Issues & Studie s© 46, no. 4 (December 2010): 217-247.
RESEARCH NOTE
The Rule of Law in China and
Taiwan – Toward
"One China, Better System"
C. V. CHEN, CHAO-CHIN SU, AND YONG-H UANG LIN
This paper argues that Taiwan and China should sidestep the issue
of what constitutes "one China" and instead improve the rule of law in their
respective areas, which could lead to a better system of government. One
element of a better system is prosperity, which both sides are quite keen on.
But the remaining two components— freedom and democracy— cannot be
realized without rule of law. Sun Yat-sen's Three Stages of National Reconstruction offers a viable framework for the development of the rule of law
on the two sides of the Taiwan Strait.
The rule of law in China is, with a few notable differences, at a similar
stage of development as it was in Taiwan under martial law. Such a difference in the two governments' legal development could derail their efforts toward closer ties.
C. V. CHEN ( 陳長文), S.J.D. (Harvard), is managing partner of Lee a nd Li, Attorneys-at-Law,
president of the Red Cross Society of the ROC, visiting professor at Gua nghua School of
Management, Peking University, and the Guanghua Law School, Zhejiang University. Dr.
Chen's research is focused on issues of transnational law and legal reform. He can be
reac hed at <[email protected]>.
CHAO -C HIN S U (蘇詔勤) is a doc tora l candidate in law and sc ience at Construction Engine ering Department, Na tional Taiwan University of Sc ience and Tec hnology. He re ceived
his LL.M. from National Taiwan University. He is a supervisor of the Chine se Association
for Human Rights and a n adjunct lecturer at colleges a nd universities. He can be reached
at <[email protected] >.
YONG-H UANG LIN (林耀煌) is a professor in the Department of Construction Engineering,
Nationa l Taiwan University of Sc ience and Te chnology. He can be reached at <yhlca@
mail.ntust.e du.tw>.
© Institute
of International Relations, National Chengchi University, Taipei, Taiwan (ROC).
December 2010
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ISSUES & STUDIES
China has to overcome many challenges before it can undertake
legal reform; however, there is reason to believe and hope that the development and maturation of its legal system will continue. Discussions
centered around "clean and efficient government and corporate governance" would help Taiwan and China take the first of many practical steps
to accelerate cross-Strait exchange and relations.
K EYWORDS : cross-Str ait rule of law; one China, bette r system; one China,
two systems; legal re form; judicial review.
* * *
The Republic of China (ROC) was founded in 1912, and the
People's Republic of China (PRC) was established by the Chinese Communist Party (CCP) in 1949, the year in which the
government of the ROC relocated to Taiwan. Taiwan and China remain
ruled by separate governments to this day.
Both sides of the Taiwan Strait have been grappling with the issue of
what constitutes "one China," and each is adamant about its own interpretation. Between 1949 and 1978, unable to settle their differences, China and
Taiwan resorted to military force to assert their positions. But in 1979, both
sides began marching to a decidedly less martial beat. China rolled out its
"reform and opening up" policy, which was underpinned by an overarching
principle on relations between the two sides of the Strait: "peaceful reunification; one China, two systems." Meanwhile, reunification, independence,
and preservation of the status quo were the options pursued by Taiwan.
In May 1991, Chen Chang-ven (陳長文), one of the authors of this
paper, led a delegation from the Straits Exchange Foundation (SEF), an
ROC government-endorsed entity, to meet Vice Premier Wu Xueqian (吳
學謙) of China in Beijing. Wu said of this meeting, "When we sit down
and talk, everything can be raised," but he stressed that such talks would
work only if the principles of "one China" and "one China, two systems"
were observed by both sides. Wu added that the cross-Strait relationship was broadly on the right track and he would like it to continue.1 Chen
誌
1http://www.gwytb.gov.cn/zlzx/jhzl/201101/t20110123_1725375.htm
(accessed Ja nuary 5,
2010).
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The Rule of Law in China and Taiwan
pointed out that the size of each side's territory or population should be
irrelevant in talks on improving cross-Strait relations; instead, the key
should be choosing an appropriate system of government. In Chen's view,
Taiwan and China should each act boldly and be innovative in developing
a better legal system for itself, rather than seeking reunification under
"two systems."2
A better legal system needs to be supported by better rule of law,
which is why each side would be advised to improve its rule of law. Meanwhile, the three elements of a better system are democracy, freedom, and
prosperity, the last of which is being pursued vigorously by both sides. But
while the economic ties between the two sides are increasing daily, some
Taiwanese companies doing business and investing in China have experienced human rights violations. Unpleasant experiences of this kind are
likely to make Taiwanese businesses pause before deciding to continue
their investment in China and to undermine cross-Strait economic cooperation. If China's legal reform does not catch up with its economic development, the economies of both China and Taiwan will suffer.
The Futility of the "One China" Discussion
In reality, there cannot be a solution to the cross-Strait situation without a degree of benevolence on both sides. The "one China, two interpretations" understanding of 1992 was the most benevolent solution possible
at the time, after a difficult search for satisfactory common ground on
which to build further discussions. The understanding makes possible the
inclusion of the following key points in cross-Strait dialogue: economic cooperation, public welfare, and even democracy and the rule of law, all of
which are expected to shape cross-Strait policies.3 As Bertrand Russell
2Arthur
Waldron, "One China Gets MFN, the Others Deserves GATT," Wall Street Journal,
May 29, 1991, http://www.fas.org/news/taiwan/1991/s910716-taiwan.htm (accessed March
8, 2010); Li Yi, "Zhengce zhuanbian" (Policy shift), Renminbao (People's News) (Washington, D.C.), November 27, 2000, http://www.renminbao.com/rmb/articles/2000/11/27/7073
.html (a ccessed December 15, 2010).
3This vie w is supported by not only Preside nt Ma Ying-jeou (
馬英九 ) of Taiwan but also by
President Hu Jintao ( 胡錦濤 ) of China: http://www.preside nt.gov.tw/Default.aspx? tabid
=131&itemid=13752&rmid=514&word1=%e4%b9%9d%e4%ba %8c %e5%85%b1%e 8%
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ISSUES & STUDIES
once said, "The right attitude is neither reverence nor contempt, but first
a kind of hypothetical sympathy, . . . and only then a revival of the critical
attitude."4 This implies that rational discourse is possible only when China
and Taiwan are able to sympathize with each other.5 As the current constitutions of both China and Taiwan are based on the tenet of "one China,"
there appears to be common ground for a productive, rational dialogue between them.6 But at present, any effort to define what constitutes one China
is futile and cannot lead to greater understanding on any outstanding issues.
