Summary
A disallowance of an amendment is distinguished as a procedural determination of the appropriateness of that amendment.
4.1The Standard by Which the Path Opens
The conclusion that a new demand has been blocked must not be broadened into a denial of the existing right. An amendment of the statement of a claim follows the procedure of a written application and service on the opposing party. Having followed the procedure confirmed above, Plaintiff A, who had claimed delivery of an object, came to seek damages as well, and Defendant B intends to raise a related claim by counterclaim. In this scene, where the new demand and the existing demand are placed within a single lawsuit, the question asks why the issue of whether the court will permit the incorporation of that demand must be treated separately from the existence or nonexistence of the claim already filed. If the amendment is not permitted, does the original claim also disappear? This question takes as its premise that the standard for the passage through which a new demand enters and the effect when that passage is closed do not mix with one another.
Article 263 of the Civil Procedure Act provides that "where the court finds that an amendment of the purport or grounds of a claim is not proper, it shall, ex officio (by the court's own authority) or upon application of the opposing party, render a decision not permitting the amendment." What this provision designates is as follows: the actor is the court; the subject of determination is whether the amendment of the purport or grounds of a claim is proper; and what is issued as a result is a decision not permitting it. Here, the purport of a claim is the part that specifies the performance demanded, the parties, and the conditions, and the grounds of a claim are the basis supporting that demand. This provision deals only with the propriety of the amendment itself and says nothing about the existence or nonexistence of a right in the existing claim.
What must be distinguished together with this wording is the nature of non-permission of an amendment. Non-permission of an amendment is a decision that blocks an impermissible amendment of a claim, and it is distinguished as a procedural determination concerning the propriety of that amendment. Where the statutory relatedness and procedural requirements of joinder, amendment, and counterclaim are satisfied and the necessary service has been made, the entrance to this relief is opened. This standard is the condition under which the passage opens, and a determination that the passage has not opened merely speaks of the absence of that condition. The reason why one must also examine together whether the procedure established by written application and service on the opposing party was followed lies in this distinction as well. When the subject of determination changes, the scope of the conclusion changes as well.
If only the existing claim remains, the actual dispute may not be resolved. If delivery of an object, damages, and the related claim cannot all be dealt with together in one place, the parties must litigate them separately, the hearing of the same underlying facts may be repeated, and the scope of exercising the right of defense may narrow accordingly. The concern that, in trying to gather the dispute into a single procedure, the hearing is delayed and the right of defense is weakened stands in the same place. Even so, non-permission of an amendment cannot be turned into a dismissal of the merits of the original claim. Where the amendment changes the basis of the claim or causes manifest delay, or otherwise departs from the applicable requirements for its permissibility, that amendment is blocked, but this determination is not the conclusion of a re-examination of the requirements that existed when the original claim was filed.
Returning to the synthetic scene, Plaintiff A, who had claimed delivery of an object, came to seek damages as well, and Defendant B intends to raise a related claim by counterclaim. On these facts alone, it is not settled which of the materials among the statement of the claim before and after the amendment, the basis of the claim, the application for amendment, the service records, and the counterclaim complaint have been prepared, when service was made, or how the performance demanded, the parties, and the conditions were specified. Since the facts, service, and performance results of the actual case, and the year, amount, accrual date, and judgment result that are absent from the synthetic scene, have not been set, they cannot be ascertained. Where it is unclear what the additional demand is, or what its relationship to the existing claim is, the matter remains undetermined. If the premise of the same basis is negated, the possibility of amendment within the same lawsuit is assessed anew.
The distinctions drawn up to here hold within this scope. Non-permission of an amendment is a decision that blocks an impermissible amendment of a claim; this decision is limited to a procedural determination concerning the propriety of that amendment and cannot be broadened into a dismissal of the merits of the original claim. Conversely, the mere fact that an amendment was permitted does not automatically settle whether the right to the newly entered demand can be defended, and the relatedness and procedural requirements of a counterclaim must be examined separately as to that counterclaim.
4.2The Conditions That Block Relief
The foregoing confirmed the premise that an amendment of the statement of a claim follows the procedure of a written application and service on the opposing party. Plaintiff A, who had claimed delivery of an object, came to seek damages as well, and Defendant B intends to raise a related claim by counterclaim. In a scene of this kind, where a demand attempts to enter anew but is blocked, it remains a question whether the claim for delivery of an object asserted from the beginning also collapses along with it. The fact that one procedural step is closed and the act of determining the existence or nonexistence of the claim itself are different questions.
