Summary
A party may request the presiding judge to demand the necessary explanation from the opposing party.
3.1The Standard by Which the Path Opens
The opposing party's vague assertions blur the object of rebuttal. To clarify the state of the lawsuit, the presiding judge may question matters of fact and urge the production of proof. Plaintiff A produced a contract, but stated no cause of claim as to which obligation went unperformed and in what respect. In this scene it is difficult for the opposing party to gauge what it must rebut. In response to this, it also becomes an issue whether a party may itself seek an explanation from the opposing party. The examination begins with the criterion for opening this channel of relief.
The provision of the source text corresponding to this question reads as follows: "A party may, where necessary, request the presiding judge to require the opposing party to provide an explanation" (Civil Procedure Act Article 136). This wording fixes the subject as "a party" and the act as "may request the presiding judge …." The addressee of the request is the presiding judge, and what is sought is a demand for an explanation from the opposing party. The phrase "where necessary" means that the request is not open without limit. This section deals with the request for explanation, that is, a request to seek an explanation from the opposing party through the presiding judge.
This wording and the preceding conclusion together determine the form of the demand for explanation and its requirements. The gateway opens where it becomes apparent which facts are asserted and contested, and where the necessary opportunity for explanation and proof concerning unclear points is opened up. Two steps are distinguished here. One is whether it becomes apparent what is in dispute; the other is whether a defense is possible against the specified relief. The former determines the scope of the subject matter of explanation, and the latter determines the position from which a party can defend. Only by viewing both together can it be determined whether the channel for a request for explanation is available.
The counterargument that repeating demands for explanation may become a means of delay targets substantive loss. Time and cost increase, the opposing party must write out again what it has already disclosed, and the trial may drift away from the issues originally at stake. It is also pointed out that, if parties without legal knowledge are required to observe forms of assertion, the substance of the hearing is weakened. Even so, this does not change the nature of the request for explanation. This request is merely a channel through which a party asks the presiding judge to require an explanation; it cannot be regarded as conferring on the party a direct right of compulsory examination. Even if the request is repeated, its nature does not change, and where repetition becomes a means of delay, that is judged together with whether the request falls within the cases of necessity.
This fact alone does not reveal which obligation is in dispute, or what the opposing party must rebut. Where a party makes a request for explanation in such a state, it may fall within a case of seeking an explanation concerning unclear points. However, the scene does not show how the relief was specified, or what opportunity for supplementation was given. Accordingly, whether the performance, parties, and conditions demanded were specified, and whether the right can be defended through the chosen action, cannot be determined from this scene alone. If the action was dismissed on the ground of the absence of an explanation alone, once the unclear assertion has been supplemented, the blocking determination resting solely on the absence of an explanation is not maintained.
What this section permits is that a party may request the presiding judge to require the necessary explanation of the opposing party, and that this channel of relief opens when that request is furnished with specified relief and a position from which a defense is possible. What is not permitted is to regard such a request as giving the party the right to examine the opposing party directly. So long as the form of the request and its effect are not confused, the request for explanation remains a channel that opens only where necessary.
3.2The Conditions That Block Relief
On the party's side as well, it remains an issue whether the party may request the presiding judge to require the opposing party to provide an explanation. In particular, in the scene where Plaintiff A produced a contract but stated no cause of claim as to which obligation went unperformed and in what respect, the defendant finds it difficult to gauge what it must rebut, and it becomes unclear who must dispel this lack of clarity and how.
As to this question, Civil Procedure Act Article 136 (3) provides: "(3) A party may, where necessary, request the presiding judge to require the opposing party to provide an explanation." The subject used in this wording is "a party," and the act is "requesting the presiding judge to require the opposing party to provide an explanation." The condition is "where necessary," and its object is, among the means of attack and defense advanced by the opposing party, those matters requiring explanation. What this paragraph provides, however, is that the party may make a request to the presiding judge; the party does not thereby acquire authority to compel the opposing party to answer directly.
The reason for confining the subject and condition of the request set by the wording in this manner is that the two stages of the demand operate differently. The first stage is the party's claim to seek an explanation from the opposing party through the presiding judge—precisely what is called a request for explanation. The second stage is the presiding judge's use of the explanation thus gathered as material for clarifying the state of the lawsuit. If the basis for the presiding judge's power to question and to urge the production of proof is established, then what is opened is a channel through which the party utilizes the same power. Since no authority to compel an actual explanation arises even upon a request from the party's side, this is the reason the two stages must be viewed separately.