In this article, "one China" refers to the understanding of "one China, different interpretations" reached by the two sides in 1992; it does not imply
reunification; independence; two Chinas; or one China, one Taiwan. A
more realistic approach therefore, given the current political and economic
climate, is to give the argument a rest and instead prioritize the improvement of the system of the rule of law in both China and Taiwan, because
by doing this the two sides will be set on paths that may one day converge.
When such convergence happens, they will find that many issues can indeed be put on the table, and "one China" will not be such a thorny issue
anymore.
The objective here is not to demonstrate that Taiwan's system of the
rule of law is superior to that of China, but that the improvement of the rule
ad %98; http://ne ws.xinhuanet.com/newscente r/2008-12/31/content_10586495.htm (ac cesse d January 5, 2010).
4Bertrand Russe ll, A History of Western Philosophy (New York: Touchstone, 1967), 58; Chen
Chang-ven, Jiashe de tongqing (Hypothetical sympathy) (Taipe i: Tianxia wenhua, 2005),
1-20.
5There are numerous ways of construing the word "benevolence" in the Chinese language ,
but the word is used here within the context of empathy; that is, if we can imagine ourselves
in the position of others in all situations, then all disputes and controversies with them can
be addressed in a rational manner.
6The Preamble to the PRC Constitution states: "Taiwan is part of the sacred territory of the
People's Republic of China. It is the lofty duty of the entire Chinese people, including our
compatriots in Taiwan, to accomplish the great task of reunifying the motherland." Article
4 of the ROC Constitution of 1947 states: "The territory of the Republic of China within its
existing national boundaries shall not be altered except by a resolution of the National Assembly." Moreover, Additional Article 11 of the ROC Constitution states: "Rights and obligations betwee n the people of the Chinese mainland area and those of the free area, and the
disposition of other related affairs may be spec ified by law." The above articles point to the
common principle of "one China" in the constitutions of both China and Taiwan.
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of law on both sides could help place them on converging paths and be a
catalyst for the advancement of the Chinese people as a whole. Taiwan's
growth could serve as a road map for China not simply because China and
Taiwan share a common history and language. In terms of legal development, China is where Taiwan was under martial law, and both sides endorse
Sun Yat-sen's (孫中山) political ideology, including his Three Stages of
National Reconstruction.
Sun Yat-sen's Three Stages of National Reconstruction as a
Working Principle
As the development of the rule of law in China and Taiwan can be
said to have its starting point at the birth of the Republic of China in 1912,
and it is outlined in Sun Yat-sen's Three Stages of National Reconstruction,
the current state of the rule of law on the two sides of the Taiwan Strait can
be best understood in terms of the continued realization of the Three Stages
of National Reconstruction.
In 1924, Sun crafted a plan to reconstruct the nation entitled the Fundamentals of National Reconstruction. In it, Sun set out the three stages
that the Republic of China must go through before it could emerge as a
democratic government: military rule, political tutelage, and constitutional
government. This scheme recognizes that the founding of the Republic of
China and the nation's reconstruction are two different concepts, and the
difference between them is more pronounced after the establishment of a
constitutional government. In fact, the Three Stages of National Reconstruction already contains the blueprint for "one China, better system."
During the first of the Three Stages of National Reconstruction, the
establishment of military rule, the military government is expected to subdue all opposition and at the same time disseminate its political ideology
and propaganda; the goal at this stage is to unify the nation.7 Next is the
7See Article 6
of Fundamentals of National Reconstruction— promulgated on April 12, 1924.
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ISSUES & STUDIES
transitional phase between military rule and the creation of a constitutional government, known as political tutelage. Political tutelage marks a
watershed for a fledgling nation, because it is the stage at which the nation
must decide on the contours of its rule of law, and the onus is on the ruling
political party to guide the public toward a consensus on the rule of law.8
Hence, in 1931, the Provisional Constitution for the Period of Political
Tutelage was promulgated in the Republic of China, and this constitution
authorized the ruling political party to take preparatory steps toward constitutional government and an elected government. 9
Fast forward to 1949, when China and Taiwan came under the rule of
two separate governments. The Chinese Communist Party on the mainland
and the Nationalist Party (Kuomintang, KMT, 國民黨) in Taiwan both tried
to influence the development of the rule of law and the system of government. Each side has its own constitution: the Constitution of the People's
Republic of China and the Constitution of the Republic of China. In China,
the Communist Party brings together political parties and people's organizations under its leadership to create a "broad patriotic united front" and
to establish its policies and laws.10 Taiwan achieved constitutional government after undergoing martial law, the period of "mobilization for suppression of communist rebellion," and a number of constitutional amendments. Given the above, "one China, better system" is not a theoretical
concept; the march toward it began decades ago, when Sun wrote the Fundamentals of National Reconstruction.
8According
to Sun Yat-sen's plan, the ruling party would be the Nationalist Party, the
Kuomintang.
9The preface of the Provisional Constitution for the Period of Political Tutelage contains the
clause: "As the period of military rule ends and the period of political tutelage begins, it is
appropriate to enact a provisional Constitution which will be observed by all citiz ens. The
provisional Constitution will also provide for a constitutional government and teach the
concept of a de mocratically elected government."
10The Preamble to the Constitution of the People's Republic of China.
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The Rule of Law in China and Taiwan
Development of the Rule of Law in China and Taiwan 1950-2000
Framed as a continuation of Sun's Three Stages of National Reconstruction, the current state of the rule of law on both sides of the Taiwan
Strait is immediately recognizable. The Communist Party single-handedly
molded the rule of law and selected the governing system for the people
of China, while for a long time in Taiwan the Nationalist Party had a hand
in shaping the legal system there, especially before the election of a nonNationalist presidential candidate in 2000. For a better understanding of
the current state of the rule of law on both sides, it is instructive to look at
the fifty years before 2000 in China and Taiwan.
China
Undoubtedly, there have been many leaps forward in the development
of the rule of law in China, just as there has been in the country's economic
development, but this progress has not been consistent. The brief interval
between 1954, when the first National People's Congress (NPC) was convened and the PRC Constitution was ratified, and the first half of 1957
could be considered the first golden age of the rule of law in China. But the
Anti-Rightist Movement (反右運動), instigated by Mao Zedong (毛澤東)
in the summer of 1957, quickly halted this development, and countless
intellectuals, including legal professionals, were purged. Lawlessness, in
both senses of the word, continued in the 1960s and through most of the
1970s, during which period China was in the grip of the Cultural Revolution (文化大革命) which quashed progress of any kind and could be seen
as the winter of China's rule of law. The first thaw came in December 1978,
when the Third Plenum of the Eleventh CCP Central Committee declared
that the country was ready to work toward "socialist rule of law." Shortly
after, in 1982, the concept of the "individual economy" became enshrined
in the PRC Constitution. Article 11 read: "The individual economy of
urban and rural working people, operated within the limits prescribed by
law, is a complement to the socialist public economy. The state protects
the lawful rights and interests of the individual economy." Article 5 stated:
"All state organs, the armed forces, all political parties and public organizaDecember 2010
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ISSUES & STUDIES
tions and all enterprises and undertakings must abide by the Constitution
and the law. All acts in violation of the Constitution and the law must be
investigated."
