第二審新攻擊與防禦方法提出容許要件之探討──以第二審消滅時效抗辯與抵銷抗辯之提出為中心

The Requirements of the Permission to Present New Means of Attack and Defense at Second Instance–Focus on the Defense of the Extinctive Prescription and the Defense of the Offset

本文主要在探討當事人於第二審提出新攻擊與防禦方法之容許要件，尤其探討當事人於第二審第一次提出消滅時效抗辯與第一次提出抵銷抗辯之容許要件。當事人於第二審第一次提出消滅時效抗辯與第一次提出抵銷抗辯之容許要件是否相同。在當事人於第二審第一次提出消滅時效抗辯之情形，第二審法院是否應容許其提出，部分實務見解採取肯定之見解，但其容許之事由不盡相同，有認為此種情形符合我國民訴法第四四七條第一項但書第三款之事由，尚有認為同時符合第三款與第六款之事由，部分見解則認為僅符合第六款之事由，亦有認為同時符合第四款與第六款之事由。反之，有認為不符合第四四七條第一項但書第四款與第六款之容許要件，不應容許其提出。究以何種見解較為妥適，有從第二審上訴之功能與第一審程序集中原則加以分析之必要。當事人於第二審第一次提出抵銷抗辯，依我國現行法之規定，主要乃依我國民訴法第四四七條第一項判斷是否容許其提出。我國實務見解中有認為上開情形可符合第四四七條第一項但書第六款如不許其提出顯失公平之要件，應容許當事人提出。然於第二審第一次提出抵銷抗辯之情形，其容許要件是否與於第二審提出消滅時效抗辯之容許要件相同，其是否應考量他造是否已為同意、容許當事人提出是否有助於事件之解決，是否原則上應以原訴訟認定之事實為基礎，凡此均須於本文作詳盡之分析。

The essay discusses the requirements of the permission to present new means of attack and defense concerning the defense of the extinctive prescription and the defense offset at second instance. Not only according to German civil procedure law but also according to Taiwan civil procedure law , the party can not present the new means of the attack and defense at second instance. In principle, she can’t present it at second instance. The party can only present it at second instance in the exceptional cases. It is in dispute, whether the defendant is permitted to present new defense of the extinctive prescription at second instance. There are different opinions in the jurisdiction. It is held in some judgments that the defendant is permitted to present the defense of the extinctive prescription because it is the supplement to the asserted means of the attack and defense. In some judgments is held that the defendant is allowed to present it, otherwise that is obviously unfair. Several judgments permit the defendant to present it by the above both reasons. It is held in another judgments in contrast to above opinions that the new defense of the extinctive prescription can’t be allowed to present because that it is the presentation of the new means of the defense at second instance and that is not unfair if the court didnt allow this presentation. It needs to make more research about above issues. It is also necessary in the essay to discuss, whether the requirements of the permission to present the defense of the offset at second instance are the same as the requirements of the permission to present the defense of the extinctive prescription at second instance. In German law the requirements of the permission to present the defense of the offset at second instance is different from the requirements of the permission to present the defense of the extinctive prescription , but the same as the amendment of pleadings and countersuit. In Taiwan law the requirements between both defenses are the same. It is held in some judgments that the defendant is allowed to present it, otherwise that is obviously unfair. The essay will discuss , whether the principle of the economic or the agreement of another party is important and whether the decided facts by the court of first instance can be as base facts at second instance.