Summary
Until service, the facts establishing the starting point, and the applicable rule are established, no expiry date is constructed and written for a case.
6.1The Standard by Which the Path Opens
At a place where a single day's error in a date closes the door to relief, an unverified date is easily written as if it were a fact. What must first be fixed in order to write the expiration date, and by what standard this channel of relief opens, is the question now at hand. As set out above, the conclusion has already been reached that the cause of the failure to observe the invariable period and the time of its removal must be linked to the requirements for subsequent supplementation; taking up that conclusion, the present step confines itself to what conditions that link requires in order to open the door. In the synthetic scene, plaintiff A says that he sought to exercise his right, and Defendant B argues that he was late, but the time of service and the time at which the right could be exercised are disputed. This dispute is precisely the vacant place where an unverified date may enter.
One of the statutory provisions corresponding to this question is Article 396 of the Civil Procedure Act. That Article provides, "An appeal shall be taken within two weeks from the day on which the written judgment is served; provided, that it may be taken even before service of the written judgment," and in the following paragraph declares the period of the same paragraph (1) to be an invariable period. Here, the subject indicated by the text is the party wishing to take an appeal, the act is the filing of the appeal, and the conditions are service of the written judgment and compliance with the period of two weeks from that time. Service is the fact that opens the commencement, two weeks is the period attached to that fact, and the character of being an invariable period means that the period can be neither extended nor shortened. Issues arising under other provisions are not addressed.
The reason this text requires the commencement fact and the period as a single package is that the calculation of expiration itself is possible only on the foundation of that fact. Article 166 of the Civil Act provides, "An extinctive prescription commences when a right may be exercised," thereby making clear that the point at which a right may be exercised is the starting point of the running of prescription. The two provisions touch each other in that each requires the point in time of commencement, but one deals with the invariability of a procedural period while the other deals with the starting point of prescription, and so neither can take the place of the other. Accordingly, where the commencement fact and the period are linked to a ground for interruption or subsequent supplementation so that the exercise of the right in question is permitted, the entrance to this relief opens. This adjudication stands upon distinguishing the two stages at which the linking of grounds and the specification of the claim are put in place together.
The strongest counterargument is aimed at the point that without an exact date the reader has difficulty deciding how to act, and that the strictness of a period may shift onto the right-holder even an obstacle that the right-holder could not control. This loss and inconvenience are indeed great. However, the line that must be drawn in this question is that no service date or expiration date may be added to the unsettled synthetic case. To obtain guidance for action by inventing and inserting dates is to stand the reader upon assumptions rather than upon confirmed facts.
In the synthetic scene, the facts relevant to the present question are that the confrontation of the two parties reaches the time of service and the time at which the right could be exercised, and that these two points are disputed. Proof of service means the material that shows the fact of service under law. This comparison shows only that the expiration can be written once the commencement fact stands, and which date is correct is not determined in this scene. Because it cannot be fixed, the expiration remains undetermined.
What this section permits as a conclusion is that the entrance opens only after the commencement fact and the period, and the linking of grounds and the specification of the claim, stand together; what it does not permit is writing a date prior to its confirmation as a fact and asserting the expiration. Accordingly, an unverified date is not placed in position but is left on the list of items awaiting confirmation.
6.2The Conditions That Block Relief
Where a single day's error blocks relief, an unverified date easily appears to be a fact. As set out in the preceding section, where the commencement fact and the period of the applicable rule are linked to a ground for interruption or subsequent supplementation so that the exercise of the right in question is permitted, this relief operates. What must then be asked is the condition under which that relief is blocked. In such a state, what must first be fixed in order to write the expiration date?
Among the texts corresponding to this question, Article 396 of the Civil Procedure Act states the commencement of an appeal and its nature as follows. "An appeal shall be taken within two weeks from the day on which the written judgment is served." It then states, "The period under paragraph (1) shall be an invariable period." This text places the starting point of the period at the date of service of the written judgment, and the nature of that period as an invariable period. The fact of service of the written judgment functions as the commencement fact precisely at this point, and if service is not confirmed, that date cannot be taken as the commencement fact.
Article 166 of the Civil Act states, "An extinctive prescription commences when a right may be exercised." This text takes the time when a right may be exercised as the starting point of prescription. Placing the two texts together, before calculating a period one must first determine what the beginning of that period is placed upon. The condition under which this relief is blocked can only be adjudicated after such a determination has first been made. Where the commencement fact and the period of the applicable rule are not linked to a ground for interruption or subsequent supplementation, and the requirements for relief applicable in that procedure, such as interruption and subsequent supplementation, are also not satisfied, this relief is blocked.
