Summary
The reason for non-recovery must be explained differently depending on whether an uncompensated item falls outside the statutory scope of ordinary and special damages or whether proof is insufficient.
4.1The Standard by Which the Path Opens
The statutory boundary of the harm borne by the opposing party cannot be abolished for the sole purpose of broadening recovery. On the premise of the legally prescribed personal scope of a judgment's effect, an expansion that binds without basis a person who did not participate is not regarded as legitimate recovery. Rights holder A asserts that all non-recovery is a failure of procedure, while the opposing party B answers that it is due to statutory protection. Some of the applicable facts were not submitted. In this scene, the causes of the loss pointed out by rights holder A do not converge into one. Therefore, what must now be asked, in addition to whether compensating every disadvantage completes the remedy, is what standard opens the channel to this remedy.
The text corresponding to this question is Article 393 of the Civil Act. Paragraph (1) provides, "Damages for non-performance of an obligation are limited to ordinary damages," and paragraph (2) adds, "There is liability to compensate for damages arising from special circumstances only where the obligor knew or could have known of such circumstances." Here, the party who compensates is the obligor who failed to perform the obligation, the object is the damage arising from that non-performance, and the boundary of liability is ordinary damages. For damages arising from special circumstances, an additional element of recognition is imposed: that the obligor knew or could have known of those circumstances. This provision does not address other issues.
This text shows why, in explaining the reason for non-recovery, two categories must be distinguished. Depending on whether the uncompensated item falls outside the statutory scope of ordinary and special damages, or whether the proof is insufficient, the reason for non-recovery must be explained differently. Damage that does not reach the statutory scope is a result dictated by the limit of compensation itself, whereas damage lacking in proof remains a gap in the materials. The classification of the limits of compensation means the judgment that distinguishes damage outside this statutory scope from damage left as a gap in proof. Where, following this distinction, the barring norm, the applicable facts, and the protected opposing interest are linked so that the reason for non-recovery can be explained, the entrance to this remedy opens.
The strongest counterargument lies in the point that the victim's real loss remains even outside the legal scope. The contention that, in the name of protecting another right, the non-recovery of a person already injured may be rationalized calls for not making light of the substantive inconvenience and disadvantage suffered by the party seeking recovery. Nevertheless, the author's answer does not change. A lack of materials and exclusion by statutory scope cannot be treated as the same cause of failure. The former is a gap in the materials that requires explanation; the latter is a result arising from the boundary of liability set by law. The two share the state of non-recovery, but point in different directions as to its cause. The existence of the real loss noted by the counterargument does not erase this distinction.
In the synthetic scene, the passage where the opposing party B answered that it was due to statutory protection amounts to invoking the name of a protected opposing interest. Yet because some of the applicable facts were not submitted, how that opposing interest actually operates cannot be determined from this scene alone. If the applicable facts concerning the opposing interest are negated, the conclusion that had classified the non-recovery as a legitimate limitation is withdrawn. In that case, what is lacking in the materials concerns the legitimacy of the opposing interest, and therefore it must remain undetermined. Whether non-recovery is a result of the statutory scope or a lack of proof also depends on the circumstances of the damage items that the scene does not disclose.
What this section permits is the judgment that explains the cause of non-recovery by dividing it into a result of the statutory scope and a gap in proof, and that opens the entrance to this remedy only where the conditions set out above are met. What it does not permit is driving a lack of materials into the same failure as exclusion by statutory scope in order to broaden the scope of recovery. Treating an opposing interest for which there are no applicable facts as an established legitimate limitation is likewise not the conclusion of this section.
4.2The Conditions That Block Relief
Depending on what the cause of non-recovery is recorded as in this scene, the channel of relief opens or closes, and the question whether compensating every disadvantage completes the remedy begins with the accuracy of this classification. The party seeking an expansion of recovery sees the procedure as having been insufficient, while the opposing party regards the scope of protection set by law as its limit. The task of this stage is to disclose why the two explanations do not overlap.
Article 393 of the Civil Act divides the scope of damages into two stages. Paragraph (1) provides that "Damages for non-performance of an obligation are limited to ordinary damages," and paragraph (2) provides that "There is liability to compensate for damages arising from special circumstances only where the obligor knew or could have known of such circumstances." The parties indicated by this text are the obligor who failed to perform the obligation and the creditor who claims the damage; the act is the compensation of damage arising from non-performance of an obligation; and the condition varies according to whether the damage is ordinary damage or whether the obligor knew or could have known of the special circumstances. The distinction this provision undertakes is to determine whether an unrecovered damage corresponds to ordinary damage, damage arising from special circumstances, or whether the claim that it belongs to either remains unverified.
