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Position Paper on the Amendments to the "Act Governing Relations Between Peoples of the Taiwan Area and the Mainland Area

  • Date:2003-11-28

I. Formulation of the "Act Governing Relations Between Peoples of the Taiwan Area and the Mainland Area" to establish a legal basis for cross-Strait goodwill and exchanges.

On Nov. 2, 1987, the R.O.C. government began to allow Taiwan residents to visit their relatives in the Mainland. Thereafter, the Government allowed Mainland residents to visit sick relatives, arrange funeral matters, or visit Taiwan. Contacts between peoples on both sides of the Strait have increased since, and cross-Strait trade relations flourished. As a result, legal cases involving cross-Strait interactions increased, and the existing legislation was inadequate to meet cross-Strait situation. In addition, due to enormous disparities in systems and lifestyles between peoples across the Strait and the need to manage such close exchanges due to the close proximity between Taiwan and the Mainland, it became necessary to establish order in cross-Strait exchanges in keeping with market economy and democratization, and formulate complete legislation consistent with actual needs. This would enable Taiwan to gain confidence and enjoy a sense of security while dealing with the Mainland, and would likewise be beneficial to the normalized development of cross-Strait relations. Therefore, the Government formulated the "Act Governing Relations Between Peoples of the Taiwan Area and the Mainland Area" (hereinafter the Act) as the legal basis for cross-Strait exchanges. The Act was a significant milestone in the development of cross-Strait relations and served as a foundation for establishing and promoting positive cross-Strait interactions.

II. Amendment of the Act in response to a new phase in general cross-Strait interactions to establish a new order for long-term exchanges.

The Act was promulgated a decade ago, at a time when both Taiwan and the Mainland were in a confrontational state. The Act was drafted based on the principle of security, comprehensiveness, realism, equality, and flexibility to safeguard Taiwan's security, social stability, and public interest. In accordance with Article 23 of the R.O.C. Constitution and Article 10 of the Additional Articles of the Constitution, and taking into account rationality and the need to protect the people's rights and benefits, resolve practical issues, and ensure the stability of Taiwan's economic, social and legal order, the Act included several restrictions.

Stable cross-Strait relations are the Government's primary objective. To establish long-term and stable interactions, it is necessary to design a system that can be used as a basis for policy making. For more than a decade, cross-Strait exchanges in different levels have become more frequent; the forms, channels, and levels of such exchanges have likewise continued to increase and escalate. As a result, existing legislation could no longer meet current needs. Therefore, to prevent inconsistencies between legislation and the actual situation and prepare for future needs in cross-Strait interactions, general amendments to the Act were made. The amendments were carried out in line with President Chen's declaration of the "spirit of goodwill, active cooperation, and permanent peace." In addition, with the proviso that Taiwan's security and integrity can be ensured, the amendments were formulated from a forward-looking perspective and with comprehensive considerations. It was hoped that a reasonably liberalized, effectively managed, and applicable new legal mechanism would be established in conjunction with the new phase of cross-Strait interactions, so as to implement a legal framework for cross-Strait exchanges and establish a new milestone in the development of cross-Strait relations and a long-term new legal framework.

III. Important amendments to the Act

The main focus of the Act amendments is to review and adjust the framework for cross-Strait negotiations, personnel exchanges, transportation links, trade exchanges, and cultural exchanges. Amendments in relation to personnel exchanges include: identification and residence systems, exit and entry permits, holding of positions or becoming a member of the Mainland political party or military, joint organization of juristic persons, formation of alliances, or participation in cooperative activities. Amendments in relation to trade exchanges include: investments, trades, commercial activities, financial exchanges, advertisement of Mainland products, and transactions of Mainland currency and notes in Taiwan area. Amendments in relation to cultural exchanges include: building school for children of Taiwan businessmen in the Mainland and relevant rights and benefits of the faculty members, cooperation between schools on both sides of the Strait, and sale of Mainland printed materials in Taiwan. The amendments were by far the most extensive since the implementation of the Act. It is hoped that the amendments would form a more implementable legal framework for cross-Strait exchanges and act as a form of "safety valve." The Act originally contained 102 articles and amendments were made to 83 articles. After being amended, the Act now contains 132 articles. More than 80% of the Act was amended.

Important points of the amendments are as follows:

(1) Establishment of a comprehensive mechanism using pragmatic and flexible principles in response to current inadequacies in negotiation guidelines and mechanisms to effectively promote cross-Strait negotiations and interactions.

(2) As cross-Strait exchanges become more frequent, there is need to review and adjust the issuance of permits to Taiwan residents visiting the Mainland. The amendments provide the public with general exit review procedures for their visits to the Mainland in conjunction with the relevant simplified processes to meet public needs.

(3) Fake marriages and safeguarding the rights and benefits of people having legal marriages are social issues the society, people, and the government must jointly address. In the amendments, administrative agencies are authorized to impose quota on Mainland spouses visiting the Taiwan. At the same time, an interview mechanism has been established and the policy of "Accommodation in Humanitarian Assistance and Strictness in Residence ID Approval" has been implemented continually.

(4) Due to the increasing frequency of cross-Strait exchanges, the existing guidelines, which in principle prohibited, save for some exceptions, people of Taiwan area from holding positions or becoming a member of the Mainland organizations or institutions, were amended. Details of prohibited and permissible positions are clearly stated so that the public can have rules to abide by.

(5) Amendments in relation to trade interactions were in line with the 36-item consensuses on cross-Strait issues reached by the Economic Development Advisory Conference to promote normalization of cross-Strait trade relations.

(6) In response to issues on the education of children of Taiwan businessmen in the Mainland, the Act was amended to provide a comprehensive educational system for children of Taiwan businessmen. In addition, to establish order in cross-Strait educational exchanges, and to meet needs of current exchanges, a notification system is adopted for cooperative activities between Taiwan schools and their sister schools in the Mainland.

(7) The "Mini-Three-Links" is part of the Mainland policy and not simply an issue of offshore islands development. Thus the Act authorizes administrative agencies to enact related regulations so as to provide them a legal basis for implementing related matters.

IV. Impacts

The highly sensitive and complex amendments to the "Act Governing Relations Between Peoples of the Taiwan Area and the Mainland Area" were subject to rational and harmonious discussions by the ruling and opposition parties and the administrative department. The amendments underwent four sessions in the Legislative Yuan before a consensus was forged by the ruling and opposition parties during the fourth session of the fifth Legislation Yuan. The Legislative Yuan passed its third reading on the amendments on Oct. 9, 2003; the President promulgated the amendments on Oct. 29 the same year.

The amendments not only establish a new legal framework for cross-Strait relations and a reasonably liberalized, effectively managed, and pragmatic new legal mechanism, but also provide a clear basis for social, cultural, trade, and educational exchanges. The amendments are conducive and beneficial to the improvement of the quality of cross-Strait exchanges, the establishment of a new order of cross-Strait exchanges, and the promotion of normalization of cross-Strait relations.