. As such, the Court held that the government must revise Section 4-III of the Regulations to remove the discriminatory provision.

行政院國軍退除役官兵輔導委員會發布之「本會各農場有眷場員就醫、就養或死亡開缺後房舍土地處理要點」第4條第3項規定：「死亡場員之遺眷如改嫁他人而無子女者或僅有女兒，其女兒出嫁後均應無條件收回土地及眷舍，如有兒子准由兒子繼承其權利」。法院解釋認為，政府可以允許退除役官兵的遺眷繼續使用和耕種分配給該退除役官兵的國有土地，並可以將「遺眷」一詞擴大解釋至該退除役官兵的子女。然而，於此同時，政府應考慮該子女的謀生和耕種能力，並且必須謹記憲法第7條和憲法增修條文第10條第6項規定的性別平等原則。法院認為，該要點第4條第3項規定違反了此一原則，因為其將已故退除役官兵的繼承權限制在退伍軍人的兒子身上，且不考慮兒子的謀生和耕種能力或婚姻狀況。因此，法院認為，該要點第4條第3項規定以婚姻狀況和性別為前提，歧視特定婦女群體。於此情況下，法院認為，政府必須修正該要點第4條第3項規定以刪除歧視條文。

司法院大法官會議第147號解釋 (J.Y. Interpretation No. 147) Constitutional Court of Taiwan (1976)

Divorce and dissolution of marriage

Article 1001 of the Civil Code provides that spouses have a “mutual marital obligation to cohabit” absent legally justifiable reasons for not cohabiting. The Court held that a husband’s extramarital affair violates the “marital obligation of fidelity” and qualifies as a legally justifiable reason for the wife not to cohabit with the husband. Thus, the Court held that a husband’s extramarital affair releases his wife from her marital obligation to cohabit, but only for the period during which he maintains the affair.

民法第1001條規定，配偶如果欠缺法律上合理的不同居理由，就有「婚姻同居義務」。法院認為，丈夫納妾違反了「婚姻忠誠義務」，妻子可以之作為不與丈夫同居的合法理由。因此，法院認為，丈夫納妾可以免除妻子的婚姻同居義務，但只限於在他撫養妾的期間。

司法院大法官會議第617號解釋 (J.Y. Interpretation No. 617) Constitutional Court of Taiwan (2006)

Sexual violence and rape

Article 235 of the Criminal Code provides for criminal penalties for people who distribute, broadcast or sell “obscene” material, and to people who manufacture or possess obscene material “with the intent to distribute, broadcast or sell.” The Court held that the term “obscene” is not an indefinite “concept of law,” but rather includes material containing, among other things, violent or sexually abusive content. As such, the Court held that the law is a reasonable restraint on free speech and free publication. Thus, the law is constitutional and bans, among other things, material that includes violent or sexually abusive content.

刑法第235條規定對散布、播送或販賣，以及意圖散布、播送、販賣而製造、持有「猥褻」物品的人，處以刑事處罰。法院認為，「猥褻」一詞並非不確定的「法律概念」，而是包括含有暴力或性虐待等內容。於此情形，法院認為，此一法條是對言論自由和出版自由的合理限制。因此，該法律為合憲，而且禁止包含暴力或性虐待之內容。

釋字第623號 J.Y. Interpretation 623 Taiwan Constitutional Court (1996)

Statutory rape or defilement, Trafficking in persons

In this interpretation, the Taiwan Constitutional Court upheld a criminal penalty provision of the Child and Juvenile Sexual Transaction Prevention Act (subsequently amended and retitled as the Child and Youth Sexual Exploitation Prevention Act, or “CYSEPA”) that provided for imprisonment and monetary fines for parties publishing, broadcasting, or otherwise spreading information that may by any means induce a person to engage in an unlawful sexual transaction. The Court cited its earlier precedents holding that the constitutional guarantee of freedom of speech was not absolute and that lawmakers may impose restrictions through clear and unambiguous laws. With regard to the Constitution’s Article 23 proportionality principle, the Court addressed the broad scope of the criminal penalty provision, which did not require that the information in question specifically involve or result in underage sexual transactions or inducement of children or juveniles to engage in sexual transactions. The Court noted that children and juveniles are still in danger of becoming objects of sexual transactions because of the wide distribution of such information and, therefore, distribution of such information constitutes a crime. The Court held that the criminal penalty provision in question was a rational and necessary means of achieving the significant state interest of protecting children and juveniles from becoming objects of sexual transactions and therefore was consistent with the principle of proportionality. The Court nonetheless directed competent authorities to design a “classified management system” so that readers and viewers of such information “can be strictly differentiated in light of the technological developments so as to comply with the principle of proportionality.” The current version of this criminal penalty provision, as reflected in the CYSEPA, has a narrower scope and applies to “messages that are deemed to be sufficient to seduce, arrange, suggest, or cause a child or youth to be subjected” to sexual exploitation. English translation available here.