The text of this provision and the determination are located at different stages. What Article 393 prescribes is the statutory limit of liability for damages, and the author's conclusion is that when that limit is actually applied so that remedies such as expanded enforcement, binding non-parties, or stay cannot be permitted, the channel of relief closes. Here, the classification of the limits of compensation means the judgment that distinguishes damage outside the statutory scope from damage left as a gap in proof. The reason this distinction is needed is that in both cases it appears as a gap remaining in the amount of compensation, but in the one it is a place that the scope set by law never reached, and in the other it is a place that the materials have not filled. The judgment that the channel of relief closes if even one of the statutory requirements is unmet holds in the former case; it does not say that the latter lack of materials is closed for the same reason.
The counterargument that the victim's real loss remains even outside the legal scope aims at the weight of the loss. Unrecovered disadvantage actually remains, it says, and if the protection of another right is placed first, the non-recovery of a person already injured can be rationalized. This counterargument starts from the outlook that so long as non-recovery remains, it should be seen as a failure of procedure, and it doubts the posture of yielding by invoking the statutory boundary. I do not deny the residual presence of the real loss that the counterargument notes; but unless one asks together whether that residue is due to the limit set by the statutory scope or to less-than-sufficient proof, one cannot explain how the barring norm, the applicable facts, and the protected opposing interest were connected, and the basis for classifying the reason for non-recovery as a legitimate limitation grows weaker.
The facts confirmed in the synthetic scene are the assertion of rights holder A, the answer of the opposing party B, and the fact that some of the applicable facts were not submitted. Comparing these against the conditions of Article 393, the crux is whether materials stating whether the damage item is ordinary damage or damage arising from special circumstances, and materials concerning whether the obligor knew or could have known of those circumstances, are placed together. Which record is missing among the scope of the application, the grounds for protection against attachment, the personal scope of the judgment, the damage items, and the showing of public welfare cannot be determined from this scene alone, and therefore remains undetermined. If it is confirmed that the applicable facts concerning the opposing interest are negated, the conclusion that viewed the non-recovery as a legitimate limitation changes. At present, when some of the applicable facts remain unconfirmed, this scene cannot establish the fulfillment of the barring conditions, and shows a state in which the materials to fill the distinction between a legitimate limitation and a failure of relief are wanting.
What this section permits is the judgment that the reason for non-recovery must be explained differently according to whether the uncompensated item falls outside the statutory scope of ordinary and special damages or whether proof is lacking, and the conclusion that when another statutory right is actually applied so that the desired remedy cannot be permitted, the channel of relief closes if the statutory requirements are not met. What it does not permit is recording a lack of materials as the same failure as exclusion by statutory scope, or establishing a failure of procedure on the sole ground that non-recovery remains. So long as the classification that distinguishes whether the residual non-recovery is due to the statutory boundary or to a gap in the materials remains, the opening or closing of the remedy is determined by the result of this classification.
4.3The Boundary That Remains When There Is No Data
Yet does compensating every disadvantage complete the remedy? Where lies the boundary that cannot be determined for lack of materials?
Paragraph (1) provides, "Article 393 (Scope of Damages) (1) Damages for non-performance of an obligation are limited to ordinary damages." Paragraph (2) adds, "There is liability to compensate for damages arising from special circumstances only where the obligor knew or could have known of such circumstances." The party this text prescribes is the obligor who bears liability for damages, the act is the compensation of damage arising from non-performance of an obligation, and the condition is that the limit of compensation is set according to whether the damage is ordinary damage or damage arising from special circumstances.
What links this text with the conclusion of this section is the classification of the limits of compensation, that is, the judgment that distinguishes damage within the statutory scope from damage left as a gap in proof. On one side is non-recovery where the liability to compensate itself remains within a set scope; on the other is non-recovery that might yet become the object of compensation but whose materials for judgment are unspecified. Where only the name of an opposing interest exists and, there being no applicable facts, the legitimacy of the limitation cannot be established, the matter whose materials for judgment are unspecified is left undetermined, distinguished from impossibility.
When that distinction is pressed, the thing most strongly targeted is the non-recovery itself. Outside the legal scope, the victim's real loss remains. The counterargument that if the protection of another right is placed first, the non-recovery of a person already injured can be rationalized, aims at the scene where the person who suffered the loss is turned back at the door of relief. The range within which the author answers this is narrow. To describe the latter as a legitimate limitation, the barring norm, the applicable facts, and the protected opposing interest must be linked so that the reason for non-recovery can be explained.