To answer this question, one must first read the wording of the decision by which the court blocks the amendment. Article 263 of the Civil Procedure Act provides that "where the court finds that an amendment of the purport or grounds of a claim is not proper, it shall, ex officio (by the court's own authority) or upon application of the opposing party, render a decision not permitting the amendment." This wording specifies the actor of that decision as the court, its subject as an amendment of the purport or grounds of a claim, and its ground as a case where the amendment is found not to be proper.
The above wording connects with the conclusion of this section. Here, non-permission of an amendment means a decision that blocks an impermissible amendment of a claim, and it is distinguished as a procedural determination concerning the propriety of that amendment. In other words, this decision deals only with whether to accept the demand newly sought to be asserted, and it does not also settle the existence or nonexistence of the existing claim already pending in the action, or whether it is to be granted. Accordingly, where the amendment departs from the requirements for permissibility, such as by changing the basis of the claim or causing manifest delay, and even one of the statutory requirements is not satisfied, the passage to relief is closed.
A counterargument is raised that, if only the existing claim remains, the actual dispute may not be resolved. If the demand for damages that failed to enter survives separately, the parties must each pursue a procedure severed from the remaining lawsuit, and the relevant facts must be examined twice. The criticism that, in trying to gather the dispute into a single procedure, the hearing is delayed and the right of defense is weakened also aims at the same problem. Even so, non-permission of an amendment cannot be turned into a dismissal of the merits of the original claim. While acknowledging the inconvenience the counterargument points out, that inconvenience alone cannot allow the decision that found the amendment improper to also contain a determination on the existing claim.
Among the facts of the synthetic scene, only the part relevant to this question is compared with the foregoing conditions. The claim for delivery of an object first brought by Plaintiff A and the demand for damages sought to be added later are different claims, and the amendment concerns precisely the addition of that demand. The counterclaim of Defendant B likewise seeks to raise a related claim as a separate claim, so it shares the same procedural passage with the plaintiff's amendment issue, but the contents of the settled counterclaim complaint and the specific form of the service records are not written into the scene. Accordingly, where it is unclear what the additional demand is, or what its relationship to the existing claim is, the opening of the passage cannot be ascertained. If it is confirmed that the premise of the same basis is negated, the possibility of amendment within the same lawsuit is assessed anew.
What can be confirmed in this section is the boundary that the effect of non-permission of an amendment is confined to that amendment and does not spread to a determination on the merits of the existing claim. The rendering of this decision is not followed by a result in which the original claim is dismissed without prejudice (on procedural grounds) or dismissed (rejection on merits), and the plaintiff may continue to seek a hearing on the remaining claim. Conversely, non-permission of an amendment alone does not settle the granting of the existing claim, nor does the newly added demand itself perish. However, under what conditions that additional demand is accepted within the same lawsuit is not dealt with at this stage.
4.3The Boundary That Remains When There Is No Data
That an amendment is blocked does not itself narrow the right. An amendment of the statement of a claim follows the procedure of a written application and service on the opposing party, but if the amendment is ultimately not permitted, the question remaining now is what state the claim already pending is placed in. However, unless one first discerns where the boundary lies that cannot be ascertained for want of materials, the procedural determination spills over into a determination on the merits.
The provision corresponding to this question is Article 263 of the Civil Procedure Act. It provides that "where the court finds that an amendment of the purport or grounds of a claim is not proper," a decision not permitting the relevant amendment shall be rendered. Here, what the court determines is whether the amendment of the purport or grounds of a claim is proper, and what results from that determination is a decision blocking the amendment. The amendment content applied for in writing and the materials served on the opposing party become the material of the determination, but this provision is not one that deals with the existence or nonexistence of the existing claim itself (Civil Procedure Act, Article 263).
Accordingly, non-permission of an amendment and dismissal of the merits must be distinguished as determinations at different stages. Non-permission of an amendment is a decision that blocks an impermissible amendment of a claim, and it remains a procedural determination concerning the propriety of that amendment. Dismissal of the merits is a determination that deals with whether the existing claim has grounds. If the two are mixed and non-permission of an amendment is turned into a dismissal of the merits of the original claim, the measure of rejecting the application for amendment is transformed into a different conclusion, namely a denial of the right. The conclusion of this section lies in maintaining that distinction.
