paper presented before the East Asian Women's Forum October 20-30, 1994, Enoshima Island/Japan
It was Hsiu-lien Lu, one of the incumbent legislators in Taiwan, who in 1971 initiated the concept of "new feminism," maintaining that "women should first be people and then women;" "women should walk out of the kitchen;" and "the sex discrimination against women should be removed and the potential of women developed." Subsequently, she further published an article entitled "The Traditional Roles of Men and Women," which became sensational in Taiwan. It was not until 1979 when she was sent to the jail following the eruption of the "Kaohsiung Riot" that the debate over the subject matter began to subside.
The Awakening Magazine Publishing Co., Ltd. was founded in 1982. But it was not until 1987 when the martial laws was declared "lifted" that the Awakening oundation became formally established. The purposes for which the foundation was established were the concern for women issues, fight for protection of women's rights and interests, enhancement of women's role in the society and awakening women. Over the last decade, the Awakening Foundation has aroused the general public's interest in understanding and discussing different problems facing women and pioneered the establishment and development of many grass-root women organizations in Taiwan. Highlights of the women issues appear below:
But back in the `20s or `30s, the Taiwanese society was still very "patriarchal." Ideals like "men support the family and women keep the house prevailed." What seemed to be very unfortunate to modern women is that many current laws were enacted at a time when lawmakers believed "man is the sole supporter of the family." If we look at the laws from the modern social perspective, we would find them to be very unfair and unjust.
With the increasing awareness that such unfairness and injustice needed to be rectified, coupled with the loud call for the respect for women's legal rights, finally we saw the promulgation of the Eugenic Protection act and the Labor Standards Law in 1984.
The enactment of these two new laws offers a broader concern for women's health and more meaning protection of women's legal right to work. In 1985, the Book of Family under the Civil Code was revised to the extent that women's legal status was improved.
Another major development is the establishment of the Teenagers Welfare Act in January 1989. The Act contains articles that ensure divorced women's custody of their children of 12 years or older.
In December 1989, the new Income Tax Law was promulgated, permitting wives to report their respective consolidated income for tax returns filing purposes independently of that of their husbands.
An even more encouraging development is the enactment of the Social Order Maintenance Act that, among other things, lists sexual harassment as one of the culpable acts at law. Lastly, but not the least, the Children's Welfare Act was revised in February 1993 that provides for more details about how divorced women can exercise their custody of their children of not more than 12 years old.
In fact, protection of women's legal rights has been written into the Constitution of the Republic of China promulgated in 1947. For example, Article 7 of the Constitution proclaims: "All citizens of the Republic of China, irrespective of sex, religion, race, class or party affiliation, shall be equal before the law." Article 152 assures women's rights to work by pronouncing: "The state provide suitable work opportunities to people who are able to work." And in Articles 134, 153, and 156, the Constitution provides written protection of women's rights to vote, work and welfare. Moreover, the Civil Code, established in 1929, recognizes that women are entitled to exercise their rights and obligations, and that they have their independent legal capacities and rights of inheritance.
Besides, the Factory Law, which was also established in 1929, provides for the "equal work equal pay" principle, and guarantees female workers' right to maternity leave.
The unfair and unjust written laws and regulations aside, there are still many discriminating social practices in Taiwan, to name just a few, minor prostitutes, sexual harassment, obscene posters and the fact that many an employer still require our textbooks to preach the stereotyped "women are inferior to men" concept. The unfairness has been prevailing for the last 50 years. It was not until four to five years ago that we saw a gradual phasing-out of the practices.
It therefore can be said that women organizations did not focus their attention to addressing women's legal status until 1980s; and that it was not until a barrage of pressures, campaigns, political rallies and demonstrations that the Grand Justices' Meeting declared the article putting the paternity before the maternity as unconstitutional, a small but major achievement for women in Taiwan. More particularly, the enhancement of women's legal status is closely linked to the efforts of women organizations on Taiwan. And women's rights and interest can be obtained and legal protection is available only by virtue of the self-consciousness and unrelenting efforts on the part of women.
