[Legal Life] Ch8 In a Traffic Accident, Are There Options Other Than Going to Court?

Upon learning that Ch'un-ming repeatedly denied the hit-and-run, and growing tired of waiting for the prosecutor to indict him, Chieh-yun's burgeoning sense of justice turned into fury, leading her to initiate a criminal complaint for injury against Ch'un-ming.

After catching wind of Chieh-yun's stance, Ch'un-ming hoped both to dissuade her from filing charges and to secure a suspension of indictment from the prosecutor. Consequently, he attempted to reach out to Chieh-yun, hoping to resolve the conflict between them as simply and swiftly as possible...

"I'm going to sue him!" When people feel wronged by another's actions, they often hope to uphold their rights through court judgments. As many of you likely know, bringing a lawsuit to court generally involves two paths: civil proceedings and criminal proceedings. (By the way, if you feel the party wronging you is the state or government, you might even pursue administrative litigation.) So, what exactly is the difference between civil and criminal procedures?

Civil law primarily deals with private rights disputes between individuals, such as debt collection, damages, divorce, and inheritance, leaving these matters to the state to act as a fair and impartial third-party adjudicator. Criminal law, on the other hand, carries the weight of state authority, where prosecutors prosecute crimes and judges render judgments. Even though criminal cases usually have specific victims, the purpose of criminal punishment includes maintaining overall social order—which differs from civil damages, which aim to compensate victims for their losses.

However, besides going to court and undergoing litigation, disputes can also be resolved through out-of-court procedures. Moreover, litigation can be lengthy and costly (a typical civil case—from the initial filing, through three tiers of court, to a final and conclusive judgment—taking two to three years is considered relatively fast, and complex cases sometimes take over five years). Therefore, alternative dispute resolution (ADR) methods are quite frequently adopted in practice. The ones most people have heard of are arbitration, mediation, and settlement.

1. Arbitration

So-called "arbitration" means entrusting a dispute to an arbitrator with relevant knowledge or expertise. Typically, each of the two parties selects one arbitrator, and the two chosen arbitrators jointly select a third, presiding arbitrator. The decision rendered by the arbitrator(s) holds the same legal effect as a court judgment. Because arbitration proceedings are private, highly confidential, and relatively fast-paced (in principle, concluding within 6 months with no appeal process), it is quite common in commercial practice.

2. Mediation

So-called "mediation" means that under the coordination of a fair third-party mediator, both parties jointly seek a solution to resolve their conflict. Mediation is divided into court mediation and mediation through other units (such as township, county-administered city, or district mediation committees).

Court mediation is divided into mandatory mediation and voluntary mediation. Mandatory mediation refers to cases where the law dictates that, regardless of the parties' willingness to mediate, they must enter the mediation procedure before initiating a lawsuit, giving everyone a chance to turn a major issue into a minor one and a minor issue into nothing at all. If an agreement still cannot be reached, the parties may then proceed to litigation. Common mandatory mediation cases include employment contract disputes, property disputes between relatives, the partition or management of jointly owned land, medical disputes, and traffic accident disputes like the one in this case. The other type is voluntary mediation, where as long as both parties are willing, they can apply to the court for mediation to resolve their dispute, whereupon a judge or court mediator will help the two sides explore potential resolutions.

As for mediation by township, county-administered city, or district mediation committees, such committees are formed by mayors of townships, county-administered cities, or districts, who select local respected figures endowed with legal or other professional knowledge in accordance with the law. These committees handle civil disputes and criminal complaints requiring a formal complaint (complaint-dependent offenses) submitted by the public.

Once court mediation concludes with a court mediation record, or a mediation committee's mediation instrument is submitted to the court for approval, the mediation result carries the effect of a civil court judgment. Unless there are statutory grounds upon which a party may petition the court to declare it null and void or revoke it, the parties cannot repudiate the contents of the mediation; either party may also apply for compulsory execution based on the mediation instrument or mediation record.

3. Settlement

So-called "settlement" can be divided into out-of-court settlement and settlement before a court (judicial settlement). Judicial settlement refers to a situation where, during trial, the judge feels that the opposing parties are not actually at mortal odds and could sit down for a constructive chat to reach a consensus. After all, litigation strains relationships, so the judge may encourage both parties to settle during the proceedings and draw up a "settlement record" based on their consensus. A judicial settlement has the same effect as a final and conclusive judgment: the parties cannot litigate the same matter again (res judicata), and they can apply to the court for compulsory execution based on the settlement content (enforceability).

