Litigation Related 彙整 - Lee, Tsai & Partners

2017 年 10 月 31 日

In addition to a civil servant’s clear awareness of pursuing any illicit gain for himself/herself or for others, an offense of illicit enrichment committed by a civil servant also requires that the recipient of the civil servant’s enrichment is profited as a result (Taiwan)

2017.7.28 Emily Chueh The Supreme Court rendered the 106-Tai-Shang-197 Civil Decision of July 28, 2017 (hereinafter, the “Decision”), holding that in addition to a civil servant’s clear awareness of pursuing any illicit gain for a civil servant himself/herself or for […]

2017 年 10 月 31 日

For an offense of operating banking business illegally, an investor shall not bring civil suit collateral to criminal proceedings against the actor(Taiwan)

2017.7.26 Frank Sun The Kaohsiung branch of the Taiwan High Court rendered the 105-Yuan-Fu-Min-Shang-1 Decision on Civil Suit Collateral to Criminal Proceedings on July 26, 2017 (hereinafter, the “Decision”), holding that for an offense of operating banking business illegally, an […]

2017 年 9 月 30 日

After a husband and wife have divorced, if it is agreed that one of them will hold the parental right over their minor children, the party who holds the parental right may independently entrust another person in writing to perform the function of a guardian (Taiwan)

2017.7.18 Frank Sun The Ministry of Justice issued the Fa-Lu-10603509010 Circular of July 18, 2017 (hereinafter, the “Circular”) to communicate that after a husband and wife have divorced, if it is agreed that one of them will hold the parental […]

2017 年 9 月 30 日

When a party denies that an unfavorable statement outside of the trial was given arbitrarily, if the entire process was not audio recorded without interruption or if the audio recording was muted or covered or if the recording process was interrupted, such testimony is hardly admissible evidence (Taiwan)

2017.5.23 Angela Wu The Taiwan High Court rendered the 106-Zai-6 Criminal Decision of May 23, 2017 (hereinafter, the “Decision”), holding that when a party denies that an unfavorable statement outside of the trial was given arbitrarily, if the entire process […]

2017 年 9 月 30 日

Judicial Interpretation No. 752 pointed out that the legal requirement that if the original not-guilty decision is reversed with a guilty decision rendered in the second instance criminal trial, the accused shall not appeal to the third instance court shall be unconstitutional and invalid, and cases which have not become final may be appealed(Taiwan)

2017.7.28 Jenny Chen The Judicial Yuan rendered Judicial Interpretation No. 752 of July 28, 2017 (hereinafter, the “Interpretation”), holding that the legal requirement that if the original not-guilty decision is reversed with a guilty decision rendered in the second instance […]

2017 年 8 月 31 日

Opinions on Further Enhancement to Service in Civil Proceedings(Mainland China)

2017.7.19 Zoe Qiao The Supreme People’s Court promulgated the Opinions on Further Enhancement to Service in Civil Proceedings (the “Opinions”) on July 19, 2017. The Opinions seek to improve and enhance the service of documents by all levels of people’s […]

2017 年 8 月 31 日

Since a fraud committed via communications tools such as radio or television, electronic communications or the Internet is more severe than a typical fraud in the harm to society, it is necessary to intensify the penalties(Taiwan)

2017.5.31 Emily Chueh The Supreme Court rendered the 106-Tai-Shang-1338 Criminal Decision of May 31, 2017 (hereinafter, the “Decision”), holding that since a fraud committed via communications tools such as radio or television, electronic communications or the Internet is more severe […]

2017 年 8 月 31 日

If the procedure in which a witness makes an identification is defective or if the creditability of such identification is suspicious, determination unfavorable to the accused should not be made(Taiwan)

2017.5.24 Frank Sun The Taiwan High Court rendered the 106-Jin-Shang-Yi-3 Criminal Decision of May 24, 2017 (hereinafter, the “Decision”), holding that if the procedure in which a witness makes an identification is defective or if the creditability of such identification […]

2017 年 8 月 8 日

Judicial Interpretation of the Property Law Promulgated by the Supreme People’s Court(Mainland China)

James Cheng On February 23, 2016, the Supreme People’s Court called a press conference to promulgate Interpretation I of the Supreme People’s Court on Issues Concerning the Application of the Property Law of the People’s Republic of China (hereinafter, the […]

2017 年 8 月 8 日

In a case involving the auction of maximum limit collateral, the court only needs to conduct formal examination of documents submitted by the mortgagee. Disputes about the mortgage should be separately resolved via litigation(Taiwan)

Emily Chueh The Taichung Branch of the Taiwan High Court rendered the 104-Shang-207 Civil Decision of December 2, 2015 (hereinafter, the “Decision”), holding that in a case involving the auction of maximum limit collateral, the court only needs to conduct […]

