4.3 Case Study I: The Story of Hsu Kuo-fang, Tsai Mei-ling,
4.3.1 Narrative: A Marriage in Name Only
By late 2010, the marriage of Hsu Kuo-fang (徐國芳) and Tsai Mei-ling (蔡美玲)
was on the rocks. Hsu, an emergency room doctor, had been living in the dormitory of his hospital for some time. He only returned to his official residence once or twice a week to see the couple’s son, while Tsai, also a doctor, was at work. In December, he bought an apartment in Xindian, apparently without his wife’s knowledge. The couple was not around each other enough to argue much, but as Hsu described it, he and his wife were in a state of “cold war.”162 It seems that they had not had sex in five or six years. That same month, Tsai filed for divorce mediation at the Taipei District Court, a decision which she later attributed to the fact that her husband had changed his
Facebook status to “married, but searching for other partners or people to date” (已婚之
身分，卻在尋找約會對象及固定交往對象).163
Over the subsequent months, Tsai and Hsu’s intimate lives would find their way into the courts many times. Husband and wife would struggle to get an upper hand in a
162 臺灣高等法院民事判決100年度家上字第273號。
163 同上註。
chain of confrontations that would no doubt strike any observer as much more harrowing than the simple undoing of a marriage. And, while the wealth of court documents these confrontations left in their wake gives the researcher uncommon access to the rift in the couple’s intimate lives, this particular dispute was played out under conditions somewhat different from others. During a previous round of out-of-court bargaining a decade earlier, Hsu and Tsai had effectively renegotiated the parameters of their marriage, and it was in accordance with these new terms that the events of 2011 and 2012 were to unfold. To understand these terms and their
ramifications, we must look back further in time to a previous calamitous moment in Tsai and Hsu’s marriage.
In 2002, Tsai discovered that Hsu was having an affair with a woman named Chung Jui-chen (鍾瑞貞). From the judicial documents available to us, it is not clear how Tsai discovered the affair or whether she employed a zhengxinshe at the time. Tsai did, however, have enough evidence to have the Taipei District Prosecutor bring
criminal charges against her husband and his mistress. Against the backdrop of this criminal adultery suit, Tsai was able to propose a new set of terms for their marriage in the form of a settlement agreement. The contents of the agreement were highly
preferential to Tsai, but Hsu, it seems, was compelled to acquiesce. In court documents, husband and wife give different accounts of the events surrounding the signing of the settlement agreement. Each was, no doubt, trying to present him or herself to judges as the victim of the other’s callousness and self-interest. Hsu claimed that after
discovering his affair with Chung, Tsai left home with their son for a period of six months causing him much grief and forcing his hand in subsequent negotiations. Tsai maintained that she had not denied her husband access to their son. Rather, Hsu had
signed the agreement because he wanted to escape criminal responsibility for his adultery. Whatever the case may have been, Hsu and Tsai both signed the agreement.
We do not have access to the full contents of this agreement between Hsu and Tsai, but from multiple court documents, a considerable amount of information can be pieced together. The agreement began: “Party A [Hsu Kuo-fang] having had an affair with Chung Rui-chen, and Party B [Tsai Mei-ling], having considered an environment for the normal development of their child and Party A’s repentance and sincerity, agree to the following five articles, such that both may continue their marriage” (因甲方與鍾瑞 貞發生婚外情，乙方考量子女正常成長環境及甲方悔改誠意，雙方為繼續婚姻關係，協議如左列 條款). Whatever informal or formal understanding Tsai and Hsu may have had
regarding their family finances in the past, the agreement, at least in writing, put Tsai in control of Hsu’s income and some assets that had been in his name. Article Two stipulated that Hsu must pay all household expenses, and must furthermore hand over the passbooks, chops, and ATM cards for all of his bank accounts to Tsai. Hsu must subsequently deposit his salary, other income, and yearend bonuses directly into his account, which Tsai would have control over. Hsu would also transfer one half of the ownership of their Dunhua South Road apartment that was in his name to his wife.164 Subsequently, Tsai and Hsu would each pay half of the mortgage.
The agreement also contained provisions seemingly designed to help Tsai limit the potential that Hsu might secretly continue his affair with Chung or have another affair with someone else—to keep him on a short leash, so to speak. This provision stipulated that after the completion of Hsu’s contract at Ton Yen General Hospital (東元
164 Hsu later claimed that he bought this house, its current market value was 70 million NTD, and that there was an outstanding mortgage of 18 million NTD.
醫院) in February of 2003, he would work in Taichung for one year,165 immediately terminate his lease at the Ton Yen dormitory, and go home to live. Furthermore, Hsu must leave for the hospital one hour before work and immediately come home within one hour from the end of work.166 (Hsu subsequently only complied with some of the requirements of the agreement, but it seemed that Tsai did not demand that he fully comply, at least not until 2011.)
