Fine of Indirect Enforcement

Autor: Chia-Yu Chiang, 江嘉瑜
Rok vydání: 2016
Druh dokumentu: 學位論文 ; thesis
Popis: 105
The system of fine of indirect enforcement is established in the Family Act that was implemented in 2012. In the ruling or executing the payment for living expenses of the household, for expenses of maintenance or for alimony, the ruling court and the executing court may, upon the creditor’s motion or on its own initiative, by a ruling order the debtor to pay an amount of mandatory payment to the creditor when the payment is not made within the time limit. This mandatory payment, named the fine of indirect enforcement, is one of the methods of the indirect enforcement. The fine of indirect enforcement, similar to default surcharge, is able to urge the debtor to perform obligations by announcing the disadvantage on property. The establishment of this system not only indicates that the theory of supplemental indirect enforcement has not been applied in the procedure of compulsory enforcement in Taiwan, but also admits that indirect enforcement could be adopted in mandatory enforcement. Considering the fact that this system has not been commonly used in legal practice, this thesis is based on the view of comparative law and aims to propose appropriate ways to interpret as well as to legislate this system. Regarding the nature of fine of indirect enforcement, it is considered as one of the methods to execute the obligation as the Japanese system, rather than a method to constraint the obligation in French system. The legislative explanation indicates that fine of indirect enforcement is a punishment which will happen when the debtor violates a writ of execution or an order of performance, and it is different from the compensation. Unlike French law or Japanese law, because the default surcharge has already existed in Taiwan, based on the non-contentiousness hearing of substantive law and the assistance of governmental mission, the fine of indirect enforcement should be assigned to the creditor. Furthermore, concerning the necessity and reasonableness of the system, instead of the dichotomy between the case-judging institution and the obligation-executing institution, this system allows the executing court to issue a writ of execution and the ruling court to add a method of execution in its decision. Referring to the interpretation of either French or Japanese system, the important requirements of fine of indirect enforcement are how to avoid harsh execution and ensure effectiveness. In order to prevent from harsh execution, the Family Act stipulates factors of determining the amount, the limitation of the amount, revoking the ruling on court’s own initiative, and the regulation of changed circumstances. Besides, to assure effectiveness, instead of acting as a tool of compensation as the regulations in Japanese law, the Taiwanese system allows the case-judging court to make a decision of fine of indirect enforcement as in French law. About the applicable scope of fine of indirect enforcement, the Family Act provides that the scope is limited to payment for living expenses of the household, for expense of maintenance or for alimony. No matter how to pay the payment in these cases, whether to claim for the amount of payment determined by court, or to claim for the payment according to an agreement, all aforesaid cases are included in the applicable scope. Referring to the French and Japanese system, this thesis dedicates to broaden the applicable scope to all kinds of cases, and to grant courts the discretion of selection of suitable methods in the future. There are two kinds of fine of indirect enforcement existing in current law. One is the fine determined by case-judging court on a ruling, and the other is the fine ordered by executing court. The former is referring to the system of additional payment in small-claim proceeding while the latter referring to Japanese law is equipped with more complete regulations. When the court makes a ruling of these fine of indirect enforcement, it has to evaluate all requirements and factors to determine the amount of fine, especially the financial situation of the debtor. If there is a fundamental change of circumstances after ruling on fine of indirect enforcement, the court can modify or revoke the said ruling in order to ensure the debtor’s solvency. The ruling on fine of indirect enforcement is used as a writ of execution. When the debtor doesn’t perform the obligation, the creditor can motion for compulsory execution in accordance with the ruling. Lastly, concerning the operation of the system nowadays or in the future, referring to the legal practice of Japanese system, it can be interpreted as follows. First, the court can adopt two or more kinds of methods of execution for the purpose of various selections of execution and effectiveness of execution. Moreover, regarding the restriction of fine of indirect enforcement, if the obligation is unable to perform by the debtor himself and needs the assistance from others, he has to try his utmost to get the assistance. Otherwise, the ruling on fine of indirect enforcement will be made, in order to impel the debtor to adopt every action expected. Besides, the fine of indirect enforcement is applicable for provisional remedies proceeding, and it may be ordered in accordance with ruling on provisional injunctions or injunctions. If a writ of execution becomes invalid or a ruling on fine of indirect enforcement is revoked, the creditor may claim the debtor to return the benefit from the ruling on fine of indirect enforcement in accordance with the provisions concerning Unjust Enrichment. Furthermore, about the execution of forbearing obligation, the court can make a ruling on fine of indirect enforcement in advance when there is the possibility that the debtor will violate the obligation, even if the actual violation of the obligation has not existed, in order to ensure that the obligation could be really performed.
Databáze: Networked Digital Library of Theses & Dissertations
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