TAIWAN Law and Practice Contributed by: Peng-Kwang Chen, I-Ming Chen, Pamela Huang and Claudia Huang, Formosa Transnational Attorneys At Law
• the agent ad litem was not authorised to represent the parties in the settlement. If a settlement in litigation is nullified or revoked, a party may request the court to resume the litigation proceedings. 9. Damages and Judgment 9.1 Awards Available to the Successful Litigant In civil litigation, the forms of award available to a suc- cessful litigant include: • an order that the losing party perform their obliga- tion, such as payment of money or to perform or refrain from performing specific acts; • declaring the existence and status of a legal relationship, such as confirming the existence or non-existence of an employment relationship, a marriage relation or a parent-child relation; and • creating, altering or extinguishing a legal relation- ship, such as partition of land owned by co-owners or an annulment of adoption of a child. 9.2 Rules Regarding Damages In Taiwan, the basic rule regarding damages is that “the compensation shall be limited to the actual dam- ages incurred”. Unless otherwise provided by law or by contract, the measure of damages is limited to the injury actually suffered and the (reasonably) expected interests that are lost by the claimant. If the measure (such as a calculation formula) or amount of damages are stipulated in a contract, Tai- wan courts will regard such calculation or amount as the total amount of the damages a party may claim from the defaulting party. No further compensatory damages can be claimed from the defaulting party, unless the parties expressly agreed in advance that such calculation or amount are “penalty”. The concept of punitive damages is not widely adopt- ed in Taiwan’s legal system. Still, a few special laws allow a litigant to claim for punitive damages when their legal requirements are met. These include the Consumer Protection Law, Copyright Act, Patent Act,
Trademark Act, Trade Secrets Act, and the Fair Trade Act. The maximum amount of punitive damages is generally treble damages. 9.3 Pre-Judgment and Post-Judgment Interest Pursuant to the Civil Code, interest starts to accrue from the moment that a debtor is in default. There- fore, the time point when an action is initiated does not affect the calculation of interest. The claim for the payment of interest is extinguished by prescription if it is not exercised within five years. Please also refer to 3.2 Statutes of Limitations . After a judgment is made, interest will continue to accrue until the debtor discharges the debt. The five- year prescriptive period on accrued interest restarts from the moment the judgment becomes final and binding, and a creditor may use that window of time to apply for enforcement of the judgment. 9.4 Enforcement Mechanisms of a Domestic Judgment The mechanisms available for the enforcement of domestic judgments include monetary enforcement and non-monetary enforcement. Monetary Claims If the asset to be enforced is property, compulsory enforcement is carried out by means of attachment, auction, sale or compulsory administration. If the asset to be enforced is a receivable claim against a third party, the court will render a seizure order to prohibit the debtor from collecting or disposing of such claim and to prohibit that third party from pay- ing the debtor directly. Non-Monetary Claims Non-monetary claims include claims for the delivery of things and claims for action and no action. With respect to claims for the delivery of things, if the asset to be enforced is movable property, the enforcement court may seize the property and deliver it directly to a creditor. If the asset to be enforced is immovable property that is currently in the debtor or a third party’s possession, then the court’s enforcement
1097 CHAMBERS.COM
Powered by FlippingBook