Article VI — Civil Continuity Under Constitutionally Disputed Administration: Private Rights Without Recognition of Constitutional Title
Status: PUBLIC WORKING OPINION — PROPOSED FCM DOCTRINE — ADVERSARIAL REVIEW OPEN — NON-BINDING — NO PRESENT STATE JUDICIAL AUTHORITY.
This article distinguishes constitutional title from civil legal continuity. Even if a future legal analysis concludes that an authority lacked lawful constitutional title, ordinary civil acts and legal relations created under long-term effective administration should not automatically be treated as nonexistent.
Provisional principle
Continuity for people; scrutiny for public power; remedies for injustice.
- Ordinary private and civil acts should generally be preserved where doing so protects identity, family status, property, inheritance, contracts, commerce and legitimate reliance.
- Public or sovereign acts require separate legal review.
- Political prosecutions, persecution-based confiscations, arbitrary detention, censorship penalties, forced labor, coerced judgments and serious rights violations receive no presumption merely because the issuing authority exercised effective control.
Recognition of civil acts is not recognition of constitutional sovereignty. The preferred analytical formulation is “effective civil administration without conceded constitutional title.”
FCM Adversarial Review
Strongest objections presently identified. A broad continuity rule risks validating coercive, confiscatory, discriminatory or procedurally defective acts merely because they occurred under long-term effective administration. The opposite approach—treating ordinary civil relations as void because constitutional title is disputed—could destabilize identity, family status, inheritance, property, contracts and legitimate reliance. Choice-of-law, public-policy, finality and individualized-remedy questions therefore cannot be solved by a single categorical rule.
Current FCM response. The proposed doctrine uses a rebuttable distinction: ordinary private and civil relations receive a strong continuity presumption to protect people and reliance, while exercises of coercive public power, political persecution and serious rights violations receive separate scrutiny and no legitimacy merely from effective control. Recognition of civil acts does not concede constitutional sovereignty.
What could change the analysis. ROC choice-of-law and cross-Strait jurisprudence, comparative transition practice, rules governing recognition of judgments and administrative acts, due-process standards, property restitution experience and stronger authority on public-policy exceptions may require narrower or more differentiated continuity rules.
Review status: OPEN — submissions are especially invited on family status, property, contracts, judgments, confiscation, criminal records, reliance and individualized remedies.
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