司法院釋字第791號解釋摘要 (J.Y. Interpretation 791) Taiwan Constitutional Court (2020)

Gender discrimination, Sexual violence and rape

Article 239 of the Taiwan Criminal Code stipulates, "Anyone who has a spouse and commits adultery with another person shall be punished by imprisonment for a term not exceeding one year. The same applies to those who commit adultery." This Interpretation overrules J.Y. Interpretation No. 554 (2002), which affirmed the constitutionality of the Criminal Code’s restriction on individual sexual freedom on the grounds that such freedom was subject to restriction for the purpose of protecting the marriage and family. In this Interpretation, the Court expanded the scope of sexual autonomy under Article 22 of the Constitution and held that the infringement of the rights to sexual autonomy and of individual privacy by the criminalization of adultery fail the proportionality test in the Constitution’s Article 23. The Court found Article 239 unconstitutional because it restricted an individual's freedom to decide whether and with whom to engage in sexual activity. However, the state should generally limit the punishments for illegal acts to those detrimental to social order or public welfare. Therefore, while adultery is undoubtedly detrimental to the obligation of fidelity in a marriage and the feelings and expectations of the other party, it is not clearly detrimental to the social order or public welfare. Further, adultery mainly occurs in private. The process of discovery, prosecution, and trial inevitably interferes with personal privacy, driving the state's public power straight into the very private space of the people. Therefore, the Court found that the regulation causes more significant damage than the interest it intends to protect. This case is important not only in its recognition of a constitutionally-protected right to sexual autonomy and its emphasis on individual privacy but also because the Criminal Code provisions on adultery reportedly had been applied disproportionately against women and also to pressure women not to pursue sexual assault charges, which could lead to the woman becoming charged with adultery.

刑法第239條規定：「有配偶而與人通姦者，處1年以下有期徒刑。其相姦者亦同。」本解釋推翻司法院第554號解釋(2002)，關於保障婚姻和家庭而限制個人性自主權利之合憲性解釋。憲法法庭認憲法第22條所保障性自主權之限制，與憲法第23條比例原則不符，應自本解釋公布之日起失其效力；於此範圍內，本院釋字第554號解釋應予變更。因而宣告此一規定違憲。此規定立法目的係限制個人得自由決定是否及與何人發生性行為之性行為自由。然基於刑法謙抑性原則，國家原則上應以侵害公益或大眾福祉之違法行為為限。因此，通姦行為固已損及婚姻關係中之忠誠義務及對方之感情與對婚姻之期待，但尚不致明顯損及公益或大眾福祉。再者，通姦行為多發生於個人之私密空間內，其發現、追訴、審判過程必然侵擾個人生活私密領域，致國家公權力長驅直入人民極私密之領域。因此，系爭規定所致之損害大於其目的所欲維護之利益，而有失均衡。本案宣告違憲之重要性不僅在於對於憲法上所保障的性自主權及隱私權的再次確認，更是因為刑法通姦罪適用上對於女性比例上多於男性被告，及適用上經常迫使女性放棄追溯之實證結果，而不符合憲法所保障之意旨。

J.Y. Interpretation 748 Taiwan Constitutional Court (2017)