An out-of-court settlement, on the other hand, usually involves signing a separate settlement contract, meaning the parties agree to "take a step back to gain a wider view," shaking hands on a contract and mutually agreeing to stop contesting each other. However, the legal effect of such a settlement contract is not as robust as a judicial settlement. If the other party reneges after signing the settlement contract, one must still rely on the contract to sue them in court for performance (though you certainly hold the moral high ground).

How Should a Traffic Accident Settlement Be Negotiated?

Legal Issues in Traffic Accident Settlements

As mentioned earlier, settlement primarily addresses private civil disputes. However, settlements for traffic accidents must consider criminal responsibility alongside the civil claim for damages. Regarding the criminal aspect, because crimes are still divided into "complaint-dependent offenses" (offenses prosecuted only upon a victim's complaint) and "non-complaint-dependent offenses" (offenses where prosecutors investigate regardless of a victim's complaint), minor traffic accidents involving negligent injury are complaint-dependent offenses. This means the perpetrator may ask the complainant to withdraw their filed complaint through a settlement (once a complaint is withdrawn, a new complaint cannot be refiled for the same case).

In practice, it is also common for prosecutors to grant a suspension of indictment (or even a non-prosecution disposition) to a perpetrator because the perpetrator and victim have reached a settlement, or for courts to impose lighter criminal penalties pursuant to Article 57 of the Criminal Code. (Please do not think this means "justice for the rich, prison for the poor"; after all, the purpose of criminal punishment primarily includes restoring order and reform. If the victim receives substantial compensation under the settlement terms and the perpetrator shows a genuine willingness to make amends, the purpose of criminal punishment has already been achieved.)

It should be noted that a criminal right to file a complaint cannot, in principle, be waived in advance (so when people on TV talk tough and say, "I reserve my legal recourse against you," they are essentially talking nonsense). Therefore, if both parties reach a settlement agreement beforehand and stipulate that "the victim shall not file a criminal complaint against the perpetrator regarding this traffic accident in the future," should the victim subsequently file a complaint with the prosecutor, the complaint remains entirely valid. (At most, the perpetrator might claim a refund of the settlement money, or the prosecutor and court may view the existence of a settlement agreement as grounds for leniency.)

Therefore, when negotiating a settlement after a traffic accident, besides confirming the acceptable bottom line for both parties (such as the amount of damages and whether the victim is willing to waive future civil liability), the description in the agreement should be as specific as possible to prevent future discrepancies in interpreting the settlement terms (such as whether the scope of compensation includes medical expenses, wages for periods unable to work, increased expenses due to injury, mental distress solatium, whether insurance payouts are deducted, and the period and method of payment...). To prevent either party from going back on their word later, parties can have a mediation committee draw up a mediation instrument and submit it to the court for approval, thereby providing double protection for their rights.

　

Related Legal Provisions

Civil Code

Article 736: "A settlement is a contract whereby the parties mutually make concessions to terminate a dispute or prevent a dispute from arising."
Article 738: "A settlement may not be rescinded on the ground of mistake. However, this shall not apply to any of the following circumstances: 1. The document upon which the settlement was based is subsequently found to be forged or altered, and the parties to the settlement would not have entered into the settlement had they known it was forged or altered. 2. The settled matter has been adjudicated by a final and conclusive court judgment unknown to both or either of the parties at the time of the settlement. 3. One of the parties entered into the settlement under a mistake regarding the qualifications of the other party or regarding a vital issue in dispute."

