| Summary: | 碩士 === 東吳大學 === 法律學系 === 103 === After the amendment to the Taiwan Code of Civil Procedure on February 7th, 2003, Paragraph 2 of Article 526 became “In cases of insufficiency in the preliminary showing provided in the preceding paragraph, where the creditor has represented willingness to provide a security or where it is deemed appropriate by the court, the court may assess an amount for the security and issue a ruling for a provisional attachment upon the creditor’s provision of such security.” In practice, this paragraph is interpreted as “if the creditor does not represent willingness to provide a security, the court may not order the creditor to provide a security for the provisional attachment, even if it is deemed appropriate by the court with consideration to the damages sustained by the debtor.” The court may only order the creditor to provide a security for the provisional attachment in cases of insufficiency in the preliminary showing, the creditor has represented such willingness, and the court deems it appropriate. However, the standard for insufficiency in the preliminary showing has not been established or is vaguely used in practice, resulting in petitions for provisional attachment to be turned down, thereby losing the opportunity to secure the creditor’s right, or even becoming a notification for the debtor to transfer assets to avoid liability.
This study explores the appropriateness of current practices based on the purpose and function of the provisional attachment system, and analyzes theories and practical interpretations by domestic and foreign scholars. This study further recommends directions for future law amendment on this basis. The contents of each chapter in this paper are described below: Chapter one is an introduction to the motivation, purpose, methodology, and outline of this study. Chapter two summarizes procedures of provisional attachment, and expounds the meaning, function and effect of provisional attachment. Chapter three analyzes the difference between “preliminary showing” and “establish” based on practices and interpretations in Taiwan and Germany. Chapter four introduces interpretations of the preliminary showing of the claim and the ground for provisional attachments by domestic and foreign scholars, as well as changes through each amendment. Chapter five analyzes rulings of provisional attachment in practice, specifically contents of rulings of the Supreme Court before and after the amendment to Article 526 of the Taiwan Code of Civil Procedure. Chapter six is on the termination of provisional attachment, and explores how the impact on debtor’s property rights is minimized while maintaining creditor’s right, so as to find a balance in the rights of the two parties. Chapter seven summarizes the results of each chapter and arrives at conclusions based on these results.
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