In the following analysis, I will try to discuss specific revisions of old laws and enactment of new ones in the last 20 years and their repercussions. In addition to the discussions, I will also try to address such controversial issues like: Should the rape offense provided in the Criminal Code be changed from one prosecutable only upon receipt of complaint from the victim into one subject to prosecution? How can the legislation for rescuing minor prostitutes and the Equal Employment Act be structured? Also addressed will be such issues as the protection of women's rights and interests at law, the insufficiency of said protection, and how women organizations have been making efforts for obtaining said protection. Meanwhile, we will look at several proposed new laws now pending in the Legislature, including the Sexual Harassment Prevention Act, the Young Prostitutes Prevention Act and the Equal Employment Act. Lastly, some thoughts will be given to the outlook of these efforts.
I.Matrimonial Property Regime
The term "matrimonial property regime" denotes a mechanism by which the property of husband and wife can be allotted, managed, used and disposed. Before the last revision, the Book of Family provided for a matrimonial property regime unilaterally in favor of husbands. More specifically, husbands have the sole discretion to determine who owns and has the right to use the matrimonial property. They could even say that "Yours is mine and mine is still mine."
According to the old Civil Code, as long as husband and wife have not agreed by contract on the title to the matrimonial property, title to the matrimonial property shall be determined according to the statutory regime. In other words, all matrimonial property shall be deemed community property according to the conventional social practice. This would mean that all property, whether acquired by husband or wife, shall be considered the property of the husband's.
Under the old regime, all properties of husband and wife, whether acquired at the time of marriage and during the continuance of the marriage, other than separate and contributed properties owned by wife, shall be deemed owned an managed by the husband; provided that such separate property is declared by the wife at the time of marriage.
The "separate property" of the wife is defined by the Civil Code to denote as follows:
Even the property were registered under the name of the wife, such as a house or a tract of land registered to be the wife's under such articles, our legal system still presumed that title to the property goes to the husband. Unless the wife can prove that she bought the property with her own money, the creditors of her husband will be entitled to attach and sell at auction the house or land. And upon the death of her husband, the wife shall be imposed inheritance tax with respect to the property acquired by her by inheritance.
What's more unimaginable for the wife is that with respect to those rare properties that she still (such as her dowry) owns, the law authorizes the husband to manage, use and collect fruits from them. When necessary, he could even dispose of the property without the wife's consent. Fort instance, if a wife brings along a building as her dowry, her husband shall have the right to use it or let it for rental. And the rental will go to the husband's pocket, not hers. When necessary, the husband can even sell the building, mortgage it for loan, or even give it to someone else without the wife's consent.
These practices not only violated the spirit of Article 7 of the Constitution which provides: "All citizens, irrespective of sex, shall be equal before the law," but also deprived women's right to independence. And yet under the influence of those prejudicial practices, whatever the wife intends to do, she is required by law to obtain the prior consent of her husband. For instance, even when a highly-paid wife wants to apply for a loan, she will have to secure her husband's written consent, or ask him to be her surety. If the wife wants to serve as a government employee, again she must procure her husband's written consent. These practices simply rule out the chances of a wife to be an independent individual both socially and economically.
Thanks to the barrage of attacks from women organizations, revisions of the "Matrimonial Property Regime" were completed and became effective on June 5, 1985. Following the revisions, many of the old unfair practices have now been eliminated. The new law that "the properties of the husband and the wife which belonged to them at the time of marriage or which devolved on them during the continuance of the marriage are community property."
Under the community property system, the properties of the husband and the wife which belonged to them at the time of their marriage or which devolved on them during the continuance of the marriage and which originally belonged to the husband or the wife will still be his or her property. The husband and the wife own their properties individually. Those cannot be identified to the husband's or the wife's will be presumed to be the joint property of the husband and the wife.