Gender discrimination, LGBTIQ

The Taiwan Constitutional Court held in this interpretation that the provisions of the Taiwan Civil Code on marriage and family, which did not contemplate same-sex marriage, violated the guarantees of freedom of marriage and right to equality under Articles 22 and 7, respectively, of the Taiwan Constitution. The case involved consolidated appeals by (i) the Taipei City Government, arguing that the relevant Civil Code provisions and a related directive of the Ministry of the Interior required it to deny registration for same-sex marriages in violation of the Constitution and (ii) an individual seeking a constitutional interpretation after exhausting other judicial remedies for the denial of his applications for a same-sex marriage. The Court concluded that an individual’s “decisional autonomy” as to whether and whom to marry is a fundamental right protected by Article 22 of the Constitution and that extending this right to same-sex couples would not affect the application of the Civil Code provisions on betrothal, conclusion of marriage, general effects of marriage, marital property regimes, and divorce with regard to opposite sex couples and also would not undermine or alter the social order. The Court also concluded that the classifications of impermissible discrimination under Article 7 of the Constitution are only illustrative rather than exhaustive and that different treatment based on other classifications, such as disability or sexual orientation, are also governed by the constitutional right to equality. The Court applied a heightened standard under Article 7, and concluded that the societal interest in procreation was not an essential element of marriage and that the “basic ethical orders” relating to traditional marriage (e.g., minimum age, monogamy, prohibition of marriage between close relatives, obligation of fidelity, and mutual obligation) would not be affected by legal recognition of same-sex marriages. The Court further stated that leaving the determination of the issue of same-sex marriage to the legislative process would indefinitely prolong the unfair treatment and ordered the legislative authorities to amend or enact laws to reflect this interpretation within two years. The Act for Implementation of J.Y. Interpretation 748 was enacted in 2019 to enforce this Interpretation.

台灣憲法法庭認為台灣民法親屬篇中未考量納入同性婚姻，有違反台灣憲法第22條及第7條之婚姻自由及平等權之保障。本案為共同聲請案件，聲請人之一臺北市政府為戶籍登記業務主管機關（戶籍法第22條參照），因所轄戶政事務所於辦理相同性別二人民申請之結婚登記業務，適用民法第4編親屬第2章婚姻（下稱婚姻章）規定及內政部函示，函轉法務部函，發生有牴觸憲法第7條、第22條及第23條規定之疑義，經由上級機關內政部層轉行政院，再由行政院轉請本院解釋。另一聲請人於窮盡司法途徑後，向憲法法庭聲請解釋。憲法法庭認為是否結婚及與誰接婚，皆屬個人憲法第22條所保障之自由意志，且該權利亦為同性伴侶所適用。現行婚姻章有關異性婚姻制度之當事人身分及相關權利、義務關係，不因本解釋而改變。憲法法庭也指出，憲法第7條規定：「中華民國人民，無分男女、宗教、種族、階級、黨派，在法律上一律平等。」本條明文揭示之5種禁止歧視事由，僅係例示，而非窮盡列舉。是如以其他事由，如身心障礙、性傾向等為分類標準，所為之差別待遇，亦屬本條平等權規範之範圍。是以性傾向作為分類標準所為之差別待遇，應適用較為嚴格之審查標準，以判斷其合憲性，除其目的須為追求重要公共利益外，其手段與目的之達成間並須具有實質關聯，始符合憲法第7條保障平等權之意旨。故以不能繁衍後代為由，未使相同性別二人得以結婚，顯非合理之差別待遇。倘以婚姻係為維護基本倫理秩序，如結婚年齡、單一配偶、近親禁婚、忠貞義務及扶養義務等為考量，其計慮固屬正當。惟若容許相同性別二人得依婚姻章實質與形式要件規定，成立法律上婚姻關係，且要求其亦應遵守婚姻關係存續中及終止後之雙方權利義務規定，並不影響現行異性婚姻制度所建構之基本倫理秩序。有關機關應於本解釋公布之日起2年內，依本解釋意旨完成相關法律之修正或制定。至於以何種形式達成婚姻自由之平等保護，屬立法形成之範圍。逾期未完成相關法律之修正或制定者，相同性別二人為成立上開永久結合關係，得依上開婚姻章規定，持二人以上證人簽名之書面，向戶政機關辦理結婚登記。

司法院大法官會議第728號解釋 (J.Y. Interpretation No. 728) Constitutional Court (2015)

