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Chapter 3 Commercial Litigation and Provisional Remedies Proceedings
Article 33
To initiate an action, the following information shall be stated in the pleading submitted to a court:
1. The parties and legal representatives
2. The claim and the occurrence giving rise to such claim
3. The claims to be adjudicated
4. The facts, reasons and evidence that constitute the grounds for such an action
5. Agent ad litem, or document of proof that conforms with the provisions of Article 6
Concerning the information that is suggested to be included in the pleading described in the preceding paragraph, the provisions in paragraphs 2 and 3 of Article 21 shall apply.
Article 34
After receiving a complaint, the defendant shall submit to the court a statement of defense within ten days. If a date is set for an oral argument or a preparatory proceeding, the submission must be made no later than seven days before the set date.
For information that shall be or is suggested to be recorded in the statement of defense as described in the preceding paragraph and the provisions of paragraphs 2 to 4 of Article 22 shall apply.
Article 35
The provisions in chapters 3 and 4 of Part II the Taiwan Code of Civil Procedure do not apply to commercial litigation cases.
Article 36
The first instance of commercial litigation cases shall be conducted by a collegial panel of three judges. When necessary, the court may assign an associate judge as the commissioned judge to conduct preparatory proceedings.
The provisions, as stipulated in Paragraph 2 of Article 7, Article 8, Paragraph 1 and the first half of Paragraph 3 of Article 15, Article 18, Article 39, Article 40, Article 43, Article 44, Paragraph 1 of Article 47, Article 49 through Article 53, Paragraph 3 of Article 55, Article 60, Paragraph 1 of Article 61 and Paragraph 3 of Article 64 of this Act, with regards to the authorities of the court or the presiding judges, shall apply mutatis mutandis to the commissioned judge when conducting preparatory proceedings.
Article 37
An amendment, additional claims or a counterclaim to an action, pursuant to the provisions of Article 255 and Article 259 of the Taiwan Code of Civil Procedure, shall be made before the end of the preparatory proceedings. Where there are no preparatory proceedings, such an action shall be made before the date of the first oral argument session.
Article 38
To implement a fair, prompt and economically feasible trial, the court and the parties shall proceed litigation with a formulated plan.
For the preparation of oral arguments, the court may engage business mediation committee members to participate in consultations.
Article 39
The court shall discuss and formulate a trial plan with both parties.
The following items shall be stipulated in a trial plan:
1. The time period for organizing factual and evidential disputed issues
2. The time period for examining witnesses, expert witnesses, examiners, and the parties
3. The estimated time required for the conclusion of oral arguments and the announcement of judgment
The trial plan may stipulate the time period whereby the plaintiff and defendant can present their means of attack or defense in front of the court on a specific issue and other matters as necessary for implementing the planned proceedings.
Depending on the status of the trial, the status of the parties in the proceeding and other matters, the court may discuss amendments to the trial plan with both parties if the court considers this to be necessary.
Discussions of or amendments to the trial plan during a court session shall be clearly recorded in the transcript.
If the parties submit a written statement of an agreed trial plan or an amendment to the trial plan to the court, in which the court formulates a trial plan or amends the existing trial plan accordingly, the court shall notify both parties.
Article 40
As the court conducts litigation proceedings according to the trial plan, if necessary, the presiding judge may set a time period whereby the plaintiff and defendant plead their respective cases in front of the court on a specific issue, after hearing the opinions of both parties.
Article 41
If a means of attack or defense is presented later than the specified time period, as described in the provisions set forth in Paragraph 3 of Article 39 or the preceding article, which results in a significant obstruction to the proceedings under the trial plan, the court may overrule such means of attack or defense . However, this rule does not apply if the parties explain that there are justifiable reasons for not being able to present a means of attack or defense within the said time period.