The point at which that distinction is inconvenient is also clear. If only the existing claim remains, only the claim for delivery of an object first brought by Plaintiff A remains, and the demand for damages sought to be added is not dealt with in the same case, so the actual dispute may not be fully resolved. The counterargument that, if the attempt to gather the dispute into one procedure is cut off, the hearing is delayed and the right of defense is weakened also touches on this. The loss pointed out by the counterargument remains, but the place to make up for that loss is not the decision of non-permission of an amendment itself.
Only when these records come together are what the additional demand is, and what relationship it bears to the existing claim, finally specified. Yet if it is unclear what the additional demand is, or what its relationship to the existing claim is, the state becomes one in which the material of determination is unspecified. This state is distinguished from impossibility and remains undetermined. If matters that cannot be ascertained for want of materials are nailed down as impossibility, unconfirmed facts are disguised into the conclusion of unavailability of relief.
The conclusion permitted by this section is limited to the distinction that non-permission of an amendment is a decision that blocks an impermissible amendment of a claim and is not converted into a dismissal of the merits of the existing claim. Matters for which the material of determination is unspecified remain undetermined rather than impossible. However, what this section does not settle are the facts, service, and performance results of the actual case and the judgment result that is absent from the synthetic scene. To cross this boundary becomes a different question.
4.4The Records Needed for Determination
To answer this question, one must discern what changes and what remains. That an amendment of the statement of a claim follows the procedure of a written application and service on the opposing party is the conclusion. The amendment spoken of here refers to correcting the purport or grounds of a claim, and non-permission is a determination on that amendment. (Civil Procedure Act, Article 263)
Where the court finds that an amendment of the purport or grounds of a claim is not proper, it shall, ex officio (by the court's own authority) or upon application of the opposing party, render a decision not permitting the amendment. (Civil Procedure Act, Article 263) In this wording, what the court determines is the propriety of the amendment, not the existence or nonexistence of the claim already filed. Here, non-permission of an amendment means a decision that blocks an impermissible amendment of a claim. The purport of a claim indicates what is sought, the basis of a claim indicates on what grounds it is sought, the application for amendment is the written request for that correction, and the service records are the records showing that the application has reached the opposing party.
Although the path by which the party who filed the application for amendment inserts a new demand is blocked, the object of the decision the court then renders is that amendment alone. Therefore, the stage is assessed on the basis only of the materials recorded in the statement of the claim before and after the amendment, the basis of the claim, the application for amendment, the service records, and the counterclaim complaint. The stage assessment is made only on the established records. Absent records are not filled in by conjecture. The reason the two determinations must be distinguished is that non-permission of an amendment stands only as a procedural determination concerning the propriety of that amendment, while the determination on the merits of the original claim remains a separate stage within the same records.
If the arguments Plaintiff A sought to present, claiming damages instead of delivery of an object, cannot be framed within the structure of defense and proof, the parties are left without having dealt with the relevant issues within the same trial. The point that, in trying to gather the dispute into a single procedure, the hearing is delayed and the right of defense is weakened also belongs to this inconvenience. The existence or nonexistence of the original claim remains a subject of determination separate from whether the amendment is permitted.
What remains in the records in this scene are the statement of the claim before and after the amendment, the basis of the claim, the application for amendment, the service records, and the counterclaim complaint, and on those records alone it is determined at what stage the amendment stands. However, whether the demand for damages stands on the same basis as the claim for delivery of an object, and what relatedness the claim sought to be raised by counterclaim bears, cannot be ascertained on these records alone.
The conclusion permitted in this section is that non-permission of an amendment blocks only that amendment and does not become a dismissal of the merits of the original claim, and that the stage assessment is made only on the materials recorded in the statement of the claim before and after the amendment, the basis of the claim, the application for amendment, the service records, and the counterclaim complaint. By contrast, the conclusion that the original claim also disappears together, and the conclusion that the substance of the dispute has been settled by filling in facts absent from the records, are not permitted in this section. Where the materials are empty, the matter remains undetermined.
