消滅時效因於外國法院起訴而中斷──兼評最高法院105年度臺上字第1165號民事判決

The Extinctive Prescription Is Interrupted by Bringing an Action Before a Foreign Court: Concurrently Comment on the Supreme Court’s Civil Judgment 105 Taishangzi No.1165

民法第129條第1項第3款規定，消滅時效，因起訴而中斷。此起訴，在一涉外事件（德商August Storck KG訴請臺灣耐斯公司給付買賣價金）中，二○一六年最高法院認為不包括在外國起訴，而民法第131條規定的裁判亦不包括外國裁判。德、瑞及奧的通說與該最高法院見解相反，本文對德國學說見解作較完整介紹，其幾乎都肯定在外國起訴與裁判，就消滅時效同樣適用國內民法規定，生與在國內起訴及裁判相同效力；僅其所要求條件彼此有差異。 為顧及涉外請求權貫徹的困難、國際司法的互助合作與相互尊重以及國際裁判的協調一致，民法第129條第1項第3款、第131條及第137條所稱起訴及裁判或判決，應包括於外國起訴及裁判；民法第137條第2項、第3項的確定判決，亦應包括外國法院的確定判決。

Para. 1 of art. 129 of the Civil Code (CC) stipulates that extinctive prescription (limitation) is interrupted by any one the following causes: (1) A demand for the satisfaction of the claim; (2)…; (3) An action brought for the satisfaction of the claim. To bring an action in court is one of the causes of interruption of extinctive prescription. Art. 131 of the CC provides:“If a prescription is interrupted by bring an action, and is withdrawn or dismissed as non-conformable to the act by a final judgment, the prescription is deemed not to have been interrupted.”In addition, Art. 137 of the CC prescribes if a prescription has been interrupted, it recommences from the time when termination of the cause of the interruption. If a prescription has been interrupted by bringing an action, it recommences from the moment when the action is decided by a final judgment on the merits or otherwise terminated. If the claim is ascertained by a final judgment on the merits or a ground of execution having the same effect as a final judgment on the merits, and if the original prescription was less than five years, the prescription recommenced after interruption shall be five years.”A final judgment on the merits has the effect to make the interrupted extinctive prescription to recommence, and it also has the effect to extend the short extinctive prescription that is less than five years to five years after its recommence. Regarding the Prescription in para. 1 of art. 129 and the art. 131 of the CC, in the judgment August Storck KG vs NMC International Co. Ltd. 2016 the Supreme Court declared“An action brought for the satisfaction of the claim”in No. 3 of para. 1 of art. 129 of the CC as only an action brought in domestic courts and“a final judgment”in art. 131 of the CC as only the judgments of domestic courts, not including an action brought in foreign courts or a judgment of foreign courts. The supreme court denied that an action brought at foreign courts has the effect to break the prescription when the Taiwanese Law is applicable. Obviously, this judicial opinion had taken neither the difficulty to carry out a foreign-related claim nor the mutual cooperation of international jurisdictions and the respect each other into consideration, as well as the coordination of international judgments. In order to prove that the No. 3 para. 1 art. 129, art. 131 and art. 137 of our CC should be interpreted as also applicable to actions brought at foreign courts or judgments of foreign courts, this essay cites and compares the regulations and theories of the German CC, the Swiss Obligations Code and the Austrian Common CC as Model of our Taiwanese CC. On the other hand, the foreign court must have international jurisdiction (not all the requirements of para. 1 art. 402 of the Code Civil Procedure are necessary) to meet the interests of obligors (debtors). Relatively, the final judgment of para. 2 and 3 should be also explanted as applicable to a final judgment of a foreign court and this final judgment of the foreign court should have all the requirements for the recognition of foreign judgment.