The facts bearing on this question in this scene are simple. A asserts that all non-recovery is a failure of procedure, B answers that it is due to statutory protection, and some of the applicable facts were not submitted. As the records needed for judgment that B must put forward, B may point to the scope of the application, the grounds for protection against attachment, the personal scope of the judgment, the damage items, and the showing of public welfare; yet if the applicable facts concerning the opposing interest among them are negated, the conclusion that had classified the non-recovery as a legitimate limitation is withdrawn. Conversely, so long as the remaining materials concerning the scope of the application and the damage items remain blank, one can neither assert that those items fall outside the statutory scope nor assert that proof is lacking. That matter remains undetermined.
The conclusion this section permits is this much: one who seeks to explain the reason for non-recovery must present separately the limitations lying outside the statutory scope and the items lacking in proof, and may speak of a legitimate limitation only for the items to which the grounds presented are linked. What this section does not permit is establishing the legitimacy of a limitation on the strength of the name of an opposing interest alone, or immediately treating a matter whose materials for judgment are unspecified as one where relief is impossible. The conclusion that leaves the remaining disadvantage as it stands is narrow and conditional, and does not establish the results of actual payment, delivery, or recovery.
4.4The Records Needed for Determination
Accepting the premise that, on the premise of the legally prescribed personal scope of a judgment's effect, an expansion that binds without basis a person who did not participate is not regarded as legitimate recovery, it follows upon the question whether compensating every disadvantage completes the remedy. To answer that question, the reason why non-recovery remains must first be discerned, and this stage determines what records are needed for that discernment. If completeness is argued without records, the breadth of recovery and the basis of recovery become mixed up.
That provision first limits the matter by providing, "Damages for non-performance of an obligation are limited to ordinary damages," and then provides, "There is liability to compensate for damages arising from special circumstances only where the obligor knew or could have known of such circumstances." Here the subject is the obligor, the act is the non-performance of an obligation, and the condition is whether the damage is ordinary damage and whether the obligor knew or could have known of the special circumstances. This text deals only with the scope of compensation, and does not prescribe other procedural issues.
If this text is taken as the basis, what remains is to discern the reason for non-recovery. One is the case where the statutory boundary of the harm to be borne by the opposing party does not admit that item; the other is the case where, although the item may fall within the boundary, that fact has not remained in the record. The former is a result of the limit of compensation at work; the latter is a state in which the basis of judgment is blank. If the two are mixed, the reason for non-recovery is distorted.
Even when an unrecovered loss is written down by item and amount, if there are no materials showing that it exceeded ordinary damage and that the obligor knew or could have known of those circumstances, it cannot lead to compensation. The counterargument that if the protection of another right is placed first, the non-recovery of a person already injured can be rationalized aims head-on at this loss. The former is a state in which there are not yet materials to judge, and the latter is a result under the limit set by law; therefore, if the two states are called a failure in their entirety on the single fact of non-recovery, the basis for recovery disappears.
What can be judged from this scene alone is that what is determined is not either party's contention but the presence or absence of records. Among the scope of application, the grounds for protection against attachment, the personal scope of the judgment, the damage items, and the explanation of public welfare, only the materials submitted become the material for the stage determination. Where only the name of an opposing interest exists and, there being no applicable facts, the legitimacy of the limitation cannot be established, the matter remains undetermined.
Accordingly, the conclusion is drawn narrowly. The stage is judged solely on the materials recorded in the scope of application, the grounds for protection against attachment, the personal scope of the judgment, the damage items, and the explanation of public welfare, and missing records are not filled by inference. If materials are wanting, they remain wanting; if the statutory scope excludes an item, it remains excluded. If, without this distinction standing, all non-recovery is called a failure of procedure, legitimate limitation and failure of relief become mixed up.
4.5Circumstances That Change the Decision
In a scene of this kind, the evaluation of the completeness of relief varies according to what the cause of the non-recovery is. This distinction is the question to be decided at this stage.
The provision corresponding to this question is Article 393 of the Civil Act. Paragraph (1) provides that "damages for non-performance of an obligation are limited to ordinary damages," and paragraph (2) restricts liability by providing that "damages arising from special circumstances are borne only where the obligor knew or could have known of those circumstances." Here the obligor is the party that bears liability for damages, the damages are the detriment arising from the non-performance of the obligation, and ordinary damages refer to the damages that ordinarily accompany such non-performance. Damages arising from special circumstances fall within the scope of liability only exceptionally, that is, only where the obligor knew or could have known of those circumstances.
