A Study on Preclusion Effect of Newly Raised Allegations/Defenses on Appeals

• Main Authors: Lai Jie, 賴頡
• Other Authors: Hunag, Kuo-Chang
• Format: Others
• Language: zh-TW
• Published: 2013
• Online Access: http://ndltd.ncl.edu.tw/handle/11304199323074125676

碩士 === 國立臺北大學 === 法律學系法律專業組 === 101 === The Article 447 of the civil procedure has been modified in January 14, 2003. Taiwan moves toward a concentrated proceeding. It prohibits one party from raising new allegations or defenses on appeals except for six exceptions. Since a duty is imposed on parties to expedite proceedings, the court authorized to preclude any measures submitted in violation of this duty. The thesis focuses the preclusion effect on appeals. Chapter 1 introduces the motivation, purpose, and the scope of this thesis. The author starts with a comparative law, and sum an Empirical result are also observed. Chapter 2 discusses the most important elements of appellate procedure. The author introduces the appellate procedure in Germany, Japan, United States, and Taiwan. Chapter 3 begins with the theoretical basis of the preclusion, followed by discussion its concepts, elements, application, and the effects. Particularly, in Paragraph 3, Section 1 and Paragraph 6, Section 1 of the Article 447, the author integrates all theories from Taiwanese scholars to realize how to appropriately apply this new mechanism. Chapter 4 collects 28 cases in practice to identify the relevant controversy of Article 447.The author introduces the event and judgment in each case, and observes the trends of the court applying Article 447. Chapter 5 discusses the cases in chapter 5. The author focuses on the efficiency and the fairness in each case, and proposes some ideas for a reference. Chapter 6 concludes the thesis. The author argues the application of preclusion effects shall incorporate the value both of efficiency and fairness.