The 1988 constitutional amendments permitted privately owned
businesses and the transfer of land usage rights. In 1993, another
amendment provided for the establishment of a market economy, and the
preamble to the constitution stated that political parties and people's organizations should be brought under the Communist Party's leadership to
create a patriotic, united front. Article 13 of the amended constitution of
1999 read: "The state upholds the uniformity and dignity of the socialist
legal system." It was then that the principle of rule by law was recognized
and enshrined in China's constitution. The 2004 amendment showed even
more progress, with the clause: "The State respects and preserves human
rights."
Toward the end of 2001, China joined the World Trade Organization
(WTO), setting off political and economic ripples and severely testing
China's legal system. As a member of the WTO, China is obliged to find
practical ways to comply with the tenets of the organization and the agreements it has signed with it, and to ensure that its laws facilitate, not obstruct, such compliance. One of the major changes it undertook as a result
of joining the WTO was the revision of its judicial review system, most
notably where judicial review of the administrative conduct of the government was concerned. So it was in the final decade of the twentieth century
that China's legal development reached its peak.
Taiwan
Fortunately, Taiwan did not suffer any event as cataclysmic as the
Cultural Revolution. But for an even longer period than the Cultural
Revolution in China, Taiwan was under martial law, starting in 1949. Although there was some protection of basic civil rights during the martial
law era, Taiwan's government was far from being truly constitutional. It
was only in the late 1980s and the 1990s that the Council of Grand Justices
began actively protecting fundamental rights and maintaining constitutional order and the rule of law began to flourish in Taiwan. Like contem224
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porary China, Taiwan in the early years aggressively pursued economic
growth, which is evident from the major legislation enacted in that period.
In the 1950s, land reform laws were passed, enabling Taiwan to develop
from an agricultural society into an industrializing economy; in the 1960s,
exports were encouraged; in the 1970s, heavy industry was energetically
promoted by the government; and in the 1980s, the government relaxed
controls on foreign exchange and, pressed mostly by the United States,
passed laws protecting intellectual property rights that were aimed at persuading foreign investors to keep their investments in Taiwan. Each step
of the way, the economy was boosted by the passing of new legislation.
Bringing wealth to the masses means the creation of a middle class, and
along with it, a great number of educated intellectuals. These intellectuals
composed the force that demanded and pushed for changes in the system,
setting in motion further reforms in the law, the rule of law, human rights,
and democracy.
After the government declared the end of martial law in Taiwan, press
censorship was lifted and various political parties were allowed to flourish.
The end of the period of "mobilization for suppression of communist rebellion" saw a series of constitutional reforms. In 1996, the ninth president
of the ROC was the first to be directly elected by the people through a
general election. And in 2000, there was an unprecedented change in the
ruling party, when the Democratic Progressive Party (民進黨, DPP) came
to power.
In retrospect, deregulation of the economy in Taiwan, which followed
the end of the martial law regime, sparked social advancement, which in
turn triggered comprehensive systemic reform.
Seeing China in Taiwan
China would be advised to observe Taiwan's development, because
today's Taiwan exemplifies what a democratic Chinese society can achieve
and also because in terms of legal development, China is at the same stage
as Taiwan was under martial law.
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ISSUES & STUDIES
Rule of Law under Martial Law
The publication of an article entitled "Practice is the Sole Criterion of
Verifying Truth" in 1978 in the People's Daily (人民日報), China's state
newspaper, 11 signaled the beginning of China's journey on the road to reform and the end of the long winter that was the Cultural Revolution. Over
the last thirty years, the considerable growth of and public confidence in
China's economy have testified to the success of the country's economic
reform. The question now is whether the rule of law has advanced to the
same extent. The answer quickly surfaces when China is measured against
Taiwan. Because China's one-party dictatorship in effect puts China under
"unofficial martial law," with a few differences, contemporary China resembles Taiwan under the martial law regime.12
When Taiwan was under martial law, the operation of its rule of law
was marked by the following five characteristics.
The establishment of a state ruled by law: Ruled by law is not the
same as rule of law. However, through extensive legislation, ruling by law
is able to at least satisfy two critical requirements for achieving rule of law.
The first requirement is the promulgation of laws. Rapidly enacting many
laws leads to the swift build-up of a body of law and that is essential to
the rule of law. In addition, the existence of a large number of laws may
be held up as evidence of government achievements and efficiency. The
second requirement, similar to the first, is to satisfy the needs of a growing
economy. The economy can grow steadily only when a robust, comprehensive legal framework is in place.
Regulation through administrative intervention: Laws serve their
purpose only when they are enforced, but some new laws can be too "advanced" for the general public, and the time is not ripe for their full-scale
11"Shijian
shi jianyan zhenli de weiyi biaozhun" (Practice is the sole criterion of ve rifying
truth), Guangming ribao (Guangming Daily), May 11, 1978, http://www.people.com.c n/
item/20years/newfiles/b1020.html (acce ssed January 4, 2010).
12Could Ta iwan's martial la w syste m be regarded as a form of "one-party dictatorship"? In
answering this question, a former secretary-general of the KMT stated in 1995 that Taiwan's courts were controlled by the ruling party. Zhang Bofu, "Qia nze Xu Shuide ershiwu
ming faguan tongguo tian" (Twenty-five judges pass proposal reprimanding Hsu Shui-teh),
United Daily (Taipei), July 23, 1995, A6.
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The Rule of Law in China and Taiwan
implementation. Strict enforcement of the law under such circumstances
could severely test the enforcement agencies and have social and economic
repercussions. For instance, labor laws, if strictly and immediately implemented, would add to the costs of many small businesses that are not
financially ready; laws prohibiting illegal housing, if followed to the letter,
would throw many people out on the street overnight. The administrative
authorities and the judiciary of Taiwan therefore decided which part of the
laws to enforce first; that is, they prioritized the enforcement of provisions
that were suitable for the times. Such an arrangement is known as "administrative intervention," which is a type of compromise in law enforcement.
When Taiwan was under martial law, administrative intervention was a
necessary means for moderating the pace of law enforcement and preventing social unrest and economic instability.