This language supplies the basis for dividing the reasons for non-recovery into two branches. One is damage that remains outside the statutory scope; the other is damage that may fall within the statutory scope but for which the proof is lacking. In the former, non-recovery arises from a limit on liability itself and therefore cannot be attributed to a failure of relief. In the latter, liability may be established but the non-recovery exists in a state where the evidentiary proof has not followed, and thus it is closer to incompleteness of judgment. Only by distinguishing the two branches can one determine at which stage the existing blocking and effectiveness judgments should be discarded.
If the protection of another right is placed first, the criticism follows that the non-recovery of the person already infringed may thereby be rationalized. If the counterparty's statutory protection is invoked and the victim's non-recovery is classified as a legitimate restriction, the purpose of restoration is diminished and the completeness of relief is never achieved. Exclusion from the statutory scope is a restriction that is established when the blocking norm and the protected opposing interest are connected to the applicable facts so as to explain the reason for the non-recovery, whereas a lack of materials remains in a state where no such connection has been confirmed.
In a synthetic scene, right holder A asserts that all non-recovery is a failure of procedure, and counterparty B answers that what remains is not a failure because of statutory protection. Since part of the applicable facts has not been submitted, the opposing interest has only a name, and the fact that the interest was actually applied is not confirmed. However, because a synthetic scene does not contain the facts, service, or performance outcomes of a real case, which items fall outside the statutory scope and which items are proof gaps cannot be determined from this scene alone. Items that are undetermined are left undetermined.
The conclusion that is permitted is limited. If the applicable facts concerning the opposing interest are confirmed to be negated, the existing blocking and effectiveness judgment changes. Even where the legal boundaries of damages are fixed, a judgment that attributes the non-recovery to a legitimate restriction while the applicable facts of the opposing interest remain unconfirmed is not sustained. However, one cannot expand the completeness of relief by moving damage outside the statutory scope over and rewriting it as damage subject to a proof gap, and an expansion that restrains a person who did not participate on no basis does not become a legitimate restoration either.
4.6The Strongest Counterargument and the Answer
Right holder A asserts that the whole of A's unrecovered loss is due to the procedure's failure to keep pace, while counterparty B answers that the damage is not compensated because of the scope of statutory protection. Yet in this scene, part of the applicable facts has not been submitted. How should this gap be read?
The source text corresponding to this question is Article 393 of the Civil Act. Its language limits the scope of damages to ordinary damages and provides that damages arising from special circumstances are borne only where the obligor knew or could have known of those circumstances. The subject spoken of here is the obligor, the act is the non-performance of an obligation, and the conditions are the type of damage and the possibility of recognition. What this Article addresses is how far damages extend. It becomes clear from this language that the purpose of restoration itself does not alter the limits of damages.
Some of the loss remaining as non-recovery either exceeds the limit of ordinary damages, or is damage arising from special circumstances in a case where the counterparty could not have known of those circumstances. Here the classification of the limits of damages operates. By the classification of the limits of damages is meant the judgment that distinguishes damage remaining outside the statutory scope from damage remaining as a proof gap. The two must be distinguished. The limit of the statutory scope is the boundary of damages set by law, and a proof gap is a state in which the damage may fall within that scope but the materials do not yet support it.
The strongest counterargument certainly lands a blow. It is that placing another right in the fore can become a means of rationalizing the non-recovery of the person already infringed. The person who suffered damage has a real loss that remains right now, and what the procedure has blocked is that person's possibility of recovery. If this detriment is erased, relief does not appear complete. Yet the foregoing answer stands. If one does not ask together whether the cause of the non-recovery lies in exclusion from the statutory scope or in a lack of evidentiary materials, and treats the two as one, then the boundary set by law and the gap of materials not yet filled are classified as the same failure although they are different conditions. The loss that the counterargument targets is real, but attributing all of that loss to the same cause is not permitted.
If, in this scene, only the facts relevant to this question are drawn out, A's assertion and B's answer differ as to how they view the cause of the non-recovery. In this situation, if there is only the name of an opposing interest and no applicable facts, so that the legitimacy of the restriction cannot be confirmed, that portion remains undetermined. Not forcibly filling in matters that cannot be determined from the scene alone is the boundary of this judgment.