Meanwhile, the objection is most forcefully raised that repeated demands for explanation may delay the lawsuit. The concern is that, if the same explanation is continually demanded even though the opposing party has already disclosed matters sufficiently, the preparation of the answer and the proceedings are dragged out, and nothing accumulates but formal skirmishing rather than substantive examination. The criticism also comes into play that, if parties without legal knowledge are required to conform their assertions to form, the substance of the hearing may be weakened. Despite such losses and inconveniences, the author's conclusion is not reversed. It cannot be altered to say that a direct right of compulsory examination arises. However many times the request is repeated, the request remains a claim made through the presiding judge and does not extend into a title for compelling the opposing party to answer.
Fitting the synthetic scene to the scope of this section, Plaintiff A produced a contract but stated no cause of claim as to which obligation went unperformed and in what respect. In this case, the defendant may, by a request for explanation, ask the presiding judge to require the opposing party's explanation; however, to what extent that explanation must actually be given, and at what point the court gave an opportunity for supplementation, are not determined by the scene alone. In particular, where, even after the statutory opportunity to supplement unclear means of attack and defense, no explanation was given and the matter was dismissed, if any one of the statutory requirements is not met, the channel of relief closes. If it is confirmed that the unclear assertion has been supplemented, the blocking determination resting solely on the absence of an explanation is not maintained. Conversely, where the purpose of the submission or the content of the opportunity for supplementation given by the court cannot be confirmed, the question of effectiveness cannot be determined and remains undetermined.
Thus, what this section permits goes no further than that a party may, where necessary, request the presiding judge to require the opposing party to provide an explanation. It cannot be concluded that such a request leads to the compulsion of an actual answer, or that the party is recognized to have the right to examine the opposing party directly. Conversely, notwithstanding the concern that a demand for explanation may become a means of delay, it must be noted together that where the statutory requirements are met, the channel for a request for explanation opens.
3.3The Boundary That Remains When There Is No Data
In the flow summarized as follows—that the presiding judge may question matters of fact or of law in order to clarify the state of the lawsuit and may urge the production of proof—this question is whether a path is also open on the party's side to seek an explanation from the opposing party. The explanation spoken of here refers to the activity by which the opposing party renders its own assertion clear, and Plaintiff A produced a contract but stated no cause of claim as to which obligation went unperformed and in what respect. In this state where the object of rebuttal has become blurred, the first point to confirm is whether one may ask the court to require an explanation from the opposing party.
Article 136 of the Civil Procedure Act is the wording that answers this question. Paragraph (3) of that Article provides: "A party may, where necessary, request the presiding judge to require the opposing party to provide an explanation." In this wording, the subject of the request is the party, the person to whom the request is addressed is the presiding judge, and the act demanded is an explanation from the opposing party. The phrase "where necessary" is an expression attaching the condition under which a request may be made, and is not read to mean that the request immediately brings about the direct arising of a duty to explain. What is confirmed from the wording is the limited content that a party may request the presiding judge to require the necessary explanation of the opposing party; any interpretation beyond that falls outside this range.
To connect the confirmed wording with the conclusion of this section, one may first distinguish the form of the request. Here, a request for explanation means a request to seek an explanation from the opposing party through the presiding judge, and it bears the character of an application the party sends to the presiding judge. Since the addressee of the application is the presiding judge, and it is structured so as to cause him to seek an explanation from the opposing party, it is not regarded as equivalent to an act in which the party directly interrogates the opposing party. Where the purpose of the submission or the content of the opportunity for supplementation given by the court cannot be confirmed, matters whose adjudicative materials are not specified are left undetermined, distinguished from impossibility. The reason for holding to the line of not immediately converting an inability to judge a lack of materials that cannot be verified into anything else, but leaving it as it stands until confirmed, lies in this distinction.
There is a counterargument directed to the trouble this distinction brings. Repeated demands for explanation may become a means of delay, and there is concern that they leave room for abuse as a device for holding back the opposing party from hastening its answer. If a disadvantage arises whereby a person unfamiliar with form, though possessing substance, is crowded out on account of form, that means the opportunity for hearing is substantively reduced. Even so, the conclusion cannot be altered to say that a direct right of compulsory examination arises. While acknowledging both the burden of delay that repeated requests impose and the barrier to entry that form requirements impose, the reason the conclusion is not changed by a method that newly confers on a party the power to examine the opposing party directly lies here.