4.5Circumstances That Change the Decision
In this scene, if the attempt by the plaintiff to add a claim for damages to a claim for delivery of property is blocked, the question of this section is whether that blockage erases even the original claim for delivery of property. That the incorporation of the new demand has been refused and whether the existing claim exists are separate objects of adjudication. If this distinction is not maintained, a procedural threshold is disguised as the outcome of the merits.
The provision relevant to this question is Article 263 of the Civil Procedure Act. That Article provides: "Where the court finds that an amendment to the statement or grounds of the claim is not proper, it shall, ex officio or upon the application of the opposing party, render a decision not to grant the amendment." The subject indicated by this provision is the court, the object of adjudication is whether the amendment to the statement or grounds of the claim is proper, and the act that follows is a decision not to grant the amendment. The determination not to grant may be made ex officio or upon the application of the opposing party. What the provision prescribes is a procedural determination concerning the permissibility of such amendment.
The link joining the above provision and the conclusion of this section is the limitation of the object of adjudication. What the court addresses is whether that amendment is proper, and what is excluded from that determination is the existence or non-existence of rights under the existing claim. Accordingly, disallowance of the amendment is a decision that blocks an impermissible amendment of claim, and this falls within the definition of disallowance of the amendment. If the designated amendment is confirmed, the prior blocking and effectiveness determinations are discarded and the matter is adjudicated anew from the beginning. The reason for separating the two determinations is that the former addresses whether the new demand will be incorporated, while the latter addresses the fate of the claim already in the case.
That leaving only the existing claim may fail to resolve the actual dispute is the discomfort this distinction invites. The plaintiff sought to litigate delivery of property and damages in one forum, and if the amendment is blocked, the plaintiff must find anew a procedure for pressing only the damages portion separately. The related claim the defendant seeks to raise likewise splits the dispute if it cannot be dealt with in the same lawsuit. This answer blocks the path of expanding that discomfort into the extinction of the original claim, while leaving intact the delay and the difficulty of defense pointed out by the Counterarguments.
The facts ascertainable in the synthetic scene are only that the demand of Plaintiff A has broadened from delivery of property to damages and that Defendant B seeks to present a related claim as a counterclaim. Whether this broadening of the demand maintains the same basis, or instead changes the basis of the claim, cannot be determined from the scene alone. For the adjudication records, the items held are the statement of claim before and after the amendment, the basis of the claim, the application for amendment, service materials, and the counterclaim pleading. Whether the statutory relatedness and procedural requirements of the counterclaim are met, and whether the necessary service has been effected, are also not determined in this scene. Accordingly, items that cannot be compared against the confirmed conditions remain undetermined.
The conclusion this section permits is that disallowance of the amendment is distinguished as a procedural determination concerning the propriety of that amendment; a conclusion converting disallowance of the amendment into a dismissal of the original claim on the merits is not permitted. If the premise of the same basis is confirmed to be negated, the possibility of amendment within the same lawsuit is reconsidered, and the matter merely shows which adjudication is overturned when that premise is changed.
4.6The Strongest Counterargument and the Answer
In this scene, even if the additional demand cannot be admitted, the existence of the original claim is examined separately. How far does the judgment of the court confronted with this limit extend?
The relevant provision is Article 263 of the Civil Procedure Act. Its text provides: "Where the court finds that an amendment to the statement or grounds of the claim is not proper, it shall, ex officio or upon the application of the opposing party, render a decision not to grant the amendment." The subject indicated by this text is the court, the target act is an amendment to the statement or grounds of the claim, and the condition is the case where such amendment is found to be not proper. What is rendered accordingly is a decision not to grant the amendment.
What links this text with the conclusion of this section is that the stages of adjudication are different from each other. Disallowance of the amendment is distinguished as a procedural determination concerning the propriety of that amendment. What the court considers is whether the demand seeking to enter anew can find its place within the same lawsuit, and the original claim itself is not an object of this examination. Accordingly, even after the amendment is blocked, the claim for delivery of property of Plaintiff A remains as it is. Without adding any new requirement or exception, this conclusion follows from merely separating what the objects of examination are.
The counterargument aims at the possibility of resolving the substantive dispute. If what the plaintiff truly wants is damages and the amendment is not permitted, that demand cannot be dealt with in this lawsuit, and the parties must traverse another procedure anew. Litigation economy declines, the examination of the same facts is divided, and the exercise of the right of defense becomes more burdensome. Even without erasing these disadvantages, the answer does not change. There is no basis in the text for expanding the blocking of a procedural route into a denial of substantive rights.