Without an exact date, the reader has difficulty deciding how to act. Unless the commencement date and the expiration date are placed together, the reader cannot know by what point in time he must do what, and that uncertainty becomes a share borne as it is by the right-holder. The concern that the strictness of a period may shift onto the right-holder even an obstacle that the right-holder could not control also arises at this point. Yet even so, no service date or expiration date may be added to the unsettled synthetic case. The inconvenience described above cannot be remedied by inventing and inserting an unverified date; on the contrary, that date takes its place as though it were a fact.
In the synthetic scene, the fact fitting this question is that the time of service and the time at which the right could be exercised are disputed. Contrasting this state with the conditions above, so long as the commencement fact is disputed, the point at which that relief is blocked cannot be fixed. In this scene, proof of service, material on the time at which the right could be exercised, the claim, acknowledgment material, and material on the removal of the obstacle serve as the materials of adjudication. If the date of service or the time at which the obstacle was removed is shown differently, the existing expiration adjudication is discarded and the calculation table is fixed anew from the start.
What this section permits is the distinction that where the period in question has been exceeded and the requirements for relief applicable in that procedure, such as interruption and subsequent supplementation, are also not satisfied, this relief is blocked. This distinction is conditional, and it does not permit assigning a service date or an expiration date to the unsettled synthetic case and writing that the expiration occurred on some date. Where the commencement fact or the applicable special provision is disputed so that the expiration cannot be fixed, the matter is left in a state in which it cannot yet be determined whether that relief is blocked. This section deals only with the conditions of expiration, and it does not fix where the boundary lies that cannot be adjudicated for lack of material.
6.3The Boundary That Remains When There Is No Data
What must first be fixed in order to write the expiration date? The premise is that the cause of the failure to observe the invariable period and the time of its removal must be linked to the requirements for subsequent supplementation. Leaving this premise as it stands, this stage asks what consequences are called forth by the act of transferring a date onto paper in a state where it is not even known whether that link is possible. Whether the requirements dealt with in the preceding stage are linked has not yet been fixed, and so the analysis here first examines what the materials of adjudication require.
Reading the relevant texts first, Article 396 of the Civil Procedure Act requires that an appeal be taken "within two weeks from the day on which the written judgment is served" and sets that period as an invariable period. This text binds the beginning of the period to the fact of service, which is the subject of application of that Article. Likewise, Article 166 of the Civil Act provides that "an extinctive prescription commences when a right may be exercised," thereby connecting the start of prescription to the state in which the right may be exercised. The subjects indicated by the two texts are respectively the person wishing to take an appeal and the person wishing to exercise a right; the acts are the filing of the appeal and the exercise of the right; and the conditions are the occurrence of service and the arising of the possibility of exercising the right. The expiration date is the result obtained by appending a length fixed in advance to the time of occurrence of such conditions; accordingly, where the time of the condition has not been determined, no expiration date exists.
Therefore, in order to write an expiration date, the commencement fact and the rule to be applied must first be fixed together. The commencement fact means a fact such as the occurrence of service that sets the period in motion, and the rule to be applied means which period provision governs in this case. Only when these two are combined are the starting point and the length of the calculation determined, and only then does a single date, the expiration date, come into being. The determination already made is that where the commencement fact or the applicable special provision is disputed so that the expiration cannot be fixed, the item of those materials of adjudication that is not specified is left as undetermined, distinguished from impossibility. Here, impossibility means a case in which calculation is impossible even though the material exists, and undetermined means a case in which what the material itself is has not yet been specified. If these two are mixed, an item of the undetermined will read as though it were a defect making calculation impossible, and so a distinction recorded by separating the two stages is required.
This distinction does not stop at the organization of records; it touches upon real inconvenience. The counterargument that without an exact date the reader has difficulty deciding how to act comes home with particular weight in a procedure where a difference of one day divides relief from no relief. A marking that the period has passed by one day alone can appear as something missed, while conversely a marking that one day remains becomes a signal to hurry. If a date is left blank, the reader is unable to move in either direction, and in the meantime only the anxiety as to whether the right is extinguished accumulates. The fact that the strictness of a period may shift onto the right-holder even an obstacle that the right-holder could not control also feeds this anxiety. This is because the accuracy obtained by filling in an unverified date is only an appearance, and that marking becomes not the ground of the adjudication but a newly made fact disguised as a ground.