Finally—and this is key—another article provided that if Hsu should again have intimate relations with a woman not his wife, he would be required to pay a penalty of 100,000 NTD per month to Tsai for a period of twenty years. Tsai, for her part, agreed to drop the adultery charges against Hsu and Chung. Beyond this, it is not clear what role Chung had in these negotiations or if she also signed an agreement herself, but it appears that in the end, charges were dropped against her and that she had an abortion.
Thus, with the weight of criminal adultery charges behind her, Tsai, it seems, was not only able end Hsu and Chung’s affair (and presumably terminate a pregnancy that could
“dilute” her son’s inheritance), but also to redraw the boundaries of her marriage with Hsu. It was to be along these new terms that their marriage would unravel nearly a decade later and find its way into the courts.
And so, we return to the intimate dispute that transpired more recently in 2010, 2011, and 2012. As mentioned above, Tsai asked the Taipei District Court to mediate a divorce in December of 2010. She retracted this request on January 10 of 2011, and would later state that this was because initial progress had been made toward settling
165 From court documents, it is not clear when and why it was determined that Hsu was to work in Taichung. Neither does either party or any judge take into consideration what role the time not living together might have played in the deterioration of their marriage.
166 Tsai never asked a court to enforce these terms, nor did Hsu challenge them in court, so we do not know whether they would have been upheld. They would seem to represent a limitation of Hsu’s constitutional right to free movement. This raises an interesting question: presuming that these terms were excessive to the point of being unconstitutional, do they represent an instance of Tsai being with the law, or against it?
the divorce out of court. It seems, however, that by late January, quite the opposite was true. On February 15, Tsai’s lawyer sent a letter to Hsu stating that she rejected the terms of divorce he had proposed. This was followed by another letter on January 17 that informed Hsu that his wife planned to divorce him because of his infidelity (不忠行 為). On the 21, Hsu’s lawyer responded in a letter stating that Tsai apparently had no intent of peaceably settling the divorce, and that the terms she had proposed were unreasonable. It is not clear exactly on what terms it was that each side proposed to end their marriage in early 2011, or what the sticking point was in their negotiations, but in the coming months they would not reach an agreement on how to divorce out of court.
(Tsai would later state in court that their inability to agree on the terms of divorce had mostly to do with their mortgage. See below.)
Tsai, did not content herself with simply negotiating the terms of a possible divorce with her husband through their respective lawyers. By January of 2011, she had hired a zhengxinshe to surveil Hsu. She discovered the existence of the Xindian
apartment. She also uncovered what she claimed to be definitive proof that her husband was having an extramarital affair with a woman living in the Xindian apartment. We know this in part because later in court, Tsai would offer as evidence of her husband’s infidelity a photograph taken on January 13 of him leaving his Xindian housing complex together with a woman.167 During the early months of 2011, the zhengxinshe took several photographs of Hsu together with this woman touching one another or kissing each other on the cheek. A court would later find these photographs to be clear evidence that Hsu had violated his agreement, but for whatever reason, Tsai must not
167This photograph seems to be rather ambiguous. According to a decision, it shows Hsu and a woman arm in arm under an umbrella. Stating that friends would share an umbrella without holding arms, a judge would later find this photograph to be evidence that Hsu and the woman were not just friends.
「惟觀之100年2月13日下午4時53分24秒所拍攝之照片（見本院卷第49頁正反面），該名女子係 勾著被告手臂、身體緊靠、有說有笑，倘無特殊情誼及關係親密，即令下雨路滑有人撐傘，成年 男女亦不致相互挽著行走」臺灣臺北地方法院民事判決101年度重訴字第22號。
have been satisfied with them early in 2011. In June, the zhengxinshe installed a video camera in the hallway outside Hsu’s Xindian apartment, presumably with Tsai’s knowledge and consent. She did this without the knowledge or permission of the apartment’s management board. The camera was apparently there until August 27.
During this time, it captured multiple images of Hsu and a woman entering and leaving the apartment together during the day and late at night.
Nothing in court documents suggests that Hsu knew he was being investigated by a zhengxinshe in his wife’s employ in the first half of 2011, but by mid-2011, he clearly wanted out of the marriage, and was ready to go to court to achieve this goal. He sued for divorce. We do not have access to the original District Court decision,168 but an appellate court decision is available, and the arguments therein will be described at length below. In any case, Hsu lost the initial suit in a decision handed down by the Taipei District Court on August 12, 2011.
