| Summary: | 碩士 === 國立臺北大學 === 法律學系一般生組 === 99 === In January 14, 2003, Article 447 of the civil procedure law has been modified, in which section 1 prohibits one party from bringing out new attacking or defensive measures in principle, and sets six exception clauses. So when it comes to bringing out new attacking or defensive measures in the second instance, our legislation sets the rule which prohibits in principle, permits in exception.
After the modification, Article 447 of the civil procedure law sets six exception clauses for the basic principles of Preclusion. The main structure is the same as German, whose premises are whether the failure of bringing out is due to flaws of court’s procedures in the first instance and whether the failure of bringing out is due to one party’s fault. Especially Paragraph 3, Section 1 of that article specifying that those who supplement the attacking and defensive measures already brought out in the first instance, and Paragraph 6, Section 1 of which specifying that if it seems obviously unfair to not allow bringing out new attacking and defensive measures are unique to our legal system. However, it seems quite abstract in the regulatory meaning, thus raising quite a few disputes. But maybe due to its abstract essence, these clauses have been widely adopted in practice, creating a “escaping into abstract clauses” phenomenon.
Moreover, the purpose of Preclusion in the first instance is for concentration trial in court. The purpose of Preclusion in the second instance, however, is mainly for ensuring Preclusion effects in the first instance. Therefore, though Article 196 is regulated in the general provisions, but when it comes to application, this Article should be applied only to cases in the first instance. However, in legal practice, when we judge whether Preclusion effect is applied in the second instance, we often take into consideration the element that whether the procedure was delayed, which is restricted to the first instance, even neglecting article 447, and refer directly to Article 196. By doing this, the regulatory purpose of the law concerning the second instance will no more exist. Moreover, the Supreme Court has rulings which consult Article 255, Section 7 of civil procedure law, creating the 7th exception, but if we extend this exception constantly, the meaning of Preclusion clause can be jeopardized.
This article observes the legal practices of Preclusion clause in the second instance by searching legal rulings, contemplating on several questions aroused by legal practices, comment on these questions, and hopefully make a clearer picture of this Preclusion clause.
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