As a result, if immovable purchased after June 5, 1995 were registered under the wife's name, the ownership will remain hers. Even if her husband commits defaults, her properties will be free from execution. Or if her husband dies, the wife will still be deemed to own her properties and will not be any inheritance tax.
And if the wife mortgages her house for loan, she will not have to show her husband's written consent anymore as long as the house can be proved to have been purchased after June 5, 1985. These revisions really "liberate" married women from a 60-year-old "imprisonment of unfairness."
In addition, the revised Matrimonial Property Regime proclaims that after the termination of the community property regime, death of either party or in case of divorce, all the properties owned by the husband and the wife (minus their debts, if any) will be divided equally and both of them can have their equal share. For the first time, the Legislature recognizes a housewife's contribution to her family in housekeeping and bringing up the children by paying her the compensation she deserves.
The revisions stated above have contributed a great deal to improving women's legal status. However, there are still some vestiges of the patriarchal ideas. These include placing management of the community property on the husband unless it is otherwise agreed upon by the couple.
Another article provides that the husband is entitled to use and collect fruits from the contributed property of the wife. But if there is any surplus after the husband has paid the living expenses of the household, and the cost of management with fruits, title to the surplus will be the wife's.
Moreover, the revision decrees that the husband has the right to use, manage or let for rental the property of the wife be it her dowry or property registered under her name. And rental will be used to pay their living expenses. Even so, the revision still permits the husband to sell, give away or mortgage the wife's property without having to obtain her consent "WHEN NECESSARY." These remaining unfair articles really offset the efforts and good intentions shown by the revised ones. Therefore, although we may conclude that women's legal status appears to have made a significant improvement in the revision, if we look closely into all the articles, we will have to admit that there are still many unfair regulations that need to be further modified.
Lastly, the Implementing Law of the Book of Family provides, among over thins, that the new matrimonial property regime shall not become effective retroactively. This suggests that the old provisions of the Book of Family shall still apply with respect to the property acquired by both man and wife before June 4, 1985, meaning that women are not entitled to full legal protection.
II.Relaxation of the Statutory Divorce Conditions
Before the revision took effect in 1985, there were only 10 conditions which either spouse must meet in applying to the court for a divorce. Many married women, though brutally beaten up, have been precluded from providing evidence to prove that they are suffering form the abuse of their husband and thus living together with their husband has become intolerable. Some have even endured grave distress as their husband is keeping "another woman." Living under the same roof with the man they really hate to face has now become an ordeal, and yet they have no other choice simply because they could not provide evidence on their husband's having sexual intercourse with another girl. There were times we learned from criminal headlined stories that some married women had to murder their husbands to "liberate" themselves from a miserable marriage.
The revision of the Civil Code has relaxed the 10 requirements of a divorce. So long as either spouse considers there is a major cause of an "intolerable" marriage, they may apply to the court for a divorce. In practice, a wife seeking a divorce is still required to satisfy very imposing requirements. Recently, court judges have, under the call of women organizations, begun to be more open-minded in considering applications for divorce, though they changed position from time to time, depending upon how knowledgeable and experienced the particular court judge is. This accounts for why Taiwan still abounds with many "de jure" couples.
III.The Surname of a Child
The original version of the Chapter on "Parents and Children" proclaims that "a child assumes the surname of the father" even if it were otherwise agreed upon by both the husband and the wife. This article was based upon the traditional notion of "only male members bear the family name." In earlier days, the most important job of a married woman was to contribute as many sons to the family as she could. Some couples kept on begetting daughters, and until they finally have got a son. This idea of "only boys that count" not only affected the quantity and quality of Chinese people, but also impeded the upgrading of living standards as a whole.
We are glad to see that the revision has contained more flexibility by adding a proviso reading: "Where there is no brother on the wife's side, and it has been agreed upon by both parties that the child shall assume the surname of the mother, such agreement shall be followed." But the regulation is still very rigid. If we wish to relieve the mother of the psychological pressure if no son has been born, we will have to make more efforts to urge another legislation enacted to the advantage of the wife and to launch more campaigns so that the society will recognize and accept that "girls are just as good as boys."
