遊走法律邊緣的「外遇偵探」：徵信社介入親密關係糾紛之現象及其意義

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國立台灣大學法律學研究所碩士論文

Department of Law College of Law

National Taiwan University Masters Thesis

遊走法律邊緣的「外遇偵探」：

徵信社介入親密關係糾紛之現象及其意義 Affair Detectives at the Edge of the Law:

The Role of Taiwan’s Zhengxinshe in Intimate Disputes

薄瑞安

Bryan Kirkland Beaudoin

指導教授：陳昭如博士 Advisor: Chao-ju Chen, S.J.D.

中華民國102年8月

August 2013

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Acknowledgements

First, I extend my sincerest thanks to my advisor Professor Chen Chao-ju, to whom I am forever indebted for her continual guidance and support throughout the process of thesis research and writing, and indeed my entire time as a student at the National Taiwan University College of Law. It was in her classes and among her students that my passions for the law and socio-cultural and feminist perspectives on legal studies took shape, where I found my friends, and where I was extended honorary membership in the Legal Fundamentals track (基礎法學組)—that is, a place out of place as an American in a Taiwanese graduate program. Throughout my undergraduate years, I always sought, but never quite found a role model in the academy that so personified the union of concern and advocacy for social justice and commitment to scholarly rigor. It has been a great honor to work under her.

I would also like to express my gratitude to Professors Yen Chueh-An (顏厥安), Chang Wen-chen (張文貞), Hwang Jau-Yuan (黃昭元), and Tsai Tzung-Jen (蔡宗珍) of the National Taiwan University College of Law, as well as Professor David S. Law of the Washington University Law School, each of whom made me interested in the law in new and different ways.

I am indebted in so many ways to my classmates who took me under their wing early on, and became my friends. It was through studying and working alongside them that I gained precious insight into law and society in a foreign

jurisdiction. In particular, I would like to thank Teng Chu-yuan (鄧筑媛), Wang Tsan- Jung (王贊榮), Chen Ping-Hsuan (陳平軒), Chen Jing-han (陳靖涵), Tang Yung-hsuan (湯詠煊), Chen Shih-lung (陳世隆), Li I-ting (李亦庭), Lin Yue-hsien (林岳賢), Lin Shih-fang (林實芳), Chen Chengwei (陳正維), and Chen Shang-Ju (陳上儒), Tsai Mu-

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jung (蔡牧融), and Han Hsin-yun (韓欣芸). I only wish that I could have been as helpful to you as you have been to me. The many hours we spent sharing and refining our ideas in our thesis workshop were an invaluable resource.

I would also like to thank my other friends and comrades in Taiwan for their interest in my thesis project, for their feedback, and for showing no small amount of patience listening to my incessant thesis talk. Thank you David Bratt, Paul Mozur, Eric Bratt, Tiffany Wong, Liz Oswald, Andrea Wong, Grace Chao, and Ariel Li for making Taipei my home away from home, even if we are now scattered to the four corners of the earth.

I extend my gratitude to the Ministry of Education and the National Taiwan University Women’s and Gender Research Program for their generous financial support.

Lastly, none of this would have been possible without the unflagging support of my parents Heather Kirkland and Donald Beaudoin and my sister Susan Kirkland Beaudoin.

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中文摘要

台灣的公車車身側面、火車站裡及流行雜誌中充滿徵信社的廣告，這些公司提供的服務項目顯得格外特殊，包括外遇蒐證、離婚證人、法律常識，甚至令人匪夷所思的「感情挽回」。平面媒體也提供我們層出不窮的煽情私家偵探故事，譬如徵信業者陪同憤怒的客戶闖入賓館抓姦在床，在客戶配偶的汽車底盤裝置GPS 追蹤器或秘密監聽、錄影因而吃上官司，甚或「黑心」徵信社在獲得婚外情的證據後背著客戶勒索「通姦者」。徵信社介入人們的親密關係糾紛，已堪稱一種法社會學現象，對此的研究想必能讓我們進一步了解當代台灣社會中親密關係、法學知識生產以及權力間之交錯關係。

至今徵信社抓姦等活動仍未成為國內外法學或社會科學的深入研究對象

，有關徵信社的現行研究皆來自中央警察大學，著重「法治」及偵查權在公、

私領域中的應然劃分之討論，欠缺性別意識，亦未檢視徵信社介入特定親密糾紛。本論文則聚焦徵信社的社會圖像（social visibility）以及其介入特定親密糾紛之法律及社會實踐，進而試圖探究兩者間之辯證關係。

大體而言，本論文目的有三：1）釐清現行法規範如何塑造涉及婚外情的親密關係糾紛，透過回顧且批判有關通姦罪及離婚法的現行研究而試圖開闢新的討論空間，從法社會學的理論取向出發，探究關於婚外親密關係的規範環境如何影響人們法院內的實踐以及法院外的協商。2）「遊走法律邊緣」的徵信業往往出現違法情形，卻也已部分成功地營造出「受困婦女的幫手」等正面社會形象。再者，徵信業在法制上的定義向來侷限於「經濟徵信」，而該行業作為

「外遇偵探」早就成為台灣人的常識。此現象皆為特定歷史發展脈絡底下的產物，本論文觀察徵信業錯綜複雜的社會圖像之形成，以及其對親密糾紛的可能影響。3）以司法資料為實證研究對象，對三個特定親密糾紛加以分析，觀察徵信社得來的證據如何透過法院的選擇性詮釋而影響各種行動者的實踐及糾紛之結果。

關鍵詞：徵信社、徵信業、親密關係、通姦、婚外性、法社會學

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English Abstract

In contemporary Taiwan, advertisements for zhengxinshe, de facto private investigation businesses, saturate the public sphere, and can be found on the sides of buses, in popular magazines, and elsewhere. The myriad services that they claim to offer include the collection of evidence of extramarital affairs, legal advice, and even the curious “emotional repair.” The print media offers us a multitude of salacious private investigator stories—of detectives and their angry clients storming into “love hotels” to “apprehend adulterers” in the act, of suspicious husbands and wives installing GPS tracking devices on the undercarriage of their spouses’ cars, of zhengxinshe and their clients facing criminal charges after engaging in clandestine

audio and video recording, and even of “malevolent” zhengxinshe extorting money from those they investigate behind their clients’ backs.