The fact confirmed in this scene is only that the assertions of the claim and the assertions of the defense collide, and the point of that collision is precisely the date of service and the time at which the right could be exercised. In the scene, neither the year, nor the amount, nor the commencement date is set, and so no date can be fixed from the scene alone. The kinds of material that can be confirmed are fixed only as proof of service, material on the time at which the right could be exercised, the claim and acknowledgment material, and material on the removal of the obstacle, and it is not even known whether these materials actually exist. Accordingly, the adjudication in this scene remains within the scope that no expiration date of the case shall be invented and written before service, the commencement fact, and the applicable rule are fixed, and as to when the expiration date is, it remains undetermined. If the date of service or the time at which the obstacle was removed is confirmed differently, the existing expiration adjudication will change.
What this section permits is that conditional distinction, and what it does not permit is an expiration date written without conditions. What is fixed is the premise that the expiration date can be written only once the commencement fact and the applicable rule are fixed, and the distinction that an item for which that determination is lacking is left as undetermined rather than as impossibility. From the circumstance alone that it cannot be fixed for want of material, one can neither assert that the door to the exercise of the right has closed, nor assert that the door stands open. Items remaining in a state where what the materials of adjudication are has not been specified must be recorded exactly as they stand.
6.4The Records Needed for Determination
The preceding section left the adjudication as undetermined where the commencement fact or the applicable special provision is disputed so that the expiration cannot be fixed, and distinguished this from the case in which relief is blocked. This question does not ask for the value of the date to be fixed; it belongs to the work of sorting out what the material serving as the ground for that determination is.
The skeleton of the records on which this adjudication rests can be read out of the two texts. Article 396 of the Civil Procedure Act requires that an appeal be taken "within two weeks from the day on which the written judgment is served" and sets that period as an invariable period. Article 166 of the Civil Act sets the starting point by providing that "an extinctive prescription commences when a right may be exercised." The former takes the fact of service and its day, and the latter the time at which the right could be exercised and its state, respectively as the ground.
Accordingly, this adjudication rests on proof of service, material on the time at which the right could be exercised, the claim and acknowledgment material, and material on the removal of the obstacle. Proof of service means the material that shows the fact of service under law, and only when material on the time at which the right could be exercised is added to it does the commencement fact attach. The fact that the texts of commencement quoted above differ from one another means that the items of the records to be determined are not unified into one. If any one of these four strands of records is blank, the adjudication does not reach a conclusion and remains undetermined.
This requirement leaves the inconvenience that it gives no immediate answer to the person in practice who needs a date. Without an exact date the reader has difficulty fixing the time of action, and a single day's error may divide relief from no relief. Yet in a setting where the commencement fact is disputed and the applicable rule diverges, fixing and writing down a date comes closer to the making of new material. If the date of service or the time of removal of the obstacle is still disputed, no service date or expiration date may be added to the unsettled synthetic case.
In the synthetic scene, plaintiff A says that he sought to exercise his right, and Defendant B argues that he was late. Yet the time of service and the time at which the right could be exercised are disputed, so it is difficult to treat either account as fixed. The expiration date itself cannot be adjudicated from the scene alone, and so this item remains undetermined.
An adjudication for which the material has not been filled in remains undetermined. What is not permitted is supplementing the material and writing in a confirmed date on the sole ground that a date is needed. This boundary likewise differs from reading a lack of material straightaway as an impossibility of relief. If the relevant facts are confirmed differently, the adjudication changes.
6.5Circumstances That Change the Decision
Before expiry is dealt with, the clues that link the two are examined. By now, however, one must also look back at the basis on which that date was calculated. When a fact is newly confirmed, one considers whether the existing expiration date must be rolled back.
To answer this question, one must first read the wording of the commencement fact that the applicable rule requires. Civil Procedure Act Article 396 provides in paragraph (1) that "An appeal shall be taken within 2 weeks from the day on which the written judgment is served; however, it may be taken even before service of the written judgment," and adds in paragraph (2) that "The period under paragraph (1) shall be an invariable period." This wording shows at once that the act is an appeal, the actor is the party taking the appeal, the condition is the commencement fact that the written judgment is served, and the limitation is the period of within 2 weeks. As another commencement rule, Civil Act Article 166 separately sets the commencement point of extinctive prescription in paragraph (1) and the commencement point of claims whose object is an omission in paragraph (2). This passage, however, serves only to compare the wording of prescription commencement, and is not broadened to the problem of computing the appeal period.