2017 年 8 月 8 日

When an obligee indicates receipt of payment and notifies the obligor to pay after the obligee’s receipt of such payment is delayed, if the obligor still fails to pay, the obligor shall still be liable for the payment delay (Taiwan)

Angela Wu The Supreme Court rendered the 104-Tai-Shang-2384 Civil Decision of December 10, 2015 (hereinafter, the “Decision”), holding that when an obligee indicates receipt of payment and notifies the obligor to pay after the obligee’s receipt of such payment is […]

2017 年 8 月 8 日

When one of the parties gives in during a negotiation, the other party shall not elect to allege that the compromise is tantamount to admittance of the obligation(Taiwan)

Jenny Chen The Kaohsiung Branch of the Taiwan High Court rendered the 104-Bao-Xian-Shang-1 Civil Decision of January 13, 2016 (hereinafter, the “Decision”), holding that when one of the parties compromises during a negotiation, the other party shall not jump to […]

2017 年 8 月 8 日

Article 197 of the Civil Code applies mutatis mutandis to non-property damage and consolation claims asserted on the ground of the obligor’s nonperformance, which will lapse if not asserted in two years beginning with the claimant’s knowledge of the damage and compensation obligor(Taiwan)

Angela Wu The Supreme Court rendered the 104-Tai-Shang-2438 Civil Decision of December 23, 2015 (hereinafter, the “Decision”), holding that article 197 of the Civil Code applies mutatis mutandis to non-property damage and consolation claims asserted on the ground of the […]

2017 年 8 月 8 日

The confiscation or recovery of criminal proceeds seeks to disgorge actual criminal proceeds; and even in case of a joint offense by over two individuals, they shall be liable for the amount of their respective proceeds and it is not true that they shall be joint and severally liable(Taiwan)

Jenny Chen The Taiwan high Court rendered the 104-Jin-Shang-Su-49 Criminal Decision of January 27, 2016 (hereinafter, the “Decision”), holding that the confiscation or recovery of criminal proceeds seeks to disgorge actual criminal proceeds; and even in case of a joint […]

2017 年 8 月 8 日

Evidence favorable to a defendant refers to such evidence that objectively has certain connections with the criminal facts determined in the decision, supports a finding favorable to the defendant and affects the subject of the decision(Taiwan)

Frank Sun The Supreme Court rendered the 104-Tai-Shang-3438 Criminal Decision of November 12, 2015 (hereinafter, the “Decision”), holding that evidence favorable to a defendant refers to such evidence that objectively has certain connections with the criminal facts determined in the […]

2017 年 8 月 8 日

The object of a money laundering act is limited to monetary or property interest obtained by others due to a material criminal act and does not include the monetary or property interest obtained by any material criminal act of the actor (Taiwan)

Angela Wu The Supreme Court rendered the 104-Tai-Shang-3465 Criminal Decision of November 12, 2015 (hereinafter, the “Decision”), holding that the object of a money laundering act is limited to monetary or property interest obtained by others due to a material […]

2017 年 8 月 8 日

Amendments to the Administrative Procedure Law(Taiwan)

Emily Chueh The President promulgated the amendments to Articles 127 and 175 of the Administrative Procedure Law via the President-Hua-Zong-One-Yi-10400151551 Directive of December 30, 2015, and the amendments came into effect on the day of their promulgation. The amendments modify […]

2017 年 8 月 8 日

Although issuing a land use zoning certificate has characteristics of exercising government power, still if a party cannot prove the specific causal relationships between the issuance of such certificate and damage, the right to claim damages hardly exists(Taiwan)

Angela Wu The Tainan Branch of the Taiwan High Court rendered the 104-Shang-Guo-7 Civil Decision of December 10, 2015 (hereinafter, the “Decision”), holding that although issuing a land use zoning certificate has characteristics of exercising government power, still if a […]

2017 年 8 月 8 日

The amendments to the Anti-corruption Statute cleared through three legislative readings(Taiwan)

Emily Chueh The Legislative Yuan adopted Article 6-1 as added to the Anti-corruption Statute (hereinafter, the “Statute”) during the 6th Meeting of the 1st Session of the 9th Term on March 25, 2016 with the effective date to be separately […]

2017 年 8 月 8 日

When parties agree that one of the parties shall pay a certain amount to the other party upon rescission of the contract, such amount is the consideration for the rescission right and is different in nature from a default penalty(Taiwan)

Frank Sun The Supreme Court rendered the 105-Tai-Shang-169 Civil Decision of January 27, 2016 (hereinafter, the “Decision”), holding that when parties agree that one of the parties shall pay a certain amount to the other party upon rescission of the […]

2017 年 8 月 8 日

When a creditor secures grounds for compulsory enforcement, if the debtor has indeed engaged in any act that sabotages, disposes of, or conceals his assets, the offense of impairing the creditor’s rights is constituted(Taiwan)

