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  • Interpretation
  • No.504【Under Translation】
  • Date
  • 2000/05/05
  • Issue
    • Article 70 of the Precautionary Matters on Handling Compulsory Enforcement provides that in case an asset under provisional seizure or disposition is acquired by a government agency, the court shall require the amount of payment or compensation thereof to be lodged. Does the said provision conflict with the Compulsory Enforcement Act, thus contravening the constitutional protection of the people*s property rights?
  • Holding
    •        Article 70 of the Precautionary Matters on Handling Compulsory Enforcement as amended and promulgated on November 11, 1996, by the Judicial Yuan stipulates: "In the case where an asset under provisional seizure or preliminary injunction is acquired by a government agency through compulsory procurement or requisition, the enforcement court shall lodge the payment or compensation amount for the said asset." The aforesaid has been elaborated in J. Y. Interpretation Yuan-tze No. 2315. The purpose of the said provision is to make it clear that the effect of the original order of attachment, which prohibits the debtor from freely disposing of an asset, extends to the substitutional object or interest after the said asset is acquired by a government agency through compulsory procurement or requisition, so as to preserve for the creditor the realization of a claim of rights in the future. The lodgment does not have the effect of causing the extinction of debts. Furthermore, there is no separate restriction on the rights and interests of the debtor, nor would he/she be placed at a disadvantage. This is in conformity with the purposes of Articles 52, 113, 134 and 140 of the Compulsory Enforcement Act. In connection with the aforesaid, there is no contradiction with Article 5 of the Standard Act for the Law and Rules and the constitutional purpose of protecting the property right of the people.
  • Reasoning
    •        The preventive proceedings, which prohibit the debtor from transferring ownership of his/her property, are for the purpose of preserving for the creditor the realization of a claim in the future. This is necessary to maintain the social order and promote the public interest. Although it is impossible to prevent the government from acquiring the asset under provisional seizure or preliminary injunction by compulsory procurement or requisition, the payment or compensation amount for the said asset could be treated as substitutional object or interest. With reference to the purposes of Paragraph 2 of Article 225, Articles 881 and 899 of the Civil Code, and the purposes of Articles 51, 113, 134 and 140 of the Compulsory Enforcement Act, the sequestration effect of the original provisional seizure or preliminary injunction prohibiting the debtor from transferring ownership of his/her property should naturally extend to payment for compulsory procurement or the compensation amount for the requisition. The aforesaid has been elaborated in J. Y. Interpretation No. 2315. At this point, the preliminary injunction proceedings naturally change to the provisional seizure proceedings. Article 70 of Precautionary Matters on Handling Compulsory Enforcement as amended and promulgated on November 11, 1996, by the Judicial Yuan provides: "In the case where an asset under provisional seizure or preliminary injunction is acquired by a government agency through compulsory procurement or requisition, the enforcement court shall lodge the payment or compensation amount for the said asset." The purpose of the said provision is to make it clear that the effect of the original order of attachment, which prohibits the debtor from freely disposing of an asset, extends to the substitutional object or interest after the said asset is acquired by the government agency through compulsory procurement or requisition, so as to preserve for the creditor the realization of obligatory rights in the future. The lodgment does not have the effect of causing the extinction of debts. Furthermore, there is no separate restriction on the rights and interests of the debtor, nor would the debtor be placed at a disadvantage. This is in conformity with the purposes of the aforesaid Articles of the Compulsory Enforcement Act. In connection with the aforesaid, there is no contradiction with Article 5 of the Standard Act for the Law and Rules and the constitutional purpose of protecting the property right of the people. In the case where an asset of the debtor under provisional seizure or preliminary injunction goes through compulsory procurement or requisition, and consequently, the substitutional object or interest cannot be used to achieve the preventive purpose, the issue will be whether the debtor may file objection or institute an objection suit as provided in Articles 12, 14 and 14-1 of the Compulsory Enforcement Act. This is hereby also clarified.  
      
    • *Translated by Dr. C.Y. Huang of Tsar & Tsai Law Firm.
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