Article 42
If the parties reach an agreement in writing in accordance with the claims, facts, evidence or other matters subject to the parties' disposition, the parties shall be bound by such terms. However, this rule does not apply where they have agreed on an amendment to said agreement, where reasons exist that are not imputable to the parties, or where there are other circumstances rendering such a binding agreement manifestly unfair.
Article 43
In preparation for making assertions or providing proof, the parties may request the opposing parties to make specific explanations of necessary matters relating to facts or evidence within the time period designated by the court or before the end of the preparatory proceedings.
However, if any one of the following conditions exists in such inquiries, as described in the preceding paragraph, the opposing party may refuse to respond:
1. Abstract or non-case related inquiries
2. Insults to or harassment of the opposing party
3. Repetition of the inquiries
4. Inquiries about opinions
5. The time and costs required for explanations are disproportionate to the party's request
6. Matters that the witness may refuse to testify pursuant to the laws
Article 44
Such inquiries made in accordance with the provisions of the preceding article by parties, shall be in a pleading format.
The opposing party shall, within twenty days after receiving the pleading referenced in the preceding paragraph, present explanations based on the inquiries in the pleading, or clarify the reasons for refusal in accordance with the provisions of Paragraph 2 in the preceding article.
If the party deems that the refusal from the opposing party is baseless, the party may petition the court for a ruling within ten days after receiving the refusal pleading, as described in Paragraph 2.
If the court deems that the refusal by the opposing party is baseless, the opposing party shall be ordered to clarify the inquiry matters within a designated time period.
The court may extend the time period, as mentioned in Paragraph 2 and the preceding paragraph, either on a petition or ex officio.
Article 45
If the party being queried refuses to explain the inquiry matters, as supported by facts or evidence, without justifiable cause, the court may weigh the situation and take as the truth the opposing party's allegation with regard to such evidence or the disputed fact to be proved by such evidence.
In this scenario, as mentioned in the preceding paragraph, the parties involved shall be given the opportunity to present their arguments before a ruling is made.
Article 46
The parties shall be given the opportunity to present arguments regarding the special professional knowledge learned by the court before such information can be adopted as a basis for adjudication.
Concerning the legal and factual relationships of a case, the presiding judge, or the commissioned judge, shall direct the parties as to the factual, legal and evidential disputed issues of the case, and may convey his or her legal opinions to an extent appropriate on the case in due course.
Article 47
With the permission of the court, the parties may introduce expert witnesses to provide professional opinions.
The introduction, as mentioned in the preceding paragraph, shall be made before the end of preparatory proceedings unless permitted by the court.
The expert witnesses, as referred to in the first paragraph, are professionals who help the court in understanding or identifying facts, evidence, and rules of experience, based on their knowledge, skills, experience, training, or education in finance, accounting, corporate governance, science, technology, or other professional fields.
Article 48
When introducing an expert witness, the parties shall specify the name of the expert witness, his or her academic background, work experience, professional fields, the disputed facts to be proved, and the matters to be examined.
Article 49
The expert witnesses shall present professional opinions in writing and attach an affidavit to the conclusions, which shall be submitted to the court by the parties. However, with the permission of the court, such opinions may be presented orally, and the provisions set forth in Paragraph 2 of Article 312 of the Taiwan Code of Civil Procedure shall apply.
When expert witnesses present their opinions, as described in the preceding paragraph, the following information shall be disclosed:
1. Academic background, work experience, professional fields, and the cases that he or she participated in
2. Whether or not, during the preparation or submission of professional opinions or materials, they had a delegation or cooperative relationship with the parties, related parties, or their agents ad litem
3. Whether or not, during the preparation or submission of professional opinions or materials, they have received monetary remuneration, or financial assistance, or its equivalent price or value, from the parties, interested parties, or their agents ad litem
4. The identities of other people who provided monetary remuneration, or assistance, or its equivalent price or value
Article 50
After receiving written professional opinions, as described in the preceding article, the party may make inquiries to the expert witnesses of the opposing party in writing within the time period specified by the court.
