PART II PROCEDURE IN THE FIRST INSTANCE
CHAPTER I ORDINARY PROCEEDING
Section 1 Initiation of An Action
To initiate an action, a complaint shall be submitted to the court and indicate the following matters:
1. The parties and their statutory agents;
2. The claim and the transaction or occurrence giving rise to such claim; and
3. The demand for judgment for the relief sought.
It is advisable to indicate in the complaint all matters necessary for determining the competent court to exercise jurisdiction and the applicable proceeding.
It is advisable to indicate in the complaint matters in preparation of oral argument as provided in Article 265.
In an action demanding monetary damages, the plaintiff may, within the scope of the transaction or occurrence giving rise to such claim provided in the second subparagraph of the first paragraph, only indicate the minimum amount claimed with regard to the demand provided in the third subparagraph of the first paragraph and increase the amount claimed before the conclusion of the oral argument in the first instance. Where the plaintiff does not increase the amount accordingly, the presiding judge shall inform him/her of the availability of such an opportunity to increase the amount.
In the case provided in the preceding paragraph, the applicable proceeding shall be determined according to the minimum amount claimed.
In an action demanding the computation and payment for which a defendant is obliged to perform under certain legal relations, the plaintiff may reserve his/her demand with regard to the scope of such payment until the defendant produces the report of its computation.
An action demanding future performance may not be initiated unless it is necessary to make such demand in advance.
An action for a declaratory judgment confirming a legal relation may not be initiated unless the plaintiff has immediate legal interests in demanding such judgment. The same rule shall apply to an action for a declaratory judgment confirming the authenticity of a certificate or the existence or nonexistence of the facts from which a legal relation arises.
A declaratory judgment action confirming the existence or nonexistence of facts from which a legal relation arises provided in the preceding paragraph may not be initiated unless no action of any other kind can satisfy the same purpose.
In the case provided in the preceding paragraph, if another claim may be asserted within the same proceeding, the presiding judge shall elucidate on it; if the plaintiff amends the claim or raises additional claims as a result of such assertion, the restriction provided in the first sentence of the first paragraph of Article 255 will not apply.
Except for a claim which may not be adjudicated in the same proceeding, multiple claims against the same defendant may be asserted concurrently by initiating the action in any court which has jurisdiction over one of the claims insofar as it does not intrude on another court's exclusive jurisdiction.
In case of any of the following, the court shall dismiss the plaintiff's action by a ruling, but where the defect is rectifiable, the presiding judge shall order the plaintiff to rectify within a designated period of time:
(1) Where the civil court does not have jurisdiction over the case, and the case cannot be transferred in accordance with laws;
(2) Where the court in which the action is pending does not have jurisdiction over the action and cannot issue a ruling provided in Article 28;
(3) Where the plaintiff or defendant lacks the capacity to be a party;
(4) Where the plaintiff or defendant lacks the capacity to litigate and is not legally represented by his/her statutory agent;
(5) Where an advocate initiates the action and the advocate lacks authority;
(6) Where the action is not initiated in accordance with the prescribed formality, or lacks other requirements;
(7) Where the action is initiated in violation of either the provisions of Article 253 or the second paragraph of Article 263, or its claim has been adjudicated by a final judgment with binding effect.
(8) The action is initiated in bad faith, for improper purpose or with gross negligence, and the factual or legal claims thereof lacks reasonable basis.
In case of any of the following, the court shall dismiss the plaintiff's action by a judgment without oral argument, but the presiding judge shall order the plaintiff to rectify within a designated period of time if the defect is rectifiable:
(1) Where the plaintiff has no standing or where the plaintiff lacks the right to be protected by law; or
(2) Where the plaintiff's claim, given the facts alleged, is manifestly without legal ground.
In the case of the preceding two paragraphs, the plaintiff cannot make rectification after his/her action is dismissed by a judgment for failure to rectify within the designated period of time.
In the case where the eighth subparagraph of the first paragraph of the preceding Article applies or in the case of the second paragraph of the preceding Article where an action is filed in bad faith, for improper purpose, or with gross negligence, the court may impose a fine of no more than 120,000 New Taiwan Dollars on the plaintiff, his/her legal representative or advocate, respectively.