Code of Civil Procedure

Article 84: "Where parties enter into a settlement, each party shall bear its own settlement expenses and litigation costs, unless otherwise agreed. If a settlement is successfully concluded, the parties may, within three months from the date of conclusion, apply for the refund of two-thirds of the court fees paid for that instance of the proceedings."
Article 377, Paragraph 1: "Regardless of the stage of the litigation, the court may attempt to effect a settlement at any time. A commissioned judge or designated judge may also do so."
Article 377-1: "When the parties are very close to reaching a consensus on a settlement, both sides may petition the court, a commissioned judge, or a designated judge to establish a settlement proposal within the scope indicated by the parties. The petition in the preceding paragraph shall indicate in writing the scope within which the court may establish a settlement proposal and the willingness to abide by the established settlement proposal. When establishing a settlement proposal pursuant to Paragraph 1, the court, commissioned judge, or designated judge shall consider all circumstances and act in accordance with equity principles; and shall notify the parties of the established settlement proposal on the hearing date, record it in the minutes, or serve the settlement proposal. Parties who have received the notification or service referred to in the preceding paragraph may not withdraw the petition referred to in Paragraph 1. When both parties receive the notification or service referred to in Paragraph 3, a settlement shall be deemed to have been concluded. A third party who joins the settlement pursuant to Paragraph 2 of the preceding article may also make the petition referred to in Paragraph 1 along with both parties, and the preceding four paragraphs shall apply mutatis mutandis."
Article 403
(Paragraph 1) The following matters shall be subject to court mediation prior to the filing of a lawsuit, unless circumstances specified in any of the subparagraphs of Article 406, Paragraph 1 apply:
1. Disputes arising between owners, superficies rights holders, or other users of immovable property in connection with neighboring relations.
2. Disputes arising from the determination of immovable property boundaries or the placement of boundary markers.
3. Disputes arising among co-owners of immovable property concerning the management, disposition, or partition of jointly owned property.
4. Disputes arising among sectional owners or users of a building concerning the management of the building or its common parts.
5. Disputes arising from the increase or reduction of rent or land rent for immovable property.
6. Disputes arising from the determination of the duration, scope, or land rent of superficies.
7. Disputes arising from road traffic accidents or medical disputes.
8. Disputes arising between employers and employees concerning employment contracts.
9. Disputes arising among partners or between a silent partner and the managing partner concerning a partnership.
10. Disputes concerning property rights arising among spouses, lineal relatives by blood, collateral relatives by blood within the fourth degree of kinship, collateral relatives by affinity within the third degree of kinship, heads of households, or family members.
11. Other disputes concerning property rights where the subject matter amount or value does not exceed NT$500,000.
(Paragraph 2) The Judicial Yuan may, based on changing circumstances, issue an order to reduce the amount specified in Subparagraph 11 of the preceding paragraph to NT$250,000 or increase it to NT$750,000.

Article 415-1, Paragraph 1
Regarding the mediation of property rights disputes, with the consent of both parties, the mediator may discretionarily determine the mediation terms for resolving the matter.

Arbitration Act

Article 1
I. Regarding present or future disputes, the parties may conclude an arbitration agreement stipulating that an arbitral tribunal consisting of a single arbitrator or an odd number of arbitrators shall be formed to conduct arbitration.
The disputes referred to in the preceding paragraph shall be limited to those that may be settled according to law.
III. An arbitration agreement shall be in writing.
IV. Communications between parties via documents, securities, letters, telex, telegrams, or other similar means of communication that sufficiently demonstrate an agreement to arbitrate shall be deemed the establishment of an arbitration agreement.

Article 9
I. Where an arbitration agreement does not specify the arbitrators and the method for their selection, each party shall select one arbitrator, and the arbitrators so selected by both parties shall jointly select a third arbitrator as the presiding arbitrator, and the arbitral tribunal shall notify the parties in writing.
II. If the selected arbitrators fail to jointly select a presiding arbitrator within thirty days after their selection, a party may apply to the court for the selection. Where the arbitration agreement stipulates that the arbitration is to be conducted by a single arbitrator, and one party fails to reach an agreement within thirty days after receiving a written request from the other party to select an arbitrator, either party may apply to the court for the selection.
III. In the circumstances of the preceding two paragraphs, where the parties have stipulated that the arbitration matter is to be administered by an arbitration institution, that arbitration institution shall select the arbitrator(s).
IV. Where one party consists of two or more persons and fails to reach an agreement on the selection of an arbitrator, the selection shall be decided by a majority vote; if the number of votes is equal, the selection shall be determined by drawing lots.

Article 24, Paragraph 1
Where the parties have not agreed upon the arbitration procedure, the arbitral tribunal shall, within ten days from the date of receiving notification of being selected as an arbitrator, determine the place of arbitration and the date for hearing, notify both parties, and render an arbitral award within six months; where necessary, the period may be extended by three months.

Act for Chrysanthemum-City-County (Township, City, District) Mediation (Township Mediation Act)

Article 3
I. Mediation committee members (hereinafter referred to as mediation members) shall be selected by the township, county-administered city, or district mayor from among impartial persons within the township, county-administered city, or district who possess legal or other professional knowledge and are held in high public esteem. Twice the required number of candidates shall be nominated, and their names, educational backgrounds, and work histories shall be jointly submitted to the competent district court or its branch and the district court or its branch prosecutor's office for joint review. Qualified candidates meeting the prescribed quota shall be selected, reported to the county government for record, and appointed, with a term of four years. The same shall apply to reappointments.
II. When a vacancy occurs among the mediation members, a replacement may be appointed to fill the vacancy. However, if the number of vacancies reaches one-third or more of the total number of members and the remaining term exceeds one year, a replacement shall be appointed.
The term of office for a replacement appointment under the preceding paragraph shall run until the expiration of the original term.
IV. Female members shall account for no less than one-fourth of the total number of mediation members.