2019-08-012024-05-17https://scholars.lib.ntu.edu.tw/handle/123456789/695154摘要：民事訴訟法之二00三修正，就假扣押程序之釋明責任為重大變革，不採擔保替代釋明制度，而改採擔保補充釋明制度，僅於債權人就假扣押之請求及假扣押之原因釋明有所不足之情形，始准許其提供擔保以補充釋明之不足，如未為任何釋明，即駁回假扣押聲請。假扣押係為保全金錢債權將來之強制執行，預先扣押債務人之責任財產，限制其處分權之暫時地措施。債權人在起訴之前多先為假扣押，避免將來訴訟結果所取得確定判決，無責任財產可供執行，權利實現落空。惟假扣押程序已加重債權人之釋明責任，致其取得假扣押裁定不如修正前容易，常因未釋明假扣押原因而被駁回。從而產生下列疑義：假扣押之保全必要性為何？假扣押裁定必須具備有日後不能或難予執行之虞之實體要件，其正當化根據為何？如何判定保全必要性具備與否？為何要求債權人就其存在必須盡釋明責任？債權人舉證時提出何等證據，始係就假扣押之原因為釋明？其釋明之對象事實為何？本研究計畫意識上述問題，擬嘗試解明民事訴訟法之修法旨趣及其應有之解釋、運作論。不僅&#21442;酌德、日等國之立法例，而且檢討我國審判實務之見解，期能就前揭問題提出妥適的解決之道。為此，本研究計畫對於我國民事保全程序之健全運作及機能發揮，應屬必要且為有益。<br> Abstract: The amendment of Code of Civil Procedure in 2003 modified regulations on the showing for the provisional showing obligation for the provisional attachment. The amended regulations adopted a new system of security supplementing preliminary showing, instead of the old ‘security substituting preliminary showing’ system, which means, only in cases that a preliminary showing of the claim and the ground for provisional attachment is not sufficient, the court may permit a provisional attachment upon the creditor’s provision of securities to supplement the insufficiency of the preliminary showing. Otherwise, when the creditors don’t provide any preliminary showing, the court shall dismiss any application for provisional attachment. The purpose of provisional attachment is to secure the satisfaction of any future compulsory execution of monetary claims by attaching the liable properties of the debtors in advance. It is a temporary measure to limit the debtors’ dispositions. In general, most creditors would apply for provisional attachment first, before the initiation of the action, in order to avoid the circumstance that the creditors are unable to effectively enforce the claims since there is no liable properties of the debtors available for enforcement when the judgement has become final and binding. However, the amended regulations on provisional attachment has aggravated creditors’ responsibilities of preliminary showing, which resulted that the rulings of the provisional attachment were relatively hard to be issued compare with the past. The court often denied to issue the ruling for the reason of no preliminary showing of the ground for the provisional attachment provided by the creditors. As a result, it raised several questions: 1. How to define the necessity of preservation in provisional attachment? How to justify the legitimacy of requiring a ruling of provisional attachment must be based on evidences it is not possible, or extremely difficult, for the creditors to satisfy the claim by compulsory execution in the future should there arise a change in the status quo of the claimed object? 2. How to identify whether it possess the aforementioned substantive legal requirements on the ruling of provisional attachment? Why does the new regulation require that the creditors should make a preliminary showing? 3. What kinds of evidences presented by the creditors are deemed sufficient for a preliminary showing of the ground for the provisional attachment? This research is aware of the aforementioned issues and intends to explain the legislative purposes of the amendment, and its proper interpretation and operation. This research not only considered the legislation of Japan and Germany, but also reviewed the jurisprudence of Taiwan, and expected to propose appropriate solutions to the aforementioned issues. Thus, this research is necessary and beneficial to enhance the operation and the function of our civil injunctive procedure.民事保全程序保全必要性釋明責任Civil Provisional ProceedingCivil Injunctive ProcedureThe Necessity of PreservationThe Responsibility of Preliminary Showing