The intervening of zhengxinshe in people’s intimate disputes constitutes a rich and dynamic socio-legal phenomenon, the investigation of which promises to further our understanding of the relationship between intimacy, legal knowledge production, and power in contemporary Taiwan. To present, however, extramarital affair

investigations and other such activities of zhengxinshe have not been the subject of in- depth Taiwanese or foreign legal or sociological research. Previous work on

zhengxinshe comes out of the Central Police University, and tends to focus on the rule of law and a normative discussion of the proper public-private division of

investigative authority. This research lacks gendered analysis, and does not examine the phenomenon of zhengxinshe through the lens of intimate disputes. This thesis, by contrast, focuses on the social visibility of zhengxinshe as affair detectives and the legal and sociological aspects of zhengxinshe intervening in specific intimate disputes,

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and furthermore attempts to illuminate a particular dialectical relationship between these.

The thesis comprises three parts. First, it seeks to analyze how current law shapes intimate disputes. It reviews previous research relating to divorce law and criminal adultery, and drawing on sociology of law research, seeks to conceptualize how the normative environment related to extramarital intimacy influence people’s behavior in the judicial system as well as in out-of-court bargaining. Secondly, the public visibility of zhengxinshe is infused with illegality and criminality, but the industry has been able to successfully create for itself a positive and even feminized image. Moreover, while zhengxinshe are synonymous with extramarital affair investigations, the letter of the law has long confined the activity of zhengxinshe to

“economic investigations.” This phenomenon is the product of a particular historical context. This thesis will investigate the inception of this contradictory social visibility as well as its relationship with intimate disputing behavior. Finally, utilizing judicial documents, the thesis analyzes three specific intimate disputes as case studies, and reveals how the evidence collected by zhengxinshe influences the behavior and

disputing outcomes of both these businesses’ clients and those whom they investigate.

Thus, it is suggested that the zhengxinshe phenomenon is not merely the result of the freewheeling behavior of an unregulated industry, but rather the complex product of laws related to intimacy, the behavior of disputants, various state actors, and the selective interpretation of the professional judiciary.

Keywords: Zhengxinshe, Private Investigator, Intimacy, Adultery, Extramarital Sex, Sociology of Law

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Charts and Graphs

Grounds of Divorce by Judicial Decree (1970-2009)... 43

Divorce by Mutual Consent and Divorce by Judicial Decree (1970-2009)... 46

District and High Court Documents Related to Zhengxinshe and Illicit Intimacy by Case Type (2000-2012)... 117

Case Study I Lawsuits... 127

Case Study II Lawsuits... 147

Case Study III Lawsuits... 157

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Chapter One:

Introduction

1.1 Among the Flowers

This is a long and paradox-ridden story I believe best started with the double life of the Chinese word hua (花). In the dominant usage, hua connotes the flower—a thing of beauty cultivated, bought, sold, and displayed, often in public, for the appreciation of any person with even the simplest of aesthetic sensibilities. But for centuries in Chinese culture, hua has also connoted lasciviousness, or more precisely, the insatiable male libido—a thing that some labor to keep in check, and others strive to indulge to no end.

This second concupiscent hua may also be put on display and appreciated by men, but this is something most often done in the shadows of clandestine spaces—the love hotel, hostess bar, or brothel—far away from the sunlight that gives life to its floral twin.¹ On the streets of Taipei in 2010, however, I observed a cleverly effected slippage between these two lives of hua, the lovely and the lustful. This slippage spoke volumes about the curious phenomenon of affair detectives in contemporary Taiwan.

The 2010 Taipei International Flora Exposition held in cooperation between the Taipei City Government and the International Association of Horticultural Producers (IAHP) mobilized a staggering amount of public resources to transform a large swath of central Taipei City into a park and exposition space, and attracted several million

1參見黃淑玲，男子性與喝花酒文化：以Bourdieu的性別支配理論為分析架構，台灣社會學，5期，

頁73-132（2003年）；See also, ANN ALLISON,NIGHTWORK:SEXUALITY,PLEASURE, AND CORPORATE

MASCULINITY IN A TOKYO HOSTESS CLUB 7-30,145-50 (1st ed. 1994).

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visitors from Taiwan and abroad. As the Taipei mayor described it, “This is the first international exposition held by [Taipei], and we have successfully showcased our soft power in flower art, cultural creativity, ‘going green’ and state-of-the-art technology.”² Thus, under the safely apolitical rubric of civic beautification, Taiwan gained pride of place on a particular international stage alongside the dozen or so other nations that have hosted large-scale IAHP events. Even after the Expo wound down in April 2011, it continued to provide symbolic support for the Taipei’s numerous, and at times controversial, beautification and urban renewal projects. To this day, in verdant lots once home to dilapidated buildings throughout the city, one may find signs adorned the adorable faces of the Expo’s mascots, its five-color logo, and the slogan “the power of beauty” (美麗的力量).

In this public visual space so closely tied into discourses of municipal

betterment and international recognition, one may have spotted a curious interloper.

For a time in 2010, the sides of busses in Taipei were covered with a large

advertisement for Guohua Zhengxinshe (國華徵信社). Like many Guohua ads for at least a decade if not longer, this one featured a man zoomorphized into the likeness of an ape, playing off the Southern Min (閩南話) expression for apprehending an adulterous spouse (^掠猴,lia̍h-kâu), which literally means “to catch a monkey.” Unlike similar advertisements before and since, however, this one adopted a color scheme that

mimicked the promotional imagery of the Flora Expo. Playing on the dual meaning of hua, the advertisement read Bie Huaxin, Xin Huabo (別花心，欣花博)──“Don’t

philander. Enjoy the Flora Expo.” Thus, into a state-sponsored, family-friendly large- scale event most centrally about beauty—one tied in to larger projects of urban renewal

2Department of Economic Development, Taipei City Government, Message from the Mayor (Dec. 17, 2012), http://www.taipei-expopark.tw/ct.asp?xItem=102618&CtNode=7927&mp=4.

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and Taiwan’s precarious soft-power foreign policy—a zhengxinshe deigned to invoke the specter of the prurient, and draw attention to what most would consider an unseemly side of Taiwanese life.

