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Quarterly Legal Newswire,Sep 2018 NO.03

After the Executive Yuan approved the bill on nonprofit foundations on 6th April 2018, the Foundation Act (the Act) passed the third reading on 27th June 2018. The Foundation Act has put the foundations into two categories - private and government-funded. Government-funded foundation, such as the Chiang Ching-kuo Foundation for International Scholarly Exchange, was established with government funding but the government had not take control of it, will be under strict supervision to prevent them from embezzling national assets.

According to the Act, government-appointed positions are usually be unpaid, and salaried employee would be required to relinquish any pension benefits while in office. Foundations are required to establish accounting and auditing systems, and to reveal their financial and operational data. If they fail to adhere to government inspections or supervision, they will be subject to financial penalties. The Ministry of Interior will further consider the relevant corresponding measures.

The key points of the Act are listed as follow:

  1. Regulations against illegality and conflict of interest(Article 14, 15 and 16)
    A foundation shall not, by mutual conspiracy, fraud or other inappropriate measures, transfer its properties to or have the same utilized for the benefits of any donator, his/her/its related parties, or any profit-seeking enterprise whose responsible person, director, supervisor or manager is a donator or his/her/its related parties. Where any director, supervisor, chief executive officer or any person with the equivalent position has any conflict of interest when performing the duties, he/she shall avoid himself/herself, and shall not use the power, changes or other ways under such position(s) to seek any benefit for himself/herself or his/her related parties.
  2. Restrictions for utilization of properties(Articles 19, 20, 21 and 22)
    The safekeeping and utilization of the properties of a foundation shall be conducted in the name of the foundation and supervised by the competent authorities. The fund of a foundation shall not be safe-kept by or lent to any director, supervisor, other individual or non-financial institution. A foundation must utilize its funds in compliance with applicable laws, and shall not act as a guarantor, nor a shareholder of the unlimited liability company, a general partner of the limited partnership or a partner of the partnership. There are restraints on the percentage or amount of the sponsorship or donation to a group or an individual. A foundation is prohibited from assigning residual assets.
  3. Voluntary revelation of foundations' information(Articles 25 and 26)
    A foundation shall voluntarily disclose the information submitted to the regulator for recordation, the lists of the sponsored and sponsoring persons, and the sponsored and donation amounts in the manners designated by the competent authorities.
  4. Non-applicable to religious foundations(Article 75)
    Religious foundations shall be governed by another law to be further legislated. The Civil Code or other relevant laws shall govern before the legislation of such law. The scope of the religious foundation shall be determined by the National Competent Authorities for Business Objectives.
  5. Grace period(Article 76)
    The Act shall enter into force six months after its promulgation.
(The translation of Foundation Act is authorized by Lexgroup Newsletter from Lexcel Partners Issue No.300, http://www.lexgroup.com.tw/en_in_news.php?n_type=3&sn=448).

Dr. Chen Mei-ling, Minister of the National Development Council(NDC), Chairperson of the National Communications Commission, Chan, Ting-I, Deputy Minister of the Ministry of Justice, Chen Ming-tang, and Vice Chairman of the Financial Supervisory Commission, Cheng Cheng-mount (now serves as Deputy Minister of NDC), jointly unveiled the opening ceremony of the "Personal Data Protection Office" (hereinafter referred to as “the project office”) on 4th of July 2018. The office is expected to integrate the power of various authorities, launch a dialogue with the European Union(EU)and aim of reaching an “adequacy decision” for cross-border transmission of personal data, and strengthen the consistency of law enforcement as well.

Minister Chen said that in the era of digital economy, the use of big data and information sharing has become an irreversible trend, and the utilization of information in globalization is bound to make the protection of personal information a more severe test. The EU implemented the General Data Protection Regulation(GDPR) in May 2018 and established a strict personal information protection legal framework. It also prompted many countries to review their privacy laws or personal information protection regulations. Moreover, Japan, Republic of Korea and some other countries actively negotiate with the EU for “adequacy decision”. In fact, the EU and Japan successfully come to a conclusion on 17th of July that reciprocal adequacy is recognized and regards each other's data protection systems as equivalent, which will allow data to flow freely and safely between them.

