PART II PROCEDURE IN THE FIRST INSTANCE
CHAPTER I ORDINARY PROCEEDING
Section 3 Evidence
Item 6 Preservation of evidence
Where it is likely that evidence may be destroyed or its use in court may be difficult, or with the consent of the opposing party, the party may move the court for perpetuation of such evidence; where necessary, the party who has legal interests in ascertaining the status quo of a matter or object may move for expert testimony, inspection or perpetuation of documentary evidence.
The perpetuation of evidence provided in the preceding paragraph shall be governed by the provisions of this Section relating to evidence-taking.
Where the action has been initiated, the motion for perpetuation of evidence shall be made in the court in which the case is pending; where the action has not been initiated, such motion shall be made in the district court at the place either where the person to be examined domiciles/resides or where the tangible evidence is located.
In urgent cases, a motion for perpetuation of evidence may be made, even if the action has been initiated, in the district court provided in the preceding paragraph.
A motion for perpetuation of evidence shall specify the following matters:
1.The identity of the opposing party or the reason if the opposing party cannot be identified;
2.The evidence to be perpetuated;
3.The disputed fact to be proved by such evidence; and
4.The reason why the evidence must be perpetuated.
A preliminary showing shall be made with regard to the reasons provided in the first to the fourth subparagraphs inclusive of the preceding paragraph.
The court where the motion for perpetuation of evidence was filed shall rule on the motion.
A ruling granting the perpetuation of evidence shall specify the evidence and any disputed fact to be proved by such evidence.
An appeal may be taken from a ruling denying the motion for the perpetuation of evidence; a ruling granting the perpetuation of evidence is not reviewable.
Where the court considers it necessary, the court may, on its own initiative, render a ruling to perpetuate evidence pending an action.
The date designated for taking evidence shall be notified to the movant; except in cases of urgency or the existence of circumstances which will obstruct the perpetuation of evidence, the opposing party shall also be notified by being served with the motion pleading or transcript and the ruling prior to the designated date.
Parties who appear on the date provided in the preceding paragraph may be ordered to state their opinions.
Where the opposing party either is unknown or cannot be notified prior to the date designated for taking evidence, the court may appoint a special representative for such party for purposes of protecting his/her rights with regard to the evidence-taking.
The provisions of the third paragraph to the fifth paragraph inclusive of Article 51 shall apply mutatis mutandis to the special representative provided in the preceding paragraph.
The evidence-taking transcript shall be kept by the court which orders the perpetuation of evidence. Notwithstanding, where the action has been initiated in another court, the transcript should be forwarded to such court.
Where a party, in the oral-argument sessions, moves for the reexamination of a witness who has been examined in the perpetuation of evidence proceeding, the court shall examine such witness, except where the court considers it unnecessary.
Except as otherwise provided, the expenses for preserving evidence shall be included in the litigation expenses, and the responsibility for those expenses shall be decided accordingly.
Before an action is initiated, when both parties appear on the date designated for the perpetuation of evidence and reach an agreement with regard to the claim, the facts, the evidence or other matters, then the court shall make a note of such agreement in the transcript.
Where the agreement provided in the preceding paragraph is reached with regard to the claim, the court shall also make a note in the transcript of the agreed legal responsibility and the circumstances under which the dispute arose. Where a party shall tender a specific performance according to the agreement, the transcript may serve as a writ of execution.
Where an agreement has been reached, the authenticated copy of the transcript shall be served upon parties within ten days.
The provisions of Articles 212 to 219 inclusive shall apply mutatis mutandis to the transcript provided in the preceding paragraph.
Where the action is not initiated after a thirty-day period has lapsed from the day following the conclusion of the perpetuation of evidence proceeding, the court may, on motion by an interested person, release the document or object retained for purposes of its perpetuation or take other appropriate measures.
Where the action is not initiated within the period provided in the preceding paragraph, the court may, on motion by an interested person, order the movant to bear the expenses for the proceeding.
An appeal may be taken from the ruling provided in the two preceding paragraphs.