Summary
A claim for future performance requires a need to claim in advance.
4.1The Standard by Which the Path Opens
Not every anxiety about the future can be converted into a present performance order. Can a performance whose time for performance has not yet arrived also be claimed in advance? The preceding section confirmed that confirmation of the genuineness of an instrument is a subject that the law separately permits, and that it is not the same as establishing the truth of the entire contents of a document. This transition merely carries forward, in brief, the conclusion of the preceding step; it is not the place to unfold that argument again. The question lies in whether a future performance may be preliminarily established by a judgment of today, and when the door through which such a claim may proceed opens. The scene in which plaintiff A wishes defendant B to deliver the thing agreed upon, while the draft records only a confirmation that a right exists, lays this threshold bare exactly as it stands.
The provision bearing on this question is found in Article 251 of the Civil Procedure Act. It states: "An action claiming a performance to be made in the future may be filed only where there is a need to make the claim in advance" (Civil Procedure Act, Article 251). The subject indicated here is the claimant seeking a performance to be rendered in the future; the act is the filing of an action demanding in advance a performance whose time for performance has not yet arrived; and the condition is that there must be a need to make the claim in advance before bringing such an action. This condition is the standard at the entrance through which a claim demanding performance may proceed; it is not a provision that settles other issues at the same time.
What this provision requires is the prior requirement for the constitution of an action seeking a future performance in advance, that is, an action for future performance. The standard and the conclusion meet in the same direction. Where the thing, act, and counterparty demanded are specified in the claim and the requirements for judicial protection of the action so selected are met, and where the performance, parties, and conditions demanded are specified in the claim and the rights of the action so selected can be defended, the entrance to this relief opens. Two matters, however, must be distinguished. One is how clearly the claim contains the performance demanded; the other is to what extent the need to seek that performance now is recognized. The former is the task of fixing the content of the claim; the latter is the task of asking whether that claim may proceed now. If these two are merged into one, it becomes impossible even to ask whether the door to performance stands open for a claim in which what is demanded has not yet been determined.
Even so, the inconvenience that awaiting the time for performance may delay the restoration of rights is not erased. If the rights holder must wait merely because the time for performance has not yet arrived, restoration may be delayed in the meantime by the counterparty's dispositions or by changes in circumstances. Yet the mere existence of a future claim cannot substitute for the need to make the claim in advance. The fact that a claim will be realized in the future may constitute a basis for seeking performance, but it does not by itself also show why a judgment ordering that performance now is necessary. Accordingly, while the inconvenience is acknowledged, the conclusion of requiring the need to seek in advance as a separate standard is maintained.
In the synthetic scene, the fact bearing on this question is only one. Plaintiff A wishes defendant B to deliver the thing agreed upon, but the draft records only a confirmation that a right exists. Here the thing demanded and the counterparty are stated, but the disposition sought in the draft remains at confirmation that a right exists. To proceed to the entrance of a claim in which the performance demanded is ordered, the thing, act, and counterparty demanded must be specified in the claim and the requirements for judicial protection of the action so selected must be met. Conversely, where performance is desired but the disposition secured stops at confirmation of a right, or where the legal interest in confirmation is not recognized, the assessment of the possibility of a performance order changes. The scene fixes only the condition that, if a claim seeking only confirmation is converted into a proper claim for performance, the possibility of a performance order is assessed again; it sets no actual records or judgment results. Therefore, this scene alone cannot determine whether the need to make the claim in advance has been satisfied.
The conclusion this section permits is clear. A claim for future performance requires a need to make the claim in advance, and where the performance, parties, and conditions demanded are specified in the claim and the rights of the action so selected can be defended, the entrance to this relief opens. What is not permitted is the interpretation that substitutes the mere existence of a future claim for that need. Whether a claim that demands performance yet secures only confirmation passes through this door to reach a performance order, and whether the legal interest in confirmation is recognized, must be assessed separately.
4.2The Conditions That Block Relief
The question is whether a performance whose time for performance has not yet arrived may also be claimed in advance. Confirmation of the genuineness of an instrument is a subject that the law separately permits, and it is not the same as establishing the truth of the entire contents of a document. On this premise, the scene in which plaintiff A wishes defendant B to deliver the thing agreed upon, while the draft records only a confirmation that a right exists, presents itself anew. What is at issue is what the threshold lying between confirmation and performance consists in.
The standard of judgment at this step is the wording prescribed by "Article 251 (Action Claiming Future Performance)" of the Civil Procedure Act: "An action claiming a performance to be made in the future may be filed only where there is a need to make the claim in advance." This wording specifies the subject as the party claiming a performance to be made in the future, the act as the filing of an action, and the condition as the existence of a need to make the claim in advance, respectively. That is, an action for future performance, in other words an action seeking a future performance in advance, is a form that cannot be constituted unless there is a need to file it ahead of time. The other issues in the provision do not broaden the meaning of this wording.