After the NDC reported on the implementation of the GDPR in Executive Yuan, Premier Lai Ching-te instructed the NDC to establish a project office not only to strengthen the coordination and integration of the inter-departmental meeting in response to the GDPR issues, but also be responsible for coordinating the ministries to apply for the adequacy decision of the EU. On the other hand, the Executive Yuan has instructed the future coordination of the personal information protection legal system and the inter-ministerial meeting to be undertaken by the project office.

The key function and tasks of the project office is as the following:

  1. Integrate with the relevant issues of GDPR and apply for the adequacy decision of the EU
    In order to assist the cross-border transmission of personal data between Taiwan and the EU, the government has initiated consultation with the EU on adequacy, and the Minister of the NDC led a delegation to visit the EU at the end of May this year and formally expressed our willingness to apply for adequacy. At present, the NDC has already invited relevant agencies and scholars to discuss the preparation for adequacy. After the establishment of the project office, it will continue to complete the assessment report on the adequacy and start a dialogue with the EU.
  2. Review the Personal Information Protection Act & its Enforcement Rules; coordinate and strengthen the consistency of enforcement between individual central competent authorities
    Due to the reason that there’s no single unified central competent authority in Personal Information Protection Act, we adopt decentralized power for management all the time. It’s inevitable that there will be coordination and integration between inter-ministerial matters. In order to cope with the impact of personal information protection in the era of big data, it’s necessary for the government to strengthen the management of current patterns of division of work. Therefore, the project office will be responsible for the review of the individual law, and at the same time coordinate the ministries to strengthen the implementation and consistency of enforcement.

July 26th, 2018, Premier Lai Ching-te announced on the 15th meeting of the Board of Science and Technology that the Executive Yuan will increase the government’s budget for science and technology, including regular and special budget to NT$116.3 billion for 2019, and extra NT$2.79 billion for artificial intelligence and aerospace technology. The Office of Science and Technology also reported to Premier Lai about the progress of major industrial innovation programs and 2019 science and technology budget distributing plans on the meeting.

10 major policy initiatives is still included in 2019 science and technology plans, which are the ”Asia Silicon Valley Development Plan”, “Intelligent Machinery”, “Green Energy Industry”, “Biomedical Industry”, “National Defense”, “New Agriculture”, “Circular Economy”, ”Digital Economy”, “Cultural Technology Innovation”, and “Forward-Looking Integrated Circuit Design and Semiconductor Technology”. Premier Lai also instructed every government sector should thoroughly review the outcome of the science and technology plan, eliminate unnecessary actions and inputs, and make sure every action is focus on pursuing the policy target.

In the meeting the broad members mentioned that digital economy will have impacts on political, economic and social aspects of our nation. To solve this issue, Premier Lai instructed the National Development Council to cooperate with Taiwan ThinkTank set up a special program or entrust experts or academics to develop strategies. In the aspect of digital medicine development, the Ministry of Health and Welfare should also provide solutions to make data collecting become more convenient and efficient. Moreover, the Ministry of Economic Affairs should pay attention to building infrastructures that meets the need of industry development.

The government is currently actively promoting “five plus two” innovative industries plan and facilitating our country become a smart nation. Asia Silicon Valley Development Plan is stimulating the progress of research and development in IoT industry, and some major international companies such as Microsoft, Google and Amazon had also set up their research centers in Taiwan. As for the biomedical area,” the Act for the Development of the Biotech and New Pharmaceuticals Industry” and the amendments of “the Pharmaceutical Affairs Act” had been passed by the legislators, and the laws relating to medical instrument are now being reviewing by the Legislature. The Office of Science and Technology also pointed out that in the area smart robotic industry, green energy technology, new agriculture and circular economic industry, our government will also keep cultivating local industry and introducing key technologies to promote the ability of research and development in our country.

