The Taiwan High Court rendered the 106-Shang-Yi-1245 Civil Decision of January 17, 2018 (hereinafter, the “Decision”), holding that for a person to whom service of documents is attempted and has stayed overseas for a long period of time, service by deposit at a police station for the registered household of the person to whom service of documents is attempted is certainly not lawful.
According to the facts underlying this Decision, the Appellant in this case asserted that the complaint for this matter had been filed due to disputes under the Negotiable Instruments Law. However, the notice of the first instance trial was not served upon the Defendant lawful before the original trial court conducted an oral argument hearing involving only one party and rendered a decision against the Appellant. Since the procedure was not lawful, the Appellant appealed.
It was first pointed out in this Decision that under Article 451, Paragraph 1 of the Code of Civil Procedure, in the event of any major flaw to the first instance proceedings, the second instance court may reverse and remand the original decision to the original court only to an extent necessary to maintain the trial level system. The service by deposit under Article 138 of the Code of Civil Procedure is permitted only when service of documents cannot be made under Articles 136 and 137 of the same law. Although the location of the service should be the domicile, office or business location of the person to whom the service of documents is attempted, if the location of service has actually been changed, the original domicile, office or business location should not be the location of service. Therefore, service by deposit in such original location is certainly not permitted. Article 386, Subparagraph 1 of the same law also specifically provides that if a party who is not present was not lawfully notified within a specific period, the court shall reject, by way of ruling, the motion for one-party oral argument and postpone the date of the oral argument hearing. If the court renders a decision based on oral arguments presented by just one party, the litigation proceedings are certainly flawed in material aspects. To maintain the trial level system, it is certainly necessary to reverse and remand the first instance decision.
In addition, according to this Decision, the notice for the oral argument hearing conducted by the original trial court was served at the registered household address of the Appellee. However, the Appellee left the country on May 26, 2017 and returned to Taiwan on November 6. In addition, a review of the entry and exit records of the Appellee shows that the Appellee enters and exits Taiwan multiple times each year. Take the last five years for example. He stayed in Taiwan for 14 days in 2012, 14 days in 2013, 18 days in 2014, 28 days in 2015, 5 days in 2016 and 25 days in 2017 with the rest of the time spent overseas. This shows he did not subjectively intend (and factually did not) stay at his domestic registered household address for an extended period of time. It is quite obvious that his domestic registered household address was not his domicile. Therefore, the above service by deposit was not lawful.
It was further pointed out in this Decision that the litigation procedure in which the original decision was rendered by the original trial court by allowing oral arguments presented by one party (the Appellant) was certainly flawed in material aspects. Such flaw also pertains to the trial level benefits of the parties. The Appellant stated very clearly he was not willing to accept the trial and adjudication of this court and requested that the original decision be reversed and remanded. Therefore, it was certainly necessary to remand this matter to the original trial court which shall render another decision. The original decision was reversed and remanded on such basis.