As mentioned above, Tsai had filed for divorce mediation more than a year before. If she still wanted to end the marriage—a conclusion to which all available evidence points—we may assume that at this point both husband and wife wanted to divorce, but could not agree on how to divide their assets or decide who would have custody of their son. From the later appellate court decision, we know Tsai’s account of their divorce negotiations at this point. She argued that she and her husband had been unable to divorce out of court because they could not determine how to divide their assets.169 Furthermore, Tsai’s refusal to divorce by mutual consent and avoid the
168 臺灣臺北地方法院100年度婚字第206號。 The decision is not accessible through LawBank or the Judicial Yuan’s database. Unfortunately, neither database notes why particular decisions are excluded, leaving the researcher to guess, in this case, whether it has to do with information about the couple’s minor son, or some other reason. Furthermore, neither database even notes that this decision exists, a fact which seems to be an unnecessary hindrance to the researcher and that does nothing to protect the privacy of litigants.
169 Hsu’s lawyer had presented Tsai with two options. One was that Tsai take on 18,000,000 NTD of their mortgage, and pay him an additional 20,000,000 NTD. The other plan was that Tsai transfer her half of the ownership of their apartment to Hsu, and then Hsu would then pay the rest of the mortgage and
transactional cost of going to court can—and indeed must—be interpreted in light of the bargaining chips we know she already held at that point: a remarkably one-sided
settlement agreement from a decade earlier and photographs of her husband and another woman’s intimate contact in public in seeming violation of that agreement.
During the ensuing months, Tsai continued to gain the upper hand in a series of lawsuits seeking to have the 2002 agreement enforced. In the fall of 2011, Tsai took her husband to court to have part of the 2002 agreement enforced for the first time. Hsu had, in accordance with the agreement, been paying considerable sums each month to cover the household expenses of his wife and son. It seems, however, that Hsu had remained in possession of the accouterments of his bank accounts, and that Tsai had never demanded he turn them over to her as per their 2002 agreement. Tsai sued Hsu, and asked the court to enforce the relevant provision of the agreement. At this time, Tsai also argued that Hsu had only paid about half of household expenses in recent years, and asked the Court to require him to pay 3,561,240 NTD in back expenses as well as 5% annual interest. On November 21, 2011, the Taipei District Court ordered that Hsu hand over his banking accouterments to his wife, but rejected Tsai’s argument that Hsu pay back household expenses.170
In mid-2012, Tsai again brought suit against her husband using the rights granted to her in the agreement. In this lawsuit, Tsai asked that the provision of the agreement punishing a future breach of marital fidelity be enforced. On June 21, 2012, the court issued its decision, finding in favor of Tsai, and ordered Hsu to pay 100,000 NTD to his wife each month for the next twenty years. The judge based his decision
also give Tsai 5,000,000 NTD. This, Tsai argued, meant that Hsu thought that the value of her half of the house was 5,000,000 NTD, but if Hsu were to transfer ownership of his half of the property to Tsai, he would ask for 20,000,000 NTD, and was therefore unreasonable. If Tsai’s account is to be believed—it is not explicitly challenged by Hsu—then it seems that the mortgage was the main obstacle to their divorce.
170臺灣臺北地方法院民事判決100年度訴字第3046號。 Tsai included in her “household” living expenses such things as her son’s piano, violin, and English lessons. The court took exception to these.
solely on the evidence obtained from Tsai’s surveillance of Hsu’s Xindian apartment, surveillance made possible by the zhengxinshe. (This lawsuit will be examined in detailed in the analysis below.)
Sometime in mid-2012, Hsu appealed the August 12, 2011 Taipei District Court divorce suit, which he had lost. Based on Paragraph One, Sub-paragraphs Three and Four, of Civil Code §1052, he argued that the limited access to his son and several minor disagreements between himself and his parents and his wife constituted intolerable abuse (不堪同居之虐待). These arguments all appear to have been rather weak, and even included testimony from Hsu’s mother that his wife refused to mend his clothing when it ripped. Not surprisingly, the court uniformly rejected these arguments.
More interesting, however, were Hsu’s arguments based on §1052 II. These will be discussed in the Analysis Section below. On August 15, 2012, almost one year after the Taipei District Court issued its decision, Hsu lost on appeal. Hsu appealed to the
Supreme Court, but lost again on November 14, 2012.
At some point Hsu filed criminal charges against his wife (and the
zhengxinshe?) for covertly installing a camera in the hallway of his apartment and
recording him, likely sometime that summer.171 Despite Hsu’s multiple attempts to press charges, however, this criminal suit was not prosecuted.172
171 臺灣臺北地方法院檢察署101年偵字第5802號。 Hsu must have filed the charges before August 15, 2012, because they were mentioned in a decision issued that day, but this could have happened anytime between October 2011 when he discovered the camera and August 2012.
172 From available court documents that mention these charges, it is not clear why Tsai was never prosecuted.
判決日
In summary, this dispute features a marriage that is “broken” (破綻) enough that it no longer fits the normative definition of a relationship under the law of identity as a