TAIWAN Law and Practice Contributed by: Yafen Lin, Peng-Kwang Chen, I-Ming Chen and Weiyu Chiang, Formosa Transnational Attorneys at Law
initially seeks relief other than money but may later be satisfied by a monetary substitute. Many contract and tort claims become monetary claims when spe - cific performance is unavailable and the court instead awards damages. To obtain a provisional attachment order, a creditor must make a preliminary showing that there is a like - lihood that satisfying the claim through compulsory enforcement after a final and binding judgment will be impossible or extremely difficult. If the creditor fails to make the required prima facie showing that future enforcement is likely to be difficult, the court may, in its discretion, require the creditor to provide security instead. In general, such security is an amount equal to one third of the value of the underlying claim. Foreign creditors may apply for attachment orders and should consult Taiwanese litigation counsel regarding when and how to seek such an order when commencing overseas litigation against a Taiwanese defendant, if enforcement against assets in Taiwan is contemplated. Property disclosure order to a third party A provisional attachment order allows a creditor to initiate compulsory enforcement proceedings against a debtor on the basis of the enforcement title created by that order. In the course of those proceedings, the creditor may petition the court’s enforcement divi - sion to make inquiries with the relevant authorities, organisations or persons who possess knowledge of the debtor’s assets (collectively, the “knowledgeable third parties”) under Article 19 (2) of the Compulsory Enforcement Act. Typically, the court will issue an official order requiring knowledgeable third parties, such as the following, to report assets owned by the debtor (a “property dis - closure order to a third party”): Local tax office A creditor may obtain a list of personal income and a list of properties (including real properties and vehi - cles) of the debtor from a local tax office. • Taiwan Depository & Clearing Corporation – a creditor may identify stock held by the debtor from
information provided by the Taiwan Depository & Clearing Corporation. • Life Insurance Association of the Republic of China – a creditor may identify insurance policies held by the debtor from information provided by the Life Insurance Association of the Republic of China. Post-Adjudication Phase Property disclosure order to a third party A creditor may also apply to the court to issue a prop - erty disclosure order to a third party during the post- adjudication phase. The procedure is the same as the Pursuant to Article 20 (1) of the Compulsory Enforce - ment Act, the court may, subject to certain conditions, issue a property disclosure order to a debtor requiring the debtor to report his or her assets (the “property disclosure order to a debtor”). If the debtor fails to provide the report by the deadline set by the court, the court may place the debtor into custody under Article 20 (3) of the Compulsory Enforcement Act. In prac - tice, however, courts rarely issue property disclosure orders to debtors, and detention is even rarer. Article 4 (1) of the Compulsory Enforcement Act pro - vides for several types of enforceable title, as listed below. It is worth noting that, unlike a final judgment, an interlocutory judgment rendered during civil pro - ceedings is not an enforceable title. Final and Binding Judgment There are three types of final judgment available from the courts in Taiwan: • a judgment of performance; one explained in the previous section. Property disclosure order to a debtor 2. Domestic Judgments 2.1 Types of Domestic Judgments • a declaratory judgment (ie, a court decision stating the exact nature of the underlying legal matter and resolving legal uncertainties between both parties); and • a formative judgment (ie, a court decision directly creating, altering or ending legal relations between the parties).
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