The conclusion this section permits is that the causes of unrecovered loss must be explained by dividing them into exclusion from the statutory scope and lack of proof. What this section does not permit is to declare immediately that relief is unavailable solely because materials have not yet been submitted, or, conversely, to erase the boundary of the statutory scope and draw every detriment into the scope of damages. A lack of materials is undetermined and is not immediately an unavailability of relief.
4.7The Link to the Application and the Dispositive Part
Taking up the conclusion of the preceding section that a lack of materials and exclusion from the statutory scope cannot be treated as the same cause of failure, this section examines how that distinction operates in the explanation of unrecovered items. The question is whether relief becomes correspondingly complete if all damages are accepted, or whether a different reason attaches to each remaining detriment.
The provision corresponding to this question is Article 393 of the Civil Act. Paragraph (1) provides that damages for non-performance of an obligation are limited to ordinary damages, and paragraph (2) provides that damages arising from special circumstances are borne only where the obligor knew or could have known of those circumstances (Article 393 of the Civil Act). This language respectively limits the subject of damages to the obligor, the act to the non-performance of an obligation, and the conditions to the type of damage and the obligor's possibility of recognition.
Accordingly, in explaining uncompensated items, one must first divide whether the item, while corresponding to damage arising from special circumstances beyond ordinary damages, is placed outside the statutory scope because the condition of possibility of recognition is not satisfied, or whether it remains because, although it may fall within the scope, the proof is lacking. In the former case, the non-recovery arises from the limits of damages set by law; in the latter case, the non-recovery arises because the submitted materials are insufficient to establish the damage within the statutory scope. In both cases the outcome that damages were not paid is the same, but because the character of the reason differs, they cannot be bundled into a single failure.
The strongest counterargument starts from the point that the victim's real loss remains even outside the legal scope. It points out that even for damage that the law has decided not to protect, if there is suffering that actually remains, invoking the protection of another right produces the result of leaving the non-recovery of the person already infringed as it is. Yet a lack of materials and exclusion from the statutory scope cannot be treated as the same cause of failure, nor is the boundary of the statutory scope erased merely by the fact that a real loss remains. The disadvantage the counterargument speaks of is fully acknowledged, but that disadvantage is not re-transcribed as a failure of procedure.
In this scene, right holder A asserts that all non-recovery is a failure of procedure, counterparty B answers that it is due to statutory protection, and part of the applicable facts has not been submitted. On this fact alone it is not determined whether the remaining damage item exceeds the limit of ordinary damages and corresponds to special circumstances, nor whether the obligor knew or could have known of those circumstances. If the applicable facts concerning the opposing interest are negated, the conclusion that classified the non-recovery as a legitimate restriction is withdrawn, but the range in which materials are insufficient remains undetermined.
What can be confirmed in this section is the distinction that the reason for non-recovery must be explained differently according to whether an uncompensated item lies outside the statutory scope of ordinary and special damages or whether the proof is lacking; that distinction alone determines neither whether every detriment is compensated nor which remedies become available. The judgment called the classification of the limits of damages remains at distinguishing damage remaining outside the statutory scope from damage remaining as a proof gap, and an expansion beyond that boundary is not the conclusion of this section.
4.8The Scope This Section Undertakes
Creditor A asserts that, since not all of the detriment A suffered has been compensated, all non-recovery is a failure of relief, and counterparty B answers that the remainder of that non-recovery is the result of the protection prescribed by law. Before that confrontation, what must now be asked is the criterion of distinction.
The limits of damages were set down in Article 393 of the Civil Act: "damages for non-performance of an obligation are limited to ordinary damages." Non-performance of an obligation is a state in which the obligor does not perform the prescribed performance, and ordinary damages refer to the damages ordinarily foreseeable from such non-performance. This language means that, even if liability for damages arises against the obligor, that share does not increase without limit.
The same Article further premises, as to damage arising from special circumstances, that "the obligor is liable for damages only where the obligor knew or could have known of those circumstances." The condition of liability only where the obligor knew or could have known is the gate through which the damage enters the statutory scope, and it means that if the substantiation of that fact is empty, the gate does not open. Only when these two layers are distinguished does it appear that the reasons for non-recovery are not the same.
Items pushed outside the statutory scope and items that may be within the scope but whose substantiation of the condition is empty must not be crushed into a single failure. The counterargument targets the point that the victim's real loss remains even outside the legal scope, and even though it does not erase the fact that this detriment lies before one's eyes, a lack of materials and exclusion from the statutory scope cannot be treated as the same cause of failure.
In a synthetic scene, part of the applicable facts has not been submitted. Since it has not been made clear which statutory basis and facts the opposing interest touches upon, the materials are not filled in enough either to confirm that the restriction is legitimate or to confirm that all non-recovery is a failure of relief.