Connecting this wording with the conclusion of this section makes the distinction between steps plain. Where performance is desired but the disposition secured stops at confirmation of a right, or where the legal interest in confirmation is not recognized, the channel of relief closes if any one of the statutory requirements is not met. A judgment that stops at confirmation and a judgment ordering performance differ in their effects, and an action in which the legal interest in confirmation is not recognized and an action meeting the requirements for a performance claim have different doors. If the two are treated as one and the bolt of the channel is thrown open, the entrance condition required by the provision is extinguished. This is why the order must be preserved: first passing through the threshold, and only then discussing the possibility of performance.
Yet the loss brought about by this distinction is not small either. The counterargument aims at the point that awaiting the time for performance may delay the restoration of rights. If, before the time for receiving performance arrives, the counterparty's property condition changes or the thing agreed upon passes into other hands, then even after obtaining a judgment, substantive recovery may become difficult. The question of whether the formal classification of actions should come before the substantive anxiety surrounding the right also arises at the same point. Even so, the mere existence of a future claim cannot substitute for the need to make the claim in advance. The risk of delay identified by the counterargument remains as it is, but the entrance requirement does not change.
Returning to the synthetic scene, plaintiff A wishes defendant B to deliver the thing agreed upon, while the draft records only a confirmation that a right exists. That the performance demanded is delivery is clear, but because the claim remained at confirmation, the disposition secured cannot become one ordering performance. If a claim seeking only confirmation is converted into a proper claim for performance, the possibility of a performance order is assessed again. In this scene, however, no year and no amount have been set, and the results of service and performance are not determined. Whether the legal interest in confirmation and the need to make the claim in advance arise can be assessed only after materials concerning the claim sought in the complaint, the legal relationship to be confirmed, the present anxiety, and other means of relief are in hand; the scene alone leaves the matter undetermined.
Accordingly, what is permitted is to open the entrance to a claim ordering performance only where the thing, act, and counterparty demanded are specified in the claim and the requirements for judicial protection of the action so selected are met; what is not permitted is to admit a claim that stops at confirmation or lacks the legal interest in confirmation into the door of a performance order as it stands. Nor can it be asserted that relief is impossible merely because the materials are insufficient. However, if the disposition demanded or the present legal anxiety is not specified, the assessment itself cannot stand; accordingly, no expansive interpretation is ventured beyond the scope of the narrow conclusion already fixed. The existence of a future claim does not substitute for the requirements.
4.3The Boundary That Remains When There Is No Data
Even on the premise that confirmation of the genuineness of an instrument is a subject that the law separately permits and is not the same as establishing the truth of the entire contents of a document, the genuineness of a document that may be made the subject of confirmation and a performance claim for which performance may be ordered do not undergo the same initiating procedure. In this scene the question is whether a performance whose time for performance has not yet arrived may also be claimed in advance. Yet only by asking together where the boundary lies that cannot be determined for want of materials do the limits of this question become visible.
The statutory text addressed in this section is Article 251 of the Civil Procedure Act. Its wording draws the line: "An action may be filed only where there is a need to make the claim in advance" (Civil Procedure Act, Article 251). The subject regulated by this provision is the plaintiff who intends to bring a claim seeking future performance, and the act is the filing of an action asking the court to order performance of a performance whose time for performance has not yet arrived. The condition is the need to make the claim in advance, that is, that circumstances exist in which the realization of the right would become difficult unless the action is filed before the time for performance arrives. This is the range indicated by the wording; the interest in confirmation and the other requirements of a declaratory action are matters outside this wording.
The reason Article 251 requires a need to make the claim in advance is that an action seeking future performance makes a future performance the subject matter of suit of the present action. Here, an action for future performance means an action seeking a future performance in advance. Accordingly, the fact that a future claim exists and the circumstance that there is a need to ask that the performance of that claim be ordered now are distinct steps of judgment. If the former is a description concerning the object of the claim, the latter is a threshold concerning whether that object may be made the subject of an action now. Where the disposition demanded or the present legal anxiety is not specified, a matter for which the materials of judgment are not specified is left undetermined, distinguished from impossibility. Here, impossibility means a state in which the entrance to the claim is blocked, and undetermined means a state in which no judgment can be made for want of materials.
The counterargument that awaiting the time for performance may delay the restoration of rights aims at practical loss. If the debtor moves assets before the time for performance arrives or loses the ability to pay, the judgment eventually obtained may become an empty shell. The criticism that excessive emphasis on the form of claim gives technical classification priority over the substance of rights likewise speaks to the inconvenience that the rights holder's time and cost are consumed at the threshold of procedure. The adverse aspect of this counterargument, namely the fact that waiting may delay the restoration of rights, is not erased, but that fact alone does not move the threshold required by Article 251.
In this scene, the facts relevant to this question are two: that plaintiff A wishes defendant B to deliver the thing agreed upon, and that the draft records only a confirmation that a right exists. The record of judgment consists of materials concerning the claim sought in the complaint, the legal relationship to be confirmed, the present anxiety, and other means of relief, and this scene contains no actual content of such records. Therefore, whether the disposition demanded has been specified, and whether the legal relationship to be confirmed and the present legal anxiety have been specified, cannot be determined from this scene alone. This circumstance, which cannot be determined, remains undetermined rather than impossible. If it is confirmed that a claim seeking only confirmation is converted into a proper claim for performance, the possibility of a performance order is assessed again.
