2023年6月11日 星期日

the civil case disapproved_ owners different, what is seal board up

 the civil case disapproved_ owners different, what is seal board up

fact:
the 8th floor's water leaking to the 7th floor.
co-owner of the 8th floor are Miss Ma in addition other four.
owner of the 7th floor is Mrs. Lin.

the 7th Mrs Lin sue against the 8th Miss Ma and four others.
the 12th December 2021, the judgement bound down.
plaintiff Ma and five others obligated to restore.

the syllabus of the judgment:
defendants should fix the 8th floor until not water leakage.
defendants pay plaintiff 8500 new Taiwan dollar, addition of the interest of the through 2021 until payment day, by 5% annual.
the litigation expenses bore by the defendants.
provisional execution after plaintiff provider security of 150,000 new Taiwan dollar; if defendants would provide security of 450,000, exempt from provision execution.

on the execution of the judgement, Lin agree that Mas hire worker to fix by herself.
but Mrs Lin and her husband were dissatisfied the progress and the procedure.

afterward, Miss Ma and four others transfer the 8th floor to Mr. Lin.

due to the dissatisfied of progress and procedure,
Mrs. Lin and her husband apply mediation to the borough hall.

the 23th may 2023, the settlement of the mediation:
1. Miss Ma should fix the water leakage, until the 8th wouldn't leak to the 7th, the expense bore by Miss Ma.
2.the water leakage should be identified in the term of two weeks after the completing, and afterward identification, conduct to seal board up.

the 24th may 2023, submit the case to the local court for review.

the first June 2023, the judicial affairs officer disapproved:
disapproved reason:
1.according to the record of land transcript , owner of the 8th is Mr. Lin.
why do you written that one of co-owner were Mrs. Ma and four others?
2.to the second clause, what is "seal board up"? you should write down the method and position, and bore by whom.

my opinion:
1.to the disapproved reason 1, the borough clerk couldn't check who is owner on the spot of mediation, written down by what parties said only.
that different with the court's judgement.
court could survey the information after the hearing carefully, the judgment needn't the parties' signature.
the borough mediation record the settlement clause on the spot, surveying on way and on authority, and need parties' signature on the settlement.

2. to the disapproved reason 2, on the mediation spot, there is no engineer, confirming the detail is no way.
there is no expert can help of identifying the method and the position.

3.may be, the clerk of the borough hall should survey the information carefully before the mediation session, or reach the agreement, but waiting survey, than dating another day for signing.
reply:if all cases survey thoroughly or reach agreement, but waiting another day for sighing after surveying, that is taking up time.
the clerk have on time to survey all detail, we have too much other work.
the most mediation cases were not reach agreement, all survey out unrealistic.
parties usually wouldn't go to the borough hall again in order to sigh on settlement in another day.
parties usually ask for get settlement right now.

4.having binding judgment, must persist compulsory execution completely.
must not to reach "compulsory execution agreement".
let court's compulsory execution department hire engineer for identification, fixing, requesting payment, fixing out completely.

5."compulsory execution agreement" mean, how to execute the judgement settling between parties.
"compulsory execution agreement" will construct enforcement defferral" mildly.
severely, the new fact happen after conclusion of oral-argument, without binding effect.

The Compulsory Enforcement Act Article 10
The enforcement court may defer the implementation of the compulsory enforcement upon obtaining the creditor's consent.
The time for the enforcement deferral in the preceding paragraph cannot exceed three months. Where the creditor petitions to resume the enforcement, the court is limited to re-consenting to the deferral of the enforcement one time. Upon the expiration of each deferral period, a creditor who does not petition to resume the enforcement within ten days upon the enforcement court's notice is deemed to have withdrawn his or her compulsory enforcement petition.
During the implementation of the compulsory enforcement, if unusual circumstances render it manifestly inappropriate to continue the enforcement, the enforcement court may change or extend the date of enforcement.

Code of Civil Procedure Article 400
Except as otherwise provided, res judicata exists as to a claim adjudicated in a final judgment with binding effect.
Where a demand of offset has been adjudicated, res judicata exists as to the offset amount to be applied for offset as demanded.

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