The reason one can write the expiration date only once the fact of service is confirmed is that the order of the commencement fact and the result of the calculation is such. Once the date of service is fixed, the expiry of the period measured from that day is determined, and only after that expiry has first been established can one judge whether the exercise of the right fell within the allotted time. The order of confirmation therefore does not run in reverse. A determination of expiry is a result derived from the confirmation of the commencement fact, not a formula in which one first settles on a date convenient to the reader and then adjusts matters to fit. If the relevant facts are confirmed differently, the existing assessment of preclusion and effectiveness changes.
The most forceful counterargument targets such practical inconvenience, and the point that the strictness of a period can shift onto the right-holder even obstacles beyond the right-holder's control. The concern is that, for a person who let the period pass while the fact of service remained unknown, the absence of a date leads straight to an adverse result. Even recognizing the disadvantage the counterargument points out, the judgment this section handles is narrow. It is not permitted to assist the reader's action by turning the undetermined into a settled fact.
In the synthetic scene, the facts relevant to this question are limited. On this scene alone, neither the date of service nor the time at which the right could be exercised is confirmed. All that can be confirmed is the fact that the date of service is disputed, and one cannot fill in the expiration date by asserting a disputed date.
Accordingly, the conclusion this section permits is confined to a conditional one. Until service, the commencement fact, and the applicable rule are confirmed, one does not invent and write the expiration date of the case. What is impermissible is inserting into the text a date that appears to be a confirmed fact.
6.6The Strongest Counterargument and the Answer
The wording fixes two facts. Civil Procedure Act Article 396 provides that "An appeal shall be taken within 2 weeks from the day on which the written judgment is served," and makes that period an invariable period. Here the commencement fact is service of the written judgment, and the applicable rule is the 2 weeks from that date of service. The actor the wording designates is the party who wishes to take an appeal, and the act is the taking of an appeal.
Thus, in a scene where the date of service is undetermined, writing an expiration date amounts to filling in the elements of this wording in reverse. Civil Act Article 166 provides that "Extinctive prescription runs from the time when the right can be exercised," and this shows the same order. The commencement fact of the time when the right can be exercised comes first, and the period runs from that time. The commencement fact and the applicable rule are inputs to the calculation, not values derived from its result.
The counterargument that without an exact date the reader has difficulty deciding how to act targets a real loss. In a scene where the date of service of the written judgment and the time at which the right could be exercised are disputed, the reader cannot fix by when and what must be done, and hopes the adjudicator will offer an expiration date. Yet if one writes an unconfirmed date as though it were settled, that error can, on a day-by-day basis, reverse the availability of relief. The confirmed conclusion is that one cannot add the date of service or the expiration date of an unset synthetic case.
In the synthetic scene, the only facts confirmed are that the assertion that the claim was late stands against the statement that the right was exercised, and that service and the time at which the right could be exercised are disputed. The criteria set against these are proof of service, that is, materials indicating the fact of statutory service, and materials on the time at which the right could be exercised. So long as these records are not filled in, expiry cannot be confirmed, and the unconfirmed state remains a state of undetermination, not of irremediability.
The conclusion permitted in this section is that until service, the commencement fact, and the applicable rule are confirmed, one does not invent and write the expiration date of the case. What is impermissible is writing an unconfirmed date of service or expiration date as a fact, and asserting that relief is closed merely because the materials are empty.
6.7The Link to the Application and the Dispositive Part
The preceding section took up the premise that one cannot add the date of service or the expiration date of an unset synthetic case, but that alone does not reveal what should be filled into the date slot. The present question asks what must be confirmed immediately before the expiration date of the case is transcribed into the document. In a scene where the date of service is disputed and the time at which the right could be exercised is undetermined, no date yet exists that the reader can copy down without judgment.
The wording begins from the provision designating the point in time for computing the expiration date. Civil Procedure Act Article 396 paragraph (1) provides that an appeal shall be taken within 2 weeks from the day on which the written judgment is served, with the proviso that it may be taken even before service of the written judgment (Civil Procedure Act Article 396). Here the actor is the party who wishes to take an appeal, the act is the taking of an appeal, and the commencement fact of the period is service of the written judgment. Paragraph (2) of the same Article declares the period under paragraph (1) an invariable period (Civil Procedure Act Article 396). Unless the fact of service is confirmed, the reference point from which to count is not even established.