Under the original version of the chapter on "Marriage," bigamy was not "invalid", but "may be dissolved." If none of the parties applies to the court for an annulment, the marriage will still be valid. As a result, although "monogamy" was proclaimed by the law, what really prevailed that a wealthy man often kept several "concubines" at the same time. In this revision, bigamy will automatically render a marriage to become null and void. The core thought of this modification is to guarantee "monogamy," and, by so doing, implement the principle of "equality of men and women."
V.Taking a Domicile
Under the chapter on the "Efficacy of Marriage", the original article requiring "a wife to take the domicile of the husband as her domicile" was also a reflection of the traditional idea. Therefore a "warning notice to my escaped wife" in a classified ad section can be seen from time to time, but a "warning to my escaped husband" is seldom seen, though there were oftentimes that husbands abandoned their families and got away.
The Book of Family proclaims that "husband and wife are under mutual obligations to live together." And because "a wife takes the domicile of the husband as her domicile, "so if a husband wants to travel far for his education, business or duty, and if his wife does not follow him obediently, chances are that she may get a divorce notice" from her husband.
In the revision, to that article a proviso has been added to suggest that "unless it has been agreed upon by both parties that the husband and wife takes the domicile of the wife, such agreement shall be followed." But if not otherwise agreed, a wife still takes the domicile of the husband. The revised version has shown more respect for married women, but still fails to provide for a truly equal legal status for women. With the acid criticisms from women organizations over the last few years, the Supreme Court at long last in 1987 took its position indicating that the right to take the domicile of the husband as the domicile of the wife has been too much abused, an indication that women have been granted a little freedom of residence and relocation at law.
VI.Custody, Visitation Rights Over Minors
According to the Book of Family, "after divorce by mutual consent, the custody of the children rests with the husband, but where it has been otherwise agreed upon, such agreement shall be followed." In other words, if the husband refuses to yield the custody to the wife, she can do nothing about it. Even in the case of a divorce by judicial decree, the husband usually has a better chance to win the custody of he children. And there is no written law that guarantees the mother's right of visiting children. Thus, some husbands simply seize the lapses to blackmail their wives and bar them from getting a divorce with them, or, if the wife insists on terminating their marriages, they will lose everything in spite of their contribution to the family after all those years.
In fact, women interest groups have noticed the lapses and have launched a lot of campaigns to highlight the unfair articles before the revision was made. However, their efforts did not seem to have impressed the lawmakers. Therefore, the articles on the custody and the visitation rights remain to be a pending issues in the Book of Family. Thanks to the relentless efforts on the part of women organizations and the Alliance of Children Welfare Associations, amendments to the Children Welfare Act were passed in 1993, containing special provisions about the visitation rights for children of less than 12 years of age.
VII.Parental Right Over the Children
Article 1089 of the Civil Code provides: "The father and mother shall jointly exercise their rights and assume their duties in regard to a minor child unless it is otherwise provided for in the law. The rights shall be exercised by the father if the parents are not in agreement as regards the exercise of such rights."
This seemingly reasonable article has given rise to many absurd cases in practice. More particularly, if one of the partners to a divorce with the custody of children desires to have any of his children adopted by a third party, is that party required to obtain the consent of the other party precluded from custody of the children? Court judges are split in their opinion in this regard. Some court judges hold that if the custody is vested in the female party, then obtaining said consent would be necessary as the husband's right as a parent is only suspended, rather than forfeited.
However, if the custody is vested in the male party, then obtaining said consent would not be required because the opinion of the father shall control should the parents have dissenting opinions on the parental rights, a clear indication of male chauvinism. It was not until 1990 when court judges began to hold that obtaining the consent of the other party would be necessary regardless of who has the custody of the children.
In actual practice, a case in point concerns a couple who, though not on good terms with each other, remain yet to be divorced, but are fighting for custody of their children. According to the principle of paternity before maternity, the court has decided to grant the custody to the husband in total disregard to the rights and interests of the children.
