11 February, 2020
In order to adjudicate major commercial disputes swiftly, appropriately and professionally, the Judicial Yuan invited the opinions of scholars of civil procedure law and commercial law, lawyers, judges, administrative agencies to form a committee, and gathered the comments from the general public, to draft the Commercial Case Adjudication Act (the “Act”). The Legislative Yuan passed the Act on December 17, 2019. The highlights of the Act invlude:
(1) Establishment of a professional court having exclusive jurisdiction over commercial cases: the commercial court and the former Intellectual Property Court is being merged and renamed as the Intellectual Property and Commercial Court (the “Commercial Court”), and is at the same level as the High Court. The Commercial Court has the exclusive jurisdiction of commercial cases and adopts a two-instance courts and trials system. The Intellectual Property Court Organization Act is amended to become the Intellectual Property and Commercial Court Organization Act accordingly.
(2) Define the commercial cases to which the Act applies: Divide the commercial cases into commercial litigation matters and commercial non-litigation matters. Commercial litigation matters mainly refer to the disputes over civil rights and obligations arising out of commercial laws and the amount in dispute or value of the subject matter of the litigation is more than NTD 100 million, the validity of the resolution of the meeting of shareholders or the board of directors of a publicly traded company, and the civil disputes between a shareholder and the company or its responsible person, etc. Commercial non-litigation matters include the determination of the share purchase price a publicly traded company, and the appointment or dismissal of a temporary manager or an inspector pursuant to the Company Act, etc. In addition, civil matters related to the Company Act, the Securities and Exchange Act, etc. that are under the jurisdiction of the Commercial Ccourt by virtue of the written consent of the parties are also considered commercial matters.
(3) Mandatory legal representation by counsel: attorneys shall be engaged to conduct the litigation procedure of the commercial matters on behalf of the parties. A procedural act by legal counsel has a direct effect on the party. If a party does not engage an attorney as a counsel or the engaged counsel is not present, the party is deemed to be absent.
(4) Electronic legal documents submission: all legal document by the parties, the related parties or counsel shall be submitted through the electronic legal documents submission system, otherwise it will be deemed not submitted.
(5) Mandatory mediation procedure: for commercial litigation matters, the Act requires mediation before enering the substantive litigation. The above is applicable mutatis mutandis to commercial non-litigation matters. Commercial mediation is not a public proceeding and should be concluded within 60 days of the election of commercial mediation members.
(6) Expert witness: the parties may engage expert witnesses to provide professional opinions with the permission of the court. An expert witness shall issue written expert opinions and sign a written oath, and the opinion should be submitted to the court by the parties. However, with the permission of the court, the expert witness may orally present the expert opinions. If the expert witness makes a false statement on matters which are material to the case, he/she shall be subject to criminal charges of perjury.
(7) Confidentiality preservation order: a party or any third party who holds trade secrets may request the court with reasonable explanantion to issue a confidentiality preservation order against the other party, counsel, assistant ad litem, or other relevant parties. The person subject to a confidentiality preservation order shall not use the trade secrets for purposes other than those related to the case, nor shall he/she disclose such trade secrets to those not subject to the order. One who violates a confidentiality preservation order shall be subject to criminal charges, and prosecution therefor should be instituted only upon complaint.
For further information, please contact:
C. Y. Huang, Partner, Tsar & Tsai Law Firm
CYHuang@TsarTsai.com.tw