The use of legal reasoning: The first two characteristics alone were
not the key to maintaining the operation of the rule of law in Taiwan under
martial law. Legal reasoning, applied by the grand justices, the presiding
judges, the prosecutors, and the lawyers, provided the minimum foundation
necessary for the existence of the rule of law. Irrespective of whether "administrative intervention" is justifiable and how forceful it is, legal reasoning is an indispensable component of the judicial process. It does not even
matter if the effect of legal reasoning is negligible. As long as there is an
opportunity to engage in legal reasoning, then the possibility for acceptable
compromise is preserved. That is, there is room for the administrative authorities and the judiciary to negotiate and decide which legal provisions to
enforce first. Such a possibility ensures the long-term development of the
rule of law.
Strong leadership: Leadership is not about the pursuit of favorable
opinion polls or statistics. A good leader should have foresight and vision,
be armed with a viable working plan, and be able to point the way for the
masses. The rule of law under martial law in Taiwan was made possible
partly by a dynamic leadership. It was dynamic leaders who compelled the
Taiwanese courts to interpret the laws and regulations during that time.
The failure of these leaders to do this would not only have caused the rule
of law to become stultified but also stifled its development. From this
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ISSUES & STUDIES
perspective, authoritarian rule does not necessarily suppress the rule of
law; it can in fact provide the crucial boost when the rule of law is on the
cusp of maturation.
Judicial innovation: This is the fifth and final characteristic of the
operation of the rule of law in Taiwan under martial law. Excessive metaphysical reasoning and obsessing over administrative details and procedures are not conducive to the development of the rule of law. Instead,
prescience and a bold vision are required. Fortunately, under martial law,
the ROC government continued to provide education for the masses, and
recruited intellectuals from among those who had followed the Nationalist
government to Taiwan in 1949 as well as among Taiwanese who had lived
in Taiwan for generations to take part in the building of the nation. They
constituted the first generation of people who contributed to the judicial
innovation that drove legal development in Taiwan.
Judging by China's Efforts and Achievements in Promoting the Rule
of Law, published by the PRC State Council on February 28, 2008, the current state of the rule of law in China essentially resembles that of Taiwan
under martial law.13 The only differences between the two are China's lack
of legal reasoning and sustained judicial innovation.
Problem with the Unparalleled Pace of Development
The different pace of legal development in Taiwan and China has
engendered a few issues, one of which is the protection, or lack of it, of
Taiwanese in China's legal due process. In the twenty years after Taiwan
lifted restrictions on investing in China, Taipei's policy on investment in
the mainland developed from President Lee Teng-hui's (李登輝) "no haste,
be patient" (戒急用忍), through President Chen Shui-bian's (陳水扁 )
"positive management, effective liberalization" (積極管理，有效開放) or
"positive liberalization, effective management" (積極開放，有效管理), to
substantial negotiations between the two sides on the condition that they
13China's
Efforts and Achievements in Promoting the Rule of Law, comprising e ight chapters
and six appendices, claims that a total of 229 laws are c urrent and effective in China.
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do not deny each other's existence under the Ma administration. As for the
focus of cross-Strait talks, it has shifted to accelerating economic growth;
political topics, including the rights of Taiwanese in China, have been
shelved for the time being.
According to two documents issued by the SEF, "Taiwan Economic
and Trade Disputes Statistics" and "Personal Safety of Taiwanese Businessmen and Economic and Trade Disputes Statistics,"1 4 between January
and August 2009 alone, 291 complaints were filed by Taiwanese in China
in economic and trade disputes involving property law rights, an increase
of seventy cases over the previous year. Similarly, cases involving the restriction of Taiwanese people's personal liberty in China are also on the
rise. It is likely that the number of such incidents is actually larger than that
recorded in the SEF's statistics.
During the fourth summit between Chiang Pin-kung (江丙坤) of the
SEF and Chen Yunlin (陳雲林), chairman of China's counterpart organization, the Association for Relations Across the Taiwan Straits (ARATS),
which was authorized by Taipei and Beijing,15 the family of a Taiwanese
businessman, Zhu Zhilin (朱之霖), published an appeal in the Taiwan press
asserting that Zhu had been held in custody for several months in Baoding
(保定), Hebei Province (河北省), without any recourse to the protections
guaranteed under the Chinese rules of criminal procedure.1 6 The Zhu
Zhilin case is one of many in which the rights of Taiwanese have been
violated.
As cross-Strait exchanges continue, and in the wake of the signing of
the Economic Cooperation Framework Agreement (ECFA) between China
14http://www.sef.org.tw/lp.asp? ctNode=3835&CtUnit=2291&BaseDSD=7&mp=20
(accessed January 5, 2010).
15http://www.sef.org.tw/lp.asp? ctNode=4306&CtUnit=2541&BaseDSD=21&mp=19 (accessed January 5, 2010).
16He Yuan, "Zhu Zhilin zao qiuchu zhongxing" (Zhu Zhilin facing heavy penalty), World
Journal, December 4, 2009, http://www.worldjournal.com/pages/full_news/push? article%E6% 9C %B1%E4%B9%8B%E9%9C %96+%E9%81%AD%E6%B1%82%E8%99%
95%E9%87%8D%E5%88%91+&id=5003630-%E6%9C%B1%E4%B9%8B%E9%9C%
96+%E9%81%AD%E6%B1%82%E8%99%95%E9%87% 8D%E5%88%91&instance=
va n (accessed January 5, 2010).
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ISSUES & STUDIES
and Taiwan, the issue of the rights of Taiwanese under China's due process
is becoming more pressing. "Due process" is the realization of "natural
justice." In plain language, due process should be in accord with the natural values of human beings, so that people can know intuitively when this
process is just, fair, and open. To such end, Taiwan has always upheld the
presumption of innocence, the prohibition of forced confessions, the preservation of a judge's right to detain criminal suspects, the right of lawyers
to conduct interviews, and a prohibition against other administrative departments meddling in the judicial process. These have been achieved by
enacting new legislation, implementing proper administrative procedures,
and establishing a proper judicial system, in particular, the interpretation of
the ROC Constitution by the grand justices.
Since the Chinese themselves cannot count on due process to guarantee their rights, it is no wonder that Taiwanese and foreign investors have
reservations about investing in China; if China does not take action on this,
it will pay the price for not having a trustworthy government and courts.
Therefore, in view of the gradually warming relations between China and
Taiwan, discussion of the deep differences between the two sides should
be halted. Instead, the focus should be on China's reform in the areas of
human rights, democracy, and the rule of law, because these issues not
only affect China itself but Taiwan as well. When substantial reforms
have been implemented in those areas, the so-called deep differences will
be neutralized.
Popular Desire for Reform in China and Judicial Review
Whether in terms of geographic size, population, the gap between rich
and poor, or the political and economic systems, the differences between
Taiwan and China are quite substantial. However, the two sides share a
common cultural asset: Sun Yat-sen's Three Stages of National Reconstruction. And as tested and proved in the laboratory that is Taiwan, Sun's
blueprint for gradual national transformation is indeed feasible. Meanwhile, when asked by pollsters, China's citizens say they are anxious about
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the country's political reform and the uncertain road to democracy. And
from there it is a fair conjecture to say that they desire change.
