TAIWAN Law and Practice Contributed by: Yafen Lin, Peng-Kwang Chen, I-Ming Chen and Weiyu Chiang, Formosa Transnational
3.2 Variations in Approach to Enforcement of Foreign Judgments There is no variation between enforcement of different types of foreign judgments in Taiwan. However, the Taiwan Supreme Court has issued conflicting judg - ments as to whether a foreign judgment that awards punitive damages can be recognised and enforced in Taiwan. In general, the Taiwan Supreme Court is more likely to be willing to enforce foreign judgments that award punitive damages if the punitive damag - es do not exceed treble damages. Nonetheless, the Supreme Court has rejected enforcement of puni - tive damages in cases where the foreign judgment involved commercial disputes related to investment and awarded what were deemed to be excessive punitive damages. 3.3 Categories of Foreign Judgments Not Enforced Vietnamese and Chinese Judgments For judgments from Vietnam and China, the prerequi - sites for enforcing such titles in Taiwan are described in 3.1 Legal Issues Concerning Enforcement of Foreign Judgments . Unless these prerequisites are satisfied, titles from Vietnam and China are neither
Jurisdiction The foreign court that rendered the judgment must have jurisdiction over the matter pursuant to the Tai - wan Code of Civil Procedure. Service of Process Where a default judgment is rendered against the los - ing defendant, such foreign judgment is not enforce - able in Taiwan if service was defective. This issue is much litigated and Taiwanese defendants are often able to use this rule to escape enforcement of for - eign judgments against their assets in Taiwan. It is essential to consult with Taiwanese counsel on ser - vice of process in Taiwan if there is any possibility the foreign judgment will need to be enforced in Taiwan. The following recent cases illustrate just some of the pitfalls that can hinder foreign plaintiffs in their quest to enforce judgments in Taiwan. In 2020, a Taiwan High Court held that service of court proceedings by publication in China is defective ser - vice. Also, in 2021, a Taiwan High Court held that ser - vice of foreign process on a Taiwanese defendant in Taiwan may not be effected by mail, direct ex officio delivery by the foreign court, or personal service by the plaintiff’s Taiwan lawyer. The High Court’s reason - ing was that a foreign court should follow Taiwan’s “Procedures for Handling Judicial Assistance Events” and other mutual judicial assistance agreements to serve foreign process on a defendant in Taiwan since service of process is a manifestation of a country’s judicial sovereignty and its procedures are subject to the principle of lex fori. As a general matter, Taiwan’s courts serve process on defendants themselves with - out party involvement and Taiwan does not recognise service of process by other agencies or service by parties. Thus the party service by mail in this case was defective since service by mail is not recognised as effective service under Taiwanese procedural law. Public Order and Good Morals in Taiwan Where the foreign judgment is incompatible with “public order and good morals” (public policy) in Tai - wan, the Taiwanese court shall not render a judgment to enforce the foreign judgment.
recognised nor enforceable in Taiwan. Judgments From Other Jurisdictions
Regarding judgments from other jurisdictions, includ - ing titles from Hong Kong and Macao, such titles are recognised in principle but a creditor must still obtain a judgment of enforcement rendered by the Taiwanese court to initiate the compulsory enforcement proceed -
ings, as explained further below. Framework for Enforceability
Pursuant to Article 4-1 (1) of the Compulsory Enforce - ment Act, a foreign judgment award is enforceable only after the Taiwanese court has approved its enforce - ment by a judgment. In principle, the Taiwanese court will approve the enforcement of a final and irrevoca - ble foreign judgment award, unless such judgment involves any of the circumstances enumerated under Article 402 (1) of the Taiwan Code of Civil Procedure.
500 CHAMBERS.COM
Powered by FlippingBook