Comparing this scene with the present conditions, Plaintiff A produced a contract but stated no cause of claim as to which obligation went unperformed and in what respect. In the state where neither which obligation is at issue nor how that obligation went unperformed is written, the object of rebuttal is not specified. However much one examines the complaint, the answer, the preparatory briefs, the course of clarification and supplementation, and the dismissal on procedural grounds ruling, the scene alone does not establish how the purpose of the submission was indicated, or what the content of the opportunity for supplementation given by the court was. So long as this part that cannot be confirmed remains, matters whose adjudicative materials are not specified remain undetermined. If it is confirmed that the unclear assertion has been supplemented, the blocking determination resting solely on the absence of an explanation is not maintained, but whether this condition actually obtained cannot be gauged from this scene alone.
In sum, a party may request the presiding judge to require the necessary explanation of the opposing party, and this request does not exceed the scope of the request for explanation, which seeks the opposing party's explanation through the presiding judge. It can be neither extended to say that a direct right of compulsory examination arises, nor blocked by citing the inconvenience of repeated requests. The line this section permits is that, where the purpose of the submission or the content of the opportunity for supplementation cannot be confirmed, the matter is left undetermined rather than being turned into impossibility, and other determinations are deferred.
3.4The Records Needed for Determination
However, when that questioning takes the form of a demand for explanation directed at the opposing party, it becomes an issue whether a party too may request such an explanation. This question divides the issue of whether the matter is left solely to the authority of the presiding judge or whether a place of participation is left open to the parties as well, and this section deals with the record requirements as to what shall serve as the basis for judgment, along with the character of that request.
Article 136 of the Civil Procedure Act provides: "A party may, where necessary, request the presiding judge to require the opposing party to provide an explanation." This wording fixes the subject as the party, the act as a request to the presiding judge, and the content as a demand for an explanation from the opposing party. The explanation that is the object of the request is something the opposing party must put forward, and the direction of the request is toward the presiding judge. The structure, inscribed in the wording, is that the party does not directly order the opposing party to explain but asks the presiding judge to require that explanation; and reading this wording alone, there is no confusion as to who the addressee of the request is.
The link connecting that wording with the conclusion reached here is the record for stage determination. The request for explanation spoken of in this section means a request to seek an explanation from the opposing party through the presiding judge, and in what actual state that request stands is determined solely by the materials recorded in the complaint, the answer, the preparatory briefs, the course of clarification and supplementation, and the dismissal on procedural grounds ruling. Whether it becomes apparent which facts are asserted and contested; whether the necessary opportunity for explanation and proof concerning unclear points has been opened; and whether, even thereafter, the matter was dismissed without prejudice for want of explanation—all are matters to be judged within the range the record speaks to. Stage determination is made only on the established record. The reason the attitude of not filling gaps in the record with presumptions is needed here is that the fact that the above wording left the path of request open and the question of whether that path was actually used and to what stage it reached are separate matters.
Repeated demands for explanation may become a means of delay. This counterargument targets substantive loss. Even where it is already clear which side contests what, if demands for explanation are repeated, a party preparing its answer is delayed in the timing of its response, and the organization of the state of the lawsuit is postponed. For a party lacking legal knowledge, the concern is also placed alongside that the very requirement to fit a claim or a defense to the form of assertion may weaken the substantive hearing. Even so, the conclusion cannot be changed in a manner that erases this disadvantage. The range of the answer is fixed in that the risk of delay pointed to by the counterargument is left in place, while the structure of the request is maintained as one passing through the presiding judge.
In this scene, the fact bearing on this question is only the description of the cause of claim, and the point that which obligation was left unperformed and in what respect does not appear in the written pleading. In this state of lack of clarity, if the object of rebuttal is blurred, the opposing party may request the presiding judge to require the necessary explanation to be provided. Yet at what stage that request stands is not determined from this scene alone. Only where the contents of the submitted pleadings, the course of the opportunity for supplementation given by the court, and whether any dismissal on procedural grounds occurred are confirmed on the record can that stage be stated; and where the purpose of the submission or the content of the opportunity for supplementation cannot be confirmed, the matter remains undetermined. If the unclear assertion has been supplemented, the blocking determination resting solely on the absence of an explanation is not maintained.