Another concern on the part of women organizations is that there is a general lack of legal knowledge on the part of women in Taiwan and a common ignorance of their own rights and interests. Such has more often than not become the key blocks of successful amendment of the Book of Family. In order to awaken women to their own rights and interests, the Awakening Foundation initiated a campaign for a general mobilization of the efforts for amendment of the Book of Family of the Civil Code. More specifically, a 100,000 joint signatures campaign will be organized to cultivate seeds for said amendment. Those seed volunteers will be urged to tour villages and towns across the island to promote legal knowledge among women in each of the communities, thereby to awaken their attention to their own rights and interests. Furthermore, a Civil Code Consultation Hotline will be set up to train women volunteer to help women train themselves and acquire the legal knowledge they need or to help others.
Moreover, to arouse the attention of the general public to the importance of human rights of women and to remove the myth that "law does not enter the family door," the Awakening Foundation has initiated a campaign calling for interpretation of the Constitution of the Republic of China in July 1994. In other words, the grand justices will be requested to issue interpretations with respect to issues arising out of cases of complaints filed by victims of criminal offenses. Through barrage of such interpretation requests, the general public will be urged to discuss discrimination issues relating to the role of women in the marriage and the family so that the line between the public and the private can be removed.
Moreover, in order to avoid the ignorance or unreasonable rejection by the grand justices of the interpretation requests, a "Ten Questions for the Grand Justices" campaign was launched in 1994 when the list of proposed grand justices of the sixth term was C submitted to the National Assembly for confirmation. The appointed grand justices were all posed the ten questions concerning the equality between men and women and were requested to answer the questions or make their comments. After the answers and comments had been consolidated, a press conference was held by the Awakening Foundation in order to draw the public as well as the grand justices to be and the general public's attention to the women issues.
The strategy effectively forced the grand justices of the 5th term to issue their last interpretation No. 365 formally declaring the unconstitutionality of Article 1069 of the Civil Code concerning the placing of paternity before maternity, and requesting the government and the legislature to review and consider amending it within two years. Awakening the concern of the government to women issues represent the most impressive achievements which women organizations have made in the 1980s.
Eugenic Protection LawEugenic protection Law was meant to do benefits to pregnant women and babies. But before the "birth" of the Act, it took 13 years of conceiving and contraction, and was finally born on July 9, 1984 with a difficult delivery. Now under the protection umbrella of the Law, both doctors and pregnant women exerting abortion operation will no longer have to worry about the punishment from the Criminal Code.
Before the Eugenic Protection Law was implemented, abortion had long existed in the society as a means to evading an unwanted child. And yet, abortion was deemed a violation of the Law. Therefore, many pregnant women had to ask quacks to do the crucial operation for them. Many women suffered from the ordeal given by poor-equipped, weakly-trained, and unlicensed doctors to avoid having the offspring they could not afford. Thanks to the enactment of the Eugenic Protection Law, it listed six conditions under which any of the pregnant women will now have the right to ask a licensed obstetrician to undertake an abortion for her.
The six conditions are:
In theory, the legal system seems to provide for concern for the physical and mental health of under-aged women to ensure that they will not be forced to commit illegal abortion at a time when they are still immature both mentally and intelligently.
In reality, however, there are under-aged women who are raped, seduced or get pregnant carelessly but who find it difficult to obtain the written consent of their legal representatives. Requiring them to submit a written consent of their legal representatives would be just like forcing them to seek abortion from quacks, thereby denying them the good purposes of the Eugenic Protection Act.
Labor Standards LawSimilar to the "difficult delivery" that the Eugenic Protection Law had suffered, the Labor Standards Law also underwent a 10-year debate before it finally took effect in July 30, 1984. This Law reflects a special concern for female workers because it takes into account both the physical and physiological characteristics of women and considers protection of female workers from the humanitarian approach.
For instance, Article 25 provides: "An employer shall not discriminate against any worker because of sex. Workers doing the same work with equal efficiency shall be paid at a same wage scale."