On the other hand, Civil Act Article 166 paragraph (1) provides that extinctive prescription runs from the time when the right can be exercised (Civil Act Article 166). Paragraph (2) of the same Article sets a separate commencement point, providing that extinctive prescription of a claim whose object is an omission runs from the time of the act of violation (Civil Act Article 166). The wording of these two provisions shows distinctly that the commencement fact of the appeal period is service, while the commencement fact of extinctive prescription is the time at which the right could be exercised or the act of violation. The conclusion that until service, the commencement fact, and the applicable rule are confirmed one does not invent and write the expiration date of the case arises from precisely the requirement that these two stages must not be mixed. Writing down only the last day of a period without fixing which standard fact is to be counted is not a calculation; it comes closer to the fabrication of a date.
The counterargument that without an exact date the reader has difficulty deciding how to act is, from the standpoint of one hastening to realize a right, a fair worry. If one exceeds an invariable period by a difference of a single day, the way to the appellate court may thereby be closed, and a person who does not know which day is the expiration wavers even when submitting preparatory documents. The concern that the strictness of a period can shift onto the right-holder even obstacles beyond the right-holder's control lies in the same context. Since a date invented to relieve the inconvenience the counterargument indicates rather produces misreading, it is more favorable to the right-holder as well to leave as unconfirmed what cannot be confirmed.
Proof of service means materials indicating the fact of statutory service and, together with materials on the time at which the right could have been exercised, forms the records for the determination of the expiration date. Yet this scene fixes no year, no amount, and no commencement date, and the date of service and the time at which the right could be exercised are themselves disputed. Thus, at present, when the commencement fact and period of the applicable rule are unconfirmed, the expiration date of this case remains a matter that cannot be determined.
What this section permits is the judgment that service, the commencement fact, and the applicable rule must first be confirmed; what it does not permit is inserting a date before those three are settled. The place where one would write the expiration date is rather left empty as the place for a list of materials to check—that is, proof of service, materials on the time at which the right could be exercised, claim and approval materials, and materials on the removal of the obstacle. One does not say that realization of the right is straightaway barred merely because the materials are insufficient, nor does fabricating an unconfirmed date open the channel of procedure.
6.8The Scope This Section Undertakes
In this scene the expiration date is not the result of a calculation but merely a notation laid upon confirmed facts. The preceding section concluded that until service, the commencement fact, and the applicable rule are confirmed, one does not invent and write the expiration date of the case. Yet to examine how that conclusion connects with its premise, one must look at which facts must first take their place before the act of writing an expiration date.
As to this question, the wording begins from two provisions. Here the actor the wording designates is the party who wishes to take an appeal, the act is the taking of an appeal, and the condition is within 2 weeks from the day on which the written judgment is served. In this sentence, 'the day on which it is served' is the starting point of commencement, and the 2 weeks is a period that runs without counting that day.
Civil Act Article 166 paragraph (1) declares, "Extinctive prescription runs from the time when the right can be exercised." This wording takes not service but the possibility of exercising the right as the standard of commencement. The reason the two wordings are placed side by side is that the preceding section's conclusion shares the structure that, whatever the period that is the object of calculation, its starting point—the commencement fact—and the applicable rule must first be confirmed. Whether it is the date of service or the time at which the right could be exercised, writing an expiration date upon an unconfirmed fact is not calculation but conjecture. The premise that the cause of failing to observe the invariable period and the time of its removal must be connected to the requirements for subsequent supplementation holds precisely on the assumption of this order of confirmation.
The fact that this order cannot be handled without an exact date is a practical inconvenience. To decide to act within a time limit the reader needs a date, and the limitation that one cannot add the date of service or the expiration date of an unset synthetic case is a factor that delays that decision. Still the conclusion stands. The moment one fabricates a date to fix the time limit, what service, the commencement fact, and the applicable rule were ceases to be a subject of examination, and the error can be repeated. The concern that the strictness of a period can shift onto the right-holder even obstacles beyond the right-holder's control likewise does not disappear, but its remedy lies not in the substitution of unconfirmed facts but in the path leading to the requirements for subsequent supplementation.
In the synthetic scene, the facts corresponding to this question are only that service and the time at which the right could be exercised are disputed. Proof of service means materials indicating the fact of statutory service, and together with materials on the time at which the right could be exercised, claim and approval materials, and materials on the removal of the obstacle, these compose the scope of the records. Yet in this scene no year and no commencement date are fixed. Accordingly, whether the state is such that the expiration date can be moved into a calculation table, or whether it must be left undetermined, cannot be judged from the scene alone.
What this section permits is marking the expiration date only where the confirmed commencement fact and applicable rule are at hand, and, before that, examining together whether the cause of exceeding the invariable period and the time of its removal connect to the requirements for subsequent supplementation. What is not permitted is appending a date of service or an expiration date to an unset synthetic case, and describing that date as a fact of an actual case. Unconfirmed values remain undetermined, and the narrow conclusion is maintained as it is. How do the wordings of Civil Procedure Act Article 396 and Civil Act Article 166 support this conclusion?
