Code of Criminal Procedure: Republic Of China, Taiwan. 2010 Edition

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Note that customs do change over the years. Customary practices recognized in certain time period may not be recognized in other time periods. In addition, if a law is passed to govern the same matter, then customs will not be considered as a source of law. Moreover, custom shall not conflict with principles of public order and good morals. If neither laws nor customs apply on a certain subject area, then jurisprudence applies.

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Judicial decisions are secondary sources of law. The Supreme Court is the court of last resort for ordinary civil and criminal matters. The Supreme Administrative Court serves as a final court for all administrative litigation matters and also has jurisdictions over certain appeals from the Intellectual Property Court.

The Court serves as a first and second instance of civil and criminal matters governed by IP related laws, decisions of which can be appealed to the Supreme Court. The Court also serves as a first instance of administrative and compulsory enforcement actions governed by IP-related laws, decisions of which can be appealed to the Supreme Administrative Court, as a final court.

The Council of Grand Justices deals with constitutional law related matters including interpreting Constitution and uniform interpreting statutes and laws. Its decisions are final and are binding and treated the same effect as a Constitutional provision. If it rules a constitutional provision unconstitutional, relevant government agency may propose a revision and send to be passed by the National Assembly. For more detailed analysis, see the following well-written articles on general overview of Taiwan legal system: As of March , there are about 40 universities and colleges that offer law programs in Taiwan and nine of them offer L.

College entrance exam performance is still very crucial to determine whether a high school student would be able to be admitted to a desirable law school program, especially that law is one of the most popular subjects and it is extremely competitive to enter into a top-rank law school in Taiwan. The college entrance exam system was first established in , under which the college admission was purely based on the exam score. Although the goal for this system is to achieve a fair college admission system to everyone, the system itself failed to achieve the goal in practice.

Under Article 26 of the University Act of Taiwan, undergraduate legal education is usually about 4 years, master education is between 1 to 4 years and doctoral education should be in between 2 to 7 years, subject to special exceptions approved by the Ministry of Education. Certain traditional domestic law courses have always been made mandatory, such as Constitutional Law, Civil Law, Criminal Law, and Civil Procedure etc. Recently, more and more law schools also offer courses in foreign and international law.

Most courses are offered as lectures. There are usually not many in-class interactions between professors and students. Students spend most of the time taking notes in classes. Class participation is usually not taken into consideration for grading. University faculty is ranked lectures, assistant professors, associate professors and professors. Two the most important promotion factors are teaching and research. Under Article 3 of the Attorney Regulation Act , any citizen of the Republic of China may be admitted to practice in law after successfully passing the Attorney Qualification Exam and completing the requisite New Admittees training programs of 6 months administered by either Judges and Prosecutors Judicial Training Institute or Taiwan Bar Association.

The Attorney Qualification Exams may be waived with people meeting certain qualifications. A foreigner may also practice law in Taiwan if fulfilling requirements listed under the Attorney Regulation Act. Under Article 5 of the Regulation on the Attorney Qualification Exams , a law degree is generally required to take the exam. In addition, a licensed attorney must become a member of a Bar Association. A Directory of lawyers is available to search or browse on the Ministry of Justice Website. Article 5 and Article 6 of the Judges Act list all the qualifications for judges and several different ways to qualify for judgeship.

Fresh graduates from approved law schools may become a district court judge after passing a judges or prosecutors qualification exam. There are many other methods to be qualified for judgeship besides passing qualification exam, such as having practiced laws for more than 6 years, or having graduated from a law program and having served as a full time professor, associate professor or assistant professor for more than 6 years. The judicial selection committee installed by the Judicial Yuan has the power to select judges. All judges selected are required to go through trainings from 1.

The curriculum focuses on practical skills building, legal ethics as well as certain theoretical courses. Trainees may also select courses on foreign language or foreign law. Trainees must pass final exams with satisfactory scores to graduate from the Training Institute [21]. The Judges Act also provides measures to review, remove, evaluate, reward and discipline judges in order to prevent judicial corruption.

Switch between prosecutors and judges are common in Taiwan. In fact, transfers between prosecutors and judges are made easy under certain relevant laws and regulations. For example, under Article 5 of the Judges Act, a tenured prosecutor qualifies to be appointed as a judge automatically.