The conclusion permitted in this section is that a party may request the presiding judge to require the necessary explanation of the opposing party, and that the stage determination of that request is limited to the materials recorded in the complaint, the answer, the preparatory briefs, the course of clarification and supplementation, and the dismissal on procedural grounds ruling. What is not permitted is to presume matters not on the record and thereby fix the stage, and to regard the request as immediately producing a direct right of compulsory examination against the opposing party. The undetermined matter remaining within this boundary is merely a state of insufficient materials and does not immediately mean that relief is unavailable.
3.5Circumstances That Change the Decision
In such a state, if the defendant, saying that he does not know what the subject of the claim is, seeks to prepare a defense, there may arise moments when the presiding judge's questions alone fall short of drawing out an explanation. The question at hand is whether a party may itself ask the presiding judge to require the opposing party to provide an explanation. Concretely, it asks whether a path is open by which a party may demand the explanation needed in order to identify what is to be rebutted.
As to this question, the relevant wording reads as follows: “(3) A party may, when necessary, request the presiding judge to require the opposing party to provide an explanation” (Civil Procedure Act, Article 136). The subject prescribed by this wording is the party, and the act is a request made to the presiding judge. The content of the request is to ask the presiding judge to require the opposing party to provide an explanation, and the condition is when necessary. Note here that the direction of the demand for explanation points toward the presiding judge. A party does not stand in the position of directly examining the opposing party, but seeks the opposing party's explanation through the presiding judge. This is called a request for inquiry. A request for inquiry is a request that seeks the opposing party's explanation through the presiding judge.
The determination that a request for inquiry is recognized and the determination that such a request can compel the opposing party directly to answer are examined as separate stages. The former concerns whether a party may request the presiding judge to require an explanation; the latter concerns whether that request can impose a duty to explain upon the opposing party or compel an answer. The fact that the wording of the former has been confirmed does not settle the effect of the latter. Yet where the purport of a certain allegation is so unclear that it reaches the point of being dismissed without prejudice on that ground alone, and the party thereafter supplements the necessary explanation and clarifies the point of uncertainty, the situation changes. At that point, a blocking determination based solely on the absence of an explanation can no longer be maintained. If the specified amendment—that is, the fact that the unclear allegation has been supplemented—is confirmed, the existing blocking determination and the effect determination bound up with it are discarded, and adjudication recommences from the formation stage at which it becomes clear which facts are alleged and contested.
However, the point most strongly targeted by the counterargument that repeated demands for explanation can become a means of drawing out and delaying the lawsuit is not different from this. If parties without legal knowledge are required to frame their allegations in proper form, the substantive hearing is weakened, and the opposing party's time and money can be tied up in responding to demands for explanation. That loss and inconvenience are not erased. There also remains the concern that, since the court already has devices by which it may demand explanations and urge proof, opening the path of demand to the parties as well makes the procedure cumbersome. Even so, this counterargument cannot change the conclusion. It must be made clear that what accrues to a party is nothing more than the path of a request to seek an explanation through the presiding judge, and that neither direct examination of the opposing party nor compulsion of an answer arises.
Returning to the synthetic scene, suppose that Plaintiff A submitted a contract but did not state in the cause of action what obligation went unperformed and in what manner, and that a dismissal on procedural grounds becomes at issue on account of that lack of clarity. If, in these circumstances, an explanation as to what obligation was left unperformed is appended to the submitted writing, the state becomes one in which the unclear allegation has been supplemented. This amendment falls within the conditions that make it impossible to maintain a blocking determination based solely on the absence of an explanation. Accordingly, the blocking determination previously rendered and the effect determination bound up with it are discarded, and adjudication recommences from the stage at which it becomes clear which facts are alleged and contested. However, in this scene no year, amount, or judgment outcome is set. Whether the plaintiff's claim is ultimately accepted and whether relief actually materializes therefore cannot be determined from this scene alone and remain undetermined.
The conclusion this section permits is that a party may ask the presiding judge to require the opposing party to provide an explanation, and that what arises from it is not the authority to compel direct examination of the opposing party but the path of seeking an explanation through the presiding judge. If the unclear allegation is supplemented and the ground for the determination that had been blocked solely for want of an explanation disappears, the existing blocking determination and the effect determination bound up with it are discarded, and adjudication recommences from the formation stage. Nevertheless, it should not be read as denying the request for inquiry itself merely because repeated demands for explanation may become a means of delay, or merely because a party without legal knowledge fails to observe the required form. In either case, a conclusion that a direct right of compulsory examination arises is one this section does not permit.