Article 50 says: "A female worker shall be given a 8-week maternity leave to stop work before and after the childbirth. In case of a miscarriage after three months or longer in pregnancy, the female worker concerned shall stop work and shall be given a 4-week maternity leave."
For the maternity leave as prescribed under the preceding paragraph, if the female worker concerned has been employed for a period of six months for longer, her wage shall be paid in full; for one who has been employed for less than six months, her wage shall be paid in half."
Article 51 reads: "A pregnant female worker may request to be transferred to a comparatively lighter and easier assignment if there is any. The employer shall not refuse her request, nor shall the employer reduce her wages thereon."
And Article 52 provides: "If a female worker has a breast-feeding child of less than one year of age who needs to be fed by the worker herself, the employer shall, besides allowing her the rest periods as prescribed under Article 35 of this Law, grant the worker additional breast-feeding times twice a day for not shorter than 30 minutes each time.
"The breast-feeding times as prescribed under the preceding paragraph shall be regarded as working time." The above suggests that there is sufficient legal protection for women workers under the Labor Standards Law. But in reality the general society does not appear as advanced as it is provided in the legal system. This, coupled with the ineffective enforcement of the legal system on the part of the government, has created loopholes, permitting many employers to bypass and ignore the legal requirements. The legal system regarding the breast-feeding times for female workers has now become a purely cosmetic system because of the ineffective enforcement and the lack of necessary breast-feeding facilities at most of the local business firms.
The requirement of "equal work equal pay" is not being fully enforced either. Worse still, these were cases in which employers have refused to hire female workers in their efforts to reduce operating costs. Some of them have purposely terminated their female workers on calculated excuses. There were also cases in which upon joining a company a female worker was forced to sign an undertaking to undertake that she will resign of her own accord as soon as she gets married or pregnant. All this suggests that enhancement of women's legal status leaves much to be designed. This is why there are a great deal of women organizations which remain as committed as before to the crusade for the protection of women's employment right. The chapter on Equal Employment Act will elaborate this.
Teenagers Welfare ActThanks to the efforts on the part of a number of women activates in Taiwan, the Teenagers Welfare Act took effect on January 23, 1989 when it was promulgated by the President.
Article 9 of the Act expressly provides that for a teenager whose parents have been divorced, notwithstanding the restrictions of Article 1094 of the Civil Code, the court may ex officio or upon the application of the teenager himself or herself, his/her parents, the prosecutor or the competent authority, appoint an appropriate custodian for the benefit of the teenager; the court may also order his/her parents to pay comparable expenses therefore. This provision allows the wife to seek custody of the teenager when in principle the husband is the legal custodian but fails to take good care of the teenager.
Income Tax LawThe original version of Income Tax Law provides that income-tax is imposed on an "individual" basis; however, the same law required married couples to file a joint tax returns. This suggests that a married couple would be deprived of one unit of "standard deduction" and one unit of "special deduction for savings and investment" as opposed to the practice they follow when they were both single. As a result, a married couple would be adopting a certain higher bracket than two single people, or two people living together who earned equal amount of money. Some regarded that as a "discriminatory treatment" against married people. It really created a problem called "penalty on Marriage."
Under such a "joint tax return" system, the wife's income would be added up to the husband's, altogether, the couple would have to apply the highest possible marginal rate. Their tax burden would increase. The more the wife earned, the more tax the couple would have to pay. So it was like a penalty for the wife's quality working performance. Moreover, it affects the employment willingness of married women, and it implied a deprivation of women's equal right to work and privacy with respect to their personal property.
This unfair "joint tax returns" filing system were under fire from the mass media as well as women interest groups for years. Finally, the Income Tax Law was amended in December 30, 1989. Now, when a married couple report their salary income in FY' 1990, they can do it separately. But in respect of non-salary income, a married couple is required to file a joint tax returns, an indication that protection for a non-salaried women remains improper.