China Is Ready to Engage in Legal Reform
In the second half of 2009, the People's Daily conducted two Internet
polls which indicated that there was an increasing preference for democratic reform among the Chinese people.
In the first poll, "China's Rise, Problem Coefficient,"17 when the
United States was given a predetermined problem coefficient of 100, 69.95
percent of Chinese respondents rated China as having a problem coefficient
greater than 150, and 40.83 percent of respondents said they believed that
the main challenge in reviving the nation was overcoming "the extreme
difficulty of political reform in the light of the rapid transformation of the
economy and society."18 According to the second poll, "Warnings to a
Prosperous Age: The Next Decade's Ten Great Challenges,"19 the sixth
most important challenge, voted for by 52.3 percent of respondents, was
"democratic reform does not meet public expectation."20
In assessing China's prospects, Yu Jianrong (于建嶸) of the Chinese
Academy of Social Sciences has pointed out that the government's in-
17Sun
Modi and Gao Yuan, "Zhongguo jueqi 'nandu xishu' diaocha" (A survey on the degree
of difficulty of China's rise), Renmin luntan (People's forum), July 2009, http://paper.people
.com.cn/rmlt/html/2009-07/21/content_302022.htm (accessed January 5, 2010).
18The second most popular response after the two mentioned here was the possibility of "regional, rural/urban and social conflict caused by the developmental gap in different regions
in the country."
19Gao Yuan and Ma Jing, "Weilai shi nian shi da tiaozhan diaocha baogao" (A survey on the
ten challenges in the next ten ye ars), Renmin luntan (People's forum), December 2009,
http://paper.people.com.cn/rmlt/html/2009-12/21/content_411226.htm (accessed January
5, 2010).
20According to the poll, the gre atest challenges, in order of importance given to them by respondents were: "an intolerable level of corruption" (82.3 percent); "social c onflict arising
from a greater wealth disparity" (80.6 percent); "gra ss-roots conflict betwe en public serva nts and the general public" (63.2 percent); "the dilemma of high-cost housing and low
incomes" (62.8 percent); "lack of good faith, social moral depravity" (61.7 perce nt); "environme ntal pollution, ecologica l destruction" (51.6 percent); "crisis of a n aging population, lack of support a nd care for se nior citizens" (44.1 perc ent); "insta bility resulting
from greater difficulties for university gradua tes joining the workforce" (43.4 percent); and
"marginalization of mainstre am value system" (36.3 percent).
December 2010
231
ISSUES & STUDIES
sistence on ruling with an "iron fist" (剛性穩定) is incompatible with the
principles of human rights and cannot be sustained much longer. On the
other hand, China cannot avoid a political crucible if it is to shift from
its one-party leadership toward a system that respects human rights. 21 Fortunately, there are people within its administration who are defenders of
fundamental and constitutional rights; they are committed to reforming the
country. At the same time, many Chinese intellectuals who have studied
abroad are returning home and gaining prominence in Chinese political
circles. These returnees are expected to push for legal reform. Developments like this justify our faith in China's ability to develop a mature legal
system.
On August 20, 2010, Wen Jiabao (溫家寶), China's premier and head
of the State Council, spoke at the celebrations to mark the thirtieth anniversary of the establishment of the Shenzhen Special Economic Zone. He
encouraged everyone to liberalize their thinking and pursue political reform.2 2 He said: "If reforms to the political system are not ensured, all the
progress achieved in the economic reforms will be lost."2 3
However, the ultimate objective of China's laws remains the maintenance of financial stability. That means that, as far as the Chinese government is concerned, legal reform should serve reform of the economic
21"Gangxing
wending: Zhongguo shehui xingshi de jieshi kuangjia" (The iron fist: an analysis framework for the situation of China), QQ.com ( 騰訊網), May 19, 2009, http://view
.news.qq.com/a/20090515/000033.htm (accessed Janua ry 5, 2010).
22Wen delivered a similar speech, entitled "Getting to Know the Real China" during the general debate at the sixty-fifth se ssion of the United Nations General Assembly in New York.
Wen said: "We want to make sure that each and every citizen shares the benefit of China's
reform, opening up and development. While deepe ning economic restructuring, we will
also push forward political restructuring. Otherwise, we cannot achieve the ultimate goal
of economic reform and we will lose what we have gained from our modernization drive .
We respect and protect human rights, uphold social equity and justice, and strive to achieve
the free and all-round development for our people. This is the important hallmark of a
democratic country under the rule of law. It is also a basic guarantee for a country's lasting
peace and stability."
http://ga debate.un.org/View/Speec hVie w/tabid/85/smid/411/
ArticleID/100/reftab/224/t/China/Defa ult.aspx (accessed Septe mber 26, 2010).
23Li Lei, "Wen Jiabao qiangdiao: zhiyou jianchi gaige kaifang, guojia caiyou guangming
qiantu" (Wen Jiabao emphasized the reform and building-up policy to create better prospects for the country), People's Daily Online, August 21, 2010, http://politic s.people.com
.cn/GB/1024/12504220.html (a ccessed August 26, 2010).
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The Rule of Law in China and Taiwan
system; the law is meant to guide, propel, and guarantee the success of
economic reform. Meanwhile, the concept of checks and balances between
the executive, legislature, and judiciary has yet to take root in China. 24 It
remains to be seen whether judicial review will play a vital part in driving
the reform of China's legal system.
Judicial Review in China
Can contemporary Chinese— or Taiwanese— political culture accommodate a constitutional court? The type of reform called for by Charter
08 is still out of reach; what that manifesto proposed cannot be achieved
through amending the constitution.2 5 Often, changes come about slowly.
Back in 2003 eight scholars, reacting to the "Sun Zhigang incident" (孫
志剛事件), submitted a petition to the Standing Committee of the NPC
calling for an investigation into the constitutionality of the custody and
repatriation procedures. 26 In the end, these procedures were abolished by
the State Council and replaced by Measures for Assisting Vagrants and
Beggars with No Means of Support in Cities. Yet, such change could have
been achieved directly by the NPC Standing Committee if it had exercised
24For
example, according to Article 67 of the PRC Constitution, the NPC Standing Committee has the authority to interpret the constitution a nd supervise its enforcement. As
to whether the Na tional Pe ople 's Congress has the power to interpre t the constitution,
scholarly opinions differ. One thing is certa in: only the NPC, of which the Standing Committee is a pa rt, c an enact the constitution. Consequently, if the Standing Committee has
the right to interpret the constitution, notwithstanding the fact that the National People's
Congress is the le gislature, which enacts or amends the constitution, there is no separation
of powers in China . http://www.yz zk.com/cfm/Conte nt_Archive .cfm? Channel=a e&
Path=2292637042/32ae1a.cfm (accessed September 2, 2010).