What is permitted in this section is the judgment that determines on which side an uncompensated item lies, and whether relief becomes complete through compensation for every detriment remains a separate question in any case. Items that have not been confirmed are not immediately written down as unavailability of relief, and one also distinguishes and records whether the desired expansion of enforcement exceeds the limits of the statutory scope.
4.9Application of the Text of the Provisions and the Holdings of Precedents
On the premise that an expansion that restrains a person who did not participate on no basis is not regarded as a legitimate restoration, this stage asks on what basis the judgment that left the non-recovery stands. In this confrontation, unless one discerns whether the reason that left the non-recovery is due to the limits of the statutory scope or to a shortage of facts and evidence, the two reasons remain mixed and only the name of a failure of relief remains. The question this section addresses is how the language of the corresponding source text operates as the basis for deciding this distinction.
The corresponding source text is Article 393 of the Civil Act, and its language provides: "Article 393 (Scope of Damages) (1) Damages for non-performance of an obligation are limited to ordinary damages. (2) Damages arising from special circumstances are borne only where the obligor knew or could have known of those circumstances." This language takes the act of damages for non-performance of an obligation and its responsible subject as the obligor, and limits the damages to be compensated to ordinary damages. As to damage arising from special circumstances, it attaches as a condition the recognition requirement that the obligor knew or could have known of those circumstances. Accordingly, what this Article indicates is not the whole course of the non-recovery, but the limitation of the language that divides the scope of damages for non-performance of an obligation.
The corresponding language and the conclusion of this section connect as follows. If the former is damage outside the limit set by the language, that non-recovery remains as exclusion from the statutory scope; if the latter comes from a failure to fill in the applicable facts, that non-recovery remains as an absence of materials. In both cases the appearance is that the victim has no recovery, but the stage of the decision differs. One is divided at the boundary of the scope set by the language, and the other is divided in a state where the applicable facts for judging that scope are empty. This distinction creates no new requirement or exception, and simply follows the way the corresponding language divides the scope.
The strongest counterargument targets the point that the victim's real loss remains even outside the legal scope. It is the concern that placing the protection of another right in the fore may rationalize the non-recovery of the person already infringed. In a scene where recovery is refused on the ground that it does not fall within the limit of the statutory scope, the victim bears the real damage as it is, and that damage does not remain on the records as an item of damages. If such detriment is ignored, the protection of the law may appear out of step with the victim's actual circumstances. Yet the foregoing answer is that a lack of materials and exclusion from the statutory scope cannot be treated as the same cause of failure. Even acknowledging the real damage the counterargument points out, if the case excluded by the limit set by the language and the case where the applicable facts needed to discern that limit are insufficient are bundled into one failure, the judgment of the legitimacy of the opposing interest disappears. The fact that a loss remains is common to both cases, but that does not make the grounds for explaining the reason for the non-recovery the same as well.
In a synthetic scene, the passage that part of the applicable facts has not been submitted touches upon this distinction. Right holder A's assertion seeks to attribute all of the non-recovery to a failure of procedure, but counterparty B's counterargument that it is due to statutory protection stands together with the applicable facts being empty. If there are no applicable facts concerning the opposing interest, it is difficult to classify the non-recovery as a legitimate restriction, yet neither can it be immediately confirmed as a failure of relief. In this case, with only the names of the blocking norm and the opposing interest and no applicable facts connected, the reason for the non-recovery remains undetermined. If there are items that can be cross-checked against the records, such as grounds for protection from attachment or items of damage, exclusion from the statutory scope and a proof gap are divided according to how that item is empty. But since the year, amount, and start date are not set in the scene, which item is confirmed cannot be judged from this scene alone.
The conclusion this section permits is narrow. It is to use only the language of the corresponding source text as the basis for deciding the distinction between legitimate restriction and failure of relief, and to divide and explain exclusion from the statutory scope and a proof gap within the scope of that language. A judgment that places damage outside the limit set by the corresponding language and damage whose applicable facts are empty under the same cause of failure is not permitted by this conclusion. Neither is it permitted to assert that the legal pathway is closed merely by confirming that a real loss remains, nor to read a shortage of materials immediately as an unavailability of relief.
4.10Fine Distinctions Within the Stage
모든 불이익을 배상하면 구제가 완전해지는가? 지금 남은 물음은 미회복이 남았다는 사실만으로 곧바로 절차 실패로 기록할 수 있는가 하는 점이다. 이 장면 안에서 미회복의 원인을 나누어 살펴야 한다.
