日帝統治 前期 臺灣에서의 民事法制의 變革 — 法院制度 및 慣習法을 중심으로 —

Abstract

Taiwan initially encountered with the modern law due to her becoming a colony of Japan in 1895. Under the modern law, civil matters should be decided in accordance with the criterion that is provided by the state. Surprisingly, the Japanese authorities provided that the civil matters involving Taiwanese only or the land in Taiwan should be decided in accordance with the old customs of Taiwanese by the Government-General of Taiwan Court. The local government, however, had also power to mediate Taiwanese civil disputes, as the former regime in Taiwan did. The civil disputes of indigenous peoples who were not assimilated by ethnic Chinese were resolved by the police according to his free discretion with reference to customs of those peoples. That does not mean that the Japanese authorities in colonial Taiwan followed the law of the Ch’ing government in Taiwan. When the “old customs” in the modern law were applied in judicial or administrative cases, judges or officials must find the rule in the customary law. In fact, those rules in the customary law had been interpreted by an agency for investigation on old customs with the terminology of modern European law and the classifications in the Japanese civil law. Through some of special statutes on the civil law, the rights in the customary law of Taiwan had been transformed to be more similar to their counterparts in the modern European law so that they were close to the Japanese civil law. For the same purpose, the Government-General of Taiwan was engaged in drafting Taiwanese civil codes to incorporate the transformed rights in Taiwan’s customary law with reference to civil codes of Western Europe. This codification of Taiwan’s customary law, however, was conflict with the political goal of assimilating Taiwanese to be Japanese. The central government of Japanese Empire thus rejected to enforce these Taiwanese modern-style codes in Taiwan. By contrast, the Japanese Civil and Commercial Code, except the books on family and succession in the Civil Code, had become effective in colonial Taiwan since 1923.