25Charter 08 was drafted by Liu Xiaobo (
劉曉波 ) and signed by 303 other Chinese from various walks of life to commemorate the sixtieth anniversary of the Universal Declaration of
Huma n Rights. Its purpose was to promote democra tization and the advancement of human rights protection in China. It called on China to establish a democracy, a republic, and
constitutional government under the universal principles of freedom, equality, and human
rights.
26Sun Zhigang (
孫志剛) was detained by law e nforcement officials in Guangzhou and later
be aten to death while in custody. Sun had been de tained under China's "custody and repa triation" procedure on the grounds that he had no household registration record, no ID
card, and no employment. In reality, Sun had va lid ID and employment, so he did not meet
the jurisdictional requirements for detention. Officia ls trea ted the case as an isolated incident of criminal conduct by detention center employees, but Sun's treatment sparked a
significant nationwide discussion of the country's custody and repa triation system.
December 2010
233
ISSUES & STUDIES
its right to interpret the constitution by declaring the previous custody and
repatriation system unconstitutional.
The 2009 abolition of the Housing Demolition and Relocation Management Regulations 27 was another instance where the NPC Standing
Committee could have exercised its powers to interpret and enforce the
PRC Constitution. On December 7, 2009, five professors from the Peking
University Law School recommended that these and other related regulations be scrapped or revised by the NPC.28 The professors were of the opinion that the regulations, which had been enacted by the State Council in
2001, were unconstitutional and conflicted with the Property Law, the Real
Estate Management Law, and other laws and principles protecting people's
homes and real property. They argued that such a conflict would hinder
economic development and the protection of private property rights. In
response, the State Council is currently preparing an amendment to the
Housing Demolition and Relocation Management Regulations.
The constitutionality of China's household registration system is another outstanding problem, as the system effectively restricts people's constitutional right of movement. This issue could also be resolved by the
NPC Standing Committee through judicial review.
Judicial Review in Taiwan
Democracy and the rule of law did not develop spontaneously in Taiwan, nor did they develop concurrently. Even under martial law, legal reform was carried out and the foundations for democracy and the rule of
law were laid. The judicial review duties of the ROC Council of Grand
Justices, or the justices of the Constitutional Court, were engines of this
change. While martial law was in force, the grand justices often assisted
27"Beida wu
jiaoshou gongmin jianyan, Zhongguo shi chaiqian youwang fe izhi" (Five profe ssors of Peking University adviseabolition of the Chinese regulations on housing
demolition and relocation), Yazhou zoukan (Asian weekly), December 20, 2010, http://www
.yzzk.com/cfm/Content_Archive.cfm? Channel=bc&Path=219246501/50bca.cfm (accessed January 5, 2010).
28The full text (in Chinese) of the five professors' opinion c an be retrie ve d on: http://www
.duping.ne t/XHC/show.php? bbs=10&post=1027056 (accessed Janua ry 5, 2010).
234
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The Rule of Law in China and Taiwan
in explaining the separate roles of the executive and the judiciary, along
with other important political concepts such as judicial independence, individual liberty, and the protection of property. 29
The development of the rule of law in Taiwan can also be traced
through changes in the Council of Grand Justices. For the first forty or
so years after its establishment in July 1948, the Council of Grand Justices
largely failed to maintain constitutional order or protect human rights because its powers were curbed by the "mobilization for suppression of communist rebellion" and the martial law regime. Between 1967 and 1976 the
grand justices received only twenty-four petitions for constitutional interpretation, and every single one of them came from a government agency.
At that time, the human rights protections in the ROC Constitution were
not enforced in reality; the law was not followed to the letter.
While the explanations of fundamental legal concepts by the grand
justices were metaphysical and could not actually do anything to uphold the
ROC Constitution or fundamental rights, they nevertheless cultivated a culture of respect for the constitution. The grand justices were at least able to
moderate the rate of reform so that it did not go against the prevailing social
values and mores.
Historic changes came after July 15, 1987, when Taiwan declared
the end of martial law, an era that had been marked by widespread eavesdropping on private communications and the nearly unchecked power of
the law-enforcement agencies. No longer fearing reprisals from lawenforcement officers, Taiwan's citizens began taking a greater interest in
the development of constitutional government and were eager to assert
their constitutional rights whenever they believed their fundamental rights
were being infringed by the government.
29Regarding
the separation of the ruling party from the sta te, see petitions 5, 7 and 20; for the
separation of the executive and the judiciary, see petitions 13 and 86; for judicial independe nce, see petitions 162, 175 a nd 185; for personal liberty, see petitions 130 and 166; and
for prope rty protection, see petitions 35 a nd 156. The following link contains all recorded
pe titions: http://www.judicial.gov.tw/constitutionalcourt/p03.asp (accessed September 5,
2010).
December 2010
235
ISSUES & STUDIES
Between 1948 and the end of martial law, a period of nearly forty
years, the Council of Grand Justices heard 216 petitions for constitutional
interpretation, or 32 percent of the total number of petitions in its history
up to the end of 2009. The remaining 68 percent of petitions (453 in total)
were heard in the twenty-three years after the end of martial law. 30 Moreover, in the last decade, 76 percent of all the petitions were filed by private
citizens.31
Furthermore, before July 15, 1987, only a few interpretations addressed the protection of the people's fundamental rights, but after the end of
martial law, the great majority of the petitions addressed the protection of
basic civil rights such as freedom of speech, assembly, liberty, movement,
and religion, as well as such principles as gender equality, deference to
public authority, and social welfare.
Progress of this kind is evidence that the rule of law exists in Taiwan.
In contrast, there has never been an effective way of implementing the human rights provisions in the PRC Constitution. The power to conduct constitutionality reviews resides in the NPC Standing Committee. Although
the Standing Committee has in the past reviewed Hong Kong's Basic Law
and made the necessary preparations for hearing constitutional cases, it is
still a step shy of actually accepting constitutional cases.32
Prospects for the Rule of Law in China
China's reform and opening-up policy was focused entirely on the
economy, and throughout the 1980s and 1990s, it was clearly dragging its
30In
the thirty-eight years between January 1, 1949, and July 15, 1987,— before the end of
Taiwan's martial law regime— the total number of constitutional interpretation petitions
hea rd by the Council of Grand Justices was 216. In contrast, in the twenty-two ye ars between July 15, 1987 and the end of 2009, the total number of constitutional interpre tation
petitions heard by the Council of Grand Justices was 453 (petition numbers 217 to 669).
31http://www.president.gov.tw/Default.aspx? tabid=131&itemid=19533&rmid=514&word1
=%e8%b3%b4%e8%8b%b1%e7%85%a7 (accessed January 23, 2010).