Anyone who believes that, justly or unjustly, Taiwan society is still governed by the cultural logic (家醜不外揚) that shames adultery into the shadows, should find this most public invoking of adultery to be a sobering dose of another sort of reality. There is much to be read into this ingenious, if flippant, hua double-entendre. One need only look more closely at the wording of advertisement’s text to see why. We would expect an advertisement for affair detective services to appeal to the plight of the aggrieved spouse, and indeed, most others do. In this advertisement, however, Guohua speaks directly to the would-be philanderer in a tone of gentle admonishment. Yet, if

adulterous spouses were to heed this advice, would not the zhengxinshe soon be out of business? It would seem then, that this Guohua advertisement is operating on a different level. In hijacking the Flora Expo’s visual and discursive enactments of civil engagement, Guohua has in effect placed itself in the morally laudable position of issuing a public service announcement—a messaged carefully coded to seem as if it is more concerned with promoting the conjugal wholesomeness of the Taipei citizenry than with soliciting clients. “Men of the city, be faithful to your wives. Satisfy your appetite for the ‘flowery’ in a family-friendly space bathed and sunlight instead of in a love hotel,” read the advertisement’s subtext. This is the most breathtaking instance I have seen of a zhengxinshe attempting to express this curious—and suspicious—sort of social concern, but certainly not the only one. Other carefully placed advertisements throughout the city have suggested similar messages: As a man holds his penis and relieves himself in a public restroom he may read a placard over the urinal that both urges him to step closer to “maintain a cleanly environment” and reminds him a

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zhengxinshe is only a phone call away, if not closer. As a man or woman unlocks the

door to her apartment building, her or she may notice a sticker that urges caution when coming home late at night, again, care of a private investigation firm. Such

advertisements may be read on many levels, but the thrust of the message seems to be:

Rest assured that hired eyes are everywhere, unless that is, you are an adulterer.

The print media gives us a decidedly less benign view of zhengxinshe. On a nearly daily basis, newspapers run salacious and at times almost farcical accounts of detectives, police, and spouses breaking down doors and storming love hotels, of wiretapping and clandestine videotaping and photography, of the planting of GPS tracking devices on the undercarriages of cars. The reader may take continual delight in the titillating details of men and women literally caught with their pants down, or from the safe distance of the printed page mock the preposterous excuses that the

apprehended offer to law enforcement officers and in court. Just as often, however, this reportage documents the injury to people’s bodies, property, and other interests that occurs when methods of extreme evidence collection are employed by zhengxinshe.

While much of this may lawlessness and criminality be attributed to the

overzealousness of “detectives” who have their clients’ best interests at heart, often the zhengxinshe employee emerges as a much less benevolent figure. The “unscrupulous” (

不肖) employee may overcharge an unwitting client for subpar or even bogus services.

And at times, newspapers tell us, the investigated parties may be blackmailed without the client’s knowledge. Moreover, some self-identified zhengxinshe seem to be nothing more than organized crime syndicates (詐騙集團) bent on extorting a profit from the kind of down-and-out and vulnerable consumer who would seek the aid of a private

investigator. In the public eye, then, the activities of the zhengxinshe industry, always of dubious legality, often stray into the territory of the patently criminal. Zhengxinshe,

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it is commonly said, operate at the edge of the law (遊走法律邊緣), an apt, yet vague descriptor borrowed for the title of this thesis.

The affair detective that we may observe in the rich and nuanced public visibility described above is at once a self-styled force for good in a society where

heteromonagmous intimacy is both the hegemonic ideal and a thing in constant peril, and at the same time the unpredictable and freewheeling vigilante that at any moment may cross the thin line of the law, dragging along with him the unwitting client. The basic contours of this social visibility crystallized at least two decades ago, and have achieved the status of common sense (常識). Perhaps to its fault, the media incessantly repeats this “thin” discourse without the critical angle or intrepid journalistic spirit that would ask more incisive questions. Yet such questions abound and they are on the minds of casual observers and those of a more scholarly persuasion alike. From a more pragmatic standpoint, one wonders: What exactly are zhengxinshe? How many are there? How do they obtain personal information? What special techniques do they employ? What sort of suspicious relationships do they have with the police,

government officials, and gangsters?

The observer with an eye to gender equality and sexuality and culture in Taiwan may be preoccupied with somewhat different set of questions: Are zhengxinshe empowering women to take control of their intimate lives, or preying upon harried wives to turn a profit? Does the panopticon-like presence of zhengxinshe

advertisements suggest that the Taipei cityscape, long dotted with love hotels and seemingly given to the logistics of illicit sex, has in effect been colonized by the industry to the effect that illicit intimacy has been recast as an eminently knowable thing? And of course, we must also consider things from the point of view of those men and women who are investigated. From this other, but no less important, point of view,

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are zhengxinshe a kind of hardnosed sex police? Are the rights and interests of those who engage in extramarital intimacy being unduly and unjustly curtailed? And finally, from a perspective attuned to gender equality we must ask: do zhengxinshe as the champions of criminal adultery, restrict what has always been a freer male sexuality, or on the whole, do they simply tighten the vice on women’s already circumscribed sexual autonomy in and out of marriage?

All of these questions share in common the desire to go beyond what the media shows the Taiwanese public in order to view to a richer picture of social reality. This is no simple task, but I will attempt to make some headway in this thesis. Along these lines, it seems as though for each question raised there exists a corresponding methodological or practical challenge. For instance, as is often acknowledged, extramarital intimacy is by nature clandestine and therefore difficult to observe.

Moreover, the zhengxinshe industry has long existed in a regulatory vacuum, meaning that the government collects little information about it systematically, and what data there is, government agencies seem loath to reveal.³ Of course, the industry itself, with its endemic illegality, is not a reliable source of information. And yet, even though these basic questions are difficult to pursue, the public visibility of zhengxinshe is a deluge of information. To borrow a journalistic turn of phrase, the phenomenon of zhengxinshe as affairs detectives exists in a complex and overdetermined “world of incident”—too much is going on to know just where to start, much less draw definitive conclusions from what may be readily observed. When faced with such a situation, it is the researcher’s task to define more narrowly the problematic—to cut through the din and pursue at least a few questions with scholarly rigor.

3 For instance, during a discussion with an employee of the Bureau of Economics, it was suggested that that tax authorities periodically audit zhengxinshe. The results of these audits may yield valuable insight into what zhengxinshe do and how they do it, but of course this information is not public. Because of

“personal privacy,” all of my requests to the tax agency were rejected, even when I suggested that they redact identifying information and release some information for research purposes.

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Thus, I will ask two main questions in this thesis. First, how did such a public visibility develop and what does it mean? Second, what role do affairs detectives play when they intervene in extramarital affair-related intimate disputes? With this first question, rather than asking what social reality lies behind the visible (a tempting question indeed), we are instead turning a critical eye on the public visibility of zhengxinshe as “affair detectives” itself in an attempt to tease out a few of the

discourses that constitute this visibility including those surrounding gender, sexuality, rule of law, justice, and the sticky dichotomy of the public the private. This public visibility, despite its flaws and misleading aspects, represents the greatest source of information about the phenomena. One critical strategy of this thesis, however, is to look not only at what is visible today, but rather to trace the emergence of this public visibility to its origins over forty years ago. This longue durée examination of the emergence and development of the phenomenon hints provocatively at the behind-the- scenes role of government agencies in shaping the legal and discursive gray space in which the zhengxinshe industry operates.

This approach hopes to accomplish several objectives. First, we will for the first time be able to offer some explanation of how zhengxinshe came to be Taiwan’s de facto industry of private investigators. This, in turn, will allow us to destabilize the overly simplistic notion that zhengxinshe are Taiwan’s private detectives, and problematize the attendant assumptions about law and order and public and private.

The “edge of the law” at which zhengxinshe are often said to operate is not simply the result of a litigious public demanding a free market solution to their evidence-collection needs. It seems, rather, to be the product of a complex history of selective and non- regulation. Once we have realized this, our attention is naturally drawn to the nuanced and myriad ways that this industry attempts to co-opt the symbols and substance of state

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power in the pursuit of profit, and what this state of affairs means for parties to disputes in which zhengxinshe intervene. Finally, in lieu of ethnographic research, this foray into this public visibility and its development may n some level serve as a proxy for the public’s understandings of zhengxinshe.

The second question concerning the role that affair detectives play in the

processing of extramarital affair-related intimate disputes represents a marked departure from the attention to public visibility. As suggested by the thesis’s subtitle, “The Role of Taiwan’s Zhengxinshe in Intimate Disputes,” our focus will shift to what I will call

“intimate disputes.” This shift acknowledges that to understand what affairs detectives do, we must first conceptualize and examine the types of disputes into which they intervene. After defining the intimate dispute as a triadic dispute involving one married couple and an “adulterous” third party, I will examine how laws related to extramarital intimacy underlie and structure these disputes.⁴ This shift represents the realization that if our goal is to examine what it is that zhengxinshe as affairs detectives do, our first task must be to determine how extramarital affair-related intimate disputes are

structured by the normative environment and the behavior of law enforcement and the professional judiciary, and how these disputes are processed both in and out of the courts.⁵

According to commonsense understandings, the simplest answer to the question of what zhengxinshe do is that they collect evidence, albeit often by extreme and

4This narrow definition may at times seem to exclude important circumstances, such as intimate disputes involving homosexual relationships, and extramarital affairs where both “adulterers” are married. The intent of this definition is not to ignore these important other factors, but rather to distill a large part of intimate social experience down to a level where the ways in which the law underlies and influence disputes can be more feasibly explored (Chapter Two). Throughout the process of research, the author kept his eyes open for circumstances that exceeded this narrow definition.

5Todo this, the thesis relies on a sizeable number of judicial documents. Rather than looking for broad statistical trends across a whole category of lawsuit types (案由), however, our approach is to use case studies to reconstruct several intimate disputes. Since these disputes span many courtroom confrontations, it is possible indirectly observe out-of-court disputing behavior. However, since these represent are cases that have gone to court, what happens out of court is not likely representative of most such disputes in general

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invasive means. Certainly this answer by itself cannot satisfy us. Indeed, zhengxinshe discover and document illicit intimacy. “Evidence,” however, is an epistemic construct of the legal system that may be used both in the fact-finding function of the judicial system and out of court as leverage in bargaining. Thus we must cast a broader net, and ask how the knowledge of illicit intimacy created by zhengxinshe shapes the processing of intimate disputes related to extramarital affairs, and what roles the letter of the law and the operation of the professional judiciary play in defining and ratifying this knowledge. Again, based on limited empirical data⁶ this thesis will not be able to offer definitive conclusions about how the intervention of affairs detectives into people’s intimate disputes influences them or determines the outcomes of disputes in general, but we will reveal a picture of intimate disputing of uncommon depth. We will see that through the particular logistics of their evidence collecting practices, zhengxinshe provide their clients with an inordinately powerful tool in both litigation and out-of- court bargaining that allows these clients to further their interests, but at the detriment of the rights and interests of those who are investigated. More significantly, we will catch provocative glimpses of how the activities of the industry go beyond the appropriation of the symbols of state power in their public visibility to recruit to their side the very substance of state power. It is with attention to this nuanced and previously

unexamined collusion between state actors and affair detectives that we may come closer to understanding the way that this industry shapes the intimate lives of Taiwanese people.

Ultimately, the answers to all of the above questions lead to the same quandary:

Are affairs detectives good or bad? But, of course, this immediately reveals itself to be

6Newspaper articles, presumably written mainly to feed the appetite of the public for the salacious and the violent, tend to focus on the more outlandish aspects of intimate disputes involving zhengxinshe.

Research based on court documents is also hampered by the fact that in all probability the vast majority of intimate disputes never go to court. The case studies in Chapter Four, for instance, suggest that those who do hire zhengxinshe and go to court likely come from a more affluent segment of the population.

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a question of good or bad for whom. The parties to intimate disputes are not on equal footing in the eyes of the state or society, which by law and hegemonic morality

privilege intimacy in marriage and scorn intimacy out of it. Thus, this question of good or bad reveals itself as a broader question of justice that must be approached by

recognizing and examining the extent and complexity of the zhengxinshe phenomena, which includes the behavior of parties extramarital affair-related triadic disputes, law enforcement, statutory law, and the behavior of the professional judiciary—a question of justice that must be pursued by explored how existing gendered inequalities are refracted through the disputes in which zhengxinshe intervene. I will largely leave the question of justice and gender equality to the end of the thesis after we have reviewed as much empirical data as possible. Suffice it to assert here, however, that the zhengxinshe phenomenon is part of a larger constellation of forces and actors that needlessly and counterproductively exacerbate tensions in the intimate lives of Taiwanese people. It a phenomenon in which, with the nuanced and yet-poorly understood collusion of the law and state actors, intimacy and sexuality are essentially weaponized and wielded in disconcerting and unnecessarily tempestuous intimate disputes. Ours is to be primarily an empirical and critical investigation, but ultimately at their deepest level all critiques rest on ethical, that is normative, concerns. Thus, each stage of our critique of how zhengxinshe as affairs detectives influence the intimate lives of Taiwanese people necessarily brings us incrementally closer to an explicit discussion of how, from an ethical standpoint, the law and the state ought better to encourage the peaceable processing of and just resolution of intimate disputes in a way that is maximally equitable for all parties involved—be they wives, husbands, “adulterous” third parties (mistresses or male paramours), (or children).