The conclusion this section permits is the boundary that a claim for future performance requires a need to make the claim in advance, and that a matter for which the disposition demanded or the present legal anxiety is not specified remains undetermined, distinguished from impossibility. The conclusions not permitted are that the mere existence of a future claim may substitute for the need to make the claim in advance, or the direction of reading materials that could not be determined straightaway as relief being impossible. If it is confirmed that a claim seeking only confirmation is converted into a proper claim for performance, the possibility of a performance order is assessed again, but the result of that assessment is not determined by these materials.
4.4The Records Needed for Determination
On the premise that confirmation of the genuineness of an instrument is a subject that the law separately permits and is not the same as establishing the truth of the entire contents of a document, the question is asked whether a performance whose time for performance has not yet arrived may also be claimed in advance. To answer this question, where the step of judgment is to be determined must be clarified at the same time. Plaintiff A wishes defendant B to deliver the thing agreed upon, but the draft records only a confirmation that a right exists, and the determination varies according to what is recorded in that draft.
The source text corresponding to this question is placed in Article 251 of the Civil Procedure Act. The subject indicated by this provision is the plaintiff seeking a performance whose time for performance has not yet arrived; the act is the filing of an action seeking that performance in advance; and the condition is the existence of a need to make the claim in advance. Without unfolding even the other issues of the provision, only the range of this wording is addressed.
The need to make the claim in advance is the threshold at which an action for future performance may be brought, and whether that threshold has been crossed is determined solely by the materials recorded in the materials concerning the claim sought in the complaint, the legal relationship to be confirmed, the present anxiety, and other means of relief. Recorded materials and unrecorded facts must be distinguished here. Only the former becomes the material for the step determination, and the latter is left vacant at the seat of determination. Accordingly, the circumstance that a future claim exists alone does not advance to a finding that the need to make the claim in advance has been satisfied. The step determination is made only on the fixed record, and missing records are not filled in by inference. The entrance to a claim ordering the performance demanded opens only within the range fixed by this record.
The strongest counterargument is aimed at the point that awaiting the time for performance may delay the restoration of rights. If performance cannot be sought in advance, one must wait until then and bear the disadvantage that the point at which the right is actually restored is pushed back. Further, the criticism is also placed alongside that excessive emphasis on the form of claim gives technical classification priority over the substance of rights. The conclusion is maintained even without erasing this inconvenience. This does not mean that the loss from waiting is small, but is a judgment to leave intact the structure of the provision whereby the need to make the claim in advance is separately required.
Taking out only the facts of the synthetic scene that correspond to this question: plaintiff A wishes defendant B to deliver the thing agreed upon, and the draft records only a confirmation that a right exists. The thing demanded is the thing agreed upon, and the counterparty is defendant B. However, whether the prayer for relief has been specified as an order directing the performance demanded, what the present legal anxiety is, and whether other means of relief exist are not determined in this scene. Thus room remains for the case in which performance is desired but the disposition secured stops at confirmation of a right, or in which the legal interest in confirmation is not recognized, and the determination in the case where the disposition demanded or the present legal anxiety is not specified remains undetermined. If it is confirmed that a claim seeking only confirmation is converted into a proper claim for performance, the possibility of a performance order must be assessed again, but the scene alone cannot fix the result of that determination.
What this section permits is to place on the determination the entrance to a claim for a performance whose time for performance has not yet arrived, where the need to make the claim in advance is contained in the record. What it does not permit is to treat the threshold as crossed merely by the existence of a future claim, or to fill unrecorded circumstances with conjecture and thereby determine even the possibility of a performance order. Only where the thing, act, and counterparty demanded are specified in the claim and the requirements for judicial protection of the action so selected are met does the entrance to a claim ordering performance open; and if the materials on the record are insufficient, the insufficiency of materials is undetermined and does not immediately mean that relief is impossible.
4.5Circumstances That Change the Decision
In the preceding step, it was confirmed that verification of the genuineness of a document is a matter that the law separately permits and is not the same as establishing the truth of the entire content of the document. In this situation, the questions remaining are whether a future performance, namely the delivery of an object, may be claimed in advance at this point in time, and in what form the claim must be changed so that the possibility of a performance order may be assessed anew.
As to this question, Article 251 of the Civil Procedure Act provides that “an action claiming performance in the future may be brought only where there is a need to claim in advance.” Here, the need to claim in advance means a case in which, with respect to a claim whose performance date has not arrived or whose condition has not been fulfilled, the debtor disputes the existence of the obligation from beforehand, so that voluntary performance cannot be expected when the performance date arrives or the condition is fulfilled. What the provision requires as its object is an action claiming performance in the future, that is, an action for future performance.
Connecting the wording of the above provision with the conclusion of this section, to bring an action for future performance it is not enough that the performance date has not yet arrived; the separate requirement of a need to claim in advance must be satisfied. This determination must be examined in two parts: the stage determination that gauges the entry of the claim, and the blocking and effectiveness determination that examines what the secured order actually demands.