3.6The Strongest Counterargument and the Answer
Faced with a cause of action that does not state what obligation went unperformed and in what manner, the opposing party finds it difficult to settle what must be contested. As to the procedure for handling such lack of clarity, the conclusion has already been settled that, in order to clarify the legal relations of the lawsuit, the presiding judge may question the parties on matters of fact and urge them to produce proof. The issue here is whether that procedure for seeking an explanation can also be drawn out from the party's side. That is, the question now posed is whether a party too may request the opposing party's explanation.
The statutory wording writes of this question as follows: “A party may, when necessary, request the presiding judge to require the opposing party to provide an explanation.” (Civil Procedure Act, Article 136.) The subject this wording denotes is the party to the lawsuit, the act is a request made to the presiding judge, and the object is the opposing party's explanation. Here, a request for inquiry means a request that seeks the opposing party's explanation through the presiding judge. Accordingly, the wording is read not as conferring upon a party the authority to demand the opposing party's explanation directly, but as fixing the party's standing to ask the presiding judge to require that explanation. Other paragraphs of the Article and other questions are not addressed here.
What connects this wording with the conclusion of this section is the place left by the form of the request for inquiry. What a party can do is make a request through the presiding judge, and even if that request is accepted, the power to obtain an explanation remains within the presiding judge's management of the proceedings. The assessment in the conclusion of the preceding section—that the presiding judge could question the parties and urge proof—does not change here either. The questions and urgings made by the presiding judge and the request made by a party are distinct in their stages. If this distinction is disregarded, the standing that has arisen for a party is read as merged with the authority of proceedings management.
But one must also see the loss that this distinction reveals. If parties without legal knowledge are required to observe the form of allegations, the substantive hearing is weakened. Where a party who, without the opposing party's explanation, finds it hard to settle what and how to contest must leave even the power to draw out the procedure for seeking that explanation to the presiding judge's judgment, the preparation of attack and defense is delayed. The need to ensure that repeated demands for explanation do not become a means of delay likewise does not erase this loss. Even answering while leaving such disadvantage untouched, one cannot on that account convert a party's request into a direct right of compulsory examination. The inconvenience that form creates is not remedied by newly prescribing form.
Returning to this scene and taking out only the facts that touch upon this question, Plaintiff A submitted a contract but did not state in the cause of action what obligation went unperformed and in what manner. In this scene, the blurring of the target that the defendant side must rebut overlaps with the lack of clarity that the request for inquiry is aimed at. In such a scene, the conditions of the wording that the defendant may ask the presiding judge to require the opposing party to provide an explanation are satisfied. Whether, however, that request is accepted and an explanation is submitted, and whether the explanation is filled in, the scene does not determine. Whether, in the formation stage of the allegations and rebuttal to be adjudicated, it becomes clear which facts are alleged and contested, and whether the necessary opportunities for explanation and proof regarding the point of uncertainty are opened, are likewise undetermined on this scene alone. Whether the condition is met that, if the unclear allegation is supplemented, no blocking determination based solely on the absence of an explanation is maintained, is also not determined.
Accordingly, the conclusion that can be read at this point is that the form called a request for inquiry permits a party to make a request through the presiding judge; the conclusion that cannot be read is that the request confers upon a party the right to examine the opposing party directly. The counterargument that repeated demands for explanation can become a means of delay accurately targets the inconvenience of delay and waiting that abuse of the request would produce, and for that reason the form of the request itself is not altered. Since it cannot be confirmed what outcome the opportunities for explanation and proof opened by that request led to, any judgment going further remains undetermined here.
3.7The Link to the Application and the Dispositive Part
In this scene there remains the question whether there is a way for the party itself to take to task the gaps in the opposing party's allegations. The immediately preceding determination was that, from the position that the presiding judge may question the parties and urge proof in order to clarify the legal relations of the lawsuit, it cannot be changed into one holding that a direct right of compulsory examination arises. Taking this conclusion as a premise, the question now is whether the statutory provision provides a window through which a party may seek that explanation. It is a matter of distinguishing whether the presiding judge's authority to question is transferred to the parties in the same form, or remains as a request of a different shape.
