Taiwan Legal Updates - September 2017

Legal News & Analysis - Asia Pacific - Taiwan - Labour & Employment - Dispute Resolution

21 September, 2017

 

The Constitutional Court ruled in J.Y. Interpretation No. 752 that a defendant who is initially convicted of a crime shall have at least one opportunity to appeal the conviction

 

The Constitutional Court of the Judicial Yuan ruled in J.Y. Interpretation No. 752, promulgated July 28, 2017, that the constitutional right of the defendants in the cases involving Article 376 (1) and (2) of the Code of Criminal Procedure, where defendants are prohibited from appealing to the third instance when the second instance court reverses the lower court’s not guilty judgment and issues a guilty judgment on its own, has been violated in that such prohibition of appeal violates the purpose of Article 16 of the Constitution to protect people’s litigation rights; that they shall become invalid commencing the date of the promulgation of the Interpretation; and that the affected defendants may file appeal according to relevant laws in the event that the time to appeal has not expired as of the the date of promulgation of the Interpretation. (Steven Yen)

 

The Ministry of Labor (“MOL”) promulgated the Common Principles of Issuing Fines for Violations of the Labor Standard Act (“LSA”) on August 22, 201

 

The six items in the Common Principles are generally summarized below.  When issuing a fine pursuant to Paragraph 2 of Article 80-1 of LSA, the factors to be considered, in addition to the number of aggrieved employees involved the violation, the number of prior violations and the unpaid amount of the violation, should include the degree of culpability of the violation, the impact resulted therefrom, the benefits the violating entity gained, and the entity’s financial strength, etc.  Also, the size of the businesses that the MOL may base to increase the fine by 50% above the maximum amount of the legal fine under Paragraph 4 of Article 79 of the LSA should include the employees of branch and subsidiary unites of the violated entities at the time of the violation.  The labor authorities shall consider imposing fines under Article 15 and 16 of the Administrative Penalty Act against a director or other legal representatives of the entity as against the entity in the event that “the director or other legal representative acts intentionally or negligently in the performance of his/her duty or for the benefit of the entity which results in a punishable violation and fine against the entity”, or that “the employees, workers or business personnel of the entity causes a violation and fines against the entity in the performance of his/her duties or for the benefit of the entity and fails to perform his/her duties to prevent such occurrance”. (Queenie Chen)

 

The Ministry of the Interior amended the “Regulations on Acquisition, Registration, and Transfer of Real Estate in Taiwan by people of the Mainland” on June 9th, 2017

 

Article 7 of the amended Regulations provides that people of the Mainland shall be permitted to acquire ownership or superficies of registered real estate for residential purpose in Taiwan.  Each person of the Mainland is restricted to acquire one unit singly, and is prohibited to use the real estate for leasing or other non-residential purposes.  Such ownership or superficies shall not be transferred or registered for transfer notice within 3 years from the time of acquisition.  Ariticle 17 of the Regulations further provides that in the event of a violation, the Ministry of the Interior shall revoke or cancel the permission, and notice the municipality or local government where the real estate is situated to order the transfer the real estate, or proceed to auction the real estate in the event of non-compliance of the order to transfer pursuant to Article 19 of the Regulations. (Dennis Chen)

 

The Financial Supervisory Commission (“FSC”) promulgated the Regulations Governing Establishment and Compliance of Offshore Securities Unit (“OSU”) on August 8, 2017

 

Said Regulations requires the following qualifications for a securities dealer to establish OSU in Taiwan: (1) it must concurrently operates securities brokerage, underwriting and dealing and its net worth shown in the most recent CPA-audited and certified financial report satisfies the standards established by the FSC; in the case of a foreign securities broker, the fund allocated exclusively for operation of the branch office within the ROC territory must not be lower than such standards; (2) its financial conditions and its own capital adequacy ratio shall meet the FSC requirement; (3) it is in compliance with the law, soundly managed, and has not been subject to any disciplinary action for any material violation during the 3 years prior to the application, or, if it was subject to a disciplinary action, the circumstances resulting in the disciplinary action have been materially improved and the improvement is confirmed and approved by the FSC or the Central Bank (Taiwan).  (Queenie Chen)

 

The Ministry of Labor (“MOL”) indicated that standard for computation of overtime pay on rest day on which a natural disaster occurs

 

The MOL issued a letter interpritation on July 28, 2017 where the MOL indicated that, in the event an employee has initially agreed to work on a rest day but work stoppage is later announced pursuant to the “Operation Regulations on the Suspension of Offices and Classes because of Natural Disasters”, the employee may not attend the work;   if the employee has already attended but the work is suspended by either employer or employee for safety concern, the work time and overtime pay shall be computed pursuant to Paragraphs 2 and 3 of Article 24, and Paragraph 3 of Article 36 of the Labor Standard Act.  (Queenie Chen)

 

 

For further information, please contact:  

 

C. Y. Huang, Partner, Tsar & Tsai Law Firm

CYHuang@TsarTsai.com.tw