以民事訴訟法視角看公營事業股權轉讓裁判──以台灣高等法院105年重上字621號民事判決為中心

From the Perspective of Civil Procedure Law to Study the Judgment on the Transfer of Equity in Public Enterprises-With Reference to Taiwan High Court Judgment No. 621 (2016)

本文探討公營事業股權轉讓案最有爭議性之裁判，臺灣高等法院106年度第621號民事判決。本判決涉及宣騰一時彰銀之經營權之爭，爭訟之兩造原告台新金與被告之財政部，自從民國（下同）105年至106年分別歷經臺灣臺北地方法院103年度金字第104號民事判決與臺灣高等法院106年度第621號民事判決，觀諸判決之實體上理由與判決結果論者各有其據，本文主要從程序法之觀點探究該判決之諸多爭議，該判決涉及民事訴訟法諸多關理論與規範適用之問題，頗值探討釐清，例如：對公法和私法的司法管轄權的爭議、突襲性裁判、辯論主義、訴訟對象的確定及審判的目的和範圍，皆為本文論述之主要事項，並提出本文見解，以供各界參酌。 This article focuses on Taiwan High Court judgment No. 621(2016). The dispute over the operating right of Changhua Bank was overwhelming. At one time, Taishin Holdings sued the Ministry of Finance, ROC. The disputes continue to extend to the legal proceedings. This article references to Taiwan High Court Judgment No. 621 (2016) and Taiwan Taipei District Court Judgment No. 104 (2014). The article discusses the doubts related to the procedural law in thejudgments. As there are many doubts about the correctness of the relevant theories and norms of the civil procedure law, it is worth exploring and clarifying. The procedural law theory involved in the judgments and the doubtfulness of the application of the provisions are also quite extensive. The scope of the statement of action, the controversy over public and private law jurisdiction, surprise judgment, party presentation principle, the determination of the object of litigation, the object and scope of the trial, the right of clarification, the definition of the negative affirmative litigation, and the discretionary power of the second instance when it is returned to the first trial are discussed in the article.

This article focuses on Taiwan High Court judgment No. 621(2016). The dispute over the operating right of Changhua Bank was overwhelming. At one time, Taishin Holdings sued the Ministry of Finance, ROC. The disputes continue to extend to the legal proceedings. This article references to Taiwan High Court Judgment No. 621 (2016) and Taiwan Taipei District Court Judgment No. 104 (2014). The article discusses the doubts related to the procedural law in thejudgments. As there are many doubts about the correctness of the relevant theories and norms of the civil procedure law, it is worth exploring and clarifying. The procedural law theory involved in the judgments and the doubtfulness of the application of the provisions are also quite extensive. The scope of the statement of action, the controversy over public and private law jurisdiction, surprise judgment, party presentation principle, the determination of the object of litigation, the object and scope of the trial, the right of clarification, the definition of the negative affirmative litigation, and the discretionary power of the second instance when it is returned to the first trial are discussed in the article.