TAIWAN Law and Practice Contributed by: Yafen Lin, Peng-Kwang Chen, I-Ming Chen and Weiyu Chiang, Formosa Transnational Attorneys at Law
of a foreign judgment, a creditor must bring an action before the local court for permission to enforce that judgment. The court will not review the merits of the foreign judgment; instead, it will assess whether any of the grounds for non-recognition set out in Article 402 (1) of the Taiwan Code of Civil Procedure applies (see 3.3 Categories of Foreign Judgments Not Enforced ). Vietnamese Judgments In addition to Article 402 (1) of the Taiwan Code of Civil Procedure, the Taipei Economic and Cultural Office in Vietnam and the Vietnam Economic and Cultural Office in Taipei have entered into the Agree - ment between the Taipei Economic and Cultural Office in Vietnam and the Vietnam Economic and Cultural Office in Taipei on Judicial Assistance in Civil Mat - ters (the “Taiwan-Vietnam Mutual Legal Assistance Agreement”) dated 12 April 2010 for the purpose of strengthening co-operation in judicial assistance on civil-related matters between Vietnam and Taiwan. This Mutual Legal Assistance Agreement shows both countries’ enforce judgments from the other country on a reciprocal basis. According to Article 19 of the Taiwan-Vietnam Mutual Legal Assistance Agreement, recognition and enforcement within the territory of one of the contractual parties in respect of civil judgments rendered by the other party shall be subject to the Taiwan-Vietnam Mutual Legal Assistance Agreement. To enforce a Vietnamese judgment in Taiwan, the creditor holding a judgment rendered by Vietnamese authorities/courts shall first file a lawsuit in Taiwan to obtain a recognition and enforcement decision; the creditor may then initiate compulsory enforcement of the Vietnamese judgment. Pursuant to Article 20 of the Taiwan-Vietnam Mutual Legal Assistance Agreement, Taiwan courts shall recognise and enforce a judgment rendered by Vietnamese authorities/courts only if the following requirements are met. • Finality – the judgment is legally effective, binding and final, and also enforceable in accordance with Vietnamese law. • Competent Authority – the judgment is rendered by the courts, the prosecutor’s office and other authorities having jurisdiction over civil matters, and is made in accordance with Vietnamese law.
• Observation of the Laws of Taiwan and Lis Pen - dens – the judgment rendered by Vietnamese authorities/courts has come into force and is not contrary to Taiwanese law; or Taiwanese courts have not recognised and enforced an effective decision rendered by a third jurisdiction in the same litigation; or the same case has not been brought to a Taiwanese court. • Due Process – the judgment rendered by Vietnam - ese authorities/courts has been issued in proceed - ings where the procedural rights of litigants or their legal representatives have been properly secured. • Security and Public Order in Taiwan – the recogni - tion and enforcement of the judgment rendered by Vietnamese authorities/courts shall not prejudice Taiwan’s national security, public policy or contra - dict fundamental principles of Taiwanese law. Nevertheless, Article 402 (1) of the Taiwan Code of Civil Procedure is still applicable; the circumstances enumerated in Article 402 (1) of the Taiwan Code of Civil Procedure should not be present in order to Chinese judgments are not foreign judgments. Article 402 (1) of the Taiwan Code of Civil Procedure does not apply directly (however, the resolution of the 2000 Legal Symposium of the Taiwan High Court and its Subordinate Courts held that the law should be applied by analogy). Without a formal procedure to recognise a judgment rendered by the Chinese court, such judgments are unenforceable in Taiwan. Enforce - ment of Chinese judgments is subject to the Act Gov - erning Relations between the People of the Taiwan Area and the Mainland Area (the “Cross-Strait Rela - tions Act”). Article 74 (1) of the Cross-Strait Relations Act prescribes that, prior to the compulsory enforce - ment proceedings, a creditor must petition a Taiwan - ese court for recognition of the Chinese judgment. Requirements for recognition include that: • the judgment is a final and irrevocable civil ruling or judgment; • the judgment is not contrary to the public order or good morals of Taiwan; and • a binding civil judgment made in Taiwan must be able to be recognised (through a recognition order), enforce the judgment. Chinese Judgments
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