6.9Application of the Text of the Provisions and the Holdings of Precedents
For that premise to hold, first of all the facts underlying commencement and expiry must be settled.
The wording that can answer this question is found in Civil Procedure Act Article 396. The provision states that "An appeal shall be taken within 2 weeks from the day on which the written judgment is served," and the proviso of the same paragraph adds that it may be taken even before service of the written judgment (Civil Procedure Act Article 396). The actor this wording designates is the party who wishes to take an appeal, the act is the appeal, and the condition is the computation of the day on which the written judgment is served and the 2 weeks. Without 'the day on which it is served' here, neither the beginning of the 2 weeks nor its end can be written. The provision declares in paragraph (2) the period under paragraph (1) an invariable period (Civil Procedure Act Article 396). What this section handles is the relation between this wording's commencement fact and the computed date, not the whole of the requirements for an appeal.
Civil Act Article 166 shows the same grain from another direction. The provision states, "Extinctive prescription runs from the time when the right can be exercised" (Civil Act Article 166). The expression 'the time when the right can be exercised' means that prescription does not roll on by itself merely by dates on a calendar. For the commencement point is established only after the fact of whether exercise is possible is first confirmed. That Civil Procedure Act Article 396 hangs commencement on the fact of service, while Civil Act Article 166 hangs commencement on the fact of possibility of exercise, demands two distinct stages of judgment. If the fact of service and the fact of possibility of exercise are merged into one, the condition designated by each wording is erased. If, while these two facts and the applicable rule are unconfirmed, one writes the expiration date in as a number, that number is not the calculation of the provision but a date newly invented by the editor.
The counterargument that without an exact date the reader has difficulty deciding how to act aims most strongly at precisely that inconvenience. Where the door of relief closes on a difference of one day, if the date is left blank, one who wishes to exercise the right cannot know by when and what must be done. That loss returns not as something theoretical but as opportunities missed in actual procedure. The concern also operates that the strictness of a period can shift onto the person who sought to preserve the right even a delay in service or a defect in the records beyond that person's control. Without erasing this disadvantage, the answer is nevertheless bound to a set range. One cannot add the date of service or the expiration date of an unset synthetic case. This means that the state of a blank date cannot be resolved by manufacturing an exact date to fill it, and the reader's unease does not disappear. Only, what this section can confirm is not the sentence 'by when,' but the boundary that before confirmation one cannot write that sentence.
In this synthetic scene the confirmed facts are brief. The facts contrasted with this scene are that both the fact of service and the time at which the right could be exercised are disputed. Disputed means not settled, and upon a not-settled fact one cannot write an expiration date. Since no year, no amount, and no commencement date is set in the scene, the values necessary for the calculation do not themselves exist. Since the existence of records is not confirmed, when any materials were created cannot be confirmed in this scene either. Thus this scene confirms only that the expiration date cannot be determined; it yields neither the conclusion that expiry has occurred nor the conclusion that expiry has not occurred.
Dividing the conclusions this section permits from those it does not permit, it is as follows. The conclusion that one does not write an expiration date until the three—the fact of service, the time at which the right could be exercised, and the applicable rule—are confirmed can be written. Conversely, the conclusion of fixing and writing a single expiration date while those three are unconfirmed, or of asserting that relief is barred on the basis of a date prior to confirmation, cannot be written. So long as this condition does not change, the foregoing boundary is likewise maintained. What does proof of service mean in this judgment?
6.10Fine Distinctions Within the Stage
Following the premise that, until the facts of service and of commencement and the applicable rule are established, no expiration date is invented and written down for a case, this section addresses the question of what must first be established before recording the expiration date. To fix a date in this state, the fact of service must be verified first. The scope of this question is to explain why this verification becomes the starting point for the remaining procedural determinations.
Looking first at the text that serves as the standard for determining the expiration date, Article 396 of the Civil Procedure Act provides: "Article 396 (Period for Appeal) (1) An appeal shall be made within 2 weeks from the day the written judgment is served. However, an appeal may also be made before the written judgment is served. (2) The period under paragraph (1) shall be an invariable period." This text places the actor of the act of appeal as the person wishing to appeal, and links the fact that commences that act to the service of the written judgment. Accordingly, to calculate the start of the period, the fact that service has taken place must be verified from the materials. If this text is applied as it stands without verification of the fact of service, the reference point for the date cannot be fixed. What Article 396 of the Civil Procedure Act points to is not the other procedural effects of this provision but the text as written, which takes the date of service as the point of commencement.