On Aug 17, 2018, Premier Lai Ching-te instructed the ministries to promote the preparations for the Comprehensive and Progressive Agreement for Trans-Pacific Partnership(CPTPP).Premier Lai Ching-te instructed to speed up the draft of the digital communication Act, and amended provisions of the Trademark Act, the Patent Act, the Copyright Act and the Postal Act, which are expected to be completed in the Legislative Yuan before the end of this year.

Premier Lai Ching-te said that the Ministry of Economic Affairs, National Communications Commission and the Ministry of Transportations and Communications need to accelerate to complete the above-mentioned enactment or amendment of domestic laws related to CPTPP, and to strengthen the preparations by continuing drills to respond to the possible requirements from the other members. At present, the Executive Yuan has conducted a sand table maneuver with the Ministry of Economic Affairs, Council of Agriculture, and the Ministry of Health and Welfare concerning the opening of the agricultural product market, services and investment, the opening of the government procurement market, the adjustment of current laws and regulations, and non-tariff measures.

The Office of Trade Negotiations of the Executive Yuan indicated that after the signing of the CPTPP Agreement in March this year, the relevant government agencies immediately began to update its assessment of the impact on Taiwan. The CPTPP will open for new applicants after the agreement comes into effect. At present, Mexico, Japan and Singapore have completed the domestic deliberation process. According to the agreement’s clause, it will become effective when the six countries complete their domestic deliberation. Therefore, Taiwan’s preparations can’t be delayed, and must continue to execute relevant promotion works through various bilateral, regional or multilateral activities.




The antitrust law implications of standard essential patents(SEPs)and the commitments given by SEP holders to standard-setting organizations(SSOs) to license their SEPs on fair, reasonable and non-discriminatory(FRAND)terms is an area that continues to be of considerable controversy worldwide.

SEP and FRAND issues involve high-technology enterprises, whose businesses span the globe. For the example of Qualcomm, major competition agencies throughout the world, like the National Development and Reform Commission of the People's Republic of China(NDRC), the South Korean Fair Trade Commission(KFTC), U.S.A Federal Trade Commission(FTC), European Commission Competition , had given their idea of the intellectual property rights(IPR)and the antitrust law. Taiwan's Federal Trade Commission(TFTC)had also announced that it will fine Qualcomm NT$23.4 billion for violating antitrust law in the mobile communication standard baseband chip market. Qualcomm used its patents, which are SEP for CDMA, WCDMA, and LTE mobile technologies, to force rivals to agree to various contractual clauses that had the effect of driving up prices and maintaining its dominance in the Taiwan cell phone market.

This article sets out the case for Qualcomm under the competition rules and explores the benchmarks that can be used for the standard. It is widely acknowledged that intellectual property rights are crucial to promoting innovation. But competition law plays a huge role by ensuring that such rights and monopoly is restricted in the market. Therefore, how to make balance between the intellectual property rights and competition law would be the important Study.

Standard Essential Patent、Antitrust、FRAND、Qualcomm、5G

< Source: Sheu Yu-Ning, Standard Essential Patents and Antitrust Law―The Case of Qualcomm, Science and Technology Law Review Vol. 30 No. 8, Aug. 2018 p.p. 42-69 >



In order to promote the industry innovation and enhance the industry-university-research cooperation, some countries strengthen industry-university-research linkage by providing various R&D resources to create an innovative ecosystem.
Under the limited R&D resources situation, how government policy works to attract private sector investment and develop some initiatives to make the climate more attractive to talent, are the main points for the preliminary stage of innovations.

This study will analyze and discuss the relevant laws and regulations of  Japan, EU and Netherland to provide the possible options for strengthening, adjusting or constructing the related issues in the future of  Taiwan's technology research and development.

R&D Policy, Talents, Fund, Innovation, Research Collaboration, Technology Research and Development

< Source: Yo Yu-Hsuan & Jay Chen, A Study of the Regional International Talents and Guiding Fund for R&D – the case of Japan, EU and Netherland, Science and Technology Law Review Vol. 30 No. 9, Sep. 2018 p.p. 47-72 >