Potential Impacts of Deleting Subparagraphs 3 and 6, Paragraph 1, Article 447 of the Code of Civil Procedure

Conclusion

1. According to 200 relevant judgments rendered by the Taiwan High Court and its branch courts retrieved by the Judicial Reform Foundation in April 2022, 86% of the additional means of attack or defense were allowed to be raised pursuant to Subparagraphs 3 and 6, Paragraph 1, Article 447 of the Code of Civil Procedure (which are scheduled to be deleted under the Judicial Yuan's draft amendment) (see Section II for details).
2. According to a scholar's study in 2013 regarding legal opinions expressed in 58 Supreme Court judgments concerning the application of Paragraph 1, Article 447 of the Code of Civil Procedure, 63.79% were allowed to be raised on the grounds of Subparagraph 3 or Subparagraph 6 (see Section III for details).

1. Provisions Scheduled for Amendment
   

   Judicial Yuan Draft Amendment

   Current Provision

   Article 447 No additional means of attack or defense shall be presented, except in case of any of the following: Where such additional means of attack or defense were prevented from being presented as a result of the court of first instance acting in contravention of the laws and regulations; Where the occurrences giving rise to such additional means of attack or defense took place after the conclusion of oral argument in the court of first instance; Where the occurrences giving rise to such additional means of attack or defense are generally known or known to the court in the course of performing its functions, or the court should take evidence on its own initiative with regard to such occurrences; Where the party was unable to present such additional means of attack or defense due to reasons not imputable to him/her; The party shall make a preliminary showing of the existence of one or more of the circumstance provided in the proviso of the preceding paragraph. The court of second instance shall reject any additional means of attack or defense presented in violation of the provision of the two preceding paragraphs.

   Article 447 No additional means of attack or defense shall be presented, except in case of any of the following: Where such additional means of attack or defense were prevented from being presented as a result of the court of first instance acting in contravention of the laws and regulations; Where the occurrences giving rise to such additional means of attack or defense took place after the conclusion of oral argument in the court of first instance; Where additional means of attack or defense are presented for purposes of supplementing those already presented in the first instance; Where the occurrences giving rise to such additional means of attack or defense are generally known or known to the court in the course of performing its functions, or the court should take evidence on its own initiative with regard to such occurrences; Where the party was unable to present such additional means of attack or defense due to reasons not imputable to him/her; Where it would be manifestly unfair to prevent the party from presenting such additional means of attack or defense. The party shall make a preliminary showing of the existence of one or more of the circumstance provided in the proviso of the preceding paragraph. The court of second instance shall reject any additional means of attack or defense presented in violation of the provision of the two preceding paragraphs.

   Pursuant to the aforementioned Judicial Yuan draft amendment, parties will no longer be permitted to present additional means of attack or defense on the grounds of "additional means of attack or defense are presented for purposes of supplementing those already presented in the first instance" or "it would be manifestly unfair to prevent the party from presenting such additional means of attack or defense." This may impair the court's function in discovering the truth and protecting the rights and remedies of parties.
   To understand the practical application of Subparagraphs 3 and 6, which are scheduled for deletion under the aforementioned amendment direction, an analysis is conducted as follows.
   
2. According to 200 relevant judgments retrieved from the Taiwan High Court and its branch courts by the Judicial Reform Foundation on April 18, 2022, the proportion of cases where additional means of attack or defense were allowed to be raised pursuant to Subparagraphs 3 and 6 was 86%
   
   1. Based on the statistical data currently published by the Judicial Yuan, it appears impossible to analyze the application of each subparagraph under Paragraph 1, Article 447 of the Code of Civil Procedure.
      