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1.2 Previous Research

Despite the astounding level of public visibility that the zhengxinshe as extramarital affair detective has achieved in recent years, there has been very little research on the topic. Keyword searches of the National Central Library’s Index to Taiwan Periodical Literature System (台灣期刊論文索引系統) and the National Digital Library of Theses and Dissertations in Taiwan (臺灣博碩士論文知識價值系統) yield only a handful of relevant research, perhaps five or six writings specifically about zhengxinshe and several dozen more that mention zhengxinshe tangentially.⁷ Most of the several dozen articles which mention zhengxinshe in passing are from law-related publications such as The Taiwan Law Review (月旦法學雜誌) or Taiwan Bar Journal (全國律師) and pertain to such topics as wiretapping, evidence law, and privacy rights. A cursory look at several of these articles reveals that they tend say little more about zhengxinshe than that they represent a threat to personal privacy. Among those writings specifically about zhengxinshe, about three or four are popular magazine articles in publications such as Jiating Yuekan (家庭月刊) and Youth Literary (幼獅文藝). These articles are longer than the frequent newspaper articles about affairs detectives, but offer little in terms of information or analysis that cannot be found in newspapers.

Two masters theses and two journal articles specifically about zhengxinshe represent the only scholarly research specifically about the industry to date. These include Cheng Shan-yin (鄭善印), Chen Jui-lin (陳瑞霖), and Tang Chi-liang’s (唐肇良) journal article “Souqing Disanren yu Zhengxinye zhi Yanjiu” (搜情第三人與徵信業之研究

),⁸another article by Tsai Pei-chie (^蔡佩潔), “Zhengjian Woguo Zhentanye Guanli Fazhi

7The most recent search was conducted March 26, 2013. Not all of the items in the Index to Taiwan Periodical Literature System are keyword-searchable by full text.

8 鄭善印、陳瑞霖、唐肇良，搜情第三人與徵信業之研究，警政論叢，9期，頁249-296（2009年）。

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zhi Yanjiu—yi Ribenfa wei Jiejing” (整建我國偵探業管理法制之研究--以日本法為借鏡),⁹ as well as two masters theses by Li Pei-tsi (李珮慈) and Chen Jui-lin (陳瑞霖) respectively titled, “Zhengxinye zhi Bijiao Yanjiu” (徵信業之比較研究)¹⁰ and “Zhengxinye Guanli zhi Yanjiu” (徵信業之比較研究)¹¹. All of this research was conducted by graduate students or professors of the Central Police University (中央警察大學). While each author has his or her own focus and assertions, it is possible to identify a broad ideological orientation that is consistent throughout, and the authors reference one another’s work. For this reason I will at times refer to this research together as the CPU school of research or CPU research.

The CPU research focuses chiefly on the concerns of law and order and rule of law, something that should not surprise us given that university’s role as the premier academy for the training of law enforcement officers. The CPU research foregrounds the significant amount of criminal activity related to the zhengxinshe industry, and furthermore identifies the lack of regulatory oversight by government agencies. The authors tend to being and end with an assumption that conflates Taiwan’s zhengxinshe with America’s “private investigators,” Japan’s “private detectives” (探偵業, tanteigyō), and China’s “private investigators” (私家調查業, sijia diaochaye). As their overarching line of reasoning goes, the people of Taiwan, just like those of these other nations, have a need for investigative (and law enforcement) services that exceed the capacity of the state’s police and prosecutorial organs. Naturally, then, the free market provides these services in the form of a “private detective” industry, which in the case of Taiwan is called zhengxinye. Problems arise because the Taiwanese government is unwilling to properly acknowledge or regulate this industry a few bad apples (少數不肖業者) spoil the

9 蔡佩潔，整建我國偵探業管理法制之研究－以日本法為借鏡，中央警察大學學報，47期，頁

327-362（2010年）。

10 李珮慈，徵信業之比較研究，中央警察大學行政警察研究所碩士論文（2004年）。

11 陳瑞霖，我國徵信業管理之研究，中央警察大學警察政策研究所碩士論文（2008年）。

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barrel, so to speak, with their criminal behavior. It is, then, either explicitly argued or strongly implied that if only Taiwan could follow the example of Japan, for instance, and adopt a law to “normalize” (整建)—that is explicitly acknowledge as legitimate and appropriately regulate—the zhengxinshe industry, much of this illegality and the

infringement of personal rights and liberties its actions beget would be ameliorated.

The CPU school of research is commendable in that for the first time it attempts to amass and characterize information about zhengxinshe in a more rigorous way than one would find in fragmentary media accounts. Furthermore, while these authors do not use the word “gap” in identifying the disjuncture between zhengxinye’s legal identity and actual activities, they have taken a significant first step toward understanding the legal gray space in which the industry operates simply by noting that it is not regulated, an important point usually lost on most journalist observers. Rather than attempting to theorize this gap and the legal liminality the industry produces or explore its historical origins, however, the authors’ law-and-order orientation seems to lead them to conflate Taiwan’s zhengxinye with the private detective industries of other countries in a way that obscures rather elucidates the particularities of the zhengxinshe phenomenon. As CPU school of research sees it, the problem is that the industry is unregulated, and the solution is to follow the example of other nations and regulate zhengxinye with a

“transplanted” law. These assertions are based largely on an aggregation of crime statistics and a normative discussion of the proper division of labor of investigation and evidence collecting work between state actors and the private sector. Yet, as the

research offers little by way of explanation of the role zhengxinshe play when they become involved in specific cases, one would be justified in suspecting that the authors’

calls for specific policy solutions are rather premature.

