Agreement Ruling and Appropriate Ruling of Domestic Mediation Process
Date Issued
2014
Date
2014
Author(s)
Chang, Han-Yu
Abstract
The Code of Domestic Procedure in Taiwan was promulgated on January 11th, 2012, and came into force on June 1st in the same year. It''s worth noting that the “agreement ruling” of Article 33 and “appropriate ruling” of Article 36 are brand new proceedings among Taiwan civil procedure law area, which referred to the “consensual judgment” and “alternative judgment” proceedings in Japanese Domestic Relations Trial Act, as well as their related academic discussions and practical experiences. Hence, to solve the problems in practice, this thesis starts comparison of Taiwanese law and Japanese law and concluds the reasons and effects of the differences between them.
Under the Japanese Domestic Relations Trial Act, the “consensual judgment” and “alternative judgment” can be overthrown by simple objection, then turn into normal Personal Status Litigation procedure or Domestic Relations Trial procedure. The result realizes the protection of the parties’ substantive interests, at the same time, also imposes massive and various litigation burdens on the parties, which causes a conflict between procedural interests and substantive interests.
Since the revision in 1999, the Code of Civil Procedure in Taiwan has focused on the protection of the parties’ procedural interests. As a result, the Code of Domestic Procedure also gives the parties the rights to procedural options by providing more economic procedures, thus, not only the parties can adopt a prompter and easier procedure to solve the disputations, but also the courts can save their resources. Therefore, the “agreement ruling” and “appropriate ruling” in Taiwan are not transitional procedures as the similar ones in Japan, but with its own appellate proceedings and having the same effects as normal judgments.
From the Code of Domestic Procedure came into force to the date which this thesis finished, in only two years, there were up to 440 cases adopted “agreement ruling” proceeding. The statistic reveals this proceedingis well accepted by the courts and the parties, on the contrast, only about 10 cases adopted “appropriate ruling” proceeding. The reason for the 40 times difference probably is the function of the latter to some degree is similar to the original mediation s proceeding, or the courts still aren’t familiar to these new proceedings.
In summary, at present, the courts need to do their best efforts to explain and encourage the parties in adapting these new proceedings, and it’s a serious issue which how to make parties to adapt to the new proceedings correctly.
Subjects
合意裁定
適當裁定
相當合意審判
替代調停審判
程序利益
家事調解
Type
thesis
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