   2. Analytical Method
      
      1. On April 18, 2022, judgments of the Taiwan High Court and its branch courts were searched in the "Judicial Yuan Law and Regulations Retrieving System" using "Article 447 of the Code of Civil Procedure" as the keyword. The search results are as follows:
         

         Year	Number of Cases Containing Article 447	Number of Concluded Adjudications
         2021	276	Annual report being compiled
         2020	294	6,941
         2019	344	6,759
         2018	372	6,799
         2017	414	6,840
         2016	420	7,246
         2015	362	7,208
         2014	263	6,383
         2013	270	6,249
         2012	265	6,660
         2011	260	6,103
         Total (including pre-2011)	6,007	N/A

      2. Subsequently, manual reviews were conducted on the "first 220 entries" displayed, in chronological order of adjudication. After excluding 20 data entries not involving the allowance or disallowance under Article 447, there are 200 judgments covering both permitted and unpermitted submissions (see the Appendix for raw data).
         
   3. Analysis Results
      
      1. Statistical Table
         

         Permitted to Raise	Basis for Permission	Number of Cited Judgments	Percentage
         Permitted to Raise	Subparagraph 1	3	1.5%
         	Subparagraph 2	11	5.5%
         	Subparagraph 3	129	64.5%
         	Subparagraph 4	6	3%
         	Subparagraph 5	3	1.5%
         	Subparagraph 6	85	42.5%
         Not Permitted to Raise		15	7.5%

         ※Because a single judgment may simultaneously apply more than one subparagraph, the sum of the numbers in the table above exceeds 200.
          
      2. According to the table above, the proportion of "not permitting" additional means of attack or defense by the High Court is approximately 7.5% (15/200).
      3. Since 42 judgments in the above statistics simultaneously cited both Subparagraph 3 and Subparagraph 6, among the 200 analyzed judgments, 172 (129+85-42) judgments permitted additional means of attack or defense to be raised pursuant to Subparagraph 3 or Subparagraph 6, representing a proportion of 86% (172/200). Extrapolating this proportion to the situation in 2021, out of 276 relevant judgments utilizing Subparagraph 3 or Subparagraph 6, approximately 237 may have involved them.
      4. Among the 200 judgments, only 8 judgments solely cited subparagraphs other than Subparagraphs 3 and 6 as the basis for permission.
      5. Summary
         1. Regarding the application of Paragraph 1, Article 447 of the Code of Civil Procedure by the Taiwan High Court and its branch courts, the proportion of disallowing additional means of attack or defense is only 7.5%.
         2. Continuing from above, the proportion of those permitted to be raised pursuant to Subparagraph 3 or Subparagraph 6 of the same paragraph (i.e., the portion scheduled for deletion in the Judicial Yuan draft amendment) is 86%.
3. According to a scholar's study in 2013, the proportion of Supreme Court legal opinions concerning the application of Paragraph 1, Article 447 of the Code of Civil Procedure where additional means of attack or defense were allowed to be raised pursuant to Subparagraph 3 or Subparagraph 6 was 63.79%
   
   1. Scholar's analysis of Supreme Court judgments
      1. Professor Chung-Jau Wu, in his 2013 article titled "The Disappearing Preclusion in the Second Instance: A Settlement on the Tenth Anniversary of the Amendment! (Parts I & II) - Re-evaluating and Reviewing the Preclusion Grounds of Subparagraphs 3 and 6 of Article 447 of the Code of Civil Procedure"^[1], analyzed the legal opinions expressed by the Supreme Court regarding the application of this provision.
      2. Analytical method of the above article:
         1. On August 10, 2013, Supreme Court judgments were searched in the "Judicial Yuan Law and Regulations Retrieving System" using "Article 447 of the Code of Civil Procedure" as the keyword, yielding 161 judgment results at the time.
         2. Then, based on the chronological order of the adjudications, manual reviews were conducted on the "first 100 entries" directly related to the discussion of this article (excluding those where "Article 447 merely appeared in the parties' statements, or was mentioned in the second instance but remanded by the third instance on other grounds without expressing an opinion on preclusion, or was mentioned only in the conclusion section citing Article 447, or where the third instance quoted statements from the aforementioned reasons of the parties, etc."), organizing 58 relevant judgments shown in the article (including those permitting and not permitting submissions).
      3. Based on the above method, the following analysis results focus on the parts where the Supreme Court expressed legal opinions, which may differ from the overall actual situation in the second instance.
      4. Analysis results of the above article (compiled from pages 55-56 of the article):
         1. Statistical Table
            