32Jerome A. Cohen, "Zhong she xianfa fayuan: qujing Taiwan?" (A constitutional court for
China? Taiwan's example), China Times, October 29, 2009, A19, which can be found at
http://www.usasialaw.org/? p=2279 (accessed January 23, 2010).
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The Rule of Law in China and Taiwan
feet where the rule of law, human rights, and the introduction of democracy
were concerned. The government was thus deluding its people, and itself.
An article published in the People's Daily in 1991, entitled "Rule by Law:
New Concept for the Chinese People," contained a number of anecdotes
aimed at promoting awareness of the law among Chinese people. One such
anecdote concerned the theft of a television set in a village in Jiangxi Province (江西省). The article described how, when a village cadre set about
searching every house for the stolen goods, a heroic primary school student
halted the search, saying, "The law says only judicial authorities have the
power to conduct searches; your search is against the law." It is doubtful
whether this incident actually happened, but what is remarkable about the
story is that it appeared in the overseas edition of the People's Daily, to
which ordinary Chinese had no access, meaning that the PRC government
was trumpeting China's "progress" in legal development to foreigners, although it in fact had not done much to advance legal reform.
If China can find a way to translate the Western notions of checks and
balances, equity in the administration of justice, and other ideals into concepts that are palatable to the Communist Party and actually viable for
China, it may be able to bridge the gap between propaganda and reality and
that between economic growth and legal development. 33 Despite the many
challenges ahead, the following developments justify our hope that China's
legal system will continue to evolve in a positive way.
Endorsement of Sun Yat-sen's Political Ideology by China and Taiwan
This year, 2011, we mark the one hundredth anniversary of the Xinhai
Revolution (辛亥革命). All the signs indicate that Sun Yat-sen's ideology
will be the focus of the celebrations in China. 34 This inspires us to hope
that China will learn from Taiwan's growth into a prosperous and stable
33Wen
Jiabao, "Renshi yige zhenshi de Zhongguo" (To know a re al China), news release
of the Unite d Nations, September 23, 2010, New York, http://www.un.org/zh/focus/wen/
ga.shtml (ac cessed Septe mbe r 26, 2010).
34Sun Yat-sen is held in high regard on both sides of the Taiwan Strait; China calls him a
revolutionary pioneer, while Ta iwan refers to him a s the father of the nation.
December 2010
237
ISSUES & STUDIES
democratic society.3 5
China views Sun's contribution to the founding of the Republic of
China in 1912 in a positive light, and to endorse his ideology is to endorse
his Three Stages of National Reconstruction, a blueprint which has been
put into practice in Taiwan. The development of the rule of law in Taiwan
can be seen as a direct result of the application of Sun's ideology. If Beijing's leaders choose to endorse Sun's ideology, they cannot ignore the fact
that it has contributed to Taiwan's success. Sun's model of reconstructing
the nation in three stages— military rule, political tutelage, and constitutional government— could be adopted by China as the theoretical foundation for the reform and development of its rule of law. After all, China has
been consulting Taiwanese laws when drafting its own laws since the
1980s.
The 2012 Reforms in Hong Kong
The political situation in Hong Kong changed in 2010, when Beijing
approved the Democratic Party's Hong Kong 2012 Political Reform Package, improving the prospects for democracy in Hong Kong. 36 And if
democracy can take root in Taiwan and Hong Kong (and Macau), perhaps
a democratic China is not such a far-fetched notion.
The reform package advanced by the Democratic Party in Hong Kong
was not a direct result of a general election; however, it is notable that 3.2
million Hong Kong people voted for it, against the votes of the district
councils. Beijing is not likely to have missed the fact that the majority of
the Hong Kong people sit right in the middle of the political spectrum and
are neither right-wingers nor left-wingers. 37
35Zhang
Qian, "Beijing yi Sun Zhongshan wenhua wei liang'an daqiao" (Beijing uses Sun
Yat-sen ideology as a bridge between two sides of the Taiwan Strait), Taiwan News (Taipei), July 27, 2010, http://www.taiwannews.c om.tw/etn/news_content.php? id=1330793&
lang=eng_news&cate_rss=news_PD&pg=3 (accessed August 26, 2010).
36http://www.cmab-cd2012.gov.hk/en/package/index.htm (accessed August 26, 2010).
37Qiu Liben, "Xianggang cuihua Zhongguo zhenggai xiongqi" (Hong Kong catalyzes the
politica l reform in China), Yazhou zhoukan (Asian weekly), July 4, 2010, http://www.yzzk
.com/cfm/Content_Archive.cfm? Channe l=ab&Path=236578221/26ab.cfm (accessed August 26, 2010).
238
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The Rule of Law in China and Taiwan
Sharing the Experiences of Legal Education
According to China's Efforts and Achievements in Promoting the Rule
of Law 38 (promulgated in February 2008), the PRC regards the development
and enhancement of legal education as one of the country's highest priorities. Since the beginning of reform and opening up, legal education in China
has developed rapidly. By the end of 2006, there were 603 universities and
higher educational institutions in China offering an undergraduate degree in
law. The number of undergraduate law students at these institutions was
close to three hundred thousand. After thirty years of reform and improvement, the curricula for bachelor's, master's, and doctoral degrees in
law in China, as well as the system of graduate professional legal traineeships, have become highly sophisticated. Such advancement is one of the
basic requirements for the building of a modern socialist state.39
The problem facing legal reform in China now is not one of limited
understanding of legal principles and theories but the absence of a progressive plan and strategy. In this regard, China could learn from Taiwan's
experiences in legal reform and thus avoid walking down the wrong path.
Encouraging exchange visits and discussions among civil administrators,
judges, prosecutors, public security officials, lawyers, and legal academics
from both sides of the Taiwan Strait is a step in the right direction.
In this connection, Taiwan's recent move to allow Chinese students
to study in Taiwan is an important means to advancing the rule of law on
the two sides of the Strait. President Ma Ying-jeou (馬英九) believes that
38http://politics.people.com.c n/GB/1026/6937110.html
(accessed January 23, 2010). For
more details, William P. Alford, "A Second Great Wall? China's Post-Cultural Revolution
Project of Legal Construction," Cultural Dynamics 11, no. 2 (July 1999): 195-200; Stanley
B. Lubman, ed., China's Legal Reforms (New York: Oxford University Press, 1996), 1-8;
Randall Peerenboom, "Ruling the Country in Accordance with Law: Re flec tions on the
Rule of Law in Contemporary China," Cultural Dynamics 11, no. 3 (November1999): 31551.