The point that waiting for the performance date may delay the restoration of rights refers to the practical inconveniences of the loss of time and money caused by a belated bringing of the action and of the delay in the timing of enforcement. Yet the very purpose of preventing such loss does not mean that the form of the claim may be disregarded. The existence of a future claim alone cannot substitute for the need to claim in advance; only when the prayer for relief and the present legal uncertainty are specified together can the entry to a performance order be determined anew.
In this scene, plaintiff A seeks from defendant B delivery of the object agreed upon. This falls under a case in which the object demanded and the opposing party can be specified in the prayer for relief of the complaint. However, the fact that the draft recorded only a confirmation that a right exists does not permit one to conclude that the claim seeking performance has been specified as a lawful claim for performance. Whether materials concerning the legal relationship to be confirmed, the present uncertainty, and other means of relief are in place has not been confirmed, and so it remains undetermined.
Where a claim seeking only confirmation is secured as such, it must be regarded that the possibility of a performance order has not been opened; only when the fact that it has been changed into a lawful claim for performance is confirmed does one begin the determination of the possibility of a performance order anew from the start. Conversely, to regard the existence of a future claim alone as substituting for the need to claim in advance is a conclusion this section does not permit.
4.6The Strongest Counterargument and the Answer
The fact that plaintiff A seeks from defendant B delivery of the object agreed upon, yet the draft recorded only a confirmation that a right exists, itself prompts one to ask again what this action now seeks. A prayer for relief which, while aiming at delivery, left only the wording of confirmation, reveals, before the question whether a performance whose performance date has not yet come may be claimed in advance, what must first be settled. The motive that not all future uncertainty can be converted into a present order for performance lies here.
The source text corresponding to this question is Article 251 of the Civil Procedure Act. Its wording provides: "An action claiming performance in the future may be brought only where there is a need to claim in advance." In this provision, the subject of the claim is the plaintiff, the act is the bringing of an action demanding performance in the future, and the condition is the existence of a need to claim in advance. Here, an action for future performance means an action seeking in advance a performance to be rendered in the future.
This wording and the conclusion of this section at this stage lie on the same axis. A claim for future performance requires a need to claim in advance, and the existence of a future claim alone cannot substitute for the need to claim in advance. The reason the two determinations must be distinguished is that the circumstance that the claim arises in the future and the request that the performance be obtained now by judgment each address a different problem. The former deals with the point in time of the right; the latter deals with whether circumstances exist for bringing the action now. It is settled here that a confirmation of a future claim alone cannot take the place of the latter determination.
The loss this distinction may bring about is plain. While awaiting the performance date, the opposing party may dispose of the object or lose the ability to pay, and in the meantime the substance of the right may be pushed behind the order of classification on paper. The counterargument that placing undue weight on the form of the claim gives priority to technical classification over the substance of the right aims precisely at this inconvenience. Yet however strong that counterargument may be, it cannot erase the requirement of the need to claim in advance, and the conclusion that the existence of a future claim alone cannot satisfy that requirement is maintained. The risk of delay pointed out by the counterargument does not thereby disappear.
What can be confirmed in the synthetic scene is only the fact that plaintiff A seeks from defendant B delivery of the object agreed upon, yet the draft recorded only a confirmation that a right exists. This fact shows a state in which the performance demanded and the order secured are at odds. Where the order demanded has not been specified, or the present legal uncertainty has not been specified, the determination is left undetermined. The condition that, if a claim seeking only confirmation is changed into a lawful claim for performance, the determination of the possibility of a performance order is made anew, is not a fact that has now occurred but merely a test that draws the boundary of this scene.
The conclusion this section permits is narrow: that even for a performance whose performance date has not yet arrived, if there is a need to claim in advance, it may be brought as an action for future performance; and that the existence of a future claim alone cannot substitute for that need. Beyond this, whether plaintiff A can actually receive the object, and whether the relief from uncertainty afforded by a confirmation judgment is sufficient, are not settled here.
4.7The Link to the Application and the Dispositive Part
In a situation where one can hardly set one's mind at ease with a mere confirmation that a right exists, the question is whether a performance whose performance date has not yet arrived can be obtained immediately. Following the conclusion of the preceding section that the existence of a future claim alone cannot substitute for the need to claim in advance, the question now is: under what conditions, then, may one exceptionally make the claim in haste?
On this problem, Article 251 of the Civil Procedure Act provides as follows: "Article 251 (Action Claiming Performance in the Future) An action claiming performance in the future may be brought only where there is a need to claim in advance." The subject spoken of here is the person seeking to receive a performance to be rendered in the future; the act is the bringing of an action seeking such a performance in advance; and the condition is precisely that there must be a need to claim in advance. In other words, this action does not seek a performance to be received right now, but is a form of claim seeking in advance what is to be performed in the future.
The requirements demanded by the wording of this provision and the conclusion of this section of this chapter follow through as they stand. A claim for future performance requires a need to claim in advance. Here two things must be distinguished. One is the fact that a claim to be performed in the future already exists; the other is the determination that there is a need to bring the action now without waiting for that performance. The former states only the basis of the right; the latter states the threshold as to at what point a claim seeking that performance in advance will be received. If the two stages are not distinguished, even a claim with no interest in claiming in the future may be brought before the trial court, and the entry for a claim ordering the performance requested is thrown into disarray.