Distinguishing how what proof of service means connects with the text above makes the matter clear. What this material verifies is the fact that service took place, and that fact itself does not mean the point in time at which the right may be exercised or the establishment of the expiration date. Article 166 of the Civil Act provides: "Article 166 (Point of Commencement of Extinctive Prescription) (1) Extinctive prescription runs from the time when the right may be exercised. (2) Extinctive prescription of a claim whose object is an omission runs from the time of the violating act. [Simple unconstitutionality, 2014Hun-Ba148, August 30, 2018; in the Civil Act (as enacted by Act No. 471 on February 22, 1958), the part of Article 166 (1) that applies to the cases prescribed in Article 2 (1) 3 and 4 of the "Framework Act on Clearing Up Past Incidents for Truth and Reconciliation" is unconstitutional.]" In other words, the fact that commences prescription is the time when the right may be exercised, and this text reveals why the fact of service and the point in time at which the right may be exercised are each separate objects of verification. Proof of service is limited to material that represents the former of these two, namely the legally recognized fact of service.
It cannot be denied that without an exact date it is difficult for the reader to decide how to act. In a situation in which, with regard to the actual exercise of a right, a discrepancy of one day can reverse whether relief is available, if the date is left blank it is difficult for both the parties and the reader to judge whether they must act now or wait. If an unestablished date is filled in arbitrarily, the expiration judgment that the date produces will operate as the standard that determines the right and wrong of the subsequent exercise of the right. This amounts to accepting the disadvantage of producing a judgment not grounded in established facts, instead of protecting the benefit of knowing the date.
Contrasting the facts of the synthetic scene with the foregoing conditions, Plaintiff A states that he or she attempted to exercise the right and Defendant B asserts that he or she was late, but the service and the point in time at which the right could be exercised are in dispute. What is set in this scene is only the shape of the allegations and the dispute; when service occurred, at what point the right could be exercised, the year, the amount, and the date of commencement are all left undetermined. Whether such records were actually collected, and records of what date they are, is unverified. A state in which these conditions have been altered must not be described as though it were an actual case that occurred, nor can an expiration date be established on the basis of facts absent from the scene.
The conclusions this section permits are that proof of service means material representing the legally recognized fact of service, and that, until the facts of service and of commencement and the applicable rule are established, no expiration date for the case is invented and written down. In other words, the object of verification for proof of service is the fact of service; the point in time at which the right may be exercised, and the establishment of the expiration date, are matters to be verified thereafter. This conclusion does not mean, however, that once the fact of service is verified the expiration date is established immediately. Supplementing a date that has not been established, or asserting definitively the outcome of an actual case, also falls outside the scope of this conclusion. How are the operation, the blocking, and the undetermined state of an exercise of a right within a fixed time distinguished?
6.11Synthesis of Effectiveness, Blockage, and Undetermination
On the premise that the cause of failure to observe an invariable period and the point at which it is resolved must be linked to requirements for later cure, there remains the problem of distinguishing whether an exercise of a right within a fixed time becomes effective, is blocked, or still remains undetermined.
The relevant text, in fixing the period for the procedural exercise of a right that is an appeal, discloses both the fact that commences it and its nature. Article 396 of the Civil Procedure Act provides that "an appeal shall be made within 2 weeks from the day the written judgment is served," and the proviso to the same paragraph leaves open that an appeal may also be made before the written judgment is served. The succeeding paragraph (2) declares that the period under paragraph (1) shall be an invariable period. The text designates, respectively, the day the written judgment is served as the fact of commencement, the appeal as the act exercising the right, and 2 weeks as the period, and the proviso attaches only the condition of the possibility of exercise before service (Article 396 of the Civil Procedure Act).
Article 166 of the Civil Act defines the point of commencement of prescription as "extinctive prescription runs from the time when the right may be exercised." The reason for placing these two texts side by side is that the starting point of the expiration judgment differs according to what the fact of commencement is. A procedure in which a particular fact, the date of service, is the point of commencement, and prescription in which the state of the right being exercisable is the point of commencement, carry different meanings even for the same date. Accordingly, to write down an expiration date, it must first be established what the fact of commencement and the period of the applicable rule are, and whether a cause for interruption or later cure is connected to that exercise of the right. Under these criteria, the condition under which the door opens is the case in which the fact of commencement and the period are connected to a ground for relief and the exercise of the right is thereby permitted (Article 166 of the Civil Act).