Where the preceding paragraph applies, the defendant's daily fees, travel expenses and compensation to appointed attorneys shall become part of the litigation expenses and their amount shall be determined at the discretion of the court; and the second paragraph of Article 77-24 and the second and fourth paragraphs of Article 77-25 shall apply mutatis mutandis.
The fine pursuant to preceding first paragraph shall be adjudicated along with the action, and the amount of litigation expense shall also be prescribed in the judgment.
Where the plaintiff appeals against the judgment, it is deemed to be an appeal against a ruling or an appeal against a judgment regarding the part about the fine; but where the plaintiff only appeals against the fine, the procedures governing interlocutory appeal shall apply.
Where the legal representative or advocate is fined and there is an appeal against the judgment regarding the fine, the procedures governing interlocutory appeal shall apply.
The execution of a judgment shall be stayed where there is an appeal against the fine pursuant to the preceding third paragraph.
Where the plaintiff appeals against the judgment of the action, the plaintiff shall provide a security for the fine and litigation expenses prescribed in the preceding third paragraph.
After the court receives the complaint, the presiding judge shall promptly designate a date for the oral-argument session, except where the action shall be forthwith dismissed in accordance with the provision of the preceding article, or where the action shall be transferred to another court in accordance with the provision of Article 28, or where a preparatory proceeding by exchange of pleadings shall be conducted.
The complaint shall be served upon the defendant along with the summons for the oral-argument session.
Except in urgent cases, there shall be a preparation period scheduled for at least ten days between the day of service provided in the preceding paragraph and the day scheduled for the oral-argument session.
In an action where a preparatory proceeding has been conducted, the preparation period provided in the preceding paragraph shall be no less than five days.
The summons for the oral-argument session shall indicate the hour, date, and the place of appearance. Except where it is served upon an attorney, the summons shall also indicate the legal consequences of a failure to appear.
A party may not reinitiate an action which has been initiated during its pendency.
(1) No action will be affected by the fact that the legal relation of the subject matter of the claim has been transferred to a third person whensuch action is pending.
(2) In cases provided in the preceding paragraph, subject to the consent of both parties, the third person may move for assuming the action for a party. If only the opposing party disagrees, either the transferor party or the third person may move the court for a ruling to permit the third party to assume the action.
(3) An interlocutory appeal may be taken from the ruling provided in the preceding paragraph.
(4) In cases provided in the first paragraph, when the third person does not intervene or assume the action, the parties may notify the third person of the action. When the parties do not notify it of the action but the court knows that the claim has been transferred, the court shall immediately notify the third person the fact that the action is pending in writing.
(5) Where the acquisition, creation, loss or alteration of a claimed rightmust be registered pursuant to the applicable laws, the plaintiff may move the court for a ruling to permit the registration of the fact that the action is pending prior to the conclusion of the oral argument of the trial of fact.
(6) For the motion provided in the preceding paragraph,a preliminary showing of the grounds shall be made. Prior to ruling, the court may provide opportunities for both parties to state their opinions.
(7) In cases of inadequacy in the preliminary showing provided in the preceding paragraph, the court may assess an amount for the security and issue a ruling for registration after the security is provided. This also applies to cases in which the preliminary showing is adequate.
(8) The ruling provided in the fifth paragraph shall state the demand for judgment for the relief sought, the claim, and the transaction or occurrence giving rise to such claim.
(9) The plaintiff may file for registration from the registrar agency by showing the ruling provided in the fifth paragraph. This provision will not apply where the defendant and the third person have filed for the transfer registration for the right or object provided in the fifth paragraph and the registrar agency has accepted the application.
(10) Parties may make interlocutory appeal against the ruling provided in the fifth paragraph.Before the appeal court makes the ruling, it must provide opportunities for the parties to state their opinions.The ruling by the appeal court may not be re-appealed.
