A Study of the Pretrial Procedure of Concentrated Trial -Lessons from the U.S of Pretrial System-
Date Issued
2015
Date
2015
Author(s)
Chiu, Ching-Tang
Abstract
In 2000, Taiwan amends Taiwan Code of Civil Procedure (hereafter as New Code) adopting centralism of issue to judge, and preparatory proceeding is amended and becomes procedure of formulation of the issues. Consequently how to formulate issues in preparatory proceeding becomes a topic after New Code enforcement. Because concentrated trial can promote efficiency of judgment, correctness of written form of judgment, and enhance persuasiveness of justice to the people, hence, how to strengthen judgment, excluding dispensable evidences to investigate is important task in preparatory proceeding. The thesis is according to effective formulation of the issues to expand relative to discuss of issues in preparatory proceeding, and comparative law-based proceeds explanation and lawmaking. Hoping to assist function of preparatory proceeding to elaborate accomplishes target of concentrated trial. The thesis totally has five chapters. Chapter 1 is about motive of study and question awareness. Chapter 2 is about how to realize legislative purposes of concentrated trial in preparatory proceeding in New Code in Taiwan. First, discuss the meaning of concentrated trial in Taiwan, and introduce its features and advantages. Secondly, discuss controversial debate about preparatory proceeding in New Code. Next, how to practice formulation of the issues in preparatory proceeding, it can be divided into three parts. The first part is about concretizing of content in pleadings, especially in New Code complaint shall be indicated matters, except subject of the action, and it revises and augments to put down “the transaction or occurrence giving rise to such claim” (see Article 244, Paragraph 1, Subparagraph 2) that may involve formulation of the issues about supremacy (subject of the action, the demand for judgment for the relief sought), fact and evidence. Furthermore, avoid to diverge from claim to proceed unprofitably judgment, when court accept action, it should proceed to examine coherency or importance regarding plaintiff and defendant of claim. The second part is about the right of party in collecting facts and evidences in preparatory proceeding. New Code is base on impartiality, good faith principle in procedure law, and equal doctrine of party in using action materials, to expand right of party in collecting facts and evidences, revising and augmenting “grant witness to make statements by pleadings” (see Article 305, Paragraph 2 and 3), “broaden the scope about the duty to produce documents” (see Article 344, Paragraph 1, Subparagraph 5), and “broaden the scope about perpetuation of evidence” (see Article 368, Paragraph 1 in the rear), the thesis will introduce particularly. The third part is about manipulating sequence and intension of formulation of the issues about supremacy (subject of the action, the demand for judgment for the relief sought), fact and evidence. Moreover, the thesis also will introduce meaning, binding force, and controversial debate about “formulation of the issues” and ”agreement of formulating and simplifying the issues ”. Finally, the thesis will discuss party’s obligation of Promotion of Process, particularly to explain “manifestly unfair” (see Article 276, Paragraph 1, Subparagraph 4) of preclusion effect which causes greatestly debate in the academia and court. Chapter 3 is about system of pretrial procedure in America. First, the thesis will illustrate the cause of pretrial procedure, and next will discuss how to practice formulation of the issues in the pretrial procedure. The thesis will adopt contrast with Chapter 2, and divide into three parts to introduce alike. The first part is about content of pleadings in pleading, in 1957 in Conley v. Gibson, supreme court of the United States establishes “notice pleading” but after in Bell Atlantic Corp. v. Twombly (2007) and in Ashcroft v. Iqbal(2009), it changes precedent, building up a new standard of pleading – “plausibility standard”. For this latest development, judicial opinions tend to identical, but there are discrepancies between the academia. The second part is about system of discovery. In this part, except that introduce scope, restriction and measures of discovery, lawmaker also aware of importance of E-Discovery, for coping with advancement of technology (especially nowadays companies often store information by computers), since 2006 Federal rules of civil procedure (hereafter as FRCP) proceed amendment, but in practice E-Discovery bring new problems – one is about cost-shifting, another is about whether an inadvertent disclosure of electronically stored information treats as waiver of privilege. Although the former, amendment to FRCP 26(b)(2)(B) in 2006, adopts Zubulake v.UBS Warburg which puts forward eight factors to weigh, however it still produces new problems; the latter there are different judicial opinions between courts, and the thesis will also introduce well-known “Lois Sportswear theory”. In addition, for avoiding bring dispute, before discovery, the party may use “claw-back clause” or “quick peek agreement” to resolve it. Finally, the thesis will introduce FRCP 37 which is about failure to make disclosures or to cooperate in discovery and sanctions. The third part is about pretrial conference. Importantly, after pretrial conference judge will issue a pretrial order which controls the course of the action, but preventing manifest injustice the party can request to amend it. How to explain manifest injustice, there are four factors to weigh. Chapter 4 is about reviewing chapter 2 and chapter 3, analyzing and comparing to differences of pleadings, discovery and preparatory proceeding (or pretrial conference) between Taiwan and America, reviewing advantage and defect, referring to FRCP to explanation and lawmaking of New Code, and try to address my opinion. For example, comparing to interrogatories in FRCP, the thesis advises Taiwan Code of Civil Procedure should stipulate that interrogates to parties directly to facilitate parties can collect facts and evidences which is relevant to any party''s claim or defense in advance. However, avoiding it is misused, Taiwan Code of Civil Procedure could refer to FRCP 26(b)(2)(B), FRCP 26(c) which is about discovery scope and limits and protective orders to set proviso. Moreover, Taiwan Code of Civil Procedure also could adopt interrogatories by lawyers, because there is not only the same reason like interrogatories to parties, but also lawyer’s mission has public welfare to people. By permission of bar association, lawyer designated by party in a legal case can investigate to establishments (ordering them to report or illustrate specific matters), and matters regarding legal case is reviewed by bar association when lawyer apply for it, it don’t worry about that the system would be abused by lawyer. Besides, the thesis advises to refer to FRCP 37(d)(3) regarding party’s failure to serve answers to interrogatories would be sanctioned. For formulation of the issues, the thesis will especially discuss “manifestly unfair” (see Article 276, Paragraph 1, Subparagraph 4). Comparing with judicial opinions in Taiwan and America, we may find that our courts regarding explanation of “manifestly unfair” are rough, if our courts can consider factors which the academia has addressed, it could help specificity of concept of “manifestly unfair”. Finally, the thesis especially introduces the latest FRCP amendment in 2014, it could be reference materials if New Code would be amended in the future. Chapter 5 is the conclusion, and responds to questions in Chapter 1.
Subjects
concentrated trial
preparatory proceeding
pleading
discovery
pretrial conference
formulation of the issue
agreement of formulating and simplifying the issue
plausibility standard
manifestly unfair
Type
thesis
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