This gives rise to the counterargument whether one must then bear the entire loss that the restoration of rights may be delayed while waiting for the performance date. If a creditor who already holds a right cannot receive the performance immediately on account of the timing, there is also the complaint that one merely lets time pass while leaving the uncertainty unattended. Even so, the author's answer does not change. If what one wants is not a confirmation of a right recorded in a document but a claim ordering the performance demanded, one must satisfy the entry conditions set by that form of claim.
In this scene, the facts bearing on the problem are simple. Only where the object, act, and opposing party demanded are specified in the prayer for relief of the complaint, and the requirements for judicial protection (interest in judicial protection) of the action chosen are satisfied, may one enter the threshold of a claim ordering the performance demanded. Conversely, where the order secured stops at confirmation of a right, or the legal interest in confirmation is not recognized, the door to a performance order is closed. However, since the scene contains no year, amount, or commencement date of a term, or any actual service or result of performance, whether the need to claim in advance is recognized is not determined by this scene alone.
Accordingly, just as a claim recording only a confirmation that a right exists in a document cannot become a claim ordering the performance demanded, a confirmation of a right alone is not sufficient to receive a claim for future performance. The key is whether one writes the performance demanded in the prayer for relief of the complaint, prepares materials on the legal relationship to be confirmed, the present legal uncertainty, and other means of relief, and thereby crosses the threshold of the form of claim. Where the order demanded or the present legal uncertainty has not been specified, the determination itself remains undetermined.
4.8The Scope This Section Undertakes
On the question whether a performance whose performance date has not yet arrived may also be claimed in advance, the conclusion of the preceding section was that a claim for future performance requires a need to claim in advance. What now remains as the question is in what relation this conclusion stands to the premise accepted by the preceding section, namely that verification of the genuineness of a document is a matter that the law separately permits and is not the same as establishing the truth of the entire content of the document. Without mixing the work of verifying the genuineness of a document with the work of seeking a future performance in advance, this section clarifies only the order and the limits between the two.
The source text corresponding to this question is Article 251 of the Civil Procedure Act. That provision provides that "an action claiming performance in the future may be brought only where there is a need to claim in advance" (Article 251 of the Civil Procedure Act). In this wording, the subject indicated by the heading is the party seeking future performance; the act is the bringing of an action claiming in advance a performance yet to be rendered; and the condition is that there must be a need for that claim in advance. An action for future performance means an action seeking in advance a performance to be rendered in the future, and the wording addresses only the requirements for bringing that action.
The premise of the preceding section and this wording concern different stages and therefore do not conflict even when placed together. Verification of the genuineness of a document is a matter that the law separately permits and not a procedure establishing the entire content of the document as true; accordingly, the determination verifying the genuineness of the document is distinguished from the determination that substantively establishes the rights recorded in that document. On this premise, the conclusion that a need to claim in advance is required does not mean that a future performance may be obtained now merely because the document records that a right exists; it means that the condition in the wording—that a need must exist in order to claim in advance—must be passed as it stands in order to claim future performance.
The position opposing this condition points to the inconvenience that waiting for the performance date may delay the restoration of rights. If the time of performance is far off and, while waiting until then, the object disappears or the opposing party's ability to perform weakens, then even if the right is ultimately confirmed, actual restoration may be delayed or rendered difficult. That loss is not light. Even so, the answer this section maintains is that the existence of a future claim alone cannot substitute for the need to claim in advance. The fact that the claim already exists and the establishment of the need to claim in advance are separate items of determination, and one cannot automatically fill in the other.
What the plaintiff wants is the performance of delivery of the object, and the order secured by the draft stops at confirmation of the right; thus the performance demanded and the order secured are at odds with each other. Whether materials concerning the need to claim in advance are placed here cannot be determined from the scene alone, and so it remains undetermined. Even if the contrasting condition is satisfied—that if a claim seeking only confirmation is changed into a lawful claim for performance, the determination of the possibility of a performance order is made anew—its outcome too is not determined from the scene.
The conclusion this section permits is limited to the scope of distinguishing the verification of the genuineness of a document from the determination of a claim for future performance, and requiring a need to claim in advance for the latter. What this conclusion does not permit is to regard the requirements for claiming a future performance as satisfied merely on the ground that a confirmation that a right exists in the document has been obtained, and to substitute the confirmation determination directly for the determination on a performance order. What remains is how the condition of this need to claim in advance is supported in the text of the statute. The wording of Article 251 of the Civil Procedure Act, which expressly makes the need to claim in advance a requirement for the lawfulness of an action for future performance, supports this conclusion.
