- 期刊
淺談民事訴訟法施行法第九條
A Brief Discussion on Enforcement Act of the Code of Civil Procedure Article 9
摘要
依據民事訴訟法施行法第9條規定，上訴時，上訴人若有委任律師擔任訴訟代理人，而有上訴要件欠缺時，法院得不行民事訴訟法第442條第2項及同法第444條第1項但書所規定的補正程序，直接駁回上訴。雖然，司法院釋字第179號解釋以基於避免延滯訴訟程序的理由，認為上開規定並未侵害上訴人的訴訟權保障，但該號會議的相關論點，有值得討論之處。例如，該號解釋並未闡述：法院在沒有先行命上訴人補正的情況下，得以逕行認定「已委任律師之上訴人，其上訴要件有欠缺是為了延滯訴訟」的判斷依據。同時，該號解釋也沒有詳實地闡述：法院的補正義務，可以因為上訴人有無委任律師，而有差別對待的理由。上述疑問，正是本文主要探討的重點，並嘗試藉由上開疑問的討論，來重新思考民事訴訟法施行法第9條的規定是否妥適。
並列摘要
According to Enforcement Act of the Code of Civil Procedure Article 9, in cases where an appellant has an attorney acting as his/her advocate, or the indications of the pleadings show that he/she is clearly aware of the existence of a defect in the required preconditions for appeal, the court may disregard the rectification proceeding provided in the second paragraph of Article 442 and the proviso of the first paragraph of Article 444 of the Code. Although the Judicial Yuan-Interpretation No. 179 holding said, the purpose of Article 9 of the Enforcement Act of Civil Procedure Code, which provides that where an appellant represented by an attorney as his agent ad litem fails to pay court costs the court may determine not to order that an amendment be made within a fixed time limit, is to avoid delay of the proceeding, and the provision thus does not interfere with the exercise of the right of instituting legal proceedings and the equality of legal standing of the people, there are still some conclusions in the interpretation should be worth discussing in depth. For example, the interpretation did not explain the connection or relation between an appellant has an attorney acting as his/her advocate and the purpose of avoiding delay of the proceeding when the appellant defect in the required preconditions for appeal. In the meanwhile, the interpretation is also lack of explaining the detailed reason for the court could disregard the rectification proceeding provided in the second paragraph of Article 442 and the proviso of the first paragraph of Article 444 of the Code when an appellant has an attorney acting as his/her advocate. Those above-mentioned questions are the main points in this article, and try to reconsider the propriety of Enforcement Act of the Code of Civil Procedure Article 9 by the discussions.