| 英文摘要 |
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 Art. 131 of the CC provides:“If a prescription is interrupted by bring an action, and is withdrawn or dismissed as non-conformable to the act by a final judgment, the prescription is deemed not to have been interrupted.”In addition, Art. 137 of the CC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.
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