Social Order Maintenance ActFor women, sexual harassment has been a nagging issue since time immemorial, but has drawn little attention from the general public. On the contrary, efforts have been made to rationalize sexual harassment. While it gives rise to negative work conditions for career women, few victims of sexual harassment have sought legal remedies as now. In the main, this may be attributable to the fact that the existing law provides no remedies in this regard. Another reason may be because they fear being revenged. Under such circumstances, a receptive mind in the entire legal system appears to be key to the solution of the problem.
For ten years, sexual harassment has been one of the major concerns of members of the Awakening Foundation. It has made strenuous efforts calling for the enactment of an appropriate law to provide for legal remedies to victims of sexual harassment. Thanks to the tireless efforts of the Foundation, Article 83 of the Social Order Maintenance Act romulgated on June 29, 1991 was incorporated, reading: "Whoever is guilty of teasing the opposite sex in any obscene language, act or manner shall be fined not more than NT$6,000."
The question is that other than the above-cited article providing legal remedies in an ambiguous language to victims of sexual harassment, the existing law provides no legal remedies to those who suffer from sexual harassment in places of work, school campuses, hospitals or clinics. Apparently, it deserves more unrelentless efforts on the part of women interest groups if more meaning legal protection is desired.
In light of the above, women interest groups have organized an islandwide tour purported to hold seminars in schools against sexual harassment in May 1994. Thereafter, a "Women Against Sexual Harassment" demonstration was also sponsored. During the demonstration, a "Women in Little Red Hats" team was formed to seek women's corporeal freedom, the first of its kind in women's efforts to break the ice and show their resolve not to be lenient fowards men. On top of that, an effective and efficient complaint system was established to seek more meaningful legal protection and remove sex discrimination.
Children's Welfare ActIn light of the successful incorporation of legal protection for teenagers whose parents are divorced into Article 9 of the Teenagers Welfare Act, the Non-Governmental Women Association took a further step and set up a Children's Welfare Alliance. Subsequently, the Alliance, being dissatisfied with the amendment to the Children's Welfare Act proposed by the government, came up with a proposed amendment to the existing Children's Welfare Act and subsumitted it to the Legislature for consideration. Thanks to the efforts of the Alliance, the amended Children's Welfare Act was promulgated on February 5, 1993.
Article 5 of the amended Children's Welfare Act provides: "For a child whose parents are divorced, the court may, ex officio or upon the application of the parents, notwithstanding the restrictions of Articles 1051, 1055 and 1094 of the Civil Code, the competent authority or other interested parties, appoint or reappoint an appropriate custodian for the benefits of the child, determine the method of and the person liable to pay for the custody or the method of payment."
The second paragraph of said article further provides: "In determining matters before making the appointment or reappointment, the court shall make the necessary investigation and, in this regard, may order the competent authority or the children's welfare authority to proceed with the investigation, and then to submit an investigation report to the court or to present his opinion to the court personally."
The fourth paragraph of said article further provides: "The three preceding paragraphs shall apply mutatis mutandis if the acting custodian appointed in accordance with the third paragraph of Article 15, the custodian appointed in accordance with Article 40, the Children not born out of the wedlock but adopted by the natural father, or the parents are split in their opinion on the exercise of custody.
The above-cited article expressly excludes the applicability of the unreasonable provisions of the Book of Family pertaining to who should be vested the custody to children of divorced couples and the exercise of parental right over their children. Such exclusion may operate to somewhat ameliorate the problem which divorced women face concerning the custody of their children. But the exclusion only applies to children under 12 years old. A fundamental solution to the problem would be to amend the applicable provisions of the Book of Family in the Civil Code.
Should Rape Cases Be Considered Culpable Acts Subject to Public ProsecutionThe existing Criminal Code considers rape as culpable acts only upon receipt of complaint from victims of rape. And so, the rape cases reported are only "a small peak out of a huge iceberg." The reluctance on the part of those victims to report to the police is meant to avoid a second "psychological rape." This helps reduce the "cost" of committing a crime, and it actually encourages the habitual criminals to repeat the crime, causing more and more victims.
