An extract from The Dispute Resolution Review, 12th Edition

Court procedure

i Overview of court procedure

The main law governing civil court procedure is the CCP. In terms of types of action, it governs the proceedings for both general commercial disputes and disputes regarding 'personal affairs' (i.e., marriage, parent–child relationship, interdiction and declaration of death). In terms of types of procedure, in addition to the general court proceedings, it also provides the basic requirements and rules for provisional remedies and judgment enforcement, and the details of execution are provided in the Law of Compulsory Enforcement.

Other supplemental regulations (e.g., the Enforcement Rules of the Code of Civil Procedure, the Notes for Civil Procedure, and the Guidelines for Handling Civil Actions) are applicable to civil court procedure.

ii Procedures and time frames

There are three types of proceedings provided for in the CCP: ordinary proceedings, summary proceedings and small-claim proceedings. All of the proceedings are commenced by the filing of a complaint with the competent district court. Electronic filing is acceptable.

Ordinary proceedings

Upon receiving the complaint, the presiding judge may either send (1) a copy of the complaint to the defendant and a summons indicating the date of the first hearing to the plaintiff and defendant respectively or (2) a copy of the complaint to the defendant along with a letter instructing the defendant to file a reply within a specified period. If the latter procedure is adopted, the judge, upon receiving the defendant's reply, will either designate the date of the first hearing or instruct the plaintiff to respond to such reply. In the latter case, the judge will not designate the date of the first hearing until he or she is satisfied with both parties' arguments and defences.

Following the first hearing, there might be several preparatory hearings depending on the intricacy of the case. The purpose of the preparatory hearing is for the judge to hear both parties' arguments and defences, collect evidence, harmonise and simplify issues and examine witnesses. During the preparatory proceedings, both parties may occasionally submit to the court their briefs, stating and providing the facts, arguments, contentions and supporting evidence. When all the preparatory work is done, the judge will set a date for an oral hearing. Although in theory the oral hearing is for the judge to hear the parties' oral argument, usually it goes quickly because the parties have substantively debated on all issues in each preparatory hearing. Should the parties have no further evidence to submit and the judge feel comfortable with the collection of the facts, evidence and issues, the judge will set a date for announcing his or her judgment. Normally, the announcement date is three weeks after the oral hearing.

The losing party may file an appeal with the High Court. If the district court renders a judgment partially favourable to the plaintiff, both parties may appeal against the unfavourable part respectively. The proceedings in the High Court are similar to those in the district court. When rendering a judgment, the High Court may either sustain the district court's judgment (i.e., dismissing the appeal) or revoke the district court's judgment and render its own judgment.

Except for cases where the amount in dispute is less than NT$1.5 million, the losing party in the High Court proceedings may file an appeal with the Supreme Court. The Supreme Court does not look into the facts of the case but only reviews the legality of the High Court's judgment (i.e., whether the High Court's judgment is in contravention of the laws and regulations). Both parties may occasionally submit briefs to the Supreme Court. In practice, the Supreme Court only reviews the parties' briefs without holding any hearing. However, recently the Supreme Court is inclined to hold oral hearings.

The Supreme Court may either sustain the High Court's judgment (i.e., dismiss the appeal) or revoke the High Court's judgment and remand the case to the High Court. Receiving the remanded files, the High Court reopens proceedings.

Summary proceedings

Some types of cases specified by the CCP (e.g., a labour dispute arising from an employment contract with an employment term of less than one year; a dispute over fixing of the boundaries or the demarcation of a real property; a dispute arising from claims in a negotiable instrument) are subject to the summary proceedings. Summary proceedings are almost the same as ordinary proceedings but with simplified procedures and documentation and the appeal against the district court's judgment must be filed with the same district court. The appeal against the judgment of the second instance to the Supreme Court is more restrictive than that in ordinary proceedings.

Small-claim proceedings

Where the action is for the payment of money, other replaceable objects or securities, and the price or claim value is not more than NT$100,000, such action is subject to the small-claim proceedings. Compared with ordinary proceedings and summary proceedings, small-claim proceedings are much more simplified. The appeal against the district court's judgment must be filed with the same district court and the grounds for appeal are limited to the issue of the contravention of the laws and regulations by the district court's judgment. The judgment of the second instance is not appealable.

Interim measures

The CCP provides three categories of interim measures: provisional attachment (PA), provisional injunction (PI) and injunction maintaining a temporary status quo (TI).

