CIVIL PROCEDURE CODE AMENDED

03/01/2000

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Amendments to certain articles of the Code of Civil Procedure were promulgated by the Presi-dent on 9 February 2000. The amendments in-troduced some substantial changes to the law. The main points are as follows:

A plaintiff who withdraws an action before oral debate proceedings are completed in the court of first instance may, within three months after the withdrawal of the action, request the refund of half of the court fees paid. The same applies to a party who withdraws an appeal or a motion to set aside a judgment, or who settles out of court.

Documents relating to an action may be transmitted by telegraph, facsimile or other technological means. Such transmission has the effect of service only when the person upon whom the documents are served ac-knowledges receipt, or where a person with an interest in the proceedings has requested the transmission of specific documents. Rules for such transmission are to be made by the Judi-cial Yuan.

Under the existing law, parties are free to in-troduce new means of attack or defense at any time. The law adopts the principle of appro-priate timing, demanding that the means of attack or defense be submitted in manner consistent with the order of proceedings:

1.In the court of first instance, parties should introduce means of attack or de-fense at appropriate times in accordance with the progress of the proceedings, and before the completion of oral proceedings. To prevent delay, the court may reject a new means of attack or defense if its intent is not readily apparent and such clarifica-tion as may be necessary is not given when the court so orders.

2.Parties may still introduce new means of attack or defense during second-instance proceedings. However, the court may re-ject them if they concern points of dispute already excluded at the first-instance issue simplification negotiations, if they were already rejected by the court of first in-stance, or if the reasons for their not being raised in first-instance proceedings are attributable to the party concerned.

If the facts alleged by the plaintiff give rise to more than one cause of action under the sub-stantive law and the plaintiff is not aware what actions are available to him, the presiding judge should instruct the plaintiff, so that he may bring such actions jointly in the same suit and the disputes between the parties may be resolved in one set of proceedings. If the de-fendant asserts matters tending to negate or impede the plaintiff's claim, but is unsure whether to file them as a defense or a coun-terclaim, the presiding judge should also give clarification.

Where a party has proved to have suffered loss but cannot prove the amount, or would clearly have great difficulty in doing so, the court should, weighing all the facts of the case, fix the amount in accordance with the persua-siveness of the evidence before it.

The scope for bringing an action for future performance is expanded. Any person who expects to have a need to seek a remedy may bring such an action.

The scope for bringing an action for declara-tory judgment is expanded. Any person for whom it would be legally advantageous to receive a declaratory judgment in respect of his legal relations may bring such an action. The same applies to actions to confirm the authenticity of a document, or to confirm the existence of facts forming the basis of legal relations. However, such an action to confirm facts may only be brought if no other action is available to a plaintiff.

To promote the consolidated hearing of cases, the role of preliminary proceedings is ex-panded, and preliminary pleadings and the negotiation to simplify issues are introduced:

1.A party presenting a preliminary pleading to the court should also supply a copy di-rectly to the other party.

2.On accepting an action, the court may decide according to the nature and type of the case, whether to proceed by submis-sion of pleadings first, or directly fix a date for a court hearing. If the court opts for submission of pleadings, it may for the time being refrain from fixing a court date for oral proceedings. On the first date for oral proceedings fixed after completion of submission of pleadings, the court should have the parties negotiate to simplify is-sues. If necessary, the court may also set a time limit for the parties to submit sum-mary statements of the outcome of such negotiation. The simplified issues so ar-rived at are in principle binding on the parties.

3.To ensure that the court and the parties can make proper preparation before court hearings, and thereby avoid unnecessary prolongation of the oral proceedings, it is expressly provided that if the presiding judge believes that preparation for oral proceeding is inadequate, he may, before the end of the oral proceedings, set a time limit for the parties to submit full state-ments of their cases.

4.To encourage parties to fulfill their duty to submit pleadings and disclose evidence, the court may, on application or sua sponte, order a party who fails to comply with that duty to explain the reasons in a written statement; if the party fails to submit an explanation as ordered by the court, or if such explanation is inadequate, the court may find that party in default.

5.Matters not raised in preliminary pro-ceedings may in principle not be raised in oral proceedings, except where they are matters which it is incumbent upon the court to investigate, which are not of a nature such as to delay proceedings, which could not be raised in preliminary proceedings for reasons beyond the con-trol of the party concerned, or which it would be manifestly unjust to exclude the same.

A party who has received a legally valid notice in reasonable time of facts alleged by the op-posing party, but does not appear on the date fixed for oral proceeding, and has not disputed such facts in preliminary pleadings, should be held to have admitted such facts, except where the notice was served by public announce-ment.

Under new provisions, the court may permit a witness to submit evidence by making a writ-ten statement out of court. Where technical means exist for the reciprocal transmission of sound and images between the location of a witness and the court, the witness may, if the court sees fit, be examined directly via such means.

The main changes in the procedure for ex-amination of evidence are as follows:

1.A party may request the court to direct necessary questions to a witness, or after making an explanation to the presiding judge, may raise such questions himself. Such questioning may be directed towards the credibility of testimony.

2.Where in the opinion of the court a wit-ness cannot speak freely in the presence of a specific person, the court may exclude such person from the courtroom for the duration of the witness's testimony.

3.In modern-type cases such as pollution, product liability, consumer protection or medical malpractice suits, documentary information is often in the sole keeping of one party and subject to strict control, so that opposing parties have little opportu-nity to gain access to it. In view of this, explicit provision is made that the court may order the party having possession of such documents to cooperate as is neces-sary.

4.Where the facts to be evidenced are ma-terial, and at the reasonable request of the party adducing the evidence, the court should order a third party having posses-sion of such a document to produce it, or set a time limit for the party adducing the evidence to produce such a document.

Provisions for the proceedings of perpetuation of evidence are enhanced.

No appeal to the court of third instance is available in property cases where the value in dispute is less than NT$1 million.