As a result , it caused a fierce "pro and con" debate in the society. Some people support the idea of "public prosecution" instead of "prosecution only upon complaint' to punish the criminal, while those who object the idea assert that only after the following preconditions have been all set will it be time to make such a change.
In the draft revision of the criminal code prepared by both the Executive Yuan and the court in 1990 for submittal to the Legislative Yuan, there are articles that suggest to amend the law, allowing indictment of the guilty only upon receipt of complaint from the victim into one allowing the prosecutor to indict the guilty without having received complaint form a victim of any of the following crimes:
Prostitution Act"Teenage Prostitutes" has become a grave problem in Taiwan, but people seldom realize the gravity of it. Before the Taipei Women Rescue Foundation was founded in August 2, 1987, there were only Christian churches that took initiative in rescuing young prostitutes.
Although Taipei Women Rescue Foundation has made a lot of efforts in rescuing young victims, much of their efforts were offset by the loopholes of law and the lack of cooperation by the police. And so the rescuing work remains a very difficult task. Now the Taipei Women Rescue Foundation and the Garden of Hope Welfare Foundation are drafting their proposed revisions of the unreasonable contents of law for consideration by the Legislature and they are urging the government to do more to punish the unlicensed prostitutes as well as rescuing the miserable young girls. The final aim is to realize the notion of "equality of men and women" on an even broader basis.
Consideration by the Legislature of the Equal Employment ActThe right to work is guaranteed by the Constitution. It is a right that cannot be deprived. However, many women were forced to resign, in government or private organizations alike, as soon as they get married or pregnant.
In April 1983, the Ministry of Finance demanded that all the credit cooperatives refrain from asking newly recruited female employees to sign any document in which they promise to resign when they get married. But the regulation was not followed universally. In December 1984, the Fourth Credit Cooperative of Tainan forced al the married female employees to resign, threatening that those who refuse to obey would get no year-end bonus and retirement benefits.
Same thing happened again. In 1987, the Sun Yet-sen Memorial Hall in Taipei forced 57 female employees who were pregnant or those whose age is over 30 to resign.
The Ministry of Education, the supervisory authority of the Hall, responded by re-examining the employment contracts, and repeals the regulation concerning the female staff required to resign when they get pregnant or over the age of 30.
These kinds of cases keep on recurring. Most women just bite the bullet and left.
Fortunately, some women become more active, and are willing to stand out and fight for their legitimate right. Mass media, women interest groups, and volunteer lawyers have all done a lot of help in improving unjust situations.
Yet all those measures are only compensatory. What matter most is to have definite law to bar sex discrimination in recruiting, employing, promoting, on job-training, welfare, retirement and lay-off female employees. Moreover, the law should provide for child care leave for female workers after the childbirth, leave for husband of said workers to take care of the baby, and leave for female workers to take care of their child. Only when female workers have been granted such leaves can they be considered in an equal booting with male workers.
The Awakening Foundation established a "Equal Employment Act Drafting Committee" in 1987, and I was appointed the head of the committee. By referring to the precedent cases in the developed countries, we have finished the draft "Equal Employment Act", and we have held two public hearings. We have procured joint signatures from 39 legislators in April 1990, and handed the draft to the Legislative Yuan for formal discussions. Hopefully, it will provide more protection on women's employment right. Thanks to the relentless efforts of the Foundation, the government has put into practice the child-care leave system. The council of Labor Affairs has also launched its campaign to promote the prohibition of sexual harassment at workplaces. Most important of all, the Executive Yuan has also placed on top priority the Equal Employment Act as one of the major new laws worth immediate consideration the Legislation.
Women interest groups, established one after another recently, together form a power which is difficult to neglect. This power will be the key to solving existing problems. We believe that women are entitled to share equal rights with men. We shall put our efforts together to work for a brighter tomorrow to ensure more equal legal status of women and more affirmative recognition of the efforts on the part of women.