The purpose of PA is to secure the enforcement of a judgment on monetary claims (e.g., claim for a sum of money) or on claims exchangeable for monetary claims (e.g., claim for delivery of a car, which can be changed to a claim for a sum of damages if delivery is unavailable). In other words, PA is to seize the defendant's assets provisionally so that the plaintiff's claims for money as later upheld by a final judgment may be satisfied through the auction of the seized assets.

The purpose of PI is to secure the enforcement of a judgment on non-monetary claims (e.g., claim for delivery of goods or claim for actions to be taken). In other words, PI is to ensure the plaintiff's non-monetary claims remain intact so that such claims as later upheld by a final judgment may be satisfied through the enforcement of the judgment.

Where there is a legal relation in dispute and where it is necessary to prevent material harm or imminent danger, an application for TI may be made. Obtaining a TI, the plaintiff's rights can be temporarily realised and the defendant shall temporarily perform its obligations.

Time frame

No law governs the time limit for the court to complete a case of litigation, interim measures or appeal. In practice, it takes six to 12 months for the district court to render a judgment, six to 12 months for the High Court and one to two years for the Supreme Court. However, the duration for completion varies, depending on the complexity of a case, and in some cases may take longer.

As for the interim measures, the normal time frame of obtaining the interim measures is three weeks for PA and two months for PI and TI.

iii Class actions

No typical class action is provided in the CCP but it outlines similar actions. Multiple parties, who have common interests, may appoint one or more persons from among themselves to sue or to be sued on behalf of all of the parties. Multiple parties who have common interests and are members of the same incorporated charitable association may appoint the association to sue on behalf of them. An incorporated charitable association or a foundation may initiate, subject to some requirements, an action for injunctive relief prohibiting specific acts of a person who has infringed the interests of multiple persons.

In addition to the CCP, other laws provide class actions. Under the Securities Investor and Futures Trader Protection Act, the Consumer Protection Act (CPA) and the Personal Information Protection Act (PIPA), a protection institution may, empowered by 20 or more investors, consumers and individuals who are damaged owing to a single cause, initiate arbitration or an action on their behalf.

iv Representation in proceedings

In all levels of courts, natural persons and legal entities may represent themselves in the proceedings. If the litigant is a legal entity, its legal representative is entitled to represent the entity without further authorisation from the entity. Besides this, unincorporated associations can be a party to the litigation so long as they have a representative or an administrator.

Unless prohibited by the presiding judge, any person who is not a licensed lawyer may act as an advocate. However, in the following two proceedings, a licensed lawyer is required to be the advocate:

  1. under the CCP, only a licensed lawyer can file the appeal with the Supreme Court on behalf of the appellant; and
  2. under the CPA and PIPA, class actions must be filed by a licensed lawyer.
v Service out of the jurisdiction

Article 145 of the CCP provides that (1) where service is to be made in a foreign country, it shall be effectuated by the competent authorities of such country by letters rogatory or the relevant Taiwan ambassador, minister envoy or consul, or other authorised institutes or organisations in that country, and (2) if such service is not available, the service may also be effectuated by registered and receipt-requested mail through the post office. If the place where service shall be made is unknown or the service to be effectuated in accordance with the above Article 145 is likely to prove futile, according to Article 149 of the CCP the court may, on motion, permit service to be effectuated by 'constructive notice'.

The above rules of service are applicable to both a natural person and a legal entity. However, there are alternatives for service on a legal entity outside the jurisdiction. If the manager of a legal entity is in Taiwan and if the action is related to the legal entity's business, service may be effectuated upon the manager. If a foreign legal entity has set up an office or a place of business in Taiwan, service may be effectuated upon its representative or administrator who is in Taiwan.

All of the above rules of service are applicable to both the documents initiating proceedings and the subsequent documents.

vi Enforcement of foreign judgments

Pursuant to Article 4-1 of the Law of Compulsory Enforcement, a party wishing to enforce a foreign judgment must first file a motion for recognition with the court. Article 402 of the CCP provides that a foreign judgment shall be recognised in Taiwan except in any of the following situations:

  1. where the foreign court lacks jurisdiction pursuant to Taiwanese laws;
  2. where a default judgment is rendered against the losing defendant who failed to respond to the suit, except in the case where the notice or summons of the initiation of action had been legally served in a reasonable time in the foreign country or had been served through judicial assistance provided under Taiwanese laws;
  3. where the performance ordered by the judgment or its litigation procedure is contrary to Taiwanese public policy or morals; and
  4. where there exists no mutual recognition between the foreign country and Taiwan.