Gender discrimination, Harmful traditional practices

The court petitioner, the eldest daughter of a registered successor of an “ancestor worship guild,” was prohibited from inheriting the status of successor after her father’s death due to internal regulations of the guild, which only allow male heirs.” The lower courts dismissed the petitioner’s claims, and the Constitutional Court affirmed. The court held that the internal regulation of the guild was not a “statute” or “administrative regulation” and was therefore ineligible for a petition of interpretation on constitutionality under the Constitutional Interpretation Procedure Act. The court also found that Article 4 of the Statutes Governing Ancestor Worship Guilds, which stipulates that “for the guilds that existed before the promulgation of the Statutes, whether a person is a qualified successor to a guild should be determined by its internal regulations,” was not unconstitutional because the provision does not provide gender as a criterion for determining the status of the successor, and the objective is to preserve the stability of the law and to uphold the principle of prohibiting retroactive law. Moreover, the enactment of internal regulations for guilds should be respected based on freedom of association, property rights, freedom of contract, and the autonomy of private law. Therefore, even though the disputed provision may constitute differential treatment in substance, because it is not arbitrary it is not in conflict with the principle of gender equity nor does it infringe women’s right to property. However, the Constitutional Court urged relevant government agencies to review the related law to ensure that they are keeping pace with the times, taking into consideration the State’s positive duty to protect women under the Constitution, the principle of stability of law, changes in social conditions, and the adjustment of functions within an ancestor worship guild, so as to conform to the principle of gender equality and the constitutional intent to safeguard the people's freedom of association, property rights, and freedom of contract.

聲請人是一個「祭祀公業」登記派下員的長女，由於該祭祀公業的內部規約只允許男性繼承人，因此在其父親去世後被禁止繼承派下權。下級法院駁回了聲請人的請求，憲法法院維持原判決。法院認為，祭祀公業內部規約並非「法律」或「行政法規」，因此不符合司法院大法官審理案件法規定的聲請釋憲要件。法院還認為，祭祀公業條例第4條規定：「本條例施行前已存在之祭祀公業，其派下員依規約定之。」並不違憲，因為該規定並未以性別作為決定繼承人身份的標準，其目的是為了維持法律安定性及禁止法律溯及既往的原則。此外，基於結社自由、財產權、契約自由和私法自治，祭祀公業內部規約之制定應予尊重。因此，即使該爭議條款在實質上可能構成差別待遇，但由於其並非恣意，因此與性別平等的原則沒有衝突，也沒有侵犯女性的財產權。然而，憲法法院敦促相關政府機關審查相關法律，以確保它們與時俱進，將國家依憲法規定保護婦女的積極義務、法律穩定性原則、社會環境的變遷以及祭祀公業內部功能的調整等納入考量，從而符合性別平等原則和保障人民的結社自由、財產權和契約自由的憲法目的。

司法院大法官會議第666號解釋 (J.Y. Interpretation No. 666) Constitutional Court of Taiwan (2009)

Gender discrimination

Article 80, Section 1, Sub-section 1 of the Social Order Maintenance Act establishes administrative penalties of detention and a fine for any person who engages in sexual conduct or cohabitation with the intent of obtaining financial gain. The Court noted that a transaction for sexual conduct necessarily involves two people: the person engaging in the conduct with the intent of obtaining financial gain, and the other person who provides consideration for the conduct. The law at issue only punishes the former party by focusing on the subjective intent of the person seeking financial gain from the sexual transaction. The Court also noted that the former party is more likely to be female. Thus, the Court held that the law essentially targets and punishes females who participate in financial transactions for sex. As such, the Court held that the law’s focus on the subjective intent for financial gain violates the principle of gender equality in Article 7 of the Constitution. The Court decreed that the provision would become ineffective upon two years after the issuance of the decision.

社會秩序維護法第80條第1項第1款規定，任何以獲取經濟利益為目的之性行為或同居行為者，應處以拘留和罰鍰等行政罰。法院指出，性交易行為必然涉及兩個人：以獲取經濟利益為目的之行為人，以及為該行為提供對價的另一個人。此一規定只針對主觀上從性交易中尋求經濟利益的前者進行處罰，且前者更可能是女性。因此，法院認為，此一規定實質上是針對並懲罰那些參與性交易的女性。在這種情況下，法院認為，此一規定針對主觀上從性交易中尋求經濟利益者，與憲法第七條之平等原則有違，應自本解釋公布之日起至遲於二年屆滿時，失其效力。

司法院大法官會議第410號解釋 (J.Y. Interpretation No.410) Supreme Court of Taiwan (1996)

Gender discrimination, Property and inheritance rights

A Supreme Court precedent from 1966 held that property obtained by a wife during the continuance of a marriage, but which cannot be proved separate property or contributed property, belongs to the husband. The amendment of the Civil Code in 1985 under the authority of Article 7 of the Constitution emphasizes gender equity and invalidates this Supreme Court precedent.

