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(May 02, 2008) On April 22, 2008, Taiwan's legislature passed amendments to the parts of the Civil Code on General Principles and the Family, as well amendments to the two parts' enforcement laws. In addition, on May 7, the legislature adopted revisions to the Enforcement Law for Part V, Succession, of the Civil Code. The amendments to the General Principles greatly expand the former provisions on incompetence. The term "incompetence" (interdiction, jinjhih chan) is no longer used. Instead, the law distinguishes between psychological or cognitive impairment that causes a person to be unable to make or receive declarations of will or distinguish the effect of such declarations, on the one hand, and such types of impairment that cause the person's capacity to perform those acts to be clearly inadequate, on the other. In the former case, stipulated parties may apply to have the court issue a declaration of guardianship, in the latter, they make seek a court declaration authorizing care-giving. Moreover, instead of stipulating that interdicted persons lack the capacity to act, the Code now states that persons subject to a declaration of guardianship lack the capacity to act. Another new provision also sets forth the types of activities for which a person subject to a care-giving declaration must seek the agreement of the caregiver. (The Legislative Yuan at the Third Reading Adopts the Amended [General Principles Part of the Civil Code] (in Chinese), LAWBANK, May 5, 2008 (unofficial source).)

According to the Enforcement Law of the General Principles of the Civil Code, which was revised on May 2, 2008, the above provisions (found in articles 14 through 15-2) will enter into effect six months after the revised part's promulgation. In addition, the revised Code stipulates the circumstances in which a place of residence may be regarded as a domicile. (The Legislative Yuan at the Third Reading Adopts the Amended [Enforcement Law of the General Principles of the Civil Code] (in Chinese), LAWBANK, May 5, 2008.)

Under amendments to Part IV, "Family," of the Civil Code, adopted by the legislature on May 2, 2008, almost all the provisions under Book 4, on guardianship (arts. 1091-1113), covering both guardianship of minors and guardianship of interdicted persons, were revised: 21 were amended (including two deletions) and 10 new provisions were added. As in the case of the revisions to the General Principles' provisions, the term "interdicted persons" has been replaced with the term "ward of the state" (persons under guardianship). In general, the revisions appear to enhance the role of the courts in the guardian selection process and also stress and elaborate on the court's obligation, in selecting guardians, to act in and protect the ward's best interest. According to the amended Enforcement Law, the revised provisions of Book 4 will take effect six months after their promulgation. (The Legislative Yuan at the Third Reading Adopts the Amended [Part on the Family of the Civil Code] (in Chinese), LAWBANK, May 5, 2008; The Legislative Yuan at the Third Reading Adopts the Amended [Enforcement Law of the Part on the Family of the Civil Code] (in Chinese), LAWBANK, May 5, 2008.)

An amendment to the Enforcement Law of Part V, "Succession," of the Civil Code, promulgated on May 7, 2008, relieves the financial burden of adult inheritors of deceased family members' debts. The new article 1-2 stipulates that in cases where succession commenced prior to January 4, 2008, and inheritors are responsible, by reason of a surety contract, for payment of debts after the succession begins and because continued performance of the obligation is "obviously unfair," that debt payment obligation will be limited to the value of the inherited assets only. However, inheritors cannot retrieve payments already made to clear surety contract obligations in accordance with provisions amended and in force before April 22, 2008 [the date on which the legislature adopted article 1-2]. Nor does the new provision apply to those whose succession commenced after January 4, 2008. (Amendment to Enforcement Law for Part V, Succession of Civil Code, 6797 THE GAZETTE OF THE OFFICE OF THE PRESIDENT 11-12 (May 7, 2008), available at http://content.glin.gov/summary/205137 (official source).)

The legislature passed a similar amendment to the Civil Code's law of succession on December 14, 2007 (promulgated on January 2, 2008), that applies to minors who inherit debt from family members. The May 7 revision, according to legislator Shyu Jong-shyoung, one of its sponsors, is a complement to the 2007 amendment. Shyu also commented, "[w]ith the bill's passage, unjust debt cases that arose in the past can finally be resolved. This is a big step for Taiwan to leave behind barbarism and become a civilized society." (Bill Targets Adult Role in Child Suicides, TAIPEI TIMES, Apr. 23, 2008, at 3, available at http://www.taipeitimes.com/News/taiwan/archives/2008/04/23/2003410030; Amendment to Part V, Succession of Civil Code, 6778 THE GAZETTE OF THE OFFICE OF THE PRESIDENT 24-27 (Jan. 2, 2008), available at http://content.glin.gov/summary/201387.)

Author: Wendy Zeldin More by this author
Topic: Civil code More on this topic
Jurisdiction: Taiwan More about this jurisdiction

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Last updated: 05/02/2008