Despite such disadvantages, one cannot add a date of service or an expiration date to a synthetic case that has not been set. This view chooses to exclude the latter risk, between the loss of the reader's being deprived of information to gauge the time before and after the deadline and the error of a guessed date being used as though it were source material. It does not, however, make light of the blank that an unverified date leaves. The answer to this problem remains, rather than deferring the judgment, to draw the distinction conditionally within the scope where materials exist. The condition under which the door closes is the case in which the period has lapsed and the requirements for relief, such as interruption or later cure, applicable to that procedure are likewise not satisfied.
Contrasting the synthetic scene with the foregoing conditions, the very fact that the service and the point in time at which the right could be exercised are in dispute shows the limit of the facts that can be established in this section. Yet since no date of commencement is set in the scene, it cannot be established which date is the date of service, or at what point the right could have been exercised. Consequently, on the basis of this scene alone, whether an expiration has arisen cannot be determined, and it remains undetermined as a case in which expiration cannot be established because the fact of commencement or the applicable special provision is in dispute.
The conclusion this section permits is that the effectiveness of an exercise of a right is spoken of only within the scope in which the fact of commencement and the period of the applicable rule, and the connection of a ground for relief, have been verified, and that blocking is spoken of within the scope in which that connection is severed. What is not permitted is the attitude of inventing and inserting an expiration date without materials, or of asserting a conclusion on the premise of a disputed fact of commencement. Unestablished records are left in an undetermined state, nor is their insufficiency read at once as an inability to obtain relief.
6.12이 권의 결론과 남는 물음
This section accepts the distinction, drawn in the preceding section, that when the fact of commencement and the applicable special provision are in dispute, an expiration cannot be established. The reader who encounters this confrontation asks what must be done by when. Only when the fact of service and the fact of commencement, and which period rule is to be applied to those facts, are determined together, can the computed date finally be spoken of.
The provision relevant to this question regulates together the fact of commencement of an appeal and the nature of its period. Article 396 of the Civil Procedure Act states that "an appeal shall be made within 2 weeks from the day the written judgment is served," making clear that the actor is the party wishing to appeal, the act is the appeal, and the condition is that it be an exercise of the right within the fixed period after the fact of commencement, namely the service of the written judgment, has occurred. Moreover, the text that "the period under paragraph (1) shall be an invariable period" is a provision to the effect that this period has the quality of not being extended or shortened. These two things alone are contained in the provision; when the fact of commencement actually arose is not established by the text alone.
A person seeking an expiration date must first establish the fact of commencement and the applicable rule, and then apply the period. Article 166 of the Civil Act provides that "extinctive prescription runs from the time when the right may be exercised," entrusting the start of its running to a separate fact, the point in time at which the right may be exercised. The fact serving as the starting point differs between this text and the commencement by service examined above. The reason the author divides the two stages is that, while it is undetermined which day is to be taken as the basis, the calculation of adding a period cannot guarantee the meaning of the result. Therefore, until the facts of service and of commencement and the applicable rule are established, no expiration date for the case is invented and written down.
The counterargument that without an exact date it is difficult for the reader to decide how to act aims most forcefully at the practical benefit of judgment. If the right-holder does not know the deadline, he or she cannot decide when to file, and the practical inconvenience of fixing the timing of correction or submission remains as it is. This section does not erase such inconvenience and gain. The provisional guidance obtained by borrowing and filling in a date also leaves the impression that the date is a fact, and when that impression is cited without verification, it gives rise to an even greater error.
What is confirmed in the synthetic scene is the single fact that the service and the point in time at which the right could be exercised are in dispute. Without securing material representing the legally recognized fact of service, that is, proof of service, if the time of service is contested, the expiration of the period that must take that time as its point of commencement likewise cannot be established. Since no year or date of commencement is set in the scene, which date must be taken as the basis cannot be judged on the basis of this scene alone and remains undetermined.
Accordingly, what this section permits is the judgment that an expiration date may be written down only after the fact of commencement and the applicable rule have been established, and that arbitrarily filling in an unverified date is not permitted. Marking as unverified those dates that remain unestablished does not weaken this conclusion but follows its requirement. What claims can be gathered into a single action is not a question this section answers. If they are related claims, can they be raised together in any procedure?
Statutes referred to
Questions left open
- To what extent does the law reflect an obstacle unknown to the right-holder in the calculation of time?
- Upon whom falls the burden of lapse of a period and the loss of evidence?
- What are the minimum facts required for automatic calculation of a deadline?