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The CPU school of research does not discuss at length the particularities of extramarital affair investigations, a curious fact in light of Chen Jui-lin’s assertion that most of zhengxinshe’s business comes from extramarital affair investigation.¹² This research not only lacks a gendered perspective, but also any analysis of zhuajian (抓姦), which represents in itself represents a uniquely Taiwanese phenomenon¹³ which we could hardly expect any foreign policy prescription of taking into account. Neither does the research focus on the details of particular disputes in which zhengxinshe are

involved. The approach of this thesis, then, is a marked departure from that of the CPU research. Simply put, our main concern is not with law and order and rule of law—with defining an appropriate normative framework for civilian investigative and law

enforcement work in Taiwan. Rather, we shall set our sights on the role that zhengxinshe play when they intervene in a particular kind of dispute, that involving

extramarital intimacy. The normative dimensions of the question of who should

conduct investigations and collect evidence in a particular society and by what methods and means are indeed important questions and we will ultimately engage with them, but not until the end of the thesis. Behind these normative questions lie deeper issues of justice that are best addressed not through reference to other countries’ “solutions”¹⁴ to problems, but rather through a close examination of empirical reality in Taiwan.

This thesis approaches “law” in a much different way than the CPU research.

Herein, law is not merely a set of rules meant to protect personal rights and freedoms

12 陳瑞霖（註11），頁99。 Based on interview data, Chen suggests that 60% of zhengxinshe business comes from extramarital affair investigations.

13Certainly the private detectives of other nations investigate affairs, but the logistics of and cultural scripts surrounding zhuajian are unlike those anywhere else. There is not even an English equivalent for the word zhuajian. These unique cultural scripts need to be parsed on Taiwanese terms, and the actual bearing they have on dispute processing and adjudication must be examined under a magnifying glass.

14It should be noted that when introducing the legal frameworks that countries like the United States, China, and Japan use to regulate their private investigator industries, the CPU authors do not adequately address the limitations of these policies. They seem to infer that these policies work, without considering the possibility that even in countries with such laws, private investigators may often break the law or infringe upon people’s privacy and other rights.

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and uphold the social order that happen to be broken when zhengxinshe cross the line because other laws, regulations, fail keep the industry’s activities in check. Rather, in the sociology of law tradition, we will conceive of legal norms as enabling and limiting the behavior of the agentic parties to disputes. More specifically, law in this regard is something that people engaged in disputes, based on their consciousness of the law, use, avoid, or actively undermine to their various ends.¹⁵ Furthermore, our dual focus on the history of zhengxinshe as affairs detectives and intimate disputing in the present will allow us to destabilize the very notion of zhengxinye as an industry itself. In a certain sense, zhengxinye is not so much an industry per se as it is a liminal space of legality discursively constituted in a particular way with very real ramifications for how the parties to intimate disputes as well as law enforcement and the professional judiciary behave. Simply put, the goal of CPU research is to clarify and shore up the boundaries between legal and illegal and between private detective and police officer. Quite to the contrary, our goal is locate and examine the blurry line between lawful and criminal and between state and private, as to better understand its significance for people’s intimate lives.

1.3 Chapter by Chapter Outline

The subsequent chapters of the thesis will proceed as follows. Chapter Two outlines the concept of the intimate dispute, reviews previous research about the legal effects of extramarital sex, and hypothesizes the ways in which laws related to marriage, divorce, and adultery may shape and structure intimate disputes both in and out of courts. Chapter Three serves as a sort of “history” of the phenomena of zhengxinshe as

15See PATRICIA EWICK &SUSAN S.SILBEY,THE COMMON PLACE OF LAW:STORIES FROM EVERYDAY

LIFE 15-32 (1998).

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affairs detectives. This will entail tracing the emergence of zhengxinye as affair detectives, identifying the gap between law and social reality that arose with this

emergence and has persisted ever sense, and query the significance of this gap. Chapter Four is a series of case studies that examine the complex and nuanced role that

zhengxinshe play in three intimate disputes involving extramarital affairs. Chapter Five,

the conclusion, will review and synthesize the findings of the other chapters, discuss the meaning that the zhengxinshe phenomenon holds for gender equality and rule of law, and suggest directions for future research. The methods, source materials, goals, research constraints, and findings of each chapter will be described briefly below.

1.3.1 Chapter Two

It is a core assertion of this thesis that in order to understand the meaning of zhengxinshe as affair detectives, we must first understand the specific socio-legal context into which they interject themselves. The focus of the second chapter, then, is not on affairs detectives themselves but rather on this context. In isolating the

extramarital affair-related intimate dispute at the object of inquiry, we are essentially paring off a small area of social experience such that the various, intersecting forces that drive and constrain the behavior of husbands, wives, and “third parties” to such disputes become visible. This chapter draws on the insights of law and sociology and sociology of law research to conceptualize the ways that legal norms shape and structure such disputes. The chapter then critically engages with Taiwanese legal scholarship

pertaining to marriage, divorce, and most importantly, criminal adultery. This research affords further insight into key aspects of the particular normative environment in which Taiwanese intimate disputes are embedded. At the same time, we must critically

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examine previous research and recognize the ways in which its overly doctrinaire tenor and anti-adultery law slant tend make it difficult to engage in a fuller discussion of the way legal norms operate in actual disputes both during adjudication and in the context of out-of-court bargaining. Where possible, we will also examine what available statistics about marriage, divorce, adultery, and civil and criminal suits can and cannot tell us about social reality. The data and arguments presented in this chapter will not provide a definitive answer to the question of how extramarital-affair related disputes are processed, but it will open new discursive space for discussion of the myriad ways that legal norms and the behavior of the judiciary influence such disputes. Without this space, it would be impossible to conduct the case study analysis in Chapter Four.

Some of the discussion of previous research will be devoted to marriage, since the legal rights and obligations of the institution constitute an integral dimension of the intimate dispute as defined herein. Through hard-won feminist reforms to the Family Section of the Civil Code in the 1990s and the year 2002, the law of marriage has been remade to be formally gender equal.¹⁶ Yet, we must understand that—perhaps by its very nature—marriage still retains some coercive dimensions. In particular, despite the liberalization of divorce law and changing social mores, under some circumstances divorce is difficult—even quite difficult—and this difficulty constitutes one very real interface at which the forces in extramarital affair-related intimate disputes converge and impinge upon disputants’ various interests. The fact that some spouses cannot leave marriages freely raises the stakes in intimate disputes, and in part explains the

16 See Li-ju Lee, Law and Social Norms in a Changing Society: A Case Study of Taiwanese Family Law, 8 S.CAL.REV.L.&WOMEN'S STUD. 413 (1999); Shu-Chin Grace Kuo, A Cultural Legal Study on the Transformation of Family Law in Taiwan, 16 CAL.INTERDISC.L.J. 379 (2006).

