A Study on Summary Proceeding in Civil Procedure Law-Focusing on the Types of Action and the Remedies

• Main Authors: Lin, Chao-Wei, 林兆薇
• Other Authors: Wu, Chung-Jau
• Format: Others
• Language: zh-TW
• Published: 2015
• Online Access: http://ndltd.ncl.edu.tw/handle/47f4up

碩士 === 國立臺北大學 === 法律學系一般生組 === 103 === The Civil Procedure Law was enacted on December 26th 1930, and the summary proceedings was enacted at the same time. Except for the amendment made to adjust to the enactment of Laws of Domestic Proceedings, summary proceedings’ last large-scale amendment was made in 1999. The 1999 amendment’s paramount focus was on the types of summary proceedings. 16 years have passed since the 1999 amendment, nonetheless, various controversies exist in court practice. This essay mainly focuses on summarizing the opinions of Taiwan High Court regarding the summary proceedings made in legal seminars. In addition, based on sampling of Taiwan Taipei District Court’s decisions made in the second instance of summary proceedings during the period of January 1st 2013 to December 31st 2014, this essay collects statistics of application of each type of summary proceedings, and concludes the proportion of possibility for each type stipulated in Civil Procedure Law Article 427 being applied. In terms of court practice in summary proceedings, the original stipulations, made to save time, effort and cost for trial, and enacted by the law makers back then, still exist at present. This essay attempts to discuss the suitability of the present stipulations by means of reviewing the comments from scholars, and courts’ trial practice, and stipulation of summary proceedings in German laws. With regard to the third instance, the emphasis is placed upon scrutinizing “Approval to Appeal” which requires approval from the second instance for submitting an appeal to the third instance in summary proceedings. In scrutinizing “Approval to Appeal”, this essays endeavors to do it from two aspects. First, by comparing the amount of denial made in accordance with Civil Procedure Law Article 436-3 Section 3 by the second instance with amount of denial made by the third instance, it enables us to examine if the second instance has efficiently filtered out the appeals. Second, by summarizing significance of legal principles articulated by the third instance specified in judgements, we are able to examine whether the substance of significant legal principles are consistent with the orientation that German laws adopts, to which the law makers made reference. This essays points out five issues regarding types of summary proceedings: (1) The procedure is unfair. (2) Limited scope in application of law. (3) Professional regulations are involved in certain types. (4) Numerous types in summary proceedings. (5) Relatively low possibility for application. In addition to types, there are several issues in the court practice. First, some of the stipulations still exist at present, yet are criticized by scholars, and seldom applied under current court practice. Following the first issue, in terms of “Approval to Appeal” in summary proceedings, it shows in the statistics that amount of denial from the third instance is much larger than from the second instance which grants the approvals. Moreover, the legal opinions articulated by the third instance are often stated by the Supreme Court already. In such scenario, the substance of “Approval to Appeal” in summary proceedings in Taiwan has a minor difference compared with the orientation adopted by German laws, which are the functions of the third instance’s in continuance of law-making and security in the consistency of judgements.