Judges and Prosecutors are treated substantially the same in terms of the qualifications for appointment and training requirements. Procutorate power includes both investigation power and trial power under the Court Organization Act and Criminal Procedure Code of Taiwan. Therefore, in the recent judicial reform discussion in Taiwan, separating legal regulations of judges from prosecutors has been brought up frequently [22]. As a result, the most recently enacted Judges Act does not govern prosecutors. Like many other civil law jurisdictions, in Taiwan, a notary public is considered as a legal professional.

Notary public may be a judicial official in court meeting requirements for qualification set under article 23 of the Judicial Personnel Regulation or a private notary public a person appointed by a court meeting requirements listed under article 25 of the Notary Public Act. According to article 25 of the Legal Aids Act , an attorney is obligated to provide legal aid services in the Bar Association he or she belongs to, unless exempted. For more discussions on Taiwanese legal education and legal profession, please see the following: It is generally wise to start with secondary resources for any legal: First, a secondary resource will help a researcher quickly master the basics of a legal structure and system of a particular subject or jurisdiction.

Second, a secondary resource may also point a researcher to the most relevant primary source so as to save time during the legal research process. If a research has not decided on a research topic yet, starting with secondary resources may help pick a topic quickly. A secondary resource generally includes legal research guides, monographs and scholarly treatises, legal periodicals, dissertations and theses, government reports, legal newspaper and magazines etc.

A good legal research guide can greatly help with cost-effective research. There are currently a few excellent research guides on Taiwanese law and legal system available in English, although some may be out of date. Foreign Law Guide by Reynolds and Flores not only provides a quick overview of legal history and legal system of a jurisdiction, but also lists major legal resources, both primary and secondary. It also points to major laws on many specific subject areas [23]. Taiwanese Legal Research at the University of Washington Law Library [24] provides a comprehensive list of legal materials and tools related to Taiwanese legal research.

The guide was written in and therefore may not reflect certain legal publications published after The guide also links to several major Taiwanese legal databases [25]. More importantly, the guide was published in early s and does not reflect changes ever since then. A researcher may find relevant scholarly treatises or monographs in three ways.

First, a user can search by keyword, title or subject in library catalogs. Almost all major law libraries make their library catalogs open to the public on the web. In addition, WorldCat , a union catalog that contains catalog records of thousands of libraries worldwide, is another efficient tool to find relevant treatises or books. Second, a user may also browse or search on Google Books.

For books out of copyright, a user may also be able to access the entire book in full text. For most books out of copyright, a user may at least be offered a snippet view. Third, a user may find relevant books and articles through annotated bibliographies: It provides a comprehensive list of pre articles, books, reports and primary documents on Taiwan in many legal subject areas with a subject index. It is available both in print and online.

In addition, Ingrid Kost has published a Bibliography: The bibliography focuses on articles and books on China in the area of international law and does cover materials on Taiwan. Many commercial publishers publish practice-oriented materials, usually in loose-leaf services in the areas such as business, investment, trade, tax and labor and employment law. For example, Doing Business and investing in Taiwan , published PricewaterhouseCoopers LLP, provides practical guides on Taiwanese business, tax, investments and foreign trade laws and regulations.

International Encyclopedia of Laws also covers Taiwan in several major areas of law. There are quite a few English legal journals focusing on Taiwan mostly published by Western publishers. There are also plenty of general law reviews and journals in English that contain articles on Taiwan legal issues. A user may be able to quickly locate them by searching by keyword, title, or author in one of legal journal databases such as Lexis, Westlaw, HeinOnline, JStor, ProQuest etc.

There are basically four types of Chinese legal periodicals in Taiwan: Academic law review and journals, association periodicals, commercial publications and governmental publications. Researchers may find more law review and journals in the library catalog of the Examination Yuan of the Republic of China. The library provides table of contents of all the issues of all the journals included in the catalog. It has included eight law journals in the index since then. Researchers may find an even more comprehensive list of law journals through commercial vendors, such as LawBank , which lists over law journals published by government agencies, academic institutions, professional associations, and other publishers.

Without a subscription, a user may still be able to browse the table of contents of most the journals. Dissertations and theses on Taiwan legal issues written in English may be found through ProQuest Dissertations and Theses database. For theses and dissertations written in the vernacular, searching an index or a database may be the most efficient way to find a dissertation or a thesis.