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extremes to which some disputants will go including the hiring of zhengxinshe or appealing to state actors.¹⁷

The bulk previous research examined in Chapter Two, however, relates to the legal effects of extramarital intimacy. This research is the work of the opponents of criminal adultery.¹⁸ Because of the surfeit of empirical research on law and extramarital sex (intimacy) in Taiwan, this research is the best place to start, but it too exhibits some of the deficits of doctrinal research even as it expresses social concern. It seems at times that in their haste to decry the criminal adultery statue, some opponents put forth views that make it difficult to conceptualize the role of the law in out-of-court

bargaining. For instance, the assertion by some authors that adultery is rarely

prosecuted and is therefore unnecessary and should be repealed implies that disputants do not use the law in other ways. The oft-hear gender-conscious assertion that when adultery is prosecuted “men to get off Scott free” and create a “war between women” (

丈夫全身而退，變成兩個女人之間的戰爭) indeed reflects a troubling social reality, but would seem to elide the nuances of out-of-court bargaining, for instance, the possibility that charges are dropped against husbands not because they are forgiven per se, but because these men are more capable of making sizeable monetary concessions to avoid prosecution. Thus, we must rethink the assertions of previous research in order to make way to consider the broader and more diverse influences that the existence of criminal adultery holds for intimate disputes.

17As we shall see,the difficulty of divorce can function in multiple, complex, and overlapping ways.

Namely, a disputant may use the law and state actors to maintain a marriage even when both parties wish to end the marriage in order as a sort of leverage in the bargaining over the allocation of various assets and resources. Furthermore, for personal, cultural, or other reasons, a spouse may which to “forcibly”

maintain a marriage in perpetuity even though he or she has no intent of continuing to cohabit or with his or her spouse, continue or ever resume shared life on a daily basis.

18 In fact, it is nearly impossible to find a law scholar or jurist writing openly in support of criminal adultery. This is somewhat unfortunate situation when one considers that intellectually productive debates on contentious issues most often have two or more explicit sides.

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1.3.2 Chapter Three

The third chapter explores the history of the emergence of zhengxinshe as extramarital affair detectives. Even at present, it is difficult to understand what zhengxinye is and what role zhengxinshe play in intimate disputes. Due to numerous

practical constraints, then, an examination of the history of the industry is all the more fraught and problematic. Still, there are good reasons for adding the dimension of time to this project. In so doing, we are able to accomplish several important goals. First, we will be able to, at least to some degree of satisfaction, account for the longstanding gap between the legal identity of zhengxinshe and their actual behavior. A glimpse at history also puts us in a better position to untangle and parse the various discourses woven into the current public visibility of the industry including those related to gender and sexuality, the normative divide between state and private investigative and

evidence-collecting work, and illegality. History makes it possible to identify the particular context out of which these emerged.

The goal of this thesis is to understand the role of zhengxinshe as affairs

detectives in intimate disputes. Thus defined, an ideal history would be a history of this phenomenon itself. That is, we would be able to observe how this role has changed over the last forty years. Unfortunately such an investigation is all but impossible. In the 1970s and 1980s, when, it seems, zhengxinshe first started acting as private investigators, there is very little data about just how they affected intimate disputes to be found in newspaper articles or other sources. Needless to say, neither can we access judicial documents from that time either.¹⁹ Thus, frustrating as it may be, the case study

19Digitized databases of judicial decisions such as LawBank (法源), Rootlaw (植根), and the Judicial Yuan of the Republic of China Law and Regulations Retrieving System (司法院法學資訊檢索系統), are excellent sources of empirical judicial materials, and made possible the case study analysis of Chapter

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analysis method employed in Chapter Four confines us to the recent past. Faced with these constraints, we could pursue a shorter historical examination. That is, one could start observing the phenomenon from the mid- to late 1990s when it is more clearly perceptible through newspaper reports, and forgo an investigation into anything that happened before that point. This, however, would render invisible the beginnings of the discourse of illegality that is so central to people’s understanding of zhengxinshe today.

1.3.3 Chapter Four

Chapter Four will closely examine several particularly protracted and complex intimate disputes that were processed both through the operation of the judicial system and out-of-court bargaining. In each of these disputes, zhengxinshe played a key role, and indeed this role revolved around the collection of evidence. The rich context of each dispute’s narrative, however, offers us insight into the various dynamics and contingent factors at play in the processes through which evidence is collected, presented in court, evaluated and used by judges, and leveraged in out-of-court bargaining. To a considerable degree, these observations verify the assumptions presented in Chapter Two concerning the way that laws related to marriage, divorce, and extramarital sex shape and structure intimate disputes. The three case studies presented and analyzed in this chapter cannot be assumed to show us how intimate disputes involving extramarital intimacy and zhengxinshe are usually processed, but they certainly represent evidence of how law and the judicial system can operate in a

Four. These, however, but do not contain judicial decisions (裁判) older than fifteen years or so.

Starting in the late 1980s, the Judicial Yuan published compendia of judicial decisions, but these contain a relatively small number of decisions, and furthermore were selected and made available according to opaque and perhaps irregular criteria. They thus fail to provide a basis for meaningful analysis of historical judicial behavior, let alone accurate pictures of particular forms of disputing behavior in the past.

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way largely overlooked by previous normative legal research about extramarital sex and law.

The chapter unfolds through three case studies, each of which comprises two parts. The first part is a chronological narrative reconstructed from seven to twelve different judicial decisions. Judicial decisions are the product of an adversarial fact- finding process, the ultimate purpose of which is to apply laws and determine rights and responsibilities. Therefore, courts do not attempt to narrate disputes in a comprehensive manner or in a form easily comprehended by a third party (such as the researcher).

Judges, in fact, make terrible storytellers. Thus, one challenge of this chapter was to piece together a maximally coherent narrative while minimizing speculation. Particular care has been taken to ground the narrative in undisputed details or incontrovertible facts extracted from physical evidence such as video recordings. When disputants’

stories diverge and this is not possible, the narrative at times forks to provide multiple points of view. Observing out-of-court bargaining is of course, more difficult to narrate, and some speculation is therefore unavoidable. Fortunately, however, two of the suits entail legal challenges to settlement agreements, meaning that at least some out-of-court bargaining has left a paper trail for the researcher to follow.

