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July 2010 |
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Tsar & Tsai Lex News is aimed at providing the readers and clients (1) important recent changes in the laws and regulations in Taiwan, (2) practical views and interpretations on the laws, (3) important legal news and case developments, and (4) information on recent activities of Tsar & Tsai Law Firm. If you have any comments or questions, please feel free to contact us (Tel: 886-2-2781-4111; e-mail: Law@TsarTsai.com.tw ).
Editors:
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Recent Firm Activities |
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Amendment
to Criminal Procedure Code to Strengthen the
Defendant’s Right to Access Attorney
– On June 1, 2010, the Legislative Yuan passed
the amendments to the Criminal Procedure Code
which provides the following important
amendments to the defendant’s right to contact
the representing attorney: (1) no restriction on
the defendant’s right to contact his/her
attorney in case the defendant is in custody
unless there is sufficient evidence that the
contact will lead to destroy or collaboration of
evidence; (2) no restriction on the defendant’s
right to contact his/her attorney in case the
defendant is detained or arrested for
investigation, provided that the contact cannot
exceed one hour and is limited to one-time only;
(3) any restriction on the defendant’s right to
contact his/her attorney shall be imposed by a
judge’s issuance of a restriction order; and (4)
the defendant may object or petition to overturn
a judge’s or a prosecutor’s imposition of
restriction on contact with attorney. (
Amendment to Guarantee Chapter of Civil Code
– On May 7, 2010,
the Legislative Yuan passed the amendment to the
“Guarantee” Chapter of the Civil Code. To
prevent the debtor from evading repayment
obligation by changing the residential or
business address, the amendment removes the
provision permitting a guarantor under a valid
guarantee agreement to claim refutation against
previous suit as defense in case the change of
the debtor’s residential or business address
leads to difficulties for the creditor to claim
repayment of the debt. The amendment also
limits a director’s and supervisor’s guarantee
obligation to those debts incurred by the
company during the time when the director and/or
the supervisor are in office. (
Amendment to the Act on Applicable Law for Civil
Matters involving Foreign Elements
– On May 26, 2010, the
President promulgated the major amendments to
the Act on Applicable Law for Civil Matters
involving Foreign Elements, which will become
effective one year after announcement. In
case of regular contracts, the establishment and
effectiveness of a debt shall be generally
governed by the law agreed upon by the parties
to the contract. If the parties do not
specify the applicable law for the contract,
before the amendments, the applicable law shall
be the law of the parties’ nationality or the
law of the jurisdiction where the legal act
takes place. After the amendments, the
applicable law becomes the law of the
jurisdiction having the closest relationship to
the legal act. Further, if the debt
incurred by a legal act is distinctive to the
legal act, the law of the jurisdiction where the
debtor resides when the legal act takes place is
presumed to have the closest relationship to the
legal act except when the legal act relates to
real property, in which situation the law of the
jurisdiction where the real property is located
shall be the law presumed to have the closest
relationship to the legal act in question.
(Tsz-Jeng Lin)
Amendment to the Regulations Governing the
Offering and Issuance of Securities by Foreign
Securities Issuers
– On May 19, 2010, the
Financial Supervisory Commission (“FSC”)
promulgated the amendment to the Regulations
Governing the Offering and Issuance of
Securities by Foreign Securities Issuers.
The major amendments include: (1) foreign
securities issuers shall apply to the FSC for
public company status before applying to be
listed in Taiwan Emerging Market or primarily
listed in Taiwan Stock Exchange market or GreTai
Securities Market; if the foreign securities
issuer is already listed in the Emerging Market
before the amendments are promulgated, the
foreign securities issuer shall apply to the FSC
for public company status within six months of
promulgation of the amendments; (2) foreign
companies that are listed in Taiwan Emerging
Market or primarily listed in Taiwan Stock
Exchange market or GreTai Securities Market may
issue share warrants to employees; and (3)
shareholders of foreign companies that are
primarily listed in the Taiwan Stock Exchange
market or GreTai Securities Market may issue
non-participatory Taiwan Depository Receipt
using the shares held by them; the rights and
obligations of such non-participatory Taiwan
Depository Receipt shall be the same as the
Taiwan Depository Receipt issued by the
second-listed companies in Taiwan. (Jo-Lin
Huang) Foreign Construction Companies are Required to Bid Jointly with Local Construction Companies for Public Construction Projects over NT$1 Brillion – On May 26, 2010, the President promulgated the amendments to the Construction Business Act. The important amendments include: (1) except where the law, treaties or agreements provide otherwise, foreign construction companies are required to form a consortium with a local integrated construction company to jointly bid for public construction projects with a contract price over NT$1 billion; and (2) for foreign construction companies applying for establishment and registration as a Grade A or Grade B integrated construction company in Taiwan, only their business performance, year in business and accumulated value of completed projects in Taiwan will be considered. (Tsz-Jeng Lin)
Tax Exemption for Cross-straight Air and Sea
Cargo Forwarders
– On May 28, 2010, the
Legislative Yuan passed the amendment to Article
29-1 of the Statute Governing the Relations
between People of Taiwan Area and Mainland Area.
The amendment provides for VAT and business
income tax exemption on revenues collected by
sea and air cargo forwarders for transport by
sea or air across the Taiwan Straight under the
principle of reciprocity. (
Civil Liabilities Imposed on Product Endorser in
respect of Untruthful Recommendation
– On June 9, 2010, the President promulgated the
amendment to Article 21 of the Fair Trade Act.