Expert witnesses shall answer the inquiries, as mentioned in the preceding paragraph, in writing. The answers given by the expert witnesses are regarded as part of their professional opinions.
The court may, ex officio or at the request of the parties, notify expert witnesses to state their opinions in court.
When an expert witness is absent without justifiable reasons, or refuses to answer an inquiry, the court may weigh the situation and exclude their professional opinions as evidence.
Article 51
When the court considers it necessary, it may order the expert witnesses of the two parties to discuss the disputed issues, or other necessary matters, and jointly present their professional opinions in writing within a designated time period.
The professional opinions, as described in the preceding paragraph, shall include the portions that are the consensus of the expert witnesses and those that are not, and a summary of the reasons for the said disagreements.
Concerning the professional opinions described in Paragraph 1, parties involved should be given the opportunity to present their arguments before a ruling is made.
Article 52
With the permission of the presiding judge, an expert witness may question the other expert witnesses or examiners during the session designated for examination .
The remuneration and other expenses of expert witnesses shall be paid by the parties who introduce the expert.
The provisions of Article 316 through Article 322 and Article 334 of the Taiwan Code of Civil Procedure shall apply mutatis mutandis to expert witnesses.
Article 53
If the opposing party, or a third party, is ordered by Court to present documents, objects for inspection or information required for examination by a petition, and the holder of the said items refuses to comply based on the grounds of trade secrets, the holder shall clarify the type, nature, and scope of such secrets, as well as the nature and the extent of the unfavorable outcome as a result of disclosure.
In order to determine whether the provided defense, as mentioned in the preceding paragraph, is reasonable, the court shall give the parties the opportunity to state their opinions, and if necessary, may order the holder to present evidence confidentially.
In the case of the preceding paragraph, the court shall not disclose the said evidence. However, if it is necessary to disclose such evidence in order to hear the opinions, it may be disclosed to agents ad litem. If it is difficult to achieve the goals of the proceedings without disclosing such evidence to the parties, the court may disclose to the parties.
The court shall notify the evidence holder before making such a disclosure, as described in the preceding paragraph. The holder may petition the court for a confidentiality preservation order to the parties who are about to receive disclosure within fourteen days after the service of the notification. The court shall not disclose the said evidence before the ruling on the said petition is final.
The ruling relating to the petition, as described in the preceding paragraph, may be appealed; the court receiving the interlocutory appeal shall make an expeditious ruling.
Article 54
If the evidence holder, as described in Paragraph 1 of the preceding article, defies the court's order to produce the said evidence without a justifiable cause, the court may rule to impose a fine of up to one hundred thousand New Taiwan Dollars. The court may also rule to order a compulsory injunction if necessary.
The provisions relating to the Enforcement Pertaining to Claims for the Delivery of Things, as stipulated in the Compulsory Enforcement Act, shall apply mutatis mutandis to the enforcement of the compulsory injunction, as described in the preceding paragraph.
The ruling, as described in the first paragraph, may be appealed; the execution of the ruling imposing a fine should stay during the appeal.
When a party defies the court's order to produce the said evidence without a proper cause, the court may deem the facts attested by such evidence to be true.
Article 55
If the trade secrets held by the parties or third parties, after clarification, are in line with one of the following conditions, the court may issue a confidentiality preservation order to the opposing parties, the parties, agents ad litem, assistants, or other related parties of the litigation by petition:
1. The parties' pleading includes trade secrets of the parties or third parties, or evidence that has been investigated, or should be investigated, which relate to trade secrets of the parties or third parties.
2. To avoid the disclosure of trade secrets, as described in the preceding subparagraph, that may impede the parties' or the third parties' business activities stemming from such trade secrets, or where such secrets may be used for purposes other than the litigation in question, it is necessary to restrict the disclosure or use of such secrets.