4.9Application of the Text of the Provisions and the Holdings of Precedents
The question that remains now is whether a performance whose time has not yet arrived may be claimed in advance. On the premise that verification of the genuineness of an instrument is a matter the law separately permits and is not the same as establishing the truth of the entire content of a written document, Plaintiff A seeks from Defendant B delivery of the thing agreed upon, yet the draft recorded only a confirmation that the right exists. In this scene where the object of confirmation and the object of performance diverge, a confirmation that the right exists alone does not open the door to obtaining delivery. Because the door one enters differs according to what is sought in the complaint, one must examine whether performance whose time has not yet arrived may be claimed in advance.
As the ground for answering this question, Article 251 of the Civil Procedure Act provides that "An action claiming performance to be made in the future may be brought only where there is a need to claim in advance." (Article 251 of the Civil Procedure Act) This wording governs an action claiming performance to be made in the future—in other words, the form of claim that seeks in advance a performance whose time has not yet arrived. What the wording requires is the need to claim in advance, and this is written not as the timing of the claim but as the precondition that enables that action to be brought. The subject addressed by the provision is the party who wishes to bring such an action; the act is the bringing of that action; and the condition is the existence of the need to claim in advance. The fact that it is a claim for a performance that has not yet arrived is what marks the scope of application of this provision.
This wording connects directly to the conclusion that, for a claim for future performance, the need to claim in advance is required. Here the task is to fix the entrance to a claim seeking an order for performance, and that door opens where the thing, act, and counterparty sought are specified in the prayer for relief and the requirements for judicial protection (interest in judicial protection) of the chosen form of action are satisfied. The reason this determination must be distinguished from the determination of confirmation is that an ordering clause commanding the performance sought and an ordering clause confirming the existence of the right produce different results. Where one wants a performance but the ordering clause secured stops at confirmation of the right, or where the legal interest in confirmation is not recognized, one cannot pass through this entrance. Where the ordering clause sought or the present legal uncertainty is not specified, this determination remains undetermined.
The counterargument that, if one waits for the due date, restoration of the right may be delayed, takes aim squarely at that inconvenience. While a party who already holds the right waits, the counterparty might dispose of the thing or circumstances might change so that actual recovery becomes difficult, and the loss from that can arise; and if the form of claim is pushed too far to the fore, the criticism follows that technical classification takes precedence over the substance of the right. The need to claim in advance is the condition that enables that action to be brought, and the fact of holding the right cannot be regarded as substituting for that condition. The disadvantage of delayed recovery that the counterargument points out remains unerased, while the conditions of the entrance set by the wording are maintained as they are.
In this scene, the facts relevant to this question are limited to the point that A seeks from B delivery of the thing agreed upon, and the point that the draft recorded only a confirmation that the right exists. The performance sought is delivery, and the ordering clause contained in the prayer for relief remains at confirmation; accordingly, it must be matched against the specification of the thing, act, and counterparty sought that stands at the entrance to a claim seeking an order for performance. The materials on the prayer for relief in the complaint, the legal relationship to be confirmed, the present uncertainty, and other means of relief become the record of this comparison. Because no year or amount is fixed in the scene, the determination of whether the need to claim in advance is satisfied is bound up with what ordering clause the claim seeking only confirmation has secured.
What this section permits is only the determination that, for a claim seeking in advance a performance whose time has not yet arrived, the need to claim in advance is required. On the wording alone one cannot prophesy the actual performance outcome of the ordering clause secured, nor can one assert that the description in the prayer for relief immediately obtains delivery. Where the circumstance remains that the ordering clause sought or the present legal uncertainty is not specified, that part is undetermined, and one does not immediately declare relief unavailable on the ground that it cannot be fixed. An action for future performance means an action seeking in advance a performance to be made in the future, and confirmation alone does not take its place. Thus an action for future performance is strictly limited to a claim for performance in which the time for performance had not arrived as of the close of oral argument but the need to claim in advance is recognized.
4.10Fine Distinctions Within the Stage
Accepting the premise that verification of the genuineness of an instrument is a matter the law separately permits and is not the same as establishing the truth of the entire content of a written document, one cannot convert every future uncertainty into a present order for performance. In this scene the performance that Plaintiff actually seeks to obtain and the ordering clause noted in the complaint diverge from each other. This question asks what threshold a claim seeking a future performance must pass. And it asks, together with that, what parts must be separately judged within the entrance to a claim for an order commanding the performance sought, after that threshold has been passed.
The relevant provision answering this question is Article 251 of the Civil Procedure Act. Here the act in question is the bringing of an action claiming performance to be made in the future. The condition is the existence of the need to claim in advance. The subject indicated by this wording is the plaintiff seeking in advance a future performance, the act is the bringing of such a claim, and the condition is the need to claim in advance. Other conditions or requirements of Article 251 lie outside the scope covered in this section.
The requirement of the above provision and the question raised earlier lead to the concept of an action for future performance. The need to claim in advance is the threshold that a claim for future performance must cross to receive the court's examination, and the detailed distinctions after crossing the threshold are a separate determination. The parts to be judged separately within the entrance to a claim for an order commanding the performance sought are limited to the conditions of the case that operates, the case that is blocked, and the case that is undetermined. Where the thing, act, and counterparty sought are specified in the prayer for relief and the requirements for judicial protection (interest in judicial protection) of the chosen form of action are satisfied, a determination of a performance order is possible. Where one wants a performance but the ordering clause secured stops at confirmation of the right, or where the legal interest in confirmation is not recognized, the determination is blocked. Where the ordering clause sought or the present legal uncertainty is not specified, it remains undetermined. These three distinctions are limited to the conditions stated.