39William P. Alford, "The More Law, the More . . .? Measuring Legal Reform in the People's
Republic of China," in How Far Across the River? Chinese Policy Reform at the Millennium, ed. Nicholas C. Hope, Dennis Tao Yang, and MuYang Li (Stanford, Calif.: Stanford
Unive rsity Pre ss, 2003), 122-49; Stanley B. Lubman, "Prospects for the Rule of Law in
China after Accession to the WTO," 2003, http://www.law.berkeley.edu/institutes/csls/
lubmanpaper.doc; Pitman Potter, "Lega l Reform in China: Institutions, Culture, and Selective Ada ptation," Law & Social Inquiry 29, no. 2 (April 2004): 465-95.
December 2010
239
ISSUES & STUDIES
opening Taiwanese universities to Chinese students will facilitate mutual
understanding and the sharing of ideas and experiences, including those
on the rule of law. 40 The Chinese students are expected to propagate the
ideas they have absorbed in Taiwan after returning home; the fostering of
friendships between young people in Taiwan and China will also build up
goodwill on both sides.
National Chengchi University (國立政治大學) in Taiwan has signed
a collaboration agreement with the Guanghua Law School at Zhejiang University (浙江大學光華法學院). The agreement is expected to promote
research and academic development through student and lecturer exchange
visits and joint research projects. 41 In addition, the Intellectual Property
Research Institute at National Chengchi University has signed an agreement with its counterpart at Peking University that will enable the two
institutions to offer joint degrees in the fields of law, commerce, and intellectual property rights. As well as allowing students from both schools to
gain a better understanding of cross-Strait intellectual property issues and
developments, this arrangement will also provide an opportunity for people
from both sides to get to know each other through studying and working together.4 2 These are just two examples among many similar arrangements.
Bilateral Consultations on Clean and Efficient Government and
Corporate Governance
In order for Taiwan to better assist with the development of the rule
of law in China, both sides should include discussion of this subject on the
40Office
of the President, Republic of China , "Zongtong chuxi 'jiushiba nian quanguo daxue
xiaozhang huiyi'" (The Pre sident presented at the 2010 National University Principal Conference), news release, February 2, 2010, http://www.president.gov.tw/Default.aspx? tabid
=131&itemid=19944&rmid=514&word1=%e5%9c%a8%e4%ba%ba %e7%94%9f %e6%
af %94%e8%bc%83%e6%97%a9%e7%9a%84%e9%9a%8e%e 6%ae%b5 (accessed January 23, 2010).
41Please see the ne ws release of the College of Law at National Chengchi Unive rsity at
http:// lawnccu.blogspot.com/2010/08/blog-post_3431.html (accessed September 2, 2010).
42Zhihua Chen, "Zhe ngda beida shuanglian xuewei xieyi tongguo" ( National Chengchi University and Peking University signe d an agreement on dual degree), United Daily (Taipei),
August 22, 2010, http://mag.udn.com/mag/campus/storypage .jsp? f_MAIN_ID=13&f
_SUB_ID=1755&f_ART_ID=266188 (accessed Septe mber 2, 2010).
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De cembe r 2010
The Rule of Law in China and Taiwan
agenda for negotiations as soon as possible. Phrasing the topic as "clean
and efficient government and corporate governance" could help fast-track
the discussion. In a white paper released in December 2010, the Chinese
government made clear its resolve to fight and prevent corruption and
pursue government transparency. And according to the International Accountability Project and the United Nations Convention against Corruption, corruption should be fought in both the private and the public sectors.
This is an indication that corruption and accountability in the private sector
are subject to scrutiny by the international community. Taiwan has an
abundance of anti-corruption experience; Premier Wu Den-yih (吳敦義)
of Taiwan has already instructed the Ministry of Justice to canvass the
opinions of scholars and the business community in preparation for crafting
a cross-Strait anti-corruption project proposal for submission to the
Mainland Affairs Council as a possible topic for cross-Strait negotiations.
Therefore, "clean and efficient government and corporate governance" as a
discussion topic is topical and relevant. Without government transparency
or ethical oversight, the economic advances that have taken place in China
could prove to be no more than a flash in the pan.
The economy and the law are two sides of the same coin; changes in
one can precipitate changes in the other. And any faltering in China's economy will most certainly affect Taiwan, considering the amount of Taiwanese capital invested in the mainland. Therefore, neither government
should shy away from forging a sustainable model of economic cooperation through legal reform.4 3 Since joining the WTO, China has had to
amend its economic laws and its law of administrative procedure in order
to comply with international standards set by the WTO. Now that Taiwan
and China have signed the ECFA, 44 can another wave of legal reform in
China be expected? As both sides continue to strengthen economic,
cultural, and political ties, it will be interesting to observe whether, as
43For
some examples of initiatives of legal re form, please see http://www.csawa.org/home/
activity/action_ecfa/ecfa-6 (accessed August 30, 2010).
44http://www.sef.org.tw/lp.asp? ctNode=4306&CtUnit=2541&BaseDSD=21&mp=19
(accessed August 27, 2010).
December 2010
241
ISSUES & STUDIES
membership of the WTO compelled China to undertake legal reforms,
familiarity with the rule of law as exercised in Taiwan will have a positive
impact on China's legal system.
Conclusion
Whether or not Taiwan and China are eventually reunified, and if
they are, whether or not they are governed by one system or two, or even
multiple systems, it is worthwhile inquiring into how a better legal system
supported by the rule of law can be established on each side.
In the pursuit of "one China, better system," Taiwan and China should
cease their debate over "one China." Despite their differences in terms of
geographical size, population, and the gap between rich and poor, Taiwan
and China share some important cultural assets such as the Three Stages of
National Reconstruction. This could serve as a framework for both sides
to develop legal systems that are compatible with each other, and for the
eventual achievement of "one China, better system." Taiwan should do its
best to share with China the lessons it has learned on its road to democracy,
while China would do well to apply such lessons to the development of its
own brand of democracy.
The current state of the rule of law in China is similar to that in Taiwan under martial law; the major difference is that Taiwan's rule of law at
that time contained an element of legal reasoning that permitted judicial
innovation. Furthermore, there is no real separation of powers among the
administration, legislature, and judiciary in China. The rule of law in China
is at best a mechanism of "rule by law," which is far from being the substantive principles behind the rule of law. In contrast, there is proof that
Taiwan is a jurisdiction governed by the rule of law. Not long after the
deregulation of its economy, Taiwan's democracy and legal system grew
appreciably, and for the last twenty years, government authority has been
regulated by the laws.
The Iron Curtain fell many years ago, and China is one of only a
handful of communist countries in the world. It is understandably skeptical
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The Rule of Law in China and Taiwan
and wary about democracy. If it wishes to know where democracy and
capitalism will take Chinese society, all it has to do is look at Taiwan. As
long as China is willing to change and engage in continued exchanges
with Taiwan, there is reason to be optimistic about the possibility of
achieving one China, better system.
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