이 물음에 해당하는 문언은 민법 제393조다. 제1항은 “채무불이행으로 인한 손해배상은 통상의 손해를 그 한도로 한다”(민법 제393조)고 정하고, 제2항은 “특별한 사정으로 인한 손해는 채무자가 그 사정을 알았거나 알 수 있었을 때에 한하여 배상의 책임이 있다”(민법 제393조)고 정한다. 이 문언은 손해배상이 맡은 주체와 그 한도, 그리고 특별한 사정으로 생긴 손해가 배상 범위에 들어가는 조건을 가리킨다.
이 문언에 따르면 미배상 항목이 남은 이유를 두 갈래로 가를 수 있다. 하나는 항목 자체가 통상의 손해 한도 밖에 놓인 경우이고, 다른 하나는 항목은 들어맞지만 채무자가 그 사정을 알았거나 알 수 있었는지가 증명되지 않은 경우다. 전자는 법정 범위의 문제이고 후자는 증명의 문제다.
가장 강한 반론은 “법적 범위 밖에도 피해자의 현실 손실이 남는다”는 점을 겨눈다. 다른 권리를 앞세우면 이미 침해받은 사람의 미회복을 합리화할 수 있다는 것이다. 전자는 그 항목이 원래 배상 범위 밖에 있다는 결론이고, 후자는 기록이 채워지면 바뀔 수 있는 판단이다.
합성 장면에서 보면 A는 미회복을 모두 절차 실패로, B는 법정 보호로 설명한다. 차단 규범·적용 사실·보호되는 반대 이익이 연결되어 미회복의 이유를 설명할 수 있으면 정당한 제한으로, 반대 이익의 이름만 있고 적용 사실이 없어 제한의 정당성을 확정할 수 없으면 미확정으로 남는다. 신청 범위·압류 보호 사유·판결의 인적 범위·손해 항목·공공복리 소명 가운데 무엇이 제출되었는지는 장면만으로 정해지지 않는다.
이 절이 허용하는 것은 명시한 조건에 따른 세부 구분뿐이고, 허용하지 않는 것은 그 밖의 단계를 새로 만드는 일이다. 작동하는 경우·막히는 경우·미확정인 경우에 든 경우를 벗어나 미회복의 원인을 나누는 결론은 이 절의 범위 밖이다.
4.11Synthesis of Effectiveness, Blockage, and Undetermination
앞 단계가 전제한 판결 효력의 법정 인적 범위 안에서, 이번 물음은 남은 미회복을 정당한 제한으로 둘지 절차 실패로 볼지를 가르는 기준을 묻는다.
그 조문은 손해배상의 범위를 한정하며, “채무불이행으로 인한 손해배상은 통상의 손해를 그 한도로 한다”(민법 제393조)고 선언한다. 이어서 제2항은 특별한 사정으로 인한 손해를 다루어, 채무자가 그 사정을 알았거나 알 수 있었을 때에 한하여 책임을 지운다(민법 제393조). 여기서 주체는 채무자이며, 보호되는 것은 채무자가 예견하지 못한 사정까지 떠안지 않도록 하는 이익이고, 조건은 통상의 손해라는 한도와 특별 사정의 인지 가능성이다.
이 문언과 이 절의 결론을 연결하면, 미회복의 이유를 설명할 때 두 단계를 나누어야 한다. 첫째는 손해가 통상·특별손해의 법정 범위 밖에 놓이는지, 둘째는 그 손해의 원인이 될 사실이 증명되지 않은 것인지이다. 전자의 미회복은 차단 규범과 보호되는 반대 이익이 연결되어 설명되지만, 후자의 미회복은 적용 사실이 공백으로 남아 어떤 판단도 확정할 수 없다. 배상 한계의 분류란 이 둘, 즉 법정 범위와 증명 공백으로 남은 손해를 구별하는 판단이며, 이 구별이 실효·차단·미확정을 나누는 척도가 된다.
법적 범위 밖에도 피해자의 현실 손실이 남는다는 반론은 거기서 멈추지 않는다. 다른 권리의 보호를 앞세우면 이미 침해받은 사람의 미회복을 합리화할 수 있다는 비판이 따라붙고, 그 불이익은 단지 이론적이 아니라 생활 속 손실로 남는다. 둘 다 회복이 없다는 결과는 같지만, 하나는 다른 법정 권리가 실제로 적용되어 구제수단 자체를 막고 다른 하나는 반대 이익의 이름만 있고 적용 사실이 없어 판단을 미룬다는 점에서 다르다.
이를 이 장면에 대조하면, 상대방 B는 법정 보호를 내세우지만 그 보호를 뒷받침할 적용 사실의 일부는 제출되지 않았다. 이 경우 반대 이익의 이름만 존재하므로 제한의 정당성을 확정할 수 없어 미확정으로 남는다. 반대로 차단 규범·적용 사실·보호되는 반대 이익이 연결되어 미회복의 이유가 설명되면 열리는 조건에 놓이고, 다른 법정 권리가 실제로 적용되어 집행 확대·비당사자 구속·정지 같은 구제수단을 허용할 수 없으면 막히는 조건에 놓인다.
따라서 이 절이 허용하는 결론은 미회복을 법정 범위 밖과 증명 공백으로 구별해 각각 차단과 미확정으로 분리하는 데까지이며, 두 원인을 하나로 합쳐 실패로 부르는 것은 허용하지 않는다. 자료 부족은 미확정일 뿐 곧바로 구제 불능이 아니며, 법정 범위 배제는 다른 권리가 실제로 적용되어 구제수단이 닫히는 사정이다. 이 구별을 넘어서 지금까지 확인되지 않은 사실로 미회복의 성격을 더 확정하는 것은 하지 않는다.
4.12Conclusion Carried Over to the Next Section
두 주장이 부딪치는 지점에서 남은 미회복을 한꺼번에 묶지 않고 그마다의 원인을 밝혀 구별하는 작업을 배상 한계의 분류라 부른다.
이 절이 다루는 문언은 손해배상의 법정 한계를 정하는 조문이다. 민법 제393조는 “채무불이행으로 인한 손해배상은 통상의 손해를 그 한도로 한다. 특별한 사정으로 인한 손해는 채무자가 그 사정을 알았거나 알 수 있었을 때에 한하여 배상의 책임이 있다.” 이 문언은 손해배상의 책임을 지는 주체가 채무자이며, 그 책임이 통상의 손해를 기본 한계로 삼고, 특별한 사정으로 생긴 손해는 채무자가 그 사정을 알거나 알 수 있었을 때만 추가된다는 점을 가리킨다.
위 문언을 정해진 결론과 이어 보면, 배상받지 못한 항목이 남는 이유를 설명할 때 법정 범위 밖인지 증명이 부족한 것인지가 갈림길이 된다. 통상·특별손해라는 법정 범위에 들지 않는 손해라면 채무자의 책임 한계 밖에 남아 미회복이 되는 것이고, 범위 안에 들 수 있는 손해인데 사정을 알았거나 알 수 있었다는 점이 확인되지 않았다면 증명 공백 때문에 미회복이 되는 것이다. 회복을 넓히려는 목적은 이 구별을 뒤집어 그 둘을 하나의 절차 실패로 합칠 근거가 되지 못한다.
가장 강한 반론은 법정 범위 밖에서도 피해자의 현실 손실이 남는다는 점에 겨냥한다. 이미 침해받은 사람의 미회복을 두고 다른 법정 권리의 보호를 앞세우면 그 불이익을 합리화하는 결과가 된다는 비판이다. 전자는 그 한계가 확인된 상태이고 후자는 적용 사실이 남아 있어 이유의 확인이 되지 않은 상태이므로, 확인되지 않았다는 사정만으로 범위 밖 항목까지 회복의 대상으로 넓힐 수는 없다.
합성 장면에서 확인되는 사실은 A의 주장과 B의 답변, 그리고 적용 사실의 일부가 제출되지 않았다는 한 가지 사정뿐이다. 이 사정은 증명 공백의 모습에는 부합하므로 미회복의 이유를 확인하기 전 단계에 놓이지만, 법정 범위 밖이라는 사실까지도 확인된 것은 아니다. 이 조건에 관한 적용 사실이 없는 지금 어느 쪽으로 확정할 수 없으므로 미확정으로 남긴다.
이 절에서 남길 수 있는 것은 미회복의 원인을 법정 범위와 증명 공백으로 구별한다는 판단뿐이고, 어느 항목이 어느 쪽에 속하는지, 나아가 그 미회복을 되돌릴 통로가 열렸는지는 확정하지 않았다. 앞 절이 받은 판결 효력의 법정 인적 범위라는 한정도 그대로 유지되므로, 그 밖의 확대를 위한 논증은 이 절의 몫이 아니다. 다음에 이어질 물음은 긴급한 개인 구제를 넓히면 항상 바람직한가이다.