            Permitted to Raise	Basis for Permission	Number of Cited Judgments	Percentage
            Permitted to Raise	Subparagraph 2	3	5.17%
            	Subparagraph 3	22	37.93%
            	Subparagraph 4	2	3.44%
            	Subparagraph 5	5	8.62%
            	Subparagraph 6	18	31.03%
            	Other	5	8.62%
            Not Permitted to Raise		16	27.58%

         2. According to the table above, the proportion of Supreme Court decisions not permitting additional means of attack or defense to be raised is 27.58%.
         3. Because 3 judgments in the above statistics simultaneously cited both Subparagraph 3 and Subparagraph 6, among the 58 analyzed judgments, 37 (22+18-3) judgments permitted additional means of attack or defense to be raised pursuant to Subparagraph 3 or Subparagraph 6, representing a proportion of 63.79% (37/58).
         Remarks
         The original text of Professor Chung-Jau Wu's analysis regarding his statistical results is excerpted below (quoted from page 56 of the aforementioned article):
         
         1. The proportion of the Supreme Court disallowing additional means of attack or defense to be raised in the second instance (the rule) is less than 30% (27.58%). Conversely, the proportion of permitting additional means of attack or defense to be raised (the exception) exceeds 70%. Such a ratio of allowance to disallowance clearly fails to achieve the legislative purpose of Article 447, which is a "strictly restricted continuation-of-trial system" based on "disallowance" as the rule and "permission" as the exception. Such a proportion is by no means the "golden ratio"!
         2. Among the grounds for permission, those permitted pursuant to Subparagraph 3 account for nearly 40% (37.93%), those permitted pursuant to Subparagraph 6 account for over 30% (31.03%), while the remaining grounds combined account for less than 30% (approx. 25.83%). In other words, in 70% of the cases, the courts permitted parties to present means of attack or defense in the second instance through Subparagraph 3 and Subparagraph 6! This proportion clearly corroborates what the author has repeatedly pointed out for years: Subparagraphs 3 and 6 represent an erroneous legislative decision, which has caused the "preclusion in the second instance" to disappear or even vanish altogether! The legislative policy decision made by Subparagraphs 3 and 6 to adjust or relax the strictness of the preclusion rules in the second instance can no longer be corrected through legal interpretation and application, and cannot be altered without legislative amendment.
             
         
         
   2. Summary
      1. Regarding the Supreme Court's legal opinions on the application of Paragraph 1, Article 447 of the Code of Civil Procedure, the proportion of disallowing additional means of attack or defense to be raised is 27.58%.
      2. Continuing from above, the proportion of those permitted to be raised pursuant to Subparagraph 3 or Subparagraph 6 of the same paragraph (i.e., the portion scheduled for deletion in the Judicial Yuan draft amendment) is 63.79%.

Appendix

Application Circumstances of Article 447 of the Code of Civil Procedure in the Taiwan High Court

Notes

[1]
Chung-Jau Wu, "The Disappearing Preclusion in the Second Instance: A Settlement on the Tenth Anniversary of the Amendment! (Part I) - Re-evaluating and Reviewing the Preclusion Grounds of Subparagraphs 3 and 6 of Article 447 of the Code of Civil Procedure", Taiwan Law Journal, No. 233, October 2013, pp. 69-93.
Chung-Jau Wu, "The Disappearing Preclusion in the Second Instance: A Settlement on the Tenth Anniversary of the Amendment! (Part II) - Re-evaluating and Reviewing the Preclusion Grounds of Subparagraphs 3 and 6 of Article 447 of the Code of Civil Procedure", Taiwan Law Journal, No. 235, November 2013, pp. 55-75.