(11) Where the ground for the registration of the fact that the action is pending has vanished or experienced otherchanges of circumstances, the parties or an interested party may move the court for a ruling to revokethe permission of registration. The motion shall be made to the original court that issues the permission when the case is pending in the third instance.
(12) The second sentence of the sixth paragraph and the tenth paragraph shall apply mutatis mutandis to the motion provided in the preceding paragraph.
(13) After the legal action is concluded or the ruling provided in the fifth paragraph is reversed or revoked, the parties or an interested party may move the court to issue a certificate that requests the registrar agency to deregister such fact.
After the service of the complaint, the plaintiff may not amend his/her claim or raise additional claims, except in case of any of the following circumstances:
1. Where the defendant agrees;
2. Where the amendment or addition of the claim is based on the same transaction or occurrence;
3. Where only the demand for judgment for the relief sought is expanded or reduced;
4. Where the change of circumstances makes it necessary to replace the original claim with another claim;
5. Where the claim shall be adjudicated jointly with regard to several persons and one or several such persons who are not parties are joined as parties;
6. Where the existence or nonexistence of a certain legal relation, based upon which relation the case shall be decided, becomes disputed in the course of the proceeding and an additional claim for a declaratory judgment confirming such legal relation against the defendant is raised;
7. Where it would neither severely obstruct the defendant's defense nor delay litigation.
Where the defendant proceeds orally on the merits without objecting to the amendment or addition of claims, he/she shall be deemed to have agreed to such amendment or addition.
Supplementing or rectifying factual or legal statements without changing the claim shall not be deemed an amendment or addition of claims.
No claim may be amended, nor may an additional claim be raised, if the amendment or the addition of the claim is subject to another court's exclusive jurisdiction or cannot be adjudicated in the same proceeding.
The decision allowing the amendment or addition of the claim in accordance with the proviso of the first paragraph of Article 255, or determining that there is no amendment or addition, is not reviewable.
Where a ruling denying the addition of claims becomes final and binding by reason of a failure to meet the relevant requirements, the plaintiff may, within ten days from the day when the ruling becomes final and binding, move the court to adjudicate such additional claim.
The defendant may, prior to the conclusion of the oral argument, raise a counterclaim against the plaintiff and the persons with regard to whom the counterclaim shall be adjudicated jointly in the court where the plaintiff's claim is pending.
No counterclaim may be raised if it is subject to the exclusive jurisdiction of another court or if it is neither related to the plaintiff's claim nor related to the defendant's means of defense.
No counterclaim may be raised if it cannot be adjudicated in the same proceeding with the plaintiff's claim.
The court may dismiss a counterclaim without prejudice where it is raised by a party for purposes of delaying litigation.
A claim may be amended, and an additional claim and counterclaim may be raised in the oral-argument sessions.
The amendment or addition of claims, or counterclaims made in the oral-argument sessions shall be indicated in the oral-argument transcript. The transcript shall be served on the opposing party when the opposing party was not present.
The plaintiff may, before the judgment becomes final and binding, voluntarily dismiss the action in whole or in part, and except where the defendant has proceeded orally on the merits, such dismissal shall be subject to his/her consent.
A voluntary dismissal shall be made by pleadings. Notwithstanding, it may be made orally before the court or the commissioned judge in the court session.
A voluntary dismissal made orally shall be indicated in the transcript and in the case where the opposing party was not present, such transcript shall be served on the opposing party.
The defendant is deemed to have agreed to the voluntary dismissal if he/she does not object to such dismissal within ten days from the day of the court session in the case where he/she appeared and did not express whether he/she agreed or disagreed, or from the day of service of the transcript provided in the preceding paragraph or the dismissal pleading in case where he/she failed to appear in the court session or where the dismissal is made by pleadings.
An action dismissed voluntarily is deemed an action never initiated. Notwithstanding, no voluntary dismissal of the plaintiff's claim will render a counterclaim inoperative.
An action may not be re-initiated if it is dismissed voluntarily after a final judgment has been entered.
Where the plaintiff's claim has been dismissed voluntarily, the voluntary dismissal of a counterclaim is not subject to the plaintiff's consent.