By Tim Hsu, Washington Group & Associates, Taipei, Taiwan
When a plaintiff succeeds in obtaining a foreign money judgement against a Taiwanese defendant, the defendant may have sufficient assets in the foreign court’s jurisdiction to satisfy that judgement. But if not, the next step is to collect on the defendant's assets that are located in Taiwan.
Before attempting to collect a foreign judgement in Taiwan, it is important to make sure the following criteria are satisfied:
- The court that issued the judgment must have proper jurisdiction over the defendant.
- Service of process on the defendant must be correct.
- The judgement must not contradict public policy in Taiwan.
- There must be reciprocal enforcement of judgements between the courts of Taiwan and the country where the foreign judgement was obtained.
If the judgement meets all these requirements, the successful plaintiff may file a lawsuit with the relevant District Court in Taiwan. It is important to file in the jurisdiction where the defendant has a registered business address (if the defendant is a business), or a registered household address if the defendant is an individual.
When filing an enforcement action in Taiwan, make sure to include a copy of the foreign judgement certified by the court that issued it. You will also need a certificate from the court indicating that the judgement is final and irrevocable, as well as a signed power of attorney that gives local counsel in Taiwan the authority to act on the plaintiff’s behalf.
When filing, you will also need to pay a court fee, which will be around one percent of the judgement amount. This amount is recoverable if your Taiwanese collection action is successful.
The whole process can take anywhere from a few months to a year, and at the end, if everything goes well, you will obtain an enforcement order for your foreign money judgement.
There may be an appeal at this point. If that happens, the process can continue for a few months or years. But if the defendant has not appealed within 20 days of your enforcement order, then that order becomes final. Once the enforcement order is final, you can obtain an execution order, which will allow you to collect your foreign judgement in Taiwan. When you request the execution order, it is important to provide all information you have on the location of the defendant's assets that you want to seize and apply toward payment of the judgement.
Even before filing a foreign lawsuit against a Taiwanese defendant, there are other measures you can take that can strengthen your position in Taiwan against that defendant later, in the event your foreign lawsuit is successful.
First, when you are filing an enforcement action against a Taiwanese defendant in a foreign country, even before you serve the defendant with your complaint you can ask the relevant Taiwanese court for an attachment order. This will freeze at least some of the defendant's assets before it has time to hide them from you. The Taiwan court will generally require you to post a security bond of one-third of the value of the property you're seeking to attach. If the court denies your order, you can reapply later. If it says yes, you have 30 days to have the order enforced.
After you get your original attachment order – which is a provisional order and requires further steps – you can get access to the defendant's financial records from the Taxation Bureau in Taiwan, and then you can ask the court to enforce the attachment order. When the order is enforced, the assets are attached and they can be used later to satisfy your judgement.
Second, when you are serving a Taiwanese defendant in a foreign lawsuit, you can obtain a "letter rogatory", which is a request for assistance from the foreign court to the appropriate Taiwanese court. If the Taiwanese court serves your documents on the defendant, it will be easier for a Taiwanese court to be sure that service was proper after you've obtained your judgement and want to enforce it. One drawback is that getting the Taiwan court's assistance through a letter rogatory will probably take several months.
You may prefer faster service by another method in the foreign country, with a correspondingly greater risk that the Taiwanese courts may reject your judgement for improper service.
Another option, when serving the Taiwanese defendant, is to request that the foreign court order a Taiwanese law firm to serve the defendant in Taiwan by registered mail. (In the U.S., this could be done pursuant to Fed.R.Civ.P. 4(f)(3).) This will give the defendant adequate notice, as well as avoid a potential later argument that the defendant lacked notice because mail sent from the foreign country was disrupted by coronavirus issues.