The amendment provides that any product endorser
knowing or having constructive knowledge that
the endorsement of the product is misleading yet
continues with such misleading endorsement shall
be jointly and severally liable with the product
manufacturer for damages caused to users of the
product. (
Enactment of Statute of Innovation of Industries
to Replace Statute of Upgrading Industries
– On May 12, 2010, the President promulgated the
Statute of Innovation of Industries and canceled
the Statute of Upgrading Industries at the same
time. The important provisions under the
Statute of Innovation of Industries include: (1)
providing multiple types of incentives to
promote innovation in the industries, e.g.,
deduction of R&D expenses from taxable income,
subsidy for small and medium enterprises to hire
additional employees; (2) creating
internationally competitive tax environment and
lowering tax for small and medium size
enterprises and traditional industries by
lowering the business income tax to a uni-rate
of 17%; and (3) providing legal sources for
establishment and regulations of industry parks.
(
TIPO Relaxes Regulations on Amendment to Patent
Application –
Under Article 49 of the current Taiwan Patent
Act, the applicant of an invention patent
application can only request for a voluntary
amendment of the application within 15 months of
the application date (or the priority date), at
the time when requesting a substantive
examination or during the time period in
response to an office action. The Taiwan
Intellectual Property Office (“TIPO”) recently
set up a new telephone response system to notify
the applicant of amendment within a designated
time limit under the TIPO's authority. The
system was effective from June 10, 2010. Under
the system, if the applicant of a patent
application wishes to amend the application
outside the above prescribed time period for
voluntary amendment, the applicant may file with
the TIPO a letter expressing its intention to
amend. The TIPO will then give a phone
call to the applicant as a reply normally within
1 to 2 months and a time period for the
applicant to file the intended amendment would
be set and informed to the applicant over the
phone. As a result, the applicant could legally
make the intended amendment pursuant to the
TIPO's telephone notification. ( |
On June 22, 2010, Eugenia Chuang was invited by Sasol Polymers to give a speech in an antitrust training law seminar in Hong Kong. On June
24 to 26, 2010, Jennifer Lin and Joyce Ho
participated in the “Lex Mundi 2010 Managing
Partners Conference” in New York. Lex
Mundi is an alliance of independent law firms
around the world. Tsar & Tsai Law Firm is
a member of Lex Mundi. On July
25 to 31, 2010, |
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MOEA
Overturns TIPO’s Decision to Dismiss 7-Eleven’s
Opposition to a Registered Trademark
– 7-Eleven, Inc. filed a
petition to oppose a third party's registration
of the trademark “ |
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COMMENTARY -- Response to the Newly Promulgated Personal Data Protection Act By Gisele Chien |
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On Under the Current Law, the regulated non-government institutions’ collection, computer processing, international transmission and use of personal data is subject to the regulator’s prior approval, registration and licensing. The New Law abolished the distinction of non-government institutions. Therefore, the use of personal data by all natural persons, juristic persons or other organizations is subject to the New Law. All the licenses obtained by non-government institutions prior to the effectiveness of the New Law shall be cancelled or declared automatically void by the competent regulator’s ruling. Both the Current Law and the New Law require that the collection, processing and use of personal data by non-government institutions shall be within the scope of the agreed-upon specific purposes. Except for the exceptional circumstances provided under the law, the collection, processing and use of personal data by non-government institutions shall obtain the written consent of the owner of personal data and the written consent shall specify the specific purposes of collection and processing of personal data. Further, except if the law exempts the notice requirement, before collecting personal data, the government and non-government institutions shall clearly notifies the owner of personal data of the name of the collection institution, purpose of collection, types of personal data collected, the time period, geographical area, recipient and method for use of personal data, the owner’s rights and how to exercise such rights and the implication on the owner for not providing the sought-for personal data. Except if the purpose of use of personal data by government and non-government institutions is to promote public interest or prevent material harm to others’ rights, etc. which permits the use to exceed the scope of the agreed-upon specific purposes, all of the use of personal data shall be done within the scope of the agreed-upon specific purposes. The “specific purposes” and “types of personal data” will be separately promulgated by the Ministry of Justice after consulting with the competent regulators of various industries. Further, the New Law also specifically provides that, except as otherwise permitted by law, no collection, processing or use of information relating to medical treatment, gene, sexual activities, physical check-up and criminal records is permitted. In practice, it is quite often that multinational financial institutions outsource certain of its operations such as underwriting of insurance policies, insurance claims handling, employee or customer data management or customer services to offshore affiliated or non-affiliated entities. As such, it would be necessary to engage in cross-border process or use of customers’ and employees’ personal data. It therefore would be necessary for multinational financial institutions to specify in the written consent the recipient(s), types of personal data and specific purposes of cross-border transfer of personal data to avoid possible disputes. To prevent
government or non-government institutions from
infringing personal privacies outside of Taiwan,
the New law also provides that the New Law is
also applicable to collection, processing or use
of Taiwan citizens’ personal data outside of
Taiwan. This stipulation gives the New Law
extra-territorial effect and is applicable to
offshore businesses that engage in collection,
processing and use of If harm results from non-government institutions’ collection, processing or use of personal data for profit without following the New Law, an imprisonment of five years or less, a civil liability of no more than NT$200 million and consecutive administrative penalties of NT$500,000 or less for each non-compliance may be imposed on the violator under the New Law. Regarding the civil liability, the New Law also imposes the burden of proof on the party collecting, processing and using personal data to prove that it has complied with the New Law. Non-government institutions are advised to take the following actions in response to the New Law:
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| The contents of Tsar & Tsai Lex News are not legal opinions and shall not be taken as legal advice on any particular issue or case. If the reader has any suggestions or questions, please do not hesitate to contact us. |
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