2010 Human Rights Reports: Taiwan

National Sun Yat-Sen University has created a searchable and browsable database for dissertations and theses. The database contains over , dissertations and theses in many areas including law from many academic institutions of Taiwan and worldwide. A researcher may also search on LawBank for basic bibliographic information about a law dissertation or thesis.

LawBank offers an online database for legal news from any news sources. More and more laws, regulations and judicial decisions are being translated into English by government agencies in Taiwan. Translations of laws and regulations are generally not considered as official and will almost always be trumped by laws and regulations in the vernacular. An English translated version however may be very helpful for a native speaker of English to understand the material and research, but it is not always reliable or accurate.

Online translation engine, such as Google Translate , is neither reliable nor accurate. Human translation services are available usually with very expensive fees. Therefore, a traditional dictionary or a legal glossary created by a governmental agency can be helpful for legal researchers as well: Both databases include not only just text of the Constitution and its amendments, but relevant legislative history materials including legislative records and historical versions of amendments and provisions of Constitutions.

In addition, original PDF image of the texts of Constitution and its Amendments as well as relevant legislative records bilingual or multilingual may also be found on at the National Parliamentary Library website.

Annotated Republic of China Laws/Criminal Code of the Republic of China

Presidential Official Gazette s containing presidential promulgation and notices are made available in vernacular Chinese in PDF July current and in Word June Date of coverage varies. Note that judicial decisions are generally not considered as primary sources of law in Taiwan except judicial interpretations issued by the Council of Grand Justices.

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Date of coverage varies but can be found here takes a while to load and is also available in English. In addition, the Supreme Court of Taiwan also publishes a few collections of judicial decisions and resolutions in print: Judicial Interpretations of the Constitutional Court can be found on its website No. Scope of the database is explained here.

Some of the content is freely available to the public, however most content requires a subscription. Its coverage is not just limited to Taiwanese materials, but extends to Mainland China and Hong Kong. It also covers law dictionaries and sample law exams.

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Reception of Western Law, Reception of Western Law 31 The Legal Problems Li, The Procuratorate and the Judiciary in Taiwan nd , available at http: Published March See the Archive Version! Table of Contents 1. Current Legal System 3. Current Legal Status in International Law 3. Civil Law Legal System 3. Legal Education and Legal Profession 3. Legal Research Strategies and Major Resources 4. Legal Research Guide 4. Monographs and Scholarly Treatises 4. Dissertations and Theses 4. Current Awareness Tools 4.

According to the Law Governing the Organization of the Court and the Statute Governing Judicial Personnel Administration, the qualifications of prosecutors are identical to that of judges. Both of them possess the status of judicial officials. Prosecutors shall be appointed from those persons who have passed the Examination of Judicial Officials, completed the Training Course for Judicial Officials and possessed distinguished records after a term of practice.

Precedents have a very different legal effect from those in the United States or other Anglo-American legal systems, see Article 80 of the Constitution. Some Supreme Court decisions may go through a screening process and selected as a precedent, bearing significant meaning for future cases. It was promulgated by the National Government on 1 January , and put into effect on December 25 of the same year.

In addition to the preamble, the Constitution comprises articles in 14 chapters. The National Assembly of the Republic of China, by virtue of the mandate received from the whole body of citizens, in accordance with the teachings bequeathed by Dr. Sun Yat-sen in founding the Republic of China, and in order to consolidate the authority of the State, safeguard the rights of the people, ensure social tranquility, and promote the welfare of the people, do hereby establish this Constitution, to be promulgated throughout the country for faithful and perpetual observance by all.

The Constitution states that the Republic of China, founded on the Three Principles of the People, shall be a democratic republic of the people, to be governed by the people and for the people and the sovereignty of the Republic of China shall reside in the whole body of citizens Articles 1—2. The Constitution also states that the people shall have freedom of residence and of change of residence, freedom of speech, teaching, writing and publication, freedom of privacy of correspondence, freedom of religious belief, and freedom of assembly and association Articles 10— Article 11 of the Additional Articles of the Constitution of the Republic of China states that the rights and obligations between the people of the Chinese mainland area and those of the free area, and the disposition of other related affairs may be specified by law.

Article 1 of the Additional Articles of the Constitution of the Republic of China states that the electors of the free area of the Republic of China shall cast ballots at a referendum within three months of the expiration of a six-month period following the public announcement of a proposal passed by the Legislative Yuan on the amendment of the Constitution or alteration of the national territory.

The Administrative Procedure Act is enacted to ensure that all administrative acts are carried out in pursuance of a fair, open and democratic process based on the principle of administration by law so as to protect the rights and interest of the people, enhance administrative efficiency and further the people's reliance on administration. Administrative procedure means the procedure to be followed by administrative authorities in performing such acts as rendering administrative dispositions, entering into administrative contracts, establishing legal orders and administrative rules, deciding on administrative plans, employing administrative guidance and dealing with petitions.

Administrative authority is an organization representing the State, any local self-governing body or any other subject of administration with an independent legal status, in declaration of its intention and carrying on public affairs. An individual or entity commissioned to exercise public authority shall be deemed to be an administrative authority within the scope of commission Articles 1—2. All information held or kept in custody by an administrative authority shall in principle be made public but may be restricted in exceptional cases, and the disclosure of and restrictions on information shall, unless as herein prescribed, be separately provided by law Article The Civil Code [14] is the basic law for most private relations between persons.

It is divided into five parts:. The Civil Code states that if there is no applicable act for a civil case, the case shall be decided according to customs. If there is no such custom, the case shall be decided according to jurisprudence. The legal capacity of a person commences from the moment of live birth and terminates at death.

Maturity is attained upon reaching the twentieth year of age, and a minor, who has not reached their seventh year of age, has no capacity to make juridical acts. A minor who is over seven years of age has limited capacity to make juridical acts. A married minor has the capacity to make juridical acts. A juridical person is established only according to this code or any other acts. A juridical act which is against public policy or morals is void. The expression of intent of a person who has no capacity to make juridical acts is void. An expression is also void which is made by a person who, though not without capacity to make juridical acts, in a condition of unconsciousness or mental disorder.

The making or receiving of an expression of intent of a person who is limited in capacity to make juridical acts must be approved by his guardian, except when the expression of intent relates to the pure acquisition of a legal advantage, or to the necessaries of life according to his age and status. A unilateral act made by a person limited in capacity to make juridical acts without the approval of his guardian is void. A contract made by a person limited in capacity to make juridical acts without the approval of his guardian is valid upon the acknowledgement of the guardian. Before the acknowledgement of the contract made by a person who is limited in capacity to make juridical acts, the other party to the contract may withdraw it, except he knew that the approval of the guardian had not been given, when the contract was made.

An expression of intent which an agent makes in the name of the principal within the scope of his delegated power takes effect directly to the principal. If an expression of intent which is required to be made to the principal is made to his agent, the provision of the preceding paragraph shall be mutatis mutandis applied. An expression of intent inter presents becomes effective at the moment when the person to whom it is made understands it well.

An expression of intent inter absents becomes effective at the moment when the notification of the expression reaches such other party, except when the withdrawal of the notification previously or simultaneously reaches such other party. The fact that after the notification of the expression the expresser dies, or becomes unable to make juridical acts, or is limited in capacity to make juridical acts, shall not null the expression of intent.

In the interpretation of an expression of intent, the real intention of the parties must be sought rather than the literal meaning of the words. A person who offers to make a contract shall be bound by his offer except at the time of offer he has excluded this obligation or except it may be presumed from the circumstances or from the nature of the affair that he did not intend to be bound. Exposing goods for sale with their selling price shall be deemed to be an offer.

However, the sending of pricelists is not deemed to be an offer. An offer ceases to be binding if it is refused. An offer made inter presentes ceases to be binding if it is not accepted at once. An acceptance which arrives late, except under the circumstances in the preceding article, shall be deemed to be a new offer. An acceptance with amplifications, limitations or other alterations shall be deemed to be a refusal of the original offer and the making of a new offer. In cases where according to customs or owing to the nature of the affair, a notice of acceptance is not necessary, the contract shall be constituted when, within a reasonable time, there is a fact, which may be considered as an acceptance of the offer.

