Feasibility of asserting obviously erroneous application of laws and regulations in the original final decision as the ground for rehearing and supplementing an additional statement on other erroneously applied laws and regulations during pending litigation(Taiwan)

2017.03.20
Jenny Chen

When a rehearing action is initiated, regardless of whether it is for any reason under the subparagraphs of Article 496, Paragraph 1 of the Code of Civil Procedure, a peremptory period of 30 days under Article 500 of the Code of Civil Procedure should be basically followed. If the action is initiated beyond such period, the action will not be legal and should be rejected. Therefore, it is very important to observe the peremptory period for rehearing. Assuming that the plaintiff initiates a rehearing action for “obviously erroneous application of laws and regulations” under Article 496, Paragraph 1, Subparagraph 1 of the Code of Civil Procedure and asserts that there are other erroneous applications of laws and regulations in the original final decision during pending litigation, if such assertion is made during the peremptory period for rehearing, the assertion should be allowed. However, if the assertion is not made until the peremptory period for rehearing expires, should the court reject the assertion on the ground that the period has expired? The following explanations are hereby provided.

I. Articles 505 and 256 of the Code of Civil Procedure provided: “Except as otherwise provided in this Part, the provisions with regard to the litigation proceedings at the relevant court instances shall apply mutatis mutandis to rehearing proceedings, and “supplementing or rectifying factual or legal statements without changing the claim shall not be deemed an amendment or addition of claims.” Therefore, the plaintiff in the rehearing action may supplement factual or legal statements after such action is initiated.

II. Pursuant to the above requirements, if the subsequent supplemental statement on erroneously applied laws and regulations by the rehearing plaintiff is “supplementation of a legal statement,” the court will allow it.

(1) The Supreme Court stated in its 102-Tai-Kang-71 Civil Ruling: “If a party confirms that a final decision is subject to any circumstance set forth in the subparagraphs of Article 496, Paragraph 1 of the Code of Civil Procedure, an action for rehearing may be initiated within a peremptory period of 30 days to state the objection. After an action for rehearing is initiated by a party, although it is not true that such party may not supplement reasons for the rehearing, still the supplementation should be made during the peremptory period. Therefore, if the reasons and facts supplemented by a party may be separately relied on to initiate another rehearing action, instead of supplementing the rehearing action which has been initiated, they should certainly be subject to the peremptory period of 30 days.”
(2) The Taiwan High Court 103-Zai-Yi-42 Final Civil Decision stated: “Article 256 of the Code of Civil Procedure specifically provides that supplementing or rectifying factual or legal statements without changing the claim shall not be deemed an amendment or addition of claims. In this case, the plaintiff initiated the rehearing action in accordance with Article 497 and Article 496, Paragraph 1, Subparagraph 1 of the Code of Civil Procedure on the ground that the 102-Shang-Yi-21 final decision of this Court (hereinafter, the “Original Final Decision”)…had violated Article 98 of the Civil Code and the gist of the Supreme Court’s 57-Tai-Shang-1091 and 17-Shang-1118 Decisions. Subsequently in the course of the Court’s examination, the plaintiff further asserted that the Original Final Decision had violated Article 226, Paragraph 3 of the Code of Civil Procedure and the gist of the Supreme Court’s 29-Shang-842 Decision (the rehearing plaintiff only cited the gist of the decision without specifying the reference number…) and failed to consider the testimony of a witness by the name of Fu-jung Hsieh in the previous trial… It should be stated first that this was a statement by the rehearing plaintiff to supplement its legal statement.” (Similar cases can also be found in the 103-Jian-Zai-2 final civil decision of the Taichung Branch of the Taiwan High Court and the 103-Zai-Geng-(1)-1 civil decision of the Hualien Branch of the Taiwan High Court.)
(3) According to the above practical opinions, there are two scenarios involving supplemental statement on erroneously applied laws and regulations beyond the peremptory period for rehearing by the rehearing plaintiff.
1. If the reasons and facts supplemented by the rehearing plaintiff are considered to be sufficient for initiating another rehearing action, the supplementation should be rejected because it is considered an addition of claims.
2. If the reasons and facts supplemented by the rehearing plaintiff lead to the finding that they merely supplement a legal statement, this will not be subject to the peremptory period of rehearing and should be permitted since it is not an addition of claims.
III. If the laws and regulations supplemented by the rehearing plaintiff can be covered by the reasons and facts asserted by the rehearing plaintiff during the peremptory period, such supplementation should be deemed legal supplementation.