For the last requirement, 'mutual recognition', Taiwanese courts take a lenient attitude towards it. In practice, as long as the foreign courts do not explicitly decline to recognise the judgments of Taiwanese courts, the Taiwanese courts would recognise the judgments of such foreign courts. Precedents reveal that the Taiwanese courts have recognised the judgments of the courts in Australia, China, Hong Kong, Japan, Korea, Singapore, South Africa, the United Kingdom, the United States and Vietnam.

vii Assistance to foreign courts

The Law in Supporting Foreign Courts on Consigned Cases (the Supporting Law) governs judicial assistance. Under the Supporting Law, the Taiwanese courts can provide service of documents and examination of evidence to the foreign courts.

A request for service to individuals and entities in Taiwan through Taiwanese courts shall conform to the following requirements:

  1. the country of the requesting foreign court shall declare reciprocal support to Taiwan in a similar case; and
  2. the letter rogatory issued by the foreign court shall expressly indicate the name, nationality, domicile, address or office of the party to be served.

Service by Taiwanese courts will be effectuated in accordance with the CCP and the Code of Criminal Procedure, respectively.

For judicial assistance in the examination of evidence for civil or criminal proceedings, the above foreign country's declaration and letter rogatory are needed as well. The letter rogatory shall indicate the names of the involved parties, methods and categories of evidence, the name, nationality, domicile, address or office of the parties to be investigated, and the subjects of investigation.

The service and investigation costs shall be duly handled according to the relevant regulations of Taiwan in civil cases, and shall be counted at actual spending and reimbursed by the country of the requesting foreign court in criminal cases.

viii Access to court files

According to Article 242 of the CCP, only a party to the suit may apply to the court for inspection, copying or photographing of the documents filed in the court's dossier with expenses advanced. A third party, however, may have access to the court's dossier provided that he or she obtains the consent of the parties to the suit or provides a preliminary showing of his or her legal interests and the court grants his or her application for such access.

Article 242 of the CCP also protects privacy and trade secrets: where the documents in the dossier involve the privacy or business secret of the party or a third person and a grant of the application for access to the dossier is likely to result in material harm to the person, the court may deny the application or restrict access.

Although, with very few exceptions, court hearings are open to the public, the progress of court proceedings is not available in the public domain. And, as stated above, the third party has very limited opportunity to have access to the court's dossier. As a result, any third party would have no information about the progress of court proceedings until the judgment is announced. All judgments, apart from a very limited number of cases that are exempted for some reason, will be published on the court's bulletin board and official website.

ix Litigation funding

Basically, the parties bear the litigation costs. The party who initiates an action or relevant proceedings shall first advance the fees as provided under the laws. However, 'legal aid' through the court and a foundation is possible.

Legal aid through the court

Articles 107–115 of the CCP provide for legal aid through the court, which denotes temporary exemption from paying the court costs or any other litigation expenses, providing security bonds and paying attorneys' fees. If a party lacks the financial means to pay the litigation expenses, the court may, on motion, grant legal aid on the condition that there is no manifest likelihood that the party will fail in the action. Legal aid will be granted to a foreign national on the condition that a Taiwanese national may receive the same aid in the foreign national's country in accordance with a treaty, agreement, or the laws or customs of that country.

Legal aid through a foundation

The Legal Aid Act provides legal aid to people who are indigent or are unable to receive proper legal protection. For such purpose, a foundation called the Legal Aid Foundation (the Foundation) was established.

People who are indigent may apply to the Foundation for legal aid. The Legal Aid Act provides the definition of 'indigent people'. Where the application for legal aid is granted, the Foundation may assign a licensed lawyer (the aiding lawyer), paid by the Foundation, to act as a representative, advocate or assistant for the litigation, arbitration, mediation and settlements. The legal aid provided by the Foundation is applicable to foreigners under some conditions.

Where the Foundation has granted legal aid to a person and where the court costs are needed in the court proceedings, the aiding lawyer shall apply for legal aid with the court on behalf of such person and the court shall not dismiss such application unless there is manifestly no prospect of the party prevailing in the action. If the Foundation considers the legal aid recipient's case will probably prevail, and it is necessary to apply to the court for interim measures, the Foundation may submit a letter of guarantee to substitute for the security bonds to be deposited with the court.