最高法院1966年的一個判例認為，妻子在婚姻存續期間獲得的財產，如果不能證明該財產是與原有財產分離的或妻子對其有貢獻，則該財產屬於丈夫。依憲法第7條規定，1985年修正後的民法強調性別平等，並不再援用最高法院此一判例。

司法院大法官會議第554號解釋 (J.Y. Interpretation No.554) Constitutional Court of Taiwan (2002)

Gender-based violence in general

The Taiwan Constitutional Court overturned this decision in J.Y. 791. This case allowed the legislature to enact a law restricting freedom of sexual behavior within the system of marriage (such as by making adultery punishable under criminal law), but only if the restrictions are not overly severe in violation of the principle of proportionality embodies in Article 23 of the Constitution. In particular, the offense must be indictable only upon complaint, and no complaint may be instituted if the spouse has connived against or forgiven the offending party for the offense.

立法機構可以制定法律來限制婚姻制度內的性行為自由（如規定通姦行為應受刑法處罰），但前提是這種限制不能過於嚴厲，以至於違反憲法第23條揭示的比例原則。尤其，該犯罪行為必須於提出告訴時是可以起訴的，且如果配偶縱容或原諒行為人的犯罪行為，則不得再行提出告訴。

司法院大法官會議第559號解釋 (J.Y. Interpretation No.559) Constitutional Court of Taiwan (2003)

Domestic and intimate partner violence

In the case of protection orders involving monetary payment, the Domestic Violence Prevention Act explicitly authorizes the agency empowered to execute such orders and sets forth procedures and methods or doing so, in keeping with Constitutional requirements. However, for protection orders not involving monetary payment, the Act provides only general authorization of police agencies without procedures and methods, so the Act must be amended to fulfill the Constitutional requirement of specific and explicit authorization by law.

對於涉及金錢給付的保護令，家庭暴力防治法明確授權有權執行此種保護令機構相關程序和方法，以符合憲法要求。然而，關於不涉及金錢給付的保護令，該法僅有對於警察機構的一般授權，而沒有規定程序和方法，因此該法必須進行修正，以滿足憲法對於法律授權明確性的要求。

司法院大法官會議第365號解釋 (J.Y. Interpretation No.365) Constitutional Court of Taiwan (1994)

Gender discrimination

Article 1089 of the Civil Code, which stipulates that in situations of parental disagreement in exercising parental rights over a minor, the father has the right of final decision, is in violation of both Article 7 of the Constitution (stating that both sexes are equal under the law) and Article 9 of the Amendment (eliminating sexual discrimination). Therefore, Article 1089 should be examined and amended. The current Article is void within two years of this interpretation.

民法第1089條規定，在父母對未成年人行使親權有分歧的情況下，父親有最終決定權。該規定既違反了憲法第7條（兩性在法律上平等），也違反了憲法增修條文第9條（消除性別歧視）規定。因此，民法第1089條應進行檢驗並修正，並應自本解釋公布之日起至遲於二年屆滿時，失其效力。

司法院大法官會議第372號解釋 (J.Y. Interpretation No.372) Supreme Court of Taiwan (1995)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Sexual violence and rape

A Supreme Court holding that "although a spouse who has suffered unbearable mistreatment in cohabitation is entitled to sue for divorce, this does not include cases where the other party temporarily loses control and overreacts to the spouse's misconduct" is not unconstitutional. To determine what constitutes "unbearable mistreatment in cohabitation," the courts should take into account the degree of the mistreatment, education levels, social status, and so on, determining if the degree of mistreatment goes beyond the violation of personal dignity and security that would be tolerated by most spouses. Even with regards to cases where a "party temporarily loses control and overreacts to the spouse's misconduct," the precedent does not exclude applying the above factors to determine whether such overreactions threaten the continuity of the marriage.

最高法院認為「雖然配偶得以不堪同居之虐待起訴請求離婚，但這並不包括另一方僅是暫時失去控制或對配偶不當行為作出過度反應的情況」並非違憲。所謂「不堪同居之虐待」，法院應考量虐待的程度、教育水平、社會地位等因素，如虐待的程度是否已超出大多數配偶所能容忍對個人尊嚴和安全的侵犯。即使是關「一方僅是暫時失去控制或對配偶不當行為作出過度反應的情況」，該判例也不排除適用上述因素以決定該過度反應是否威脅婚姻之存續。

Legislation

兒童及少年性剝削防制條例 Child and Youth Sexual Exploitation Prevention Act (2018)

Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

Originally enacted in 1995 as the Child and Youth Sexual Transaction Prevention Act, this Act (the “CYSEPA”) was enacted to prevent all forms of sexual exploitation of children and youths and ensure their healthy physical and mental development. The CYSEPA specifies the responsibilities of the relevant authorities and governs the prevention of sexual exploitation of children and youths and the rescue, protection, and counseling of victims. Competent authorities must arrange the placement of the victim in a child and youth welfare institution, foster family, or other appropriate medical or educational institution on an emergency basis; evaluate the necessity of continuing placement within 72 hours; and to apply to the court for longer-term placements. The authorities must also offer counseling, intervention, and assistance with school enrollment, employment, independent living, or other necessary matters for a period of at least one year or until the victim’s 20th birthday. If the offender is the victim’s parent, foster parent, or guardian, the victim, the prosecutors, or other interested parties may apply to a court to stop such person from exercising parental rights over the victim and to appoint another guardian. After becoming aware of any victim or any suspect of a crime covered by the CYSEPA, medical personnel, social workers, educational personnel, caregivers, and personnel of other business or governmental organizations must report the crime to the authorities. Internet platform providers, online application service providers, and telecommunications companies are obligated to remove information relating to suspicious criminal activities, to notify law enforcement, and to provide data to law enforcement and judicial authorities for investigation. The competent authorities are also authorized to require the parents, guardian, or other caregiver of a victim to receive parental education and counseling for a period of up to 50 hours and to attend a family treatment program. Persons found guilty under the CYSEPA are subject to imprisonment as well as to fines up to N.T.10 million, with offenders who intentionally kill the victim subject to the death penalty or life imprisonment. English translation available here.

人口販運防制法 Human Trafficking Prevention Act (2016)

Trafficking in persons

The Human Trafficking Prevention Act (the “HTPA”) was enacted to prevent human trafficking and to safeguard the rights of victims. The HTPA defines “human trafficking” and related offenses, including “improper debt bondage,” specifies the responsibilities of the competent authorities at the central government, city, county, and municipal levels (including for cooperation among such competent authorities and with international governmental bodies and NGOs to eradicate human trafficking). It also governs matters including the prevention and identification of offenses; the protection and sheltering of victims as well as protection of witnesses; the treatment of victims who are not Taiwanese citizens and do not have valid resident or visitor permits (including the issuance of temporary visitor permits as well as the timing and conditions for repatriation); the confidentiality of victims’ identities (with financial penalties for unauthorized disclosures); and criminal procedure (including use as evidence of victim statements made outside of judicial proceedings). Persons found to have committed criminal offenses under the HTPA are subject to imprisonment for up to seven years or (for certain offenses) for periods in excess of seven years as well as to fines up to N.T. seven million, depending on the nature of the offense. The HTPA further provides that any property or profit from assets acquired from human trafficking is to be confiscated regardless of its ownership except the part to be returned to victims. Additionally, the HTPA provides for suspension or revocation of the licensing of any Taiwanese vessel, aircraft or other means of transportation whose owner, operator, captain, pilot, or driver has been engaged in transporting trafficked persons, as well as revocation of the professional licenses or qualifications of the captain, pilot or driver. The HTPA applies on an extraterritorial basis outside of Taiwan for the crimes specified in the legislation. English translation available here.

中華民國憲法增修條文 Additional Articles of the Constitution of the Republic of China (Taiwan) (2005)

Gender discrimination

Article 10 states that the State shall protect the dignity of women, safeguard their personal safety, eliminate sexual discrimination, and further substantive gender equality. This Article further provides that the State shall, in accordance with the will of the ethnic groups, safeguard the status and political participation of the aborigines. The State shall also guarantee and provide assistance and encouragement for aboriginal education, culture, transportation, water conservation, health and medical care, economic activity, land, and social welfare, measures for which shall be established by law. Article 10 specifically includes the Penghu, Kinmen, and Matsu areas. English translation available here.

Act for Implementation of J.Y. Interpretation No. 748 (2019)

Gender discrimination, LGBTIQ

This Act was enacted to enforce the J.Y. Interpretation 748 and made same-sex marriage legal in Taiwan by legislation. The Act provides that two persons of the same sex may form a permanent union of intimate and exclusive nature for the purpose of living a common life. Same-sex marriages are bound by requirements and limitations relating to minimum age and consent, consanguinity and bigamy as well as provisions relating to cohabitation, sharing of living expenses, marital property, inheritance rights, grounds for termination, and other matters relating to marriage and its general effects. English translation available here.