Yet a strong counterargument attaches to this distinction. It is that, if one waits for the due date, restoration of the right may be delayed. While the person who must obtain the performance waits for the time to come, the value of the object may change or the counterparty's condition may alter, and if that happens a late judgment cannot protect the substance of the right in time. The criticism that, if the form of claim is pushed too far to the fore, technical classification takes precedence over the substance of the right lies in the same context. Nevertheless, despite that loss and inconvenience, the mere existence of a future claim cannot substitute for the need to claim in advance. The conclusion that the threshold of the need to claim in advance cannot be circumvented is maintained. At the same time, the disadvantage of delay that the plaintiff may suffer is not erased by this conclusion, but remains as the portion left after the need to claim in advance has been satisfied.
In this scene the relevant facts narrow to a few. The thing sought is delivery, and the counterparty is Defendant B. Yet the ordering clause secured stops at confirmation that the right exists. In this case one wants a performance but the ordering clause secured stops at confirmation of the right. If the thing, act, and counterparty sought have been specified in the prayer for relief, the requirements of the case that operates are met; but if it is confirmed that a claim seeking only confirmation has been converted into a lawful claim for performance, the determination of the possibility of a performance order is made again. Because the actual complaint records and judgment results have not been verified, whether the particular ordering clause and the present legal uncertainty have been sufficiently specified is undetermined. The remaining facts cannot be judged from this scene.
The conclusion this section permits is clear. For a claim for future performance the need to claim in advance is required, and the detailed distinctions within the entrance to a claim for an order commanding the performance sought are limited to the stated conditions of the case that operates, the case that is blocked, and the case that is undetermined. The conclusion it does not permit is the path of substituting the existence of a future claim for the need to claim in advance. Nor does this section permit a conclusion that attempts to fix a performance order in advance while the ordering clause sought remains unspecified, or that treats a claim seeking confirmation as a claim for performance and transfers the determination of performance over to it as it stands.
4.11Synthesis of Effectiveness, Blockage, and Undetermination
This passage conveys only the narrow summary obtained at the previous stage while handling verification of the genuineness of an instrument, and carries no argument to be reused for this question. What is asked this time instead is to distinguish, at the entrance to a claim for an order commanding the performance sought, which conditions open, which conditions are blocked, and in which cases the determination remains undetermined. This distinction finds its place only when, going beyond the wording of the prayer for relief, one compares it against the requirements demanded by the form of action chosen.
The statutory text covered in this section concisely sets out the requirement in question. Article 251 of the Civil Procedure Act provides that "An action claiming performance to be made in the future may be brought only where there is a need to claim in advance." (Article 251 of the Civil Procedure Act) In this wording, the subject is the party who wishes to bring an action seeking in advance a performance to be made in the future; the act is the claim for performance brought in advance; and the condition is the case where that need to claim in advance has been satisfied. To widen and expound upon the other issues of this provision would exceed the scope covered in this section; accordingly, this question organizes only the three items listed above. It carries forward from the preceding section the point that verification of the genuineness of an instrument is a matter the law separately permits and is not the same as establishing the truth of the entire content of a written document, but does not take up again the problem of the scope of that verification.
The conditions set by the statutory text and the determination at the entrance operate at different stages. That the need to claim in advance is required means the threshold at which an action for future performance opens; and from the position taken after passing that threshold, one examines whether the thing, act, and counterparty sought are specified in the prayer for relief and whether the requirements for judicial protection (interest in judicial protection) of the chosen form of action are satisfied. Where the ordering clause sought or the present legal uncertainty is not specified, the determination remains undetermined. This is why one must distinguish the time of demand—the demand for a future performance—from the time of performance, namely the due date of the actual performance. The former determines the need to bring the action, while the latter determines the time at which the judgment becomes enforceable; if the two points are blended and read as one, the object of determination at the entrance becomes blurred.
The counterargument attached to this distinction aims at the magnitude of the loss. The counterargument presses strongly on the point that, if one waits for the due date, restoration of the right may be delayed. While awaiting delivery of the thing agreed upon, the value of that thing may fall or the counterparty's property liable to execution may diminish, and the inconvenience is concrete that a later action brought once the due date arrives may find it difficult to make up losses already delayed. The criticism that a determination placing formal classification to the fore gives priority to technical classification over the substance of the right also comes from the same place. Even so, to change the conclusion on account of this inconvenience would substitute the mere existence of a future claim for the need to claim in advance, and that substitution is a change going beyond the scope of this question. Without erasing the loss from delay that the counterargument points out, one maintains at once the place of the statutory text that requires the condition of the need to claim in advance.
