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Laws & Regulations Database of The Republic of China (Taiwan)

Print Time:2024/11/23 23:49
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Chapter Law Content

PART I GENERAL PRINCIPLES
Chapter III Parties
Section 5 Advocates and Assistants
Article 49
Any party may retain advocates to conduct acts of litigation. However, each party should not retain more than three advocates.
Advocates in an administrative litigation shall be attorneys. A person who is not an attorney may act as an advocate in one of the following circumstances:
1. In a tax litigation, a person who is a certified public accountant;
2. In a patent litigation, a person who is a patent attorney or can act as a patent advocate in accordance with applicable laws;
3. If the party is a public juridical person, a central or local government agency or an unincorporated association under the public law, its associated full-time personnel who is in charge of legal affairs, legal matters, administrative appeal or other litigation-related matters; and
4. In traffic adjudication cases, if the plaintiff is a natural person, his/her spouse, a relative by blood within the third degree of relationship or a relative by marriage within the second degree of relationship; if the plaintiff if a juridical person or an unincorporated association, its associated full-time personnel who is in charge of litigation-related matters.
A party shall obtain the presiding judge's permission in retaining a person who is not an attorney as prescribed in the preceding Paragraph.
Whenever the presiding judge has permitted the person who is not an attorney to conduct acts of litigation for the principal case, it should be regarded that the permission as prescribed in the preceding Paragraph has been obtained.
The presiding judge may by a ruling, at any time revoke the permission provided in the preceding two Paragraphs. The notification of such revocation shall be served upon the principal of the retention.
If the advocate sub-delegates his/her power to other persons, the number of the sub-delegated person cannot exceed one person. The preceding four Paragraphs shall apply mutatis mutandis to the sub-delegated persons.
Article 49-1
For matters referred to in the following subparagraphs and for the matters arising from their proceedings, the parties to the litigation shall appoint lawyers as agents to the litigation:
1. Environmental protection matters and land controversy matters of which the first-instance ordinary proceedings occur in high administrative courts, and the matters regarding the review of urban plans.
2. Appeals of the ordinary proceedings that occur in high administrative courts.
3. Matters that are brought before the Supreme Administrative Court.
4. Rehearing matters to which ordinary proceedings shall apply, and the rehearing matters for the review of urban plans.
5. Applications for re-trial and rehearing to which ordinary proceedings shall apply, and the applications for re-trial and rehearing for the review of urban plans.
The situations referred to in the preceding Paragraph are not affected by the narrowing of the scope of litigation, part withdrawal of the litigation, change of proceeding or mistaken application of the proceeding. The Judicial Yuan shall promulgate the scope of the matters referred to in Subparagraph 1 of the preceding Paragraph.
In the situations referred to in Paragraph 1, if any of the following conditions are met, the party to the litigation may choose not to appoint a lawyer as an agent of litigation:
1. The party to the litigation, or its representative, manager, or agent designated by law possesses the qualification of judge, prosecutor, or lawyer, or is a professor or associate professor teaching public law at a university or an independent college approved by the Ministry of Education.
2. For tax matters, the party to the litigation, or its representative, manager, or agent designated by law possesses the qualification referred to in Paragraph 2, Subparagraph 1 of the preceding Article.
3. For patent matters, the party to the litigation, or its representative, manager, or agent designated by law possesses the qualification referred to in Paragraph 2, Subparagraph 2 of the preceding Article.
In the situations referred to in Paragraph 1, the party to the litigation may choose to appoint a person other than a lawyer as an agent of litigation, if they meet any of the following conditions and the administrative court considers it appropriate:
1. A spouse, blood relation within three degrees, or marital relation within two degrees of the party to the litigation possesses the qualifications of a lawyer.
2. A person satisfies Subparagraph 1, Subparagraph 2, or Subparagraph 3 of Paragraph 2 of the preceding Article.
The situations in the two preceding paragraphs should be explained to the court when the litigation is initiated, or when a person other than a lawyer is appointed as an agent of the litigation.
