| 摘要: | 依我國民事訴訟法之規定，督促程序是一種簡易的特別程序，其制度目的在於便利債權人就債務人可能無爭執之給付請求，能以較簡易、迅速的方式獲得執行名義，使債權人不需利用耗費較長時日之訴訟程序主張其權利。同時督促程序亦達成過濾無實質上權利義務關係爭執之事件，疏減不必要訴訟而合理分配司法資源、減輕法院案件負荷之功能。
支付命令之規定在我國歷經數次修法，其中有兩次重大之修法，第一次重大修法係在民國 60 年時，當時修正之重點係將支付命令之聲請核發模式由二階段模式改為一階段模式，修法目的著重於保障債權人權益之快速實現；第二次重大修法則係在民國 104年時，因修法前確定之支付命令「具有與確定判決同一之效力」，而詐騙集團又利用支付命令之核發僅需作形式審查而不作實質審查之特性，製造假債權，並因國人對支付命令制度之不熟悉，常未適時對支付命令提出異議，致支付命令確定，導致不少民眾背負莫須有之債務並亦難透過再審之訴救濟。故促使立法委員提案修正民事訴訟法中有關督促程序之規定，於民國 104 年 6 月 15 日經立法院三讀通過，將確定之支付命令之效力由「具有與確定判決同一之效力」改為僅具「執行力」。由此可知，此次修法所著重之目的乃係債務人權利之保障。
支付命令制度兩次重大修法，其修法目的所要保障之對象完全相反，可見支付命令制度應如何規範始能達成債權人與債務人保障之最佳平衡點，係一大難題亦係重大之爭議。而民國104年之修法，就支付命令之效力為修正，可說是支付命令制度在我國實行以來最大之變化。支付命令之效力究應規範為「具有與確定判決同一之效力」，或應規範為僅具「執行力」，原應由其立法目的出發而定。依支付命令制定之目的為紓減訟源觀之，確定之支付命令應與確定判決具同一效力較能達成其目的。然以修法前支付命令整體之規範及適用結果觀之，若貫徹支付命令之既判力，似有過度侵害債務人權利之虞。是以，本文認為支付命令之效力究應如何規範，如何之規範才能使支付命令制度取得債權人與債務人權益保障之平衡點，可謂是支付命令制度中最具爭議亦最重要之部份。再者，支付命令之效力應如何規範，與支付命令之聲請核發、支付命令之送達以及支付命令之救濟制度環環相扣。換言之，支付命令之效力規範，應與支付命令整體之制度相配合，始能使支付命令制度發揮其最大之效力。
本文擬由支付命令之修法歷程討論起，再就支付命令自債權人聲請核發支付命令之程序開端至債務人於支付命令確定後之救濟程序，就支付命令各階段所生之爭議即各階段之規範應如何與支付命令之效力規定相互配合為討論。並針對修法未明文規範，但實務上實已存在已久之支付命令與侵權行為爭議為討論。希冀藉由本文之討論，得使支付命令制度得以更加完備，並使未明文規定之爭議得獲解決。
Per the related provisions of the Code of Civil Procedure, the Demand Proceeding is a simplified special procedure, which is designed for providing creditors a more convenient and fast way to acquire enforce titles if their debtors probably have little contest with the demands, so that creditors don’t have to undergo the time-consuming ordinary procedure for securing their claims. At the same time, the Demand Proceeding also play a role with the functions to sort out cases that have no disputes on substantial rights and responsibilities, and therefore to cut down unnecessary lawsuits for reasonably distributing the resources for juridical use and easing the burden of caseload.
The rules on payment order have undergone several times of revisions, among which there are two pivotal changes. The first one came about in the 1970s, during which the focus was put on transforming the application procedure for payment order from two stages into one, to materialize creditors’ rights and interests in a prompt manner. The second change happened in 2015, before which a final payment order has “the same effect of res judicata as a final judgment.” In addition, the application procedure for payment order is reviewed on its face rather than its merits, through which scam gangs can usually make up fraudulent claims. If our citizens don’t file an objection to a payment order in time after receiving it for lack of knowledge of this institution, they will thus incur groundless debts without a remedy of rehearing proceeding. Under those circumstances, the legislators proposed to modify and amend to the provisions of the Code of Civil Procedure about the Demand Proceeding. This revision was passed by the Congress on June 15th, 2015; a final payment order’s effect of res judicata has been reduced into only being enforceable. Upon this change, we can know that the focus was to preserve debtor’s rights.
The two crucial changes to the application proceeding for payment order have divergent foci on two opposite parties. We can thus know that how strike a balance between creditor and debtor during the procedure of payment order application is a difficult question as well as an important issue. The revision of 2015 has substantially changed the effects of a payment order, which has been the most critical change for this institution since its enactment in Taiwan. As to the question whether a final payment order should have the effect of res judicata or only being enforceable, we are supposed to probe into its legislative purpose. Now that the legislative purpose of a payment order is to reduce the caseload, a final payment order should have the effect of res judicata as a final judgment to be achieve the purpose. However, if we look at the entire body of payment order provisions and its affection, it would be excessive to implement its effect of res judicata for impinge on debtors. Consequently, this thesis believes that how to formulate the effect of a payment order so that the balance between creditor and debtor can be met is the most controversial yet significant part. Moreover, the effect of a payment order is interconnected with its proceedings of application, service, and remedies. In other words, the rules about a payment order’s effect shall be compatible with the entire institution, so that its effects can be brought into full play.
This thesis will begin by discussing the process of payment order’s revisions, then turn focus onto the discussion on all issues, that is, how to match the provisions with payment order’s effects, during entire the proceeding from the start of an application till the possible remedies. In addition, this thesis also discusses on the issues about relationship between payment order and torts, which is left empty in the laws but has been existent for a long time in the practice. This thesis expects to make up the loopholes in the institution of payment order and solve the issues which are left empty through the prior discussions. |