The second part of each case study is an analysis. Therein it becomes apparent how the actions of zhengxinshe assist some disputants and curtail the interests of others, and just how extensive and pivotal out-of-court bargaining using the threat of an

adultery prosecution as leverage can be. Furthermore, we will to see evidence of the professional judiciary’s inexplicable and—in the author’s opinion—undue privileging of the abstract value of the family and marriage over other rights and interests.

Ultimately, the most valuable insight yielded by these case studies is just how crucial it is that we must examine the role of law enforcement and the professional judiciary to

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understand the zhengxinshe phenomenon. This point is implied but never persuasively argued in media reports about zhengxinshe and completely absent from CPU research.

This chapter demonstrates the power of empirical research using court

documents, yet there are many limitations to its findings imposed by the methods and scope. Firstly, the author elected to use a case study method rather than a broader analysis using descriptive statistics. Simply put, this was a tradeoff between breadth and depth. Descriptive statistics could have been used to answer questions such as the gender ratio of male and female clients of zhengxinshe appearing in judicial documents, or whether a spouse pressing adultery charges is more likely to obtain a conviction when a zhengxinshe is hired. Such figures would no doubt be useful, but they would require an incredible amount of effort to obtain.²⁰ More importantly, they may be more likely misleading than enlightening. That is to say, the majority of intimate disputes involving zhengxinshe are likely processed and resolved outside of the courtroom.

What we observe in court may help us draw inferences about how disputes are

processed out of court, but it would be unwise to assume that the gender ratios and other statistical patters that may be identified from disputes in the judicial system should parallel those out of court. Just the opposite may be true.

Secondly, the disputes in the chapter’s three case studies were not chosen to be representative. Rather, the author relied on several flexible selection criteria that would, in a sense, yield intentionally unrepresentative cases. The foremost among these

criteria was the ability to identify a significant role of a zhengxinshe. This necessitated passing over several protracted and promising intimate disputes where it was not

20 Keyword searches using LawBank yielded over 900 judicial documents related to both zhengxinshe and illicit intimacy, a matrix of daunting size for the purposes of a masters thesis. Furthermore, it is possible that many of these documents mentioned either zhengxinshe or illicit intimacy only in passing, meaning that in order to conduct descriptive statistical analysis with rigorous parameters, the research would first have to winnow down the matrix to separate the wheat from the chaff, so to speak. It is hoped that this important work will be taken up elsewhere.

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possible to tell exactly what role a zhengxinshe had played because it was mentioned only in passing. More important was the goal of finding the most involved, protracted disputes for the simple reason that more court documents would mean more data and a better chance to reconstruct a richer, more complete narrative. Finally, I attempted to focus on disputes in which those who were investigated, the “adulterers,” played a more active role, preferably by “fighting back” using the legal tools at their own disposal.

Unfortunately I found no suitable dispute in which a mistress or male paramour could be cast as the protagonist of the narrative, but the resulting case studies do, at times, succeed in revealing the interests and actions of “adulterous third parties” with more nuance, and arguably in a less biased light, than may be found in most media reports.

1.3.4 Chapter Five

Chapter Five is the conclusion, and will synthesize the findings of the second through third chapters. As stated above, this thesis takes up a complex socio-legal phenomenon that has not previously been the subject of rigorous scholarly research. As such, it inevitably raises more questions than it can answer. The author’s greatest hope, then, is not to offer definitive conclusions about the phenomenon of zhengxinshe as affair detectives intervening in people’s lives, but rather to model a way of approaching a difficult research problem. Ultimately my goal is not to ask what we should think about zhengxinshe but rather how we should think about them.

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Chapter Two:

Intimate Disputes and the Legal Effects of Extramarital Sex

2.1 Introduction

This chapter will introduce the concept of the intimate dispute and discuss how laws related to marriage, divorce, and the legal effects of extramarital sex structure such disputes. It is a chief contention of this thesis that in order to understand the meaning of the phenomenon of zhengxinshe as affairs detectives, some headway must first be made toward understanding the socio-legal context in which so-called affairs detectives intervene. This approach represents a marked departure from the ways that the role of zhengxinshe are discussed in both media reports and research coming out of the Central

Police University in that it consciously shifts focus away from zhengxinshe themselves.

It is only once we better understand the interests and behavior of parties to intimate disputes related to extramarital intimacy that it becomes possible to more fully consider what affairs detectives do and how their behavior affects people.

Under ideal conditions, this chapter would sketch a picture of disputants’

interests, attitudes, behavior, and of the way they relate to that law so detailed and complete that the reader would be in a position to predict how, under a given set of circumstances a husband, wife, mistress, or paramour would be likely to behave and why. Of course people are diverse and unpredictable, but, under ideal conditions, we would at least be aware of what factors it is upon which peoples’ divergent behavior turns. To answer the question of what effects the intervention of a zhengxinshe has, then, we would need only to compare intimate disputes in which zhengxinshe appear

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with those where they are absent. Unfortunately, there is at present very little empirical research that explains how and why Taiwanese men and women process disputes related to marriage, divorce, and extramarital affairs in particular ways. Furthermore confounding our efforts is the fact that available statistics related to marriage, divorce, and extramarital affairs paint with only the broadest of strokes, and at times may even be more misleading than enlightening.

We can, and will below, examine the letter of the law. But there are aspects in which the plain-letter reading of the law falls short in telling us how the law structures intimate disputes. First, the law is replete with indeterminacy. In real-world terms, this translates to judges’ discretion in determining legal outcomes. According to the

dominant ideologies of “adjudication by law” (依法審判) and judicial independence, discretion is assumed to be exercised by members of the professional judiciary in an isolated, individualist way. In reality, however, trends and patterns in adjudication do exist, and to the extent that lawyers and disputants are aware of these trends, their behavior will respond to them accordingly. That is to say, on a whole, the behavior of the professional judiciary represents once force that structures intimate disputes.

Unfortunately, even when the media, general public, legal professionals, and scholars are aware of these patterns, there is little empirical research of adjudication that the researcher may reference. Secondly, the law plays an important role in the processing and resolution of disputes even when they never make it into the courtroom, but even with extensive ethnographic fieldwork, it would be difficult to understand out-of-court dispute processing.

This chapter will neither attempt to undertake an empirical analysis of trends and patterns in judicial decisions, nor an ethnographic investigation of people’s out-of- court dispute processing. Instead, I will briefly define the concept of the intimate