In a previous article, we introduced the procedures for enforcing foreign civil judgments in Taiwan and some factors that can make a foreign civil judgment unenforceable in Taiwan. Among such factors, the most common and contentious are seen in cases involving a default judgment in a foreign country in which the defendant was not legally and timely served in that country with the notification or summons of the commencement of the lawsuit, or in which the defendant was not served with those documents in Taiwan through proper channels in accordance with Taiwan laws.

We note that these service-related enforceability issues apply only to defendants who did not respond in the foreign litigation process. If a defendant in Taiwan personally participated in the foreign litigation process or appointed a foreign attorney to attend, the foreign civil judgment will not be unenforceable due to service issues. For defendants who did not respond, separate issues may arise with respect to service in the country where the lawsuit is heard and service in Taiwan. This article focuses on the issues relating to serving foreign civil litigation documents in Taiwan.

According to the Taiwan Code of Civil Procedure, serving foreign litigation documents in Taiwan must follow Taiwan laws, specifically the Law in Supporting Foreign Courts on Consigned Cases (hereinafter, the “Supporting Law”). According to the Supporting Law, foreign courts must go through diplomatic channels to request assistance from Taiwanese courts to serve foreign civil litigation documents in Taiwan. Therefore, if a foreign plaintiff directly mails or appoints a Taiwanese attorney to serve foreign civil litigation documents to a defendant in Taiwan, such service in principle does not comply with Taiwan law. This will potentially result in unenforceability of the judgment in Taiwan. However, in a French divorce and child custody dispute case, we can see some flexibility in this principle and some practical considerations that merit attention.

Case Background

The plaintiff, a French national, filed in France for divorce and custody distribution against the defendant, a Taiwan national. The French court first mailed the litigation documents to Taiwan, where the defendant received them. The French court then notified the defendant through the Bureau Français de Taipei (the official representative office of the French government in Taiwan, which essentially functions as a de facto embassy) to pick up the litigation documents. The defendant informed the Bureau Français de Taipei that she would not pick up the documents because she had already received the mailed version. The defendant subsequently did not respond to the litigation in France and lost the case. The plaintiff then sought approval from the Taiwanese court for the enforcement in Taiwan of the French court’s final judgment.

The Taiwanese Courts’ View

The first and second instance courts in Taiwan both held that although the defendant did not respond in the French litigation process, she had received the French litigation documents in Taiwan, so her substantive defense rights were protected, and the French court’s judgment was thus enforceable in Taiwan.

However, the case was appealed to the Taiwan Supreme Court, which overturned the judgment in favor of the plaintiff (Supreme Court Civil Judgment No. 109-Tai-Shang-207). The Supreme Court stated that according to Taiwan law (i.e., the Supporting Law), the French court should have gone through diplomatic channels to have the French litigation documents served to the defendant by the Taiwanese court. The French court’s direct mailing and delivery through the Bureau Français de Taipei thus did not comply with the legal requirements. The Supreme Court therefore vacated the judgment of the second instance court (the Taiwan High Court) and remanded the case to the High Court. However, the Supreme Court additionally instructed the High Court, before rendering judgment, to further investigate and clarify whether the French court had been unable to serve the documents through diplomatic channels under the Supporting Law, rather than to directly hold the French court’s service to be compliant.

After re-investigation, the High Court found that up to the time the French court served the documents to the defendant, Taiwan’s diplomatic authorities had never assisted a French court in serving litigation documents, and Taiwan and France had not signed any judicial assistance agreements. Therefore, the French court would have been unable to go through diplomatic channels and have the documents served by a Taiwanese court in accordance with the Supporting Law. The High Court stated that although documents should in principle be served through diplomatic channels by Taiwanese courts, in the absence of such diplomatic channels, other methods that protect the defendant’s litigation rights can be adopted as an exception. In this case, the French court’s mailing and delivery through the Bureau Français de Taipei ensured that the defendant received the documents, fully protecting her opportunity to participate in the French litigation. The High Court therefore determined that the French court had protected the defendant’s litigation rights and the French court’s judgment should be enforceable in Taiwan (Taiwan High Court Civil Judgment No. 109-Jia-Shang-Geng-Yi-14). The High Court’s judgment was ultimately recognized by the Supreme Court and became a final and conclusive judgment.

Points to Note When Serving Documents in Taiwan

From this case, we understand that service of foreign litigation documents in Taiwan should generally be done through diplomatic channels and Taiwanese courts, with exceptions allowed only when diplomatic channels are unavailable. If exceptional methods are used, they must still protect the defendant’s litigation rights, ensuring that the defendant in Taiwan is informed of the foreign litigation and given adequate opportunity to participate and prepare a defense.

Therefore, when initiating a lawsuit in a foreign country against a defendant in Taiwan and potentially seeking to enforce a foreign court judgment in Taiwan in the future, special attention must be paid to the first step of serving the notice of commencement of the foreign litigation. Direct mailing or appointing a Taiwanese attorney to deliver documents to the defendant may risk future unenforceability of the judgment in Taiwan.

The better approach is to first confirm whether the country where the lawsuit is heard can use diplomatic channels to have Taiwanese courts serve documents. If not, then further confirm whether alternative service methods can ensure that the defendant in Taiwan receives the litigation documents and protect their litigation rights. Consulting with Taiwanese lawyers on these matters before performing the service can ensure the enforceability of foreign judgments in Taiwan in the future.

This article was co-authored by partner Gary Guo and attorney-at-law Yi-Kai Chen.

If you want to know more about enforcement of foreign court judgments, please contact our firm at gkuo@winklerpartners.com or ychen@winklerpartners.com.