中華民國憲法 Constitution of the Republic of China (Taiwan) (1947)

Gender discrimination, LGBTIQ

The Constitution guarantees that all citizens are equal before the law. Article 5 guarantees equality among Taiwan’s various racial groups. Article 7 states that all citizens enjoy the same rights irrespective of their sex, religion, race, class, or party affiliation. Article 22 provides that all other freedoms and rights of the people that are not detrimental to social order or public welfare shall be guaranteed under the Constitution. Article 23 provides that all enumerated freedoms and rights shall not be restricted by law except as may be necessary to prevent infringement upon the freedoms of other persons, to avert an imminent crisis, to maintain social order, or to advance public welfare. In J.Y. Interpretation 748, the Constitutional Court interpreted the classifications listed in Article 7 as only illustrative and recognized constitutional protection of same-sex marriage under Articles 7 and 23. All citizens have equal opportunity to receive an education under Article 159. English translation available here.

性侵害犯罪防治法 (Sexual Assault Crime Prevention Act) (2015)

Sexual violence and rape

The Sexual Assault Crime Prevention Act (the “SACPA”) defines and aims to prevent sexual assault crimes and protect the rights of victims. The SACPA sets out the responsibilities and competencies of relevant authorities which include drafting and implementing policies and regulations, supervising and investigation incidents, producing statistics of sexual assault incidents, and establishing a national archive of sexual offenders. It also prescribes several requirements, some of the more notable ones being the establishment of Sexual Assault Prevention Centers, having all students in middle and primary schools undergo at least four hours of courses on sexual assault prevention, and obliging certain personnel to report suspected sexual assault incidents within 24 hours. Sexual assault offenders are liable to pay a fine. In certain cases, they may be ordered to receive physical and psychological treatment or counseling education. Sexual assault offenders must also register their information with, and regularly report to, the police. Repeat offenders may be imprisoned or institutionalized.

性侵害犯罪防治法（即「SACPA」）定義並旨在預防性侵害犯罪及保護被害者權利。性侵害犯罪防治法訂定相關主管機關的責任及權限，包括擬定和執行政策及法規、監督和調查事件、製作性侵害事件的統計數據，以及建立性侵害犯罪者的國家資料庫。該法還規定了幾項要求，其中較為引人注目的是建立性侵害預防中心，讓所有國中和國小學生接受至少4小時的性侵害預防課程，並要求特定人員在至少24小時內報告可疑的性侵事件。性侵害犯罪者有支付罰金的責任。在某些情況下，他們可能被命令接受身體和心理治療或諮詢教育。性侵害犯罪者還必須向警方登記其相關資訊，並定期向警方報備。累犯者可能會被處以有期徒刑或施以機構性處遇。

家庭暴力防治法 (Domestic Violence Prevention Act) (2015)

Domestic and intimate partner violence

The Domestic Violence Prevention Act (the “DVPA”) was established in order to prevent acts of domestic violence and to protect the interests of victims. The DVPA defines domestic violence offenses and the family members who might be implicated, specifies the responsibilities and tasks of the various competent authorities, and governs issues such as civil protection orders, criminal procedure, the interests of any minors involved, protection of and support for victims, and educational and prevention measures. Breaches of the DVPA will result in the imposition of a fine or imprisonment.

家庭暴力防治法（即「DVPA」）的制定是為了防範家庭暴力行為並保護被害者的利益。家庭暴力防治法定義了何謂家庭暴力侵犯和可能受牽連的家庭成員，規定各主管機關的職責，並對如民事保護令、刑事訴訟、任何涉及未成年人利益、被害者保護及協助，以及教育和預防措施等議題作出規定。違反家庭暴力防治法的行為將被處以罰金或有期徒刑。

性別工作平等法 (Act of Gender Equality in Employment Act) (2016)

Employment discrimination, LGBTIQ, Sexual harassment

The Act of Gender Equality in Employment (the “AGEE”) was enacted to protect gender equality in the workplace and promote the spirit of gender equality as enshrined in Article 7 of the Constitution. Chapter II of the AGEE provides that employers shall not discriminate against employees because of their gender or sexual orientation when hiring, evaluating, promoting, providing education, training and welfare, paying wages and in the case of retirement, discharge, severance and termination. Employers must also implement measures for preventing and correcting sexual harassment and establish complaint procedures and disciplinary measures. Employers who are found to be in violation of the AGEE may be fined between N.T. $20,000 and $1,500,000, depending on the offence. The names and titles of offenders and their supervisors will also be put on public notice and they will have to make improvements within a specified period. Failure to do so will result in further punishment.

