When a lawsuit is filed out of Taiwan against a Taiwanese defendant based in Taiwan, one of the most important questions will be how the legal documents can be served to the Taiwanese defendant legitimately. It concerns the laws of at least two different jurisdictions. First, whether the law of the forum will accept the way the legal documents are served overseas to the defendant based in Taiwan. Secondly, whether the Taiwanese laws will allow such service procedures otherwise the foreign judgment, even if the Taiwanese defendant loses the case, will not be able to be enforced in Taiwan. This article will focus on the second part. 

Generally, a foreign judgment will be recognized and then enforced by a Taiwan Civil Court as long as it does not fall into one of the exceptions listed by Article 402 of the Taiwan Code of Civil Procedure ("Article 402").  There are four exceptions under Article 402, but what you really have to bear in mind in terms of the service process is Section 1(2) of Article 402. Put it simply, when the notice or summons of the initiation of the foreign lawsuit has not been legitimately served to the Taiwanese defendant in a reasonable time in the foreign country, or, when they have not been served through judicial assistance according to the Taiwanese laws, the Taiwanese courts will refuse to recognize a default judgment rendered by a foreign court. So, here, what is the so called "judicial assistance"? It seems that the Taiwanese defendant may opt not to appear in front of the foreign court and make a default judgment rendered, so that such foreign judgment will not be recognized if the legal documents are not served through "judicial assistance".

Taiwan has a special law called "The Law in Supporting Foreign Courts on Consigned Cases" for this issue. Its Article 3 provides that a foreign court seeking judicial assistance for a civil or criminal case must convey in writing through "foreign affairs authorities". That being said, the legal documents can be served legitimately only through the Taiwanese embassies (or, Taipei Economic and Cultural Office; "TECO"). However, we all know that it is not easy to find a Taiwanese embassy or TECO in a foreign country, and such diplomatic channel is always not very convenient since political reasons will also be considered. 

Now, the Taiwanese courts have gradually loosened the limitation, making the foreign default judgment more easily to be recognized. In a case where a French default judgment was rendered against a Taiwanese defendant who received the legal documents by post office, the Taiwan High Court recognized it even though TECO had not been involved. See 109 Taiwan High Court Chiashangengyi (家上更一) 14 (2022) (affirmed by 111 Taiwan Supreme Court Taishan 2684 (2023)). 
The Taiwan High Court reasoned that a foreign court may still courier the legal documents via Taiwanese post office when TECO fails to assist, referring to a prior precedent made by Taiwan Supreme Court. See 83 Taiwan Supreme Court Taishan  (台上) 2020 (1994). The court further articulated that it would also check whether the defendant's substantial right of defense has been sufficiently protected. When the defendant has been put into an objective situation where she may know the initiation of the foreign legal proceedings, may prepare herself to appear in front of the foreign court, and may substantially exercise her right of defense, the requirement under Article 402 for recognizing the foreign default judgment will be satisfied. The court even stressed that it does not require the Taiwanese defendant to personally receive the legal documents, nor require the Taiwanese defendant to personally appear and be involved in the oral arguments of the foreign litigation proceedings. See 109 Taiwan High Court Chiashangengyi (家上更一) 14 (2022).

Following this new trend, Taiwanese defendants have to be very discreet when they somehow have been put on notice for the initiation of the foreign litigation proceedings. Having said that, it does not necessarily mean the protection under Article 402 has entirely gone. It is just that more factors will be considered. In the Taiwan High Court case, the Taiwanese defendant, a mother who brought her two kids back to Taiwan absent her husband's consent, lost her divorce and custody case in front of the French court mainly because she failed to appear. The reason why Taiwan High court agreed to recognize the French default judgment probably was, she was found that she called the French embassy: "I don't want to go to your embassy for picking up those legal documents, since I have already received them through the post office.” 

All in all, now, when a foreign lawsuit has been initiated against a Taiwanese defendant, the best practice will be, do your best to serve the legal documents based on Taiwanese lawyers' advice if you are the plaintiff. On the other hand, if you are the defendant, you have to seriously consider hiring a legal team consisting of international lawyers for your defense overseas unless you are pretty sure you have not been served.