As to this question, the Civil Procedure Act provides in Article 136(3) that “A party may, when necessary, request the presiding judge to require the opposing party to provide an explanation” (Civil Procedure Act, Article 136). This wording designates the party as the subject of the act, the presiding judge as the channel to be passed through, and the opposing party's explanation as the object of the demand. Thus there is revealed the arrangement of the procedure whereby an explanation is sought with the presiding judge as intermediary, and not a scene in which a party calls the opposing party to stand and questions him directly. Since the statutory text attaches the condition that an explanation is needed, what is placed in the position of a request is limited to the necessary explanation.
Between the wording confirmed in the preceding paragraph and the conclusion of this section there is a link that must be carried across. A party may ask the presiding judge to require the opposing party to provide the necessary explanation, and that request is called a request for inquiry. The reason this conclusion stands is that one must read together the fact that the channel of the request lies with the presiding judge and the fact that the right of compulsory examination is not conferred directly upon a party. The former marks that a party can demand something, the latter marks the limit of the power that demand possesses; if the two are mixed together, the boundary that the wording does not permit to be crossed is erased.
The strongest counterargument targets the point that repeated demands for explanation can become a means of delay. As the lawsuit proceeds, the opposing party must prepare writings and answers again, and in that process the judgment on the merits may be pushed back—the loss is concrete. The concern that requiring parties without legal knowledge to observe the form of allegations weakens the substantive hearing adds to the inconvenience at the same point. That said, this counterargument cannot itself overturn the conclusion that a demand may be made. Even if repeated demands for explanation can become a means of delay, it cannot be changed into a conclusion that a direct right of compulsory examination arises; what remains is the answer that the magnitude of power that can be put into a request is limited as it stands.
Returning to the synthetic scene, there lies the complaint setting out the contract filed by Plaintiff A and the unclear points of the cause of action. What can be confirmed in this scene is only the fact that it is not stated what obligation went unperformed and in what manner. Whether the presiding judge questioned either side and urged proof, whether an opportunity to supplement was given, and whether there was an explanation in the answer or the preparatory brief are not contained in this scene. The same is true of whether a request for inquiry was actually made and, if so, what explanation came back. Since the complaint, the answer, the preparatory brief, the course of clarification and supplementation, and the contents of the ruling of dismissal on procedural grounds cannot be confirmed, there is no adjudication that can be determined at this point.
In sum, what this section permits is the narrow conclusion that a party may ask the presiding judge to require the opposing party to provide an explanation. A request for inquiry is a request that seeks the opposing party's explanation through the presiding judge, and this request does not lead to a direct right of compulsory examination. Neither the counterargument that repeated demands for explanation can become a means of delay, nor the concern that requiring parties without legal knowledge to observe the form of allegations weakens the substantive hearing, can erase the boundary between the two. Conversely, it is also hard to hold that on the basis of this conclusion alone any fact becomes specified or the cause of action becomes complete. The fact that one may ask that an explanation be required, and the legal effect of the content that explanation fills in, must be distinguished.
3.8The Scope This Section Undertakes
In this scene, there remains as a question whether the path of seeking the opposing party's explanation is already in place, and whether facts contained in such materials, if not submitted as a party's allegations, may drop out of relief.
The wording corresponding to this question is Article 136(3) of the Civil Procedure Act. That wording provides: “A party may, when necessary, request the presiding judge to require the opposing party to provide an explanation.” The subject spoken of here is the party, the act is a request to the presiding judge, and the demand for explanation upon the opposing party is not exercised directly by the party but sought through the presiding judge.
This wording opens to a party the power to make a request, while leaving the realization of the demand to the presiding judge's intervention. Accordingly, the conclusion of this section here is that a party may, when necessary, request the presiding judge to require the opposing party to provide an explanation. At the same time, the request for inquiry—that is, a request that seeks the opposing party's explanation through the presiding judge—is no claim that draws out an explanation but stops at the form of a request. If one adds that a direct right of compulsory examination arises here, the determination changes.
The strongest counterargument to this section lies in the point that repeated demands for explanation can become a means of delay. If the court again requires an answer to the opposing party's unclear explanation, the hearing is delayed, and an incentive arises to put forward weak allegations in advance in order to shake the opposing party. Conversely, there also remains the disadvantage that strictly requiring parties without legal knowledge to observe form weