The compulsory membership system can be divided into two types: the former is the business trade association that established by companies that set up according to commercial group regulations or industrial groups regulations while the later is the occupational guild that established by professionals who pass the qualification exams. This kind of system evolved from the guild system has greatly infringed upon the basic rights of the people, and the current overall structure has been operating since the authoritarian era. Therefore, it is necessary to conduct an in-depth review.
This thesis discusses the problems faced by business trade associations and occupational guilds from the theories of nature of law, legislation, law interpretation and law application. At the stage of nature of law theory, business trade associations are closely related to national theory, while occupational guilds should be discussed from institutional guarantees. In terms of legislation theory, most of the applicable regulations for business trade associations and occupational guilds are established during the authoritarian era, which are obviously incompatible with the principles under current democratic system; thus there is a need for substantial amendments. As for the law interpretation theory and law application theory, because of the conservative views of judicial practice, they often stick to the rules and cannot offer groundbreaking comments for the compulsory membership system .
According to opinions of grand justices basing on the Interpretation No. 724 of Judicial Yuan, this thesis inherits the relevant insights and extends it and conducts in-depth research. It is believed that the compulsory membership system has inevitability reached the reforming stage. In the part of business trade associations, this paper believes that its nature is a private law association. Because it is not for public welfare, it is in conflict with constitutions when applying compulsory membership system. Instead, open competition should be adopted and market mechanisms should be applied. As for occupational guilds, they are quasi-public law associations due to its high degree of public welfare nature. Therefore, it should conform with constitutions to adopt compulsory membership system. However, the boundaries between the so-called professional and technical personnel qualification exams and the license examinations handled by the Executive Yuan have become blurred. This paper believes that the identification of specialized occupations and technical personnel must meet the characteristics of freelance industry, and the most important ones are the organization of occupational guilds and the compulsory membership system.
In summary, the current compulsory membership system has caused major disputes and doubts, whether in the theory of nature of law, legislation, law interpretation, or application of law. This paper studies the disputes and proposes relevant solutions.