If a notice of withdrawing an offer arrives after the arrival of the offer itself, though it should usually arrive before or simultaneously with the arrival of the offer within a reasonable time by its transmitting manner, and this might be known to the other party, the other party so notified should notify the offerer immediately of such delay. When the parties have reciprocally declared their concordant intent, either expressly or impliedly, a contract shall be constituted. If the parties agree on all the essential elements of the contract but have expressed no intent as to the non-essential elements, the contract shall be presumed to be constituted.

In the absence of an agreement on the above-mentioned non-essential elements, the court shall decide them according to the nature of the affair. When one of the parties to a contract receives earnest money from the other, the contract is presumed to be constituted. The debtor shall be responsible for his acts, whether intentional or negligent. The extent of responsibility for one's negligence varies with the particular nature of the affair; but such responsibility shall be lessened, if the affair is not intended to procure interests to the debtor. If there is change of circumstances which is not predictable then after the constitution of the contract, and if the performance of the original obligation arising therefrom will become obviously unfair, the party may apply to the court for increasing or reducing his payment, or altering the original obligation.

If according to the nature of the contract or the expression of intent of the parties, the purpose of the contract can not be accomplished if not performed within the fixed period, and if one of the parties does not perform the contract within that period, the other party may rescind the contract without giving the notice specified in the preceding article. Unless otherwise provided by the act or by the contract, a person who is bound to make compensation for an injury shall restore the injured party to the status quo before the injury.

If the restoration of the status quo ante shall be paid in money, interest shall be added from the time of the injury. If a person has wrongfully damaged to the body, health, reputation, liberty, credit, privacy or chastity of another, or to another's personality in a severe way, the injured person may claim a reasonable compensation in money even if such injury is not a purely pecuniary loss. If it was reputation that has been damaged, the injured person may also claim the taking of proper measures for the rehabilitation of his reputation. A person who, intentionally or negligently, has wrongfully damaged the rights of another is bound to compensate him for any injury arising therefrom.

The same rule shall be applied when the injury is done intentionally in a manner against the rules of morals. A person, who violates a statutory provision enacted for the protection of others and therefore prejudice to others, is bound to compensate for the injury, except no negligence in his act can be proved. If several persons have wrongfully damaged the rights of another jointly, they are jointly liable for the injury arising therefrom.

The same rule shall be applied even if which one has actually caused the injury cannot be sure.

Law of Taiwan - Wikipedia

Instigators and accomplices are deemed to be joint tortfeasors. An official, who has intentionally committed a breach of duty which he ought to exercise in favor of a third party and therefore prejudice to such third party, is liable for any injury arising therefrom. If the breach is the result of this official's negligence, he may be held liable to compensate only in so far as the injured person is unable to obtain compensation by other means.

In the case mentioned in the preceding sentence, if the injured person who may obviate the injury by making use of a legal remedy has intentionally or negligently omitted to make use of it, the official shall not be liable to compensate for the injury. A person of no capacity or limited in capacity to make juridical acts, who has wrongfully damaged the rights of another, shall be jointly liable with his guardian for any injury arising therefrom if he is capable of discernment at the time of committing such an act.

If he is incapable of discernment at the time of committing the act, his guardian alone shall be liable for such injury. In the case of the preceding sentence, the guardian is not liable if there is no negligence in his duty of supervision, or if the injury would have been occasioned notwithstanding the exercise of reasonable supervision. If compensation cannot be obtained according to the provisions of the preceding two sentences, the court may, on the application of the injured person, take the financial conditions among the tortfeasors, the guardian and the injured person into consideration, and order the tortfeasors or his guardian to compensate for a part or the whole of the injury.

The employer shall be jointly liable to make compensation for any injury which the employee has wrongfully caused to the rights of another in the performance of his duties. However, the employer is not liable for the injury if he has exercised reasonable care in the selection of the employee, and in the supervision of the performance of his duties, or if the injury would have been occasioned notwithstanding the exercise of such reasonable care.

If compensation cannot be obtained according to the provision of the preceding sentence, the court may, on the application of the injured person, take the financial conditions of the employer and the injured person into consideration, and order the employer to compensate for a part or the whole of the injury. The employer who has made compensation as specified in the preceding sentence may claim for reimbursement against the employee committed the wrongful act. If injury is caused by an animal, the possessor is bound to compensate the injured person for any injury arising therefrom, unless reasonable care in keeping according to the species and nature of the animal has been exercised, or unless the injury would have been occasioned notwithstanding the exercise of such reasonable care.

The possessor may claim for reimbursement against the third party, who has excited or provoked the animal, or against the possessor of another animal which has caused the excitement or provocation. The injury, which is caused by a building or other work on privately owned land, shall be compensated by the owner of such building or work, unless there is no defective construction or insufficient maintenance in such building or work, or the injury was not caused by the defectiveness or insufficiency, or the owner has exercised reasonable care to prevent such injury.

In the case of the preceding sentence, if there is another person who shall be responsible for the injury, the owner making compensation may make a claim for reimbursement against such person. The manufacturer is liable for the injury to another arising from the common use or consumption of his merchandise, unless there is no defectiveness in the production, manufacture, process, or design of the merchandise, or the injury is not caused by the defectiveness, or the manufacturer has exercised reasonable care to prevent the injury. The manufacturer mentioned in the preceding sentence is the person who produces, manufactures, or processes the merchandise.

Those, who attach the merchandise with the service mark, or other characters, signs to the extent enough to show it was produced, manufactured, or processed by them, shall be deemed to be the manufacturer. If the production, manufacture, process, or design of the merchandise is inconsistent with the contents of its manual or advertisement, it is deemed to be defective. The importer shall be as liable for the injury as the manufacturer. If an automobile, motorcycle or other motor vehicles which need not to be driven on tracks in use has caused the injury to another, the driver shall be liable for the injury arising therefrom, unless he has exercised reasonable care to prevent the injury.

The person, who runs a particular business or does other work or activity, shall be liable for the injury to another if the nature of the work or activity, or the implement or manner used might damage to another. Except the injury was not caused by the work or activity, or by the implement or manner used, or he has exercised reasonable care to prevent the injury.

Unless otherwise provided by the act or by the contract, the compensation shall be limited to the injury actually suffered and the interests which have been lost. Interests which could have been normally expected are deemed to be the interests which have been lost, according to the ordinary course of things, the decided projects, equipment, or other particular circumstances. A person who has wrongfully caused the death of another shall also be bound to make compensation for the injury to any person incurring the medical expenses, increasing the need in living, or incurring the funeral expenses.

If the deceased was statutorily bound to furnish maintenance to a third party, the tortfeasor shall also make compensation to such third party for any injury arising therefrom. In case of death caused by a wrongful act, the father, mother, sons, daughters and spouse of the deceased may claim for a reasonable compensation in money even if such injury is not a purely pecuniary loss. Some of its provisions has its origin in German Zivilprozessordnung.

A defendant may be sued in the court for the place of the defendant's domicile or, when that court cannot exercise jurisdiction, in the court for the place of defendant's residence. A defendant may also be sued in the court for the place of defendant's residence for a claim arising from transactions or occurrences taking place within the jurisdiction of that court. Where a defendant has no place of domicile in the R. Where the defendant has no place of residence in the R. The fundamental goal of civil trials is to solve disputes over private rights so as to protect these rights.

Civil litigation is based on the adversary system. A presiding judge directs the proceedings and exercises the right of elucidation to allow the parties concerned to make proper and sufficient debates. Furthermore, the judge examines evidence in detail and makes fair decisions. Meanwhile, the court shall try, by all possible means, to expand the function of compromises and reconciliation to reduce the sources of litigation. The court has a certain number of civil divisions that deal with civil cases related to disputes over private rights or specified in other special laws or ordinances, as well as non-contentious matters.

Cases involving controversies over marriage, parent-children relations, declaration of death, interdiction, and non-contentious matters including property management, inheritance, adoption, and acknowledgement of children, are handled by the Family Division. Only an attorney may act as an advocate, except where the presiding judge permits a person who is not an attorney to act as an advocate.

The presiding judge may by a ruling, at any time revoke the permission provided in the preceding paragraph. The notification of such revocation shall be served upon the principal of the retention. The Judicial Yuan shall prescribe the regulations governing permission of a person who is not an attorney to act as an advocate. For the purposes of the Copyright Act, [16] "works" shall include the following:. Oral and literary works. Dramatic and choreographic works. Pictorial and graphical works. The examples and content of each category of works set forth in the preceding paragraph shall be prescribed by the competent authority.