The provisions of the preceding paragraph do not apply, if the opposing parties, the parties, agents ad litem, assistants or other parties related to the litigation have obtained the said trade secrets prior to the petition by means other than the methods described in the provisions of Subparagraph 1 of the preceding paragraph concerning the review of the pleading or evidence investigation.
The court may, at the request of the person receiving the confidentiality preservation order, and after consulting with the petitioner, issue a confidentiality preservation order to a person not included in the provisions of the first paragraph when the court deems necessary.
A person receiving the confidentiality preservation order shall not use the said trade secrets for purposes other than the litigation in question, nor may such a person disclose them to persons who are not under the confidentiality preservation order.
Article 56
The application for the confidentiality preservation order shall include the following information in writing:
1. Persons to receive the confidentiality preservation order
2. The trade secrets to be protected by the order
3. Facts consistent with the conditions listed in all the subparagraphs in the first paragraph of the preceding article
The description of the trade secrets in Subparagraph 2 of the preceding paragraph can be disclosed by indirect citation.
Article 57
The ruling of the confidentiality preservation order shall serve the petitioner and the opposing party.
The ruling of confidentiality preservation order shall include the trade secrets to be protected, the reasons for the protection and details of the restrictions.
The ruling described in the preceding paragraph shall take effect when the persons receiving the order are served, and is not appealable.
The ruling of dismissing the petition of confidentiality preservation order is appealable.
Article 58
The persons under a confidentiality preservation order may petition the Commercial Court to revoke the order, on the grounds that such an order lacks the requirements described in the provisions set forth in Paragraph 1 of Article 55; there is a condition described in Paragraph 2 of the same article, or the cause for such an order no longer exists.
The persons who petitioned for the confidentiality preservation order may petition to revoke said order.
The ruling of revoking the confidentiality preservation order shall serve the petitioner and the opposing party.
The ruling described in the preceding paragraph is appealable.
The confidentiality preservation order becomes invalid when the ruling to revoke said order is final.
In the case of the preceding paragraph, the Commercial Court shall notify all the petitioners, the opposing party and other persons who are under the confidentiality preservation order.
Article 59
After the confidentiality preservation order is issued, if there are persons who are not restricted or prohibited from reviewing the documents in the dossier who are not under the confidentiality preservation order, petition to review, transcribe, or film the said documents, the court shall immediately notify the person who petitioned for the confidentiality preservation order. However, this rule does not apply if said order has been revoked.
In the case of the preceding paragraph, the court shall not deliver the documents for reviewing, transcribing, or filming within fourteen days from the day of the petitioner of the original order being notified. The petitioner of the original order may, within fourteen days from the date of the notification, petition to issue a confidentiality preservation order to the persons requesting access, or petition to restrict, or prohibit such access. The court shall not deliver the said documents until the ruling for the petition is final.
The provisions of the preceding paragraph do not apply, if the petitioner of the original order consents to the petition as described in the first paragraph.
Article 60
A petition for the perpetuation of evidence shall be submitted to the Commercial Court. In the event of an urgent situation, said petition may be submitted to the district court where the person to be examined resides or where the evidence is located.
A petition to the Commercial Court for the perpetuation of evidence shall indicate and clarify which matters falls under the Commercial Court's jurisdiction.
When the court implements the perpetuation of evidence, it may order a commercial investigator to perform his or her duties on site.
If an opposing party refuses the implementation of the perpetuation of evidence without justifiable reasons, the court may use coercive measures to exclude such refusal to the extent necessary, and may request the assistance of police authorities when necessary.
If the implementation of a perpetuation of evidential action endangers the integrity of trade secrets of the opposing party or a third party, the court may, at the request of the petitioner, the opposing party, or the third party, issue restrictions and custody or access prohibitions of the evidential information obtained during the said implementation to the persons present during the implementation.
The provisions of Article 55 through the preceding article shall apply mutatis mutandis to the case in the preceding paragraph.
