How is Taiwan perceived in mainland China

Justice in the Republic of China on Taiwan: Judges who kicked themselves free


During the COVID-19 crisis, Taiwan became known as a positive example of efficient state activity alongside South Korea. However, the positive development in the country's judiciary remains a blind spot.

Sometimes it's amazing how many levels a thing can be embarrassing - not excluding legal matters. A judgment of the Federal Labor Court (BAG) of April 16, 2008 gives a painfully beautiful example (Az. 7 AZR 85/07).

A lecturer - a practical language teacher - sued for Chinese at the University of Cologne against the allegedly unfounded time limit of his employment contract.

Judging by the previously popular phrase, according to which Germany owes its economic wealth not to natural resources but to its knowledge, it is almost creepy to read how much legal brainpower the legislature has used to limit employment relationships in the university sector regardless of intellectual property losses .

In the specific case, this general embarrassment took an almost cute turn: The defendant state of North Rhine-Westphalia tried to cite as a reason for the limitation that the Chinese editor was "because of the rapid political, cultural and economic development" in the People's Republic and "because of the exclusively 'state-compliant' reporting in the Chinese media "do well to return to your home country from time to time.

This is necessary in order to be able to offer German students foreign language lecturers with fresh or refreshed mother tongue knowledge.

However, according to the federal judges, the state of North Rhine-Westphalia "apparently overlooked" the fact that the Chinese editor did not come from the dictatorial, glitter-capitalist People's Republic of China, but from the long democratized Republic of China in Taiwan.

China is more than a dictatorship ruled by one party

The geographical lapse in the argumentation of the state of North Rhine-Westphalia should be somewhat typical for the knowledge of both Chinese states.

Amazingly, this applies not only to the level of knowledge, but also to the sympathy values. Despite the years of repression and grotesque nationalism in the People's Republic of China, the destruction of civil liberties in Hong Kong and regardless of the alleged genocide of the Uyghur minority, Section 6 Paragraph 1 Nos. 2, 3 and 4 of the International Criminal Code (VStGB), about the leadership of the People's Republic in Germany has a remarkably high, even growing, reputation.

The so far successful state practice, which led to the containment of the COVID-19 pandemic in Taiwan, is currently attracting some attention. Here, too, cosmopolitan republican sympathy does not go particularly far. Otherwise it would probably be regarded as a scandal that Taiwan's admission to the World Health Organization failed due to the resistance of the People's Republic of China, the somewhat hapless Federal Minister of Health Jens Spahn (1980-) would have to make unpleasant comparisons with his Taiwanese colleague Chen Shih-chung (1953 -) and - last but not least - also the astonishing change from the Republic of China to Taiwan in the past 30 years would be a standard example of democratization and judicial reforms.

Difficult starting points for a free republic

The sociologist Chin-Shou Wang from Cheng Kung University in western Taiwan described the development of the judiciary away from the conditions of the earlier Kuomintang dictatorship in a series of essays ten years ago.

To recall the telegram-style prehistory: Japanese colony since 1895, Taiwan returned to Chinese administration in 1945. After the victory of the Communist Party under Mao Zedong (1893–1976) in the Chinese civil war - it began in 1927, was partially suspended by the Japanese occupation and actively broke out again in 1945 - the leadership of the National People's Party of Kuomintang under General Chiang Kai withdrew in 1949. shek (1887–1975) returned to the island, around two million refugees also left the mainland.

The claim to represent the whole of China alone was not given up. Until 1971, the Republic of China (on Taiwan) took China's seat on the United Nations Security Council. The island was under emergency legislation until 1987. Until 1991, the National Assembly, which was elected for all of China in 1946 and ruled by the Kuomintang, functioned as Taiwan's parliament. The by-elections for dying old MPs were only hesitant. The country has only had free parliamentary and presidential elections since the early 1990s.

Even observers who were positive about the national Chinese cause - for example from the liberal-enlightened wing of the early CIA or the US Republicans - judged the corruption under General Chiang and his wife Song Meiling (1897-2003) to be extremely offensive.

Surprising, not only in terms of epidemic protection

Despite these rather unfavorable initial conditions, as the sociologist Chin-Shou Wang, who specializes in questions of the development of the judiciary and the rule of law, describes, the judges were able to fight for Taiwan's independence and get rid of corrupt colleagues.

Under the sole rule of the Kuomintang, internal reforms of the judiciary were considered impossible. Access to the judicial office was strictly limited by two tests, probationary judges were used for paramilitary exercises, and the oral tests served as a test of ideological loyalty to the line.

Nevertheless, since 1993, room 303 of the Taichung District Court, now almost a little famous, has been meeting mostly young judges (and one female judge) who were dissatisfied with the conditions in Taiwan's judiciary. So far, individual courageous judges have encountered strong resistance in their actions against corrupt politicians and restrictions on judicial independence.

The fact that Judge Kao Hsin-wu arrested the head of the Judicial Ethics Department for corruption in 1989 without consulting his superior was considered a taboo violation. The young judge Hsie Shuo-jong was punished after she recorded a conversation with her court director in 1991 in which he interfered in her decisions through "case assessment".

In addition to the ideologically limited access to the profession of a judge through the training system and personnel evaluation, politically and materially corrupt court directors also reserved the right to evaluate the cases of their subordinate judges on the merits.

But that's not all: Although the Courts Constitution Act has always stipulated that the division of business had to be done by a vote of all judges, the cases were brought in by the court directors - a gateway not only for political influence, but also for corruption, both on the part of the litigating parties and for the benefit of the parties the court directors, who let the judges honor the allocation of valuable cases.

Judges conquer business distribution and judge superiors

The judges of Taichung District Court were the first to put an end to this case assignment practice on December 29, 1993, and the movement from "Room 303" then spread across the country. According to the sociologist Chin-Shou Wang, Taiwan's judges were often unaware that the Judiciary Act assigned them this competence.

The mirroring of the method proved to be an effective method of breaking the personnel appraisal power of the materially or politically corrupt court directors: in 1994, three reform-minded judges distributed appraisal forms among their colleagues asking them to assess the professional performance of the court directors - often objectively lazy judges. On average, the superiors only got 54.5 out of 100 points, a court director even scored a meager 21.9 points. The process was publicly perceived as sufficiently informative. Some of the directors preferred to retire soon.

Special conditions or suitable as a model?

Chin-Shou Wang attributes this successful movement of Taiwan's judges - which of course found its limits where closer networking with the democracy movement outside of the judiciary would have been necessary - to, among other things, the fact that the young judges were not yet fully disciplined, but also on their origin from the lower middle class. Her parents were "farmers, industrial workers and taxi drivers".

In general politics, however, apart from their struggle for the independence of the judiciary and against corruption, it was a very heterogeneous group: Both advocates of a separation under international law from the rest of China and representatives of the one-China policy were among them - a spectrum So to speak, from the GDR-blessed Lafontaine comrade to the German national JU assessor, if one wants to draw this severely limping comparison.

Even if the example of Taiwan can, at best, be transferred to a limited extent: Not only with a view to the sad developments in Poland and Hungary or the trampled tender planting of the rule of law in the Mediterranean, but also to the dubious support that a liberal, be it critical-positivist, support or enjoy a value-dogmatic judiciary in the Bundestag against the incessant orientation towards fiscal, security or populist issues - the example of Taiwan showed what judges could achieve when they were ready to fight for the rule of law beyond their official duties.