Paragraph 1 of this Article does not apply in the following matters:
1. Application for legal aid and the appeals against the rulings on such matters.
2. Application to appoint a lawyer as an agent of litigation.
3. Application to determine the compensation for a lawyer.
If the plaintiff, appellant, applicant or appellant against a ruling fails to be represented by an agent of litigation, or if they are represented under Paragraph 4 but the administrative court considers it inappropriate, the administrative court should first set a deadline for the plaintiff, appellant, applicant or appellant to solve the problem. If the problem is not solved by the deadline, and no application was made per Article 49-3, the administrative court should dismiss the suit or appeal by a ruling.
If the defendant, appellee, or the party joined under Articles 41 and 42 fails to be represented by an agent of litigation according to the Paragraph 1 to Paragraph 4 of this Article, or if they are represented under Paragraph 4 but the administrative court considers it inappropriate, the presiding judge may set a deadline to solve the problem for the defendant, appellee, or the party joined.
If the parties to the litigation solve the problems following the preceding two paragraphs, the decisions in litigation made by the parties take effect retrospectively at the time of making such decisions after the agents of litigation approve such decisions. If the problems are solved per the preceding two paragraphs after the deadline, the decisions in litigation made by the parties take effect at the time when the agents of litigation approve such decisions.
Article 49-2
For the matters referred to by Paragraph 1 of the preceding Article, the agents of the litigating parties may accompany the litigating parties to attend the trial. The litigating parties may speak at the trial if the presiding judge allows it.
In the circumstances of the preceding Paragraph, the litigating parties may do the following without the help of their agents:
1. admitting the truth of a relevant matter;
2. reaching a settlement or agreement in mediation;
3. withdrawing a complaint or application; and
4. withdrawing appeals against judgments or rulings.
Article 49-3
For matters governed by Article 49-1, Paragraph 1 of this Act, when the parties do not have the resources to hire agents for the litigation, they may, according to the rules of legal aid, apply to the administrative court for appointing lawyers to act as the agents for the litigation.
When the parties to litigation appeal a judgment or a ruling and apply to the administrative court under the preceding Paragraph, the administrative court making the judgment or the ruling should send the case file to the higher administrative court.
The Judicial Yuan shall promulgate the rules for appointing lawyers to act as litigation agents after consulting with the Ministry of Justice and the Taiwan Bar Association.
Article 50
An advocate shall produce a Power of Attorney upon conducting the initial act of litigation, except where the advocate is retained by a party orally and such retention is recorded in the transcript by the administrative court clerk.
Article 51
An advocate has the authority to conduct all acts of litigation with regard to the case for which he/she is retained, except that he/she may not, without special authorization for him/her to do so: abandon the claim, admit the claim, voluntarily dismiss the case, settle the case, initiate counterclaims, take an appeal from a judgment, initiate a motion for rehearing, or appoint another advocate.
The provision of the proviso of the preceding Paragraph shall apply mutatis mutandis to acts concerning compulsory execution or collection of a thing in dispute.
Any restriction on the authority provided in Paragraph 1 shall be specified in the Power of Attorney or transcript provided in the preceding Article.
Article 52
In cases where there are two or more advocates, each advocate may represent the party independently.
Retention in violation of the provision of the preceding Paragraph does not undermine the representation by the advocate independently.
Article 53
An advocate's authority shall not terminate by reason of the death, bankruptcy, or loss of the capacity to litigate of the party represented, nor shall it terminate by reason of a change of the statutory agent, or revocation or reformation of the government agency.
Article 54
The termination of an advocate's retention shall be made to the administrative court in writing and served upon the opposing party by the administrative court.
In cases of termination of retention by an advocate, such advocate shall continue to conduct all acts necessary to protect the rights of the party represented for a period of fifteen days from the day of expression of the intention to terminate retention.
Article 55
A party or an advocate may, with the permission of the presiding judge, appear with an assistant during a court session. The number of assistants shall be no more than two persons.
Whenever deemed necessary, the presiding judge may order a party or an advocate to appear with an assistant during a court session.
Whenever the presiding judge deems that the assistant provided in the preceding two Paragraphs is not suitable, he/she may revoke its permission or prohibit such assistant to continue the acts of litigation.
Article 56
Article 75, Article 75 and Article 77 of the Code of Civil Procedure shall apply mutatis mutandis to the circumstances prescribed in this Section.
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