性別工作平等法（即「AGEE」）的制定是為了保護職場的性別平等，促進憲法第7條規定的性別平等精神。性別工作平等法第二章規定，雇主在雇用、評估、晉升、提供教育、培訓和福利、支付工資以及在退休、解雇、遣散和終止契約時，不得因員工的性別或性取向而歧視他們。雇主還必須實施防止和矯正性騷擾的措施，並建立投訴程序和懲戒措施。雇主違反性別工作平等法將被處以新台幣20,000至1,500,000元之罰鍰，具體數額則視情況而定。違反規定者及其主管的姓名和職稱將被公告，且其必須於指定期間內進行改善，否則將導致進一步的處罰。

性別平等教育法 (Gender Equity Education Act) (2018)

Gender discrimination, Sexual harassment, Sexual violence and rape

The Gender Equity Education Act (the “GEEA”) aims to encourage respect for gender diversity, eliminate gender discrimination and promote substantive gender equality through education. The GEEA charges the competent authorities (as well as schools) with establishing gender equity education committees whose tasks include drafting regulations and policies, coordinating resources, supervising gender equity-related activities and promoting research and development of curricula, teaching and assessments. Under the GEEA, schools must provide a safe, gender-fair learning environment by respecting, giving due consideration to, and not discriminating against prospective students, students, faculty, and staff of different genders. Schools shall strive towards this objective by taking steps such as integrating gender equity education into their curriculum, providing gender equity education when training new staff members, reporting known incidents of sexual assault, sexual harassment or sexual bullying within 24 hours and promptly handling and investigating such cases. Schools and any principal, faculty or staff member found to be in violation of the GEEA may be subject to a fine. Persons may also be dismissed or discharged from employment.

性別平等教育法（即「GEEA」）旨在鼓勵尊重性別多樣性，消除性別歧視，並透過教育促進實質性別平等。性別平等教育法責成主管機關（以及學校）建立性別平等教育委員會，其任務包括擬定法規和政策，協調資源，監督與性別平等有關的活動，並促進課程、教學和評估的研究及發展。根據性別平等教育法，學校必須透過尊重、適當考慮及不歧視不同性別的潛在學生、學生、教職員工等方式，提供一個安全、性別平等的學習環境。學校應努力實現這一目標，採取的措施包括：將性別平等教育納入課程、在培訓新員工時提供性別平等教育、在24小時之內報告已知的性侵、性騷擾或性霸凌事件，並及時處理和調查此類案件。任何被發現違反性別平等教育法的學校、校長、教職員工可能會被處以罰鍰。該等人員也可能被開除或解聘。

性騷擾防治法 (Sexual Harassment Prevention Act) (2009)

Employment discrimination, Sexual harassment

The Sexual Harassment Prevention Act (the “SHPA”) aims to prevent sexual harassment and protect the rights of victims. It empowers and places a positive obligation on governmental authorities to, among other things, draft and implement sexual harassment prevention policies and regulations, specify standards, investigate and mediate disputed sexual harassment cases, and promote education and awareness on sexual harassment prevention. In addition, organisations, troops, schools, institutions and employers have a responsibility to prevent sexual harassment and the foregoing organisations can discharge such responsibility by organising regular educational training, setting up appeal channels, and taking effective corrective measures. The SHPA also sets out a complaint and investigation procedure for victims of sexual harassment as well as a conciliation procedure for parties involved in a sexual harassment incident. Persons found guilty of sexual harassment may be subject to a fine and/or imprisonment, depending on the severity of the incident and the identity or position of such persons.

性騷擾防治法（即「SHPA」）旨在防止性騷擾並保護被害者的權利。該法賦予政府機關權力和積極義務、擬定和實施防止性騷擾的政策和法規、具體訂定標準、調查和調解有爭議的性騷擾案件，並促進防止性騷擾的教育和認識。此外，組織、部隊、學校、機構和雇主都有責任防止性騷擾，上述組織可以透過定期教育訓練、建立申訴管道和採取有效的糾正措施來履行這種責任。性騷擾防治法還規定了性騷擾被害者的申訴和調查程序，以及性騷擾事件關係人的調解程序。性騷擾行為人將視事件嚴重程度及其身份或地位，而處以罰金和/或有期徒刑。