The Kaohsiung District Court on Friday last week ruled that the state should pay compensation for the death of a tourist surnamed Qian (錢), a citizen of the People’s Republic of China (PRC) who was electrocuted by a malfunctioning street light while cycling in Kaohsiung on Aug. 16, 2018.
The decision was made in accordance with Article 2 of the Act Governing Relations Between the People of the Taiwan Area and the Mainland Area (臺灣地區與大陸地區人民關係條例), which defines “mainland area” as the territory of the Republic of China (ROC) outside of the “Taiwan area,” essentially taking PRC citizens to be ROC citizens. It was also made because neither that law nor the State Compensation Act (國家賠償法) prevent people from the “mainland area” from seeking state compensation.
This Kaohsiung District Court ruling is inconsistent with the ROC Constitution.
Article 11 of the Additional Articles of the Constitution of the Republic of China (中華民國憲法增修條文) states: “Rights and obligations between the people of the Chinese mainland area and those of the free area, and the disposition of other related affairs may be specified by law.”
That is, in the constitutional system, issues regarding Chinese shall be regulated in separate laws specifically stipulating the rights and obligations that Chinese should have, with only Chinese being subject to those laws.
The Kaohsiung District Court ruling shows that it considers citizens of the PRC to also be ROC citizens. Based on this logic, as there are no provisions in the Income Tax Act (所得稅法), Value-added and Non-value-added Business Tax Act (加值型及非加值型營業稅法) and other tax laws to exempt “people of the Chinese mainland area” from the obligation of paying taxes in the ROC, would the judge rule that PRC citizens are liable to pay tax in Taiwan?
As the tax law does not clearly stipulate that Chinese should pay taxes to the government in Taiwan, the government would not require Chinese to pay taxes as soon as they enter Taiwan. In the same vein, as the State Compensation Act does not stipulate that Chinese can claim state compensation from Taiwan, judges cannot misinterpret the law and allow Chinese citizens to claim compensation as ROC citizens.
The purpose of the law is to ensure fairness. If the “people of the Chinese mainland area” could bear the “tax obligation” to the ROC, they would enjoy the same “rights to state compensation” as ROC nationals. That would be reasonable and fair.
However, this was not the logic behind the Kaohsiung District Court’s ruling. The judge’s decision was based on a misinterpretation, mistaking a PRC citizen for a ROC national. This obviously deviates from the legislative system that Article 11 of the additional articles of the Constitution was designed for.
Therefore, confusion in the jurisprudence resulted in the judgement, which does not reflect the reality of the international community.
Taiwan’s state compensation system is based on the state’s fulfillment of the “protection obligation” to the rights of its citizens, and uses taxpayer money to compensate citizens whose rights have been affected as a result of negligence on the part of the state.
However, by ruling in favor of compensating a Chinese tourist who had never paid taxes in Taiwan, the court has opened the door to all Chinese tourists who want the same protection as taxpayers in Taiwan. This would inevitably dilute the resources that the state uses to take care of taxpayers, and infringe on the rights of Taiwanese citizens, resulting in substantial inequality.
Therefore, based on the principle of Article 11 of the additional articles of the Constitution, Article 15 of the State Compensation Act at the very least can be applied mutatis mutandis to this case: “The provisions of this Law shall be applicable to a foreign claimant only to the extent that the people of the Republic of China, according to a treaty, law, or custom of that foreigner’s country, enjoy the same rights in that country.”
To maintain the spirit of the ROC Constitution and the State Compensation Act, and fairly protect the rights and interests of all taxpayers, state compensation could be given in the spirit of “equality and reciprocity” — referring to Article 141 of the Constitution — only when there is reference to legal norms and practice that Taiwanese nationals can claim state compensation in the PRC’s territory.
Taiwan prides itself as a nation founded on human rights. Foreign nationals in Taiwan should be entitled to state compensation — but it must be based on the right laws, and the principles of equality and mutual benefit, instead of misinterpreting laws and contravening the ROC Constitution.
The international community would consider the ruling of Kaohsiung District Court, which seems to regard all Chinese and Mongolians as Taiwanese, quite absurd.
Huang Di-ying is a lawyer.
Translated by Lin Lee-kai
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