Angela Wu The Taichung Branch of the Taiwan High Court rendered the 104-Shang-Yi-405 Criminal Decision of February 4, 2016 (hereinafter, the “Decision”), holding that when a creditor secures grounds for compulsory enforcement, if the debtor has indeed engaged in any […]

2017 年 8 月 8 日

If a decision is rendered without ascertaining evidence which has been investigated, the decision should be deemed to be flawed for failure to investigate evidence which shall be investigated pursuant to law(Taiwan)

Emily Chueh The Taiwan High Court rendered the 104-Tai-Shang-3954 Criminal Decision of December 30, 2016 (hereinafter, the “Decision”), holding that if a decision is rendered without ascertaining evidence which has been investigated, the decision should be deemed to be flawed […]

2017 年 8 月 8 日

The provisions about default penalties under the Civil Code may apply mutatis mutandis to the total expense which shall be repaid by students receiving government scholarships and allowances if they fail to perform their obligation by passing the entrance examination and serving their obligated positions within the required period, provided that if the repayment is too high, the repayment may be reduced on a discretionary basis(Taiwan)

Jenny Chen The Supreme Administrative Court rendered the 105-Pan-59 Administrative Decision of February 4, 2016 (hereinafter, the “Decision”), holding that the provisions about default penalties under the Civil Code may apply mutatis mutandis to the total expense which shall be […]

2017 年 8 月 8 日

If the approval of a juristic is revoked by the competent authority for violation of any approval condition, the ownership of the remaining assets should be governed by Article 44 of the Civil Code and does not vest with the donors or the national coffer(Taiwan)

Frank Sun The Ministry of Justice issued the Law-10503510170 Circular of June 28, 2016 (hereinafter, the “Circular”) to communicate that if the approval of a juristic is revoked by the competent authority for violation of any approval condition, the ownership […]

2017 年 8 月 8 日

Contractual negligence under the Civil Code may apply mutatis mutandis to the legal relationship of administrative contracts(Taiwan)

Emily Chueh The Supreme Administrative Court rendered the 105-Pan-284 Decision of June 2, 2016 (hereinafter, the “Decision”), holding that contractual negligence under the Civil Code may apply mutatis mutandis to the legal relationship of administrative contracts. According to the facts […]

2017 年 8 月 8 日

Guiding Opinions of the Supreme People’s Court on Preventing and Sanctioning of Sham Litigation(Mainland China)

James Cheng On June 20, 2016, the Supreme People’s Court issued the Guiding Opinions on the Preventing and Sanctioning Sham Litigation (hereinafter, the “Opinions”). Consisting of a total of 18 articles, the Opinions provide specific rules on the prevention of […]

2017 年 8 月 8 日

If a witness is a counterparty to the vote buying act of an actor, his/her unfavorable testimony concerning the actor’s vote buying is not a confession of a co-offender under Article 156, Paragraph 2 of the Code of Criminal Procedure(Taiwan)

Emily Chueh The Supreme Court rendered the 105-Tai-Shang-908 Criminal Decision of April 14, 2016 (hereinafter, the “Decision”), holding that if a witness is a counterparty to the vote buying act of an actor, his/her unfavorable testimony concerning the actor’s vote […]

2017 年 8 月 8 日

If only part of the joint litigants of one party is present, the court shall not render a default judgment upon motion on the ground that not all of the litigants of the other party are present except under circumstances where each joint litigant should be present to confirm the subject matter of the litigation(Taiwan)

Frank Sun The Supreme Court rendered the 105-Tai-Shang-730 Civil Decision of May 4, 2016 (hereinafter, the “Decision”), holding that if only part of the joint litigants of one party is present, the court shall not render a default judgment upon […]

2017 年 8 月 8 日

As long as an actor follows standard principles for clinical practice and correctly maintains specific approaches and a certain degree of caution, due care has been exercised and the actor cannot be deemed to be negligent(Taiwan)

Angela Wu The Taiwan High Court rendered the 104-Yi-Shang-32 Civil Decision of March 29, 2016 (hereinafter, the “Decision”), holding that as long as an actor follows standard principles for clinical practice and correctly maintains specific approaches and a certain degree […]

2017 年 8 月 8 日

Although the extent of damage caused by an act of tort and the amount of damage are confirmed quite sometime after the occurrence of the act of tort, still the statute of limitation shall commence when the victim first becomes aware of the damage(Taiwan)

Frank Sun The Kaohsiung Branch of the Taiwan High Court rendered the 104-Bao-Xian-Shanng-5 Civil Decision of April 20, 2016 (hereinafter, the “Decision”), holding that although the extent of damage caused by an act of tort and the amount of damage […]