Failing once in a retrial for a payment order is not enough—you can fail a second and third time, too!

One day in June 2013, A-ts'un received a court garnishment order stating that his bank account had been seized and attached by a certain Hsiao-liu, who claimed to be A-ts'un's creditor. After applying to the court to review the case file, A-ts'un discovered that in early 2013, Hsiao-liu had used a promissory note issued in A-ts'un's name with a face value of NT$500,000 to apply to Court A for the issuance of a payment order against A-ts'un. Because A-ts'un had been working away from home for many years and rarely returned, the payment order was left in storage at the police station, thereby taking legal effect through service by mail. However, A-ts'un was absolutely certain that not only did he not owe Hsiao-liu a single penny, but he had never signed this promissory note.

Upon further inquiry, A-ts'un discovered that the promissory note had actually been signed by his son, Che-tzu, and the signature reading "A-ts'un" on the note was indeed forged by Che-tzu. After confirming the relevant facts, A-ts'un filed his first retrial with Court A on June 26, 2013, arguing that the NT$500,000 promissory note presented by Hsiao-liu was forged by Che-tzu, and requested the revocation of Hsiao-liu's payment order. However, even though Che-tzu testified in court that he had forged the promissory note, the court still dismissed A-ts'un's retrial! The reasoning was that, pursuant to Article 496, Paragraph 2 of the Code of Civil Procedure, if A-ts'un wished to file a retrial against Hsiao-liu's payment order, he had to use "a final criminal judgment convicting Che-tzu of the offense of forging negotiable instruments" as a prerequisite; even with Che-tzu's testimony proving he forged the note, A-ts'un still could not initiate a retrial. Dissatisfied, A-ts'un appealed to the second-instance court, only to have his appeal ruthlessly dismissed by the court on the same grounds.

Having experienced the failure of his first retrial, A-ts'un decided to adopt a multi-pronged litigation strategy. In addition to filing a "second retrial" with Court A on the same grounds, A-ts'un also filed a separate "lawsuit to confirm the non-existence of the promissory note's claims" against Hsiao-liu. Consequently, in the lawsuit confirming the non-existence of the promissory note's claims, Court A found that A-ts'un indeed had not signed the NT$500,000 promissory note, meaning Hsiao-liu's claim on the promissory note against A-ts'un naturally did not exist, and ruled in favor of A-ts'un on August 4, 2014. Just as A-ts'un felt that since Court A had already determined the promissory note claim did not exist, his second retrial should have a glimmer of hope, Court A once again dismissed A-ts'un's retrial application on August 21, 2014. The reasoning was that since A-ts'un had known as early as June 2013 that the promissory note was forged by Che-tzu, but waited until around May 2014 to file the second retrial, he had missed the statutory 30-day time limit for retrials.

Deeply surprised by the dismissal of his second retrial, A-ts'un filed an interlocutory appeal with the second-instance court, arguing that since Court A had already ruled that the promissory note claim did not exist, it naturally should have granted him a retrial. However, the second-instance court once again dismissed A-ts'un's interlocutory appeal, repeatedly emphasizing to him that if A-ts'un still wished to claim that the promissory note was forged by Che-tzu, he would still have to wait until Che-tzu received a final criminal conviction for forging negotiable instruments before he could file a retrial!

On November 20, 2014, Che-tzu was found guilty in the first instance by Court A for forging negotiable instruments. Because Che-tzu ultimately waived his right to appeal, the case became final with a conviction around December 2014. This time, armed with Che-tzu's guilty verdict from Court A and his own winning judgment from Court A confirming the non-existence of the promissory note's claims, A-ts'un applied for a retrial with Court A for the third time. Even with such thorough preparation by A-ts'un, Court A dismissed his retrial application for the third time, reasoning that A-ts'un's failure to file for a retrial within 30 days of knowing about Che-tzu's final conviction was manifestly unlawful!?

Words could no longer describe A-ts'un's dissatisfaction, so he filed an appeal once again. Perhaps the heavens finally opened their eyes this time, as the second-instance court deemed the first-instance court's dismissal ruling to be too hasty and remanded the case back to the first-instance court for a retrial. In other words, although A-ts'un failed in his third retrial, because the second-instance court remanded the judgment to the first instance, A-ts'un gained an opportunity for a fourth retrial. However, whether this fourth retrial will succeed remains uncertain...

If our country's laws stipulated today that for a retrial after a payment order becomes final, as long as A-ts'un can prove that "Hsiao-liu's NT$500,000 promissory note claim against A-ts'un does not exist," the court can "revoke Hsiao-liu's payment order," then A-ts'un would not have had to wait until Che-tzu was convicted with a final judgment, nor would he have been repeatedly dismissed for failing to meet the statutory 30-day retrial period.

A-ts'un's story teaches us that expecting a debtor to obtain relief through a retrial after a payment order becomes final is pure fantasy, even if the debtor can prove they owe no money and are a victim of forgery. Because our country's laws will only tell you: "If you fail in your first retrial for a payment order, you can challenge it with a second failed retrial." "However, the second retrial is not necessarily going to succeed."

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The above story is excerpted and adapted from Taiwan Chiayi District Court 103rd Year Chia-Tsai-chien Character No. 2 Judgment (First Retrial), Taiwan Chiayi District Court 103rd Year Tsai-chien-shang Character No. 1 Judgment (Appeal of First Retrial), Taiwan Chiayi District Court 103rd Year Chia-Tsai-chien Character No. 1 Ruling (Second Retrial), Taiwan Chiayi District Court 103rd Year Chia-chien Character No. 278 Judgment (Lawsuit to Confirm Non-existence of Promissory Note Claims), Taiwan Chiayi District Court 103rd Year Chia-Tsai-chien-kang Character No. 1 Ruling (Interlocutory Appeal of Second Retrial), Taiwan Chiayi District Court 105th Year Chia-Tsai-chien Character No. 1 Ruling (Third Retrial), and Taiwan Chiayi District Court 105th Year Tsai-chien-kang Character No. 1 Ruling (Third Retrial Interlocutory Appeal). It is hereby specified that the content of the above story does not reflect the actual circumstances of the parties involved in those cases.

If you are A-ts'un, or have had experiences similar to A-ts'un's, please fill out the Payment Order Victim Grievance Form immediately and join us in our efforts to fight against payment orders! If you do not know anyone, you are still welcome to share this post; you could end up helping A-ts'un or friends in similar situations.