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I. Introduction

In this article, I will address two core distinctives mentioned in the class. One is “The Common Law Affects Federal Statutory Law,” and the other is “Code-based Law-In Cases Applying and Interpreting the Code-decisively Influences Interpretation of the Federal Code.” Before that, I will first explain a general idea about the Taiwan legal system, which is related to those two distinctives.

Taiwan is a civil law country, which means that our courts do not have any power to create law governing individuals. Generally, there are four levels in Taiwan legal system: district court, high court, highest court, and constitutional court. The district court and high court (an intermediate court) are a court which has the authority to find facts. The highest court only reviews legal issues. And the constitutional court only reviews constitutional law issues and has a power to explain the Constitution and statutes. Additionally, in Taiwan, we have an equivalent to stare decisis. That is, some statutes grant a power to the highest court to select its decisions as a precedent which is equivalent to a statute and binding to itself and lower courts.

II. The Common Law Affects Federal Statutory Law

In U.S., when the congress makes statutes, if it adopts the terms in common law, the courts tend to use ideas in common law to interpret the statutes. The merit of this approach is that the terms in decisions can have a consistent meaning before and after the statutes were passed. However, the weakness is that sometimes the courts rely on the legislative history to adopt the interpretation based on common law. But if the congress really meant to adopt the common law terms, why did it not codify its intent into the statutes? In other words, the courts may consequently narrow or broaden the scope of the statutes.

In Taiwan, sometimes the statutes were amended by adopting or rejecting courts’ decisions. If the congress expressly tells which decision it rejected in the legislative records, generally the highest court will revoke the previous precedents. What is similar to the U.S. legal system is a situation where one specific statute adopts the terms used in another general statute and the general statute provides a basic background for the specific statute. In this case, the courts will use precedents related to the terms in the general statute to interpret the meanings of the same terms in the specific statute.

Compared to the U.S. legal system, the merit of the Taiwan approach is that the congress controls the evolution or change of law. But the weakness is that the judicial branch has not developed any statute interpretation methodologies. Consequently, the courts may sometimes ignore the intents of the congress or add some elements that are not required. For example, in one patent law case, the highest court interpreted the patent law, finding that the plaintiff should prove the intent or negligence of the defendant (patent infringer). It is true that in the general civil law that governs general civil law issues the plaintiff has to prove the intent or negligence of the infringer. However, since the Taiwan patent law basically inherits the U.S. patent law, the interpretation should not add “intent” or “negligence” as an element of the patent infringement.

III Code-based Law-In Cases Applying and Interpreting the Code-decisively Influences Interpretation of the Federal Code

In U.S., after the court applied one statute in one case, that case becomes binding to latter cases concerning the same statute. Any latter cases should refer to previous cases when the court applies the same statute. Generally, the court will discuss the previous cases before deciding which one should be applied to the current case. That is so called “stare decisis.” The merit of this approach is that the statute would be more predictable because we can study the previous cases to predict where the court will go in the current case. However, the weakness is that since the court cannot review all previous cases while dealing with the current case, the interpretation of the statute may vary from one case to another case.

In Taiwan, the highest court has a power to select its decision as a binding precedent. Generally the lower courts will cite the precedents in their decisions, but they are not required to cite any precedents. Besides, the citation method is not the way the U.S. courts do. For instance, the court in Taiwan does not need to discuss or summarize previous cases in its opinion.

Compared to the U.S. legal system, I cannot think of anything that is a merit. The only merit may be that the judges save time by ignoring or just directly citing, without explanation, the precedents. Sadly, the weakness of the Taiwan approach is makes the legal system unpredictable. For example, we cannot rely on public records, court decisions, to predict what result the courts will give. Even after cases and cases, no legal heritages or traditions can be established. Most of the court decisions are discrete, and no path can be traced.

IV. Conclusion

In this article, I point out two distinctives of the U.S. legal system which more concern the interpretation of the statutes. Generally, I think the U.S. legal system is better the Taiwan legal system because the methodology the U.S. courts use makes the U.S. statutes more predictable. In other words, I think the statutes in the U.S. are more stable than in Taiwan.