Seen from the synthetic scene, even if the claim for damages of Plaintiff A is left out, the claim for delivery of property remains prior to adjudication. The direction in which Defendant B seeks to present a related claim as a counterclaim is a separate procedural route, and the conclusion of this section does not determine whether that path is open or closed. The parts where it is unclear what a demand is remain undetermined.
The conclusion this section permits is that, even after the amendment is not permitted, the original claim remains pending in the lawsuit. Beyond that boundary, no judgment can be made that disallowance of the amendment denies the plaintiff's right itself or even restricts the defendant's defense. The limitations remaining for the resolution of the actual dispute and the costs of litigation economy are left as they are, but the direction of substituting for them a dismissal on the merits is not accepted by the text.
4.7The Link to the Application and the Dispositive Part
In the preceding section, it was held that disallowance of the amendment cannot be converted into a dismissal of the original claim on the merits. Yet the question remains whether, if the amendment is not allowed, the original claim also disappears together with it. The scope to be examined this time is whether, in this scene, merely blocking the new demand also brings down the claim for delivery of property already properly filed. The fate of the two claims is a question to be asked separately for each.
The provision corresponding to this question is Article 263 of the Civil Procedure Act. Its text provides: "Where the court finds that an amendment to the statement or grounds of the claim is not proper, it shall, ex officio or upon the application of the opposing party, render a decision not to grant the amendment." The subject directly indicated by this sentence is the court, the object of its adjudication is whether the amendment to the statement or grounds of the claim is proper, and what is rendered as a result is a decision not to grant the amendment. Put differently, the target of the examination is the propriety of the amendment itself. The provision does not make the continued existence of the existing claim attached to that amendment a target of examination as well.
Accordingly, what this text yields for the conclusion of this section is that disallowance of the amendment is distinguished as a procedural determination concerning the propriety of that amendment. The reason this distinction matters is that the units of adjudication differ. The one is a determination of procedural permissibility as to whether the newly demanded direction will be accepted; the other is a determination on the merits as to whether the claim filed from the outset meets the requirements. If the latter is drawn into the decision on the former and made the same target, it would mean expanding the scope of examination prescribed by Article 263 beyond its text.
Nevertheless, the disadvantages this distinction entails must not be erased. The concern that, in seeking to gather the dispute into one procedure, the examination may be delayed and the right of defense weakened is also the cost that arises when the place vacated by the excluded new demand is left as it is. The parties hope to conclude the entirety of the dispute between Plaintiff A and Defendant B in one place, yet issues that could not be dealt with within the same lawsuit may remain because of the blocked amendment. Even so, disallowance of the amendment cannot be converted into a dismissal of the original claim on the merits in order to resolve that inconvenience. The problem of diminished practical benefit and the problem of denying the continued existence of the existing claim cannot be placed on the same footing.
Even taking only the facts fixed in the synthetic scene, the boundary is clear. Plaintiff A first claimed delivery of property and thereafter came to add a demand for damages. Even if the amendment is blocked, the earlier claim for delivery of property remains as already filed. However, in this scene it has not been determined whether the basis of claim for the demand for damages is the same as that of the claim for delivery of property, and how the application for amendment and the service materials have been prepared. Accordingly, what can be determined this time is only the meaning of the disallowance of the amendment and the unit of its adjudication, while the satisfaction of the requirements of the application for amendment itself is left undetermined. The judgment concerning the counterclaim is likewise a matter assigned to another section and is not dealt with here.
The conclusion this section permits is the distinction that disallowance of the amendment is a decision that blocks an impermissible amendment of claim, and that it is not a judgment that has examined the fate of the existing claim. What this conclusion does not permit is a judgment that reads the original claim as having been dismissed on the merits merely because the amendment was blocked. Even if the materials are insufficient and the satisfaction of the requirements of the application for amendment cannot be confirmed, this already established distinction stands as it is, and it does not mean that relief is impossible.
4.8The Scope This Section Undertakes
On the premise that an amendment to the statement of claim follows the procedure of a written application and service on the opposing party, Plaintiff A claimed delivery of property and came to demand damages as well, and Defendant B seeks to present a related claim as a counterclaim. When the demands in dispute have changed in this manner, the question is whether the relief sought can be changed within the lawsuit already pending. And when a decision blocking that change issues, it must be determined together whether the original claim also disappears along with it, and where the boundary dealt with in this section lies.
The provision corresponding to this question is Article 263 of the Civil Procedure Act. Its text provides: "Where the court finds that an amendment to the statement or grounds of the claim is not proper, it shall, ex officio or upon the application of the opposing party, render a decision not to grant the amendment" (Article 263 of the Civil Procedure Act). Here the court is the subject of the examination, and the object of adjudication is the amendment to the statement or grounds of the claim. That is, it is an act by which the content of the claim or its basis changes, and a decision of non-permission is rendered only in the case where that amendment is found to be not proper.
The object indicated by the text of this Article is not the existence of the original claim but the amendment itself. Accordingly, disallowance of the amendment means a decision that blocks an impermissible amendment of claim. The reason the stages of adjudication divide in this way is that the procedural determination asking after the propriety of the amendment and the determination on the merits asking after the existence or non-existence of rights under the existing claim have different objects. That the court does not grant the amendment does not, by that alone, deny the existing claim as a right; the original claim remains as it is and receives examination.
If only delivery of property is dealt with while the demand for damages is left out, one side of the dispute remains outside the trial, and if the defendant's counterclaim becomes entangled as well, the scope sorted out within the lawsuit narrows. The concern that, in seeking to gather the dispute into one procedure, the examination may be delayed and the right of defense weakened is in the same context. These disadvantages certainly remain, but even so, disallowance of the amendment cannot be converted into a dismissal of the original claim on the merits. If the procedural determination that the amendment was blocked is expanded into a denial of rights, it would amount to newly creating a conclusion outside the object prescribed by the Article.
The facts ascertainable in this scene are only that the demands have changed and that the defendant is preparing a counterclaim. Whether the basis is the same between the existing claim for delivery of property and the new demand for damages, what the basis of claim for the damages is, and whether the application for amendment or the service materials have been prepared cannot be determined from this scene alone. Accordingly, where it is unclear what the additional demand is, or what its relationship to the existing claim is, the matter is left undetermined, and it cannot be asserted that the legal route of amendment or counterclaim is closed merely because those materials are absent.
The conclusions permitted in this section are limited to the points that disallowance of the amendment does not go beyond a procedural determination concerning the propriety of that amendment, and that disallowance of the amendment is not converted into a dismissal of the original claim on the merits. The route spoken of here opens where the statutory relatedness and procedural requirements for joinder, amendment, and counterclaim are met and the necessary service has been made, and it is blocked where the amendment changes the basis of the claim or causes undue delay or otherwise contravenes the permissive requirements. Whether rights under the existing claim exist, and whether the counterclaim will be upheld, are not within the scope of this section.
4.9Application of the Text of the Provisions and the Holdings of Precedents
This question asks what effect a decision blocking an impermissible amendment of claim has upon the original claim.
The provision answering this question is found in Article 263 of the Civil Procedure Act. Here the court is the subject that judges the rightness or wrongness of the amendment, and the object of adjudication is the amendment to the statement or grounds of the claim. Ex officio and the application of the opposing party mark the routes by which the court proceeds to that judgment, and the outcome is a decision not to grant the amendment.
What this text supports is the conclusion concerning the character of disallowance of the amendment. What the Article addresses is whether a single application, namely the amendment, is permissible; it is not the existence of the original claim or the existence or non-existence of the plaintiff's right. Accordingly, disallowance of the amendment is distinguished as a procedural determination concerning the propriety of that amendment. The reason for the distinction is that the object of adjudication and the result of adjudication differ from each other. Because the object lies not in the content of the claim, which does not change, but in the permissibility of the application for amendment, its result is likewise limited to not bringing the new claim into the proceedings.
The counterargument that leaving only the existing claim may fail to resolve the actual dispute aims at the practical loss. Plaintiff A wished to deal with the claim for delivery and the demand for damages together and to conclude the dispute at once, so if only the amendment is blocked, with the remaining claim alone the contest remains less resolved. Such inconvenience is not erased. A dismissal on the merits is the result of judging whether the claim itself is to be upheld, while disallowance of the amendment is the result of judging whether that amendment is permissible, and thus the objects of the two judgments differ.