(1) The Taichung Branch of the Taiwan High Court stated in its 88-Zai-29 final civil decision: ” With respect to the rehearing motion filed by the rehearing plaintiff on November 11, 1999, the grounds for rehearing show that the assertion that the original final decision had obviously applied laws and regulations erroneously by the rehearing plaintiff indicated a passive failure to apply Article 263 and Article 258 of the Civil Code. Therefore, the rehearing plaintiff supplemented a statement on December 22, 1999, asserting that the original final decision had applied laws and regulations erroneously in violation of Article 263 of the Civil Code, to which Article 258 applied mutatis mutantis. Since no new rehearing ground was added, the peremptory period could not be reset. The rehearing defendant believed that such rehearing ground did not warrant another peremptory period. The rehearing defendant’s assertion that such rehearing ground was unlawful since it had exceeded the peremptory period was not acceptable.”

(2) The Taiwan High Court stated in its 93-Zai-19 Civil Decision: “The rehearing plaintiff had not specifically stated the grounds for rehearing by stating the final decision was subject to Article 496, Paragraph 1, Subparagraph 10 of the Code of Civil Procedure, which provides: “Where the witness, after signing a written oath, gave false representation with regard to his/her testimony based on which the judgment was entered,” when the rehearing action was initiated, until the preparatory proceedings of the Court on March 29, 2004 when the rehearing plaintiff specifically stated the grounds for rehearing under such subparagraph. In addition, the plaintiff specifically pointed out in the supplemental statement dated April 8, 2004 on grounds for rehearing that the ground for rehearing under such subparagraph was that Witness XXX had provided a false testimony based on which the judgment was entered when ‘Witness XXX testified, under oath, on Page 6 of the transcript of oral arguments on July 18, 2002 during the first instance trial that he found the key to the gun cabinet was in the drawer of the duty desk and was part of the entire key chain….The rehearing defendant contended that this was an addition of claims by the rehearing plaintiff and did not agree to such addition by the rehearing plaintiff. However, the rehearing plaintiff had stated in the 6th Complaint ….that XXX ‘still falsely testified…..,’ and ‘such behavior involved criminal forgery and perjury offenses.’ Therefore, it should be concluded that the rehearing plaintiff had stated the grounds for rehearing when the action was initiated by stating that the original final decision was subject to grounds for rehearing under Article 496, Paragraph 1, Subparagraph 10, which provides: “Where the witness, after signing a written oath, gave false representation with regard to his/her testimony based on which the judgment was entered.” The rehearing plaintiff subsequently stated in its Supplemental Statement on Rehearing of April 8, 2004: ‘The grounds for rehearing in this case meet Article 496, Paragraph 1, Subparagraph 10 of the Code of Civil Procedure.’ This was submitted merely to supplement the legal statement in the above statement filed by the rehearing plaintiff and was not an addition of claims under Article 256 of the Code of Civil Procedure, which provides: “Supplementing or rectifying factual or legal statements without changing the claim shall not be deemed an amendment or addition of claims.” The disagreement to the rehearing plaintiff’s addition of claims asserted by the rehearing defendant is not acceptable.” Although this case did not address issues under Article 496, Paragraph 1, Subparagraph 1 of the Code of Civil Procedure, the decision reasons clearly indicate the connections between the supplementation by a rehearing plaintiff and the claims of an action. The determination criteria serve as valuable reference.

In conclusion, if a rehearing plaintiff asserts additional erroneous application of other laws and regulations in the original final decision after the peremptory period expires, practical opinions show that such assertion will not always be rejected. Instead, it is necessary to further examine the reasons and facts asserted by the rehearing plaintiff during the peremptory period. If it is determined that the supplemental submission merely seeks to supplement the legal grounds for the previously asserted reasons and facts, such submission will be permitted.