The Study of Preliminary Injunction in the Cases of Corporate Law
Date Issued
2012
Date
2012
Author(s)
Chen, Ya-Han
Abstract
With the revision of Taiwan Code of Civil Procedure in 2003, there are more and more discussions centering on the rules of injunction, one of the important revisions. Injunction can be used as a method for creditors to satisfy their claims in advance. Due to the huge effect of the injunction, the court shall accord the parties an opportunity to be heard before issuing the injunction except when the court considers it inappropriate to do so. These characteristics make the rule of injunction different from provisional attachment and provisional injunction.
In these years, more and more creditors use the injunction as a weapon to fight for the control over the corporations. From those cases, we learn that the injunction would provide an immense influence not only on the debtors but on the shareholders, the corporations and the creditors of the corporations. Therefore, when the court faces the motions related with the corporate law, the court should pay more attention to the judgment. Regarding the immense effect of the injunction, this thesis highlights the need for reforms. By analyzing the cases and comparative studies, this paper tries to provide some advices about the revisions of injunction in Taiwan.
This thesis starts with the rules of injunction in Taiwan, including the procedure, the standards, the effect and the appeal process. In addition, it introduces the rules of interlocutory injunction in America, containing issuing procedures, issuing standards and the appeal procedure. The chapter 3 assays lots of cases in Taiwan, and points out defects in the judicial procedures and the deficiencies in the rules of injunction in Taiwan. Besides, it introduces three significant cases, and these cases manifest that the improvement in the rules of injunction and the judicial procedure is indispensable.
After the analysis in rules and cases of injunction in Taiwan, this paper moves on to the comparative studies. The chapter 4 centers on the cases of preliminary injunction in Federal Circuit Courts of Appeal in America and the Court of Chancery of Delaware, and focuses on the advantages of the judgment procedures. There are visible judicial standards of preliminary injunction, and plaintiffs will have a higher burden of proof when they apply for some types of preliminary injunction. After examining the debates substantially, the court will issue a proper injunction promptly according to the situation of cases. The authority of the courts and the rapid procedures make injunction rules an effective relief for people in America.
Finally, the chapter 5 provides certain recommendations on the rules of injunction in Taiwan on the basis of the previous studies in the thesis. This paper suggests that it is necessary to establish clearer judicial standards and more appropriate procedures of injunction, and the Taiwan Code of Civil Procedure should be revised to add a provision that the court may upon motion or on its own initiative revoke an injunction maintaining the temporary status quo where an action is not initiated within 30 days after the order is served to the applicant. Furthermore, it stresses that before the establishment of commercial courts, the court should pay more attention to the motions about the corporate laws due to the huge effect of injunctions on the corporations and their shareholders.
Subjects
Provisional Remedy
Preliminary Injunction
Due Process
Disclosure
Notice
Type
thesis
File(s)![Thumbnail Image]()
Loading...
Name
ntu-101-R98a21102-1.pdf
Size
23.32 KB
Format
Adobe PDF
Checksum
(MD5):acd2ddd2da7eff4d8ffb173b4806bc82