The facts ascertainable in the synthetic scene are only that the demands have changed and that Defendant B seeks to present a related claim as a counterclaim. From these two facts alone it is not determined whether the application for amendment changes the basis of the claim, or causes undue delay. Accordingly, which procedural requirement has not been met, and what the fate of the original claim is, remain undetermined.
What can be said in this section is that disallowance of the amendment is a decision blocking an impermissible amendment of claim, and that that determination is distinguished from the determination of the original claim on the merits. What cannot be said is that the plaintiff's existing right is denied, or whether it will be upheld or dismissed on the merits. The existence of the existing claim does not change merely because the route for proceeding with the new demand was blocked. What does disallowance of the amendment mean in this judgment?
4.10Fine Distinctions Within the Stage
It begins from the concern that the conclusion that a new claim has been blocked must not be broadened into a denial of existing rights. In this scene, the question opens of which parts are to be separately adjudicated within the channel for inserting a new claim into a pending case. The channel refers to the routes of adding a demand to the same lawsuit by joinder, amendment, or counterclaim, and which point within it is to be adjudicated separately is the question at hand. It also asks together what remains after the plaintiff's additional demand has been blocked.
As to this question, the provision in question describes the court's attitude of refusing amendment of a claim as follows. Article 263 of the Civil Procedure Act provides: "Where the court finds that an amendment of the purport or ground of a claim is not proper, it shall render a decision not granting the amendment, ex officio or upon the application of the opposing party." Here the actor is the court, the act is a decision on whether to grant the amendment, and the condition is the case in which an amendment of the purport or ground of a claim is found not to be proper. The form of the decision is a decision not granting the amendment, and its initiation is set as ex officio or upon the application of the opposing party. This provision addresses nothing more than the handling of that amendment.
What connects this provision with the conclusion of this section is the work of distinguishing refusal of amendment as a procedural judgment on the propriety of the amendment in question. Refusal of amendment means a decision blocking a claim amendment that is not permissible, and its object is the new demand seeking to enter. The existence or non-existence of the original claim is not the object of that decision, and therefore the two must not be read together as one adjudication. The detailed distinctions are limited to the conditions stated. The channel opens where the statutory relevance and procedural requirements of joinder, amendment, and counterclaim are satisfied and the required service has been made, and the channel is blocked where the amendment contravenes the permissibility requirements, as where it changes the basis of the claim or causes manifest delay. Where it is unclear what the additional demand is, or what its relationship to the existing claim is, the matter remains undetermined, and no new judgment is added here.
The strongest counterargument takes aim at the point that, if only the existing claim remains, the actual dispute may not be resolved. If only the delivery of an item remains and the demand for damages is dropped, the harm suffered by the plaintiff remains as it is, and the position of the defendant, who seeks to assert a related claim, also remains unresolved within the case. The concern that, in attempting to gather the dispute into one procedure, the hearing may be delayed and the right of defense weakened arises in the same direction. What refusal of amendment blocks is a claim amendment that is not permissible, and the merits determination of the original claim proceeds separately. Even an interpretation seeking to reduce the inconvenience pointed out by the counterargument cannot go beyond this distinction.
The facts corresponding to this question in the synthetic scene are that plaintiff A's demand has expanded from delivery to damages, and that defendant B seeks to raise a related claim as a counterclaim. The claim statement before and after the amendment, the basis of the claim, the application for amendment, the service records, and the counterclaim complaint have been set as the materials for judgment. Once these materials are in place, it can be checked whether the statutory relevance and procedural requirements of joinder, amendment, and counterclaim, and the required service, accord with the case in which the channel opens. The actual results of service and performance are undetermined.
The conclusion permitted by this section is the distinction that refusal of amendment goes no further than blocking the new demand seeking to enter, and does not deny the merits of the original claim. Within the same judgment, the permissibility of the additional demand is divided only by the stated conditions, and no further stages are newly created. If the materials are insufficient, the matter remains undetermined rather than irremediable.
4.11Synthesis of Effectiveness, Blockage, and Undetermination
As the demands bound within one procedure increase, so too do the order of the hearing and the scope of preparation for the right of defense change. The discussion here is confined to how to distinguish the effectiveness, blocking, and undetermined status of the channel for inserting a new claim into a pending case.