When the court deems necessary, it may request the district court where the person to be examined resides or where the evidence is located to implement the perpetuation of evidence. When a court is entrusted to implement the perpetuation of evidence, the provisions of the third paragraph through the preceding paragraph shall apply.
Article 61
The court may inquire among the parties about the possibility of settling, transferring the case to mediation, or submitting the case to arbitration to resolve disputes when appropriate and to promote alternative dispute resolutions other than litigation for the parties.
If the parties enter into an arbitration agreement in writing during the proceedings, or such an agreement is clearly recorded in the transcript, the court shall order, on a petition or ex officio, to stay the proceedings and order the plaintiff to submit the case to arbitration within a designated period of time. However, this rule does not apply to the cases where the oral argument is already concluded.
If the plaintiff fails to submit the case to arbitration within the said time period, as described in the preceding paragraph, the court shall rule to dismiss the case.
In the case, as described in Paragraph 2, if an arbitration is established after the court has ruled to stay the litigation proceedings, the litigation proceedings are deemed concluded when the arbitral tribunal reaches an award. If no award is reached, the court may, on a petition or ex officio, revoke the order of the stay of the litigation proceedings.
If a settlement is reached, or if the case is deemed as concluded, pursuant to the provisions of the preceding paragraph, the parties may, within three months from the date the settlement is reached, or the date original arbitral award is served, move for a refund of the balance of the filing fee paid, after deducting one-fourth of the court costs.
If the arbitration award made by the arbitration tribunal is revoked by the court's ruling, the parties may request the continuation of the trial and pay back the refunded court costs, as mentioned in the preceding paragraph.
The provisions of Paragraph 1 of Article 500 and the main text of Paragraph 2 of Article 501, Article 502, and Article 506 of the Taiwan Code of Civil Procedure shall apply mutatis mutandis to the situation as described in the preceding paragraph.
Article 62
The provisions of Part VI of the Taiwan Code of Civil Procedure shall apply mutatis mutandis to the petition and processing of the payment order of a commercial case.
If a debtor raises an objection to the payment order pursuant to the laws, the court issuing the payment order shall transfer the case file and the evidence, or rule to transfer the case to the Commercial Court.
Article 63
A petition for provisional attachment, provisional injunction, or temporary status quo injunction of a commercial case, is under the exclusive jurisdiction of the Commercial Court.
Article 64
When petitioning for a temporary status quo injunction, the petitioner should clarify the fact that it is necessary for purposes of preventing material harm or imminent danger, or other similar circumstances. If such a clarification is insufficient, the court shall dismiss the petition.
Where the petitioner has already clarified the situation, the court may still order the petitioner to provide a security for a temporary status quo injunction.
Before issuing a temporary status quo injunction, the parties shall be given the opportunity to state their cases before the court. However, the rule does not apply, if the petitioner claims that there are special circumstances preventing the opposing parties being notified before the injunction is issued, and definitive evidence is presented that the court deems appropriate.
If the petitioner fails to initiate an action within thirty days after a temporary status quo injunction is served, the court may, on a petition or ex officio, revoke said injunction.
A ruling of revocation prescribed in the preceding paragraph shall be publicly announced, and such a ruling shall take effect at the time of announcement.
Article 65
If the ruling for a temporary status quo injunction is revoked due to an impropriety from the beginning, a condition in Paragraph 4 of the preceding article, a petition filed by the petitioner, or a final case ruling where the petitioner is defeated, the petitioner shall compensate for damages suffered by the opposing parties due to said injunction.
In the case of the preceding paragraph, if the petitioner can prove that he or she is not at fault, the court may reduce or exempt the petitioner's liability related to compensation, depending on the circumstances.
In the case of Paragraph 1, if the opposing party has been proven to have suffered damages, but cannot prove the damage amount, or has significant difficulties in providing such proof, it is presumed that the damage amount is equal to half of the amount of security provided by the petitioner. However, if the court did not order a security, it is presumed that the amount of damage is equal to half of the price or value of the claim.