Of the facts placed in the synthetic scene, only the parts touching on this distinction are examined. Whether the present legal uncertainty is specified cannot be determined from this scene alone. Instead, the comparison that, if a claim seeking only confirmation is converted into a lawful claim for performance, the determination of the possibility of a performance order is made again, shows that the determination at the entrance differs according to how the ordering clause sought is specified. Because no year, amount, or accrual date has been set in the scene, there are no materials for calculating the magnitude of the delay damages or the point in time of the due date, and such items remain undetermined. Without knowing the facts, service, and performance results of the actual case, one cannot fix the outcome of winning or losing or the results of recovery.
The conclusion this section permits is the distinction that the entrance to a claim for an order commanding the performance opens where the thing, act, and counterparty sought are specified in the claim statement and the requirements for judicial protection (interest in judicial protection) of the chosen form of action are satisfied, and where the condition of the statutory text that the need to claim in advance is required is also met. Where one wants a performance but the ordering clause secured stops at confirmation of the right, or where the legal interest in confirmation is not recognized, that entrance is blocked. Where the ordering clause sought or the present legal uncertainty is not specified, it remains undetermined. What it does not permit is the conclusion that substitutes the mere existence of a future claim for the need to claim in advance, and the reading that places a claim seeking only confirmation as it stands upon the determination of a performance order. Fixing matters by the actual results of payment, delivery, or recovery also lies outside the scope of this section.
4.12Conclusion Carried Over to the Next Section
Leaving aside the distinction that confirmation of the genuineness of a document is a matter the law separately permits to be examined and is not the same as establishing the truth of the entire content of the writing, this section targets the form of the claim and the timing of the performance. In the scene, plaintiff A seeks from defendant B delivery of the object agreed upon, while the draft states only a confirmation that the right exists. What A wants is delivery, and the order sought to be secured was confirmation of the right; a gap therefore remains between the two objects. The question is how the law deals with that gap in advance through the requirement of the need to claim in advance.
The text that answers this question is found in Article 251 of the Civil Procedure Act. Here, an action for future performance means an action seeking in advance a performance that is to be made in the future, and it presupposes that the performance has not yet reached its due date. What the provision structures is the threshold as to whether an action may be brought; its subject is the creditor of the future performance; the act is the bringing of an action claiming that performance be made; and the condition is the need to claim in advance. What the statutory text requires is not the content of the performance but a judgment as to the timing and manner of the claim, and therefore the issues arising under other provisions are not addressed at this point.
This condition is attached because two properties of an action for future performance overlap. One is that it is an entrance for a claim ordering a performance; the other is that its object is a performance that has not yet arisen or has not yet come due. What the former property demands is that the object, act, and counterparty sought be specified in the prayer for relief and that the requirements for judicial protection (interest in judicial protection) of the action so chosen be satisfied; what the latter property demands is asking whether there is reason to bring the matter into court now instead of waiting for that performance. If the two questions are combined into one, a confusion arises of the kind in which the action is given the name of confirmation while an order for delivery is sought. Conversely, where a performance is wanted but the order secured stops at confirmation of the right, or where the legal interest in confirmation is not recognized, the entrance for a claim ordering the requested performance is regarded as not having opened. Converting a claim seeking only confirmation into a lawful claim for performance entails a renewed judgment as to the possibility of a performance order, and this too is a consequence of this distinction.
The inconvenience is considerable. A creditor who has missed the timing passes beyond the point at which the performance could have been received, and while awaiting delivery of the object, it is also difficult to dispose of assets by other means. If the form of the claim is given excessive priority, the criticism that technical classification takes precedence over the substance of the right stands in the same place. Yet this counterargument does not change what the need to claim in advance is. The author's answer is clear: that is, the fact of holding a right and the reason why that right must be received now in an enforceable form are separate judgments, and the method of putting the former forward without the latter judgment has the effect of displacing the requirement.
If this question is compared against only the facts stated in the synthetic scene, what A wants is delivery of the object agreed upon, and the order stated in the draft is confirmation that the right exists. As for delivery, the object and the counterparty sought appear to be capable of specification, but how the prayer for relief in the complaint, the legal relationship to be confirmed, the present unease, and the materials concerning other remedies were arranged within the same records has not been determined here. Accordingly, whether the need to claim in advance is also recognized with regard to a performance whose due date has not yet arrived cannot be decided on the materials alone. Where the order sought or the present legal unease is not specified, the matter remains undetermined. The fact that the materials are insufficient does not immediately mean that no relief is available, and this section does not treat a comparison with altered conditions as though it were a fact that actually occurred.
In sum, a performance that has not yet reached its due date can be sought in advance only once the requirement that the need to claim in advance be demanded is cleared. That requirement concerns not the existence of the performance but the reason for handling the matter in court now, and an order seeking only confirmation does not open this door in its place. The conclusion permissible within this framework is one predicated on the specification of the prayer for relief and satisfaction of the requirements for judicial protection (interest in judicial protection) of the action so chosen, and a conclusion that seeks to displace that judgment merely by the existence of a future claim is not permitted. By contrast, the outcome of an actual case or the success of delivery cannot be determined at this point. Moreover, in an action for formation whereby the judgment itself alters an existing legal relationship, the requirements of legal basis are demanded all the more strictly.