The starting point of that distinction lies in the provision in question. This provision sets the actor as the court, the act as a decision not granting the amendment, and the condition as the case in which an amendment of the purport or ground of a claim is found not to be proper. Here, the purport of the claim is the content of the demand as to what is sought, and the ground of the claim is the underlying circumstances supporting that demand. The object of the court's judgment is the propriety of the amendment itself, not the existence or non-existence of the existing claim.
The link connecting this provision with the conclusion of this section is the separation of the objects of judgment. Refusal of amendment means a decision blocking a claim amendment that is not permissible; it is a judgment that closes the door after assessing the procedural propriety of the demand newly sought to be introduced. That judgment and the judgment that the channel opens where the statutory relevance and procedural requirements of joinder, amendment, and counterclaim are satisfied and the required service has been made are different stages. This is why the effectiveness and the blocking of the channel are not the two ends of the same axis but marks attached to the permissibility of each demand. Only if these two are distinguished will the procedural judgment known as refusal of amendment not spread to the merits judgment of the original claim.
The counterargument that most strongly points out the inconvenience left by this distinction is as follows. In a dispute over the delivery of an item, if the demand for damages cannot be handled together, the parties must, after first completing the remaining claim, bring a separate suit again, and the hearing and evidence on the same facts are split in two. The concern that, in attempting to gather the dispute into one procedure, the hearing may be delayed and the right of defense weakened also arises from the same place. The costs of delay and separation pointed out by the counterargument do not disappear, but those costs do not furnish grounds for extending a judgment on the impropriety of an amendment into a judgment on the existence or non-existence of the original claim.
Comparing this scene with only the facts needed for this question yields the following. Plaintiff A applies for an amendment inserting a demand for damages, and whether the basis of that amendment is the same as the basis of the claim for delivery of an item, and whether that demand would significantly delay the hearing, bear on the criteria of judgment. Whether the defendant's counterclaim possesses the statutory relevance and procedural requirements and has completed the required service, and whether service actually occurred, cannot be determined from the scene alone.
Accordingly, the conclusion permitted by this section is narrow. Refusal of amendment is a procedural judgment blocking that amendment alone, and cannot be transformed into a merits dismissal of the original claim. To read the words of non-permission as a denial of existing rights is an interpretation that reaches beyond even the object this judgment addresses. Conversely, the mere fact that the existing claim remains does not mean the new demand is also granted, and unconfirmed items are left undetermined as such.
4.12Conclusion Carried Over to the Next Section
The question whether the original claim also disappears if an amendment is not permitted asks what remains in that lawsuit after the court has rendered a decision not granting the amendment. The thought that the conclusion that a new claim has been blocked must not be broadened into a denial of existing rights is the starting point of this question.
Here the actor is the court, the object of judgment is the propriety of the application for amendment, and the act is a decision not granting the amendment.
The judgment prescribed by this Article concerns the amendment itself. Hence refusal of amendment is distinguished as a procedural judgment on the propriety of the amendment in question, and is not placed in the same position as a judgment addressing the existence or non-existence of the original claim. So long as this distinction is maintained, it cannot be said that existing rights were denied merely because the court blocked the demand seeking to enter anew.
The counterargument remains, however, that if only the existing claim remains, the actual dispute may not be resolved. If only the delivery of an item remains and the demand for damages is dropped, plaintiff A finds that the outcome of the lawsuit may not fully address the parties' dispute, and defendant B may become unable to contest the related claim together in the same procedure. While the gaps in procedure pointed out by the counterargument are acknowledged, a conclusion extending the judgment on the propriety of an amendment into a denial of existing rights is not permissible.
The facts confirmed in the synthetic scene are only that plaintiff A, having claimed delivery of an item, also came to demand damages, and that defendant B seeks to raise a related claim as a counterclaim. For what reason the application for amendment was blocked, and what service was made, are not determined in this scene and therefore remain undetermined.
The conclusion permitted by this section is narrow. Even if an amendment is not permitted, the original claim remains as it is, and refusal of amendment is distinguished as a procedural judgment on the propriety of the amendment in question. Accordingly, reading the original claim as also having been dismissed merely because the amendment was blocked is a conclusion this section does not permit. Under what conditions does the defendant's independent claim enter the same lawsuit?