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  • Interpretation
  • No.182
  • Date
  • 1983/08/26
  • Issue
    • The Supreme Court in its precedent held that debtors or other third parties, unless otherwise provided by the law, are not allowed to apply for a withholding of the compulsory enforcement process via the process of preliminary injunction. Is the said precedent constitutional if it is relied upon as a legal basis to deny the mortgagor*s request for a withholding of the auction of mortgaged property?
  • Holding
    •        The process of compulsory enforcement, which shall not be withheld once commenced, unless otherwise provided by the law, is to ensure timely recovery of the creditor*s credits and to protect the people*s rights. The Precedent of the Supreme Court T.K.T. 59 (1974) determined that debtors or third parties may not apply for a withholding via the processes of a preliminary injunction. Its aim is to prevent interruption of the processes of enforcement. In the event mortgagors initiate litigation proceedings against the court*s ruling which permits the auction of mortgaged property, and claim there are factors precluding compulsory enforcement, they may apply for withholdings pursuant to the law. Therefore the aforementioned Precedent cannot be said to have infringed upon Article 16 of the Constitution.
  • Reasoning
    •        Article 18, Paragraph 1, of the Compulsory Enforcement Act stipulates that: "Once the process of compulsory enforcement commences, it may not be withheld unless otherwise provided by the law." This is to prevent debtors* or third parties* blanket application for withholding, which may obstruct enforcement processes and prevent timely recovery of the creditor*s credit. When applying for an auction of mortgaged property, the mortgagee may apply for compulsory enforcement pursuant to the court*s affirmative ruling of compulsory enforcement. If the mortgagor appeals against or raises an objection to the said ruling, under Article 14 of the same Act, the court may withhold its ruling of compulsory enforcement in accordance with Article 18, Paragraph 2, of the same Act. In the event the mortgagor institutes proceedings based on reasons in substantive law, existing before the said ruling, and claims that the said ruling may not be enforced, it is a more serious matter than the procedures of ruling. Therefore, according to the legal principle of "balancing test", with reference to Article 11, Paragraph 3, of the Public Notarization Act and Article 101, Paragraph 2, of the Non-litigation Matters Act, and also taking into consideration the mortgagor*s interests, the mortgagor may apply for a withholding of the ruling of compulsory enforcement under Article 18, Paragraph 2, of the Compulsory Enforcement Act. As to preliminary injunctions, they are creditors* requests, other than monetary requests, as to compulsory enforcement, or procedures for the maintenance of status quo requested by parties of a dispute in law. They are not legal bases for the withholding of enforcement procedures. The Precedent of the Supreme Court T.K.T. 59 (1974) determined that debtors or third parties may not apply for a withholding via the processes of a preliminary injunction. Its aim is to prevent the interruption of the processes of enforcement. In the event mortgagors initiate litigation proceedings against the court*s ruling which permits the auction of mortgaged property, and claim there are factors precluding compulsory enforcement, they may apply for withholdings pursuant to the law. Therefore the aforementioned Precedent cannot be said to have infringed upon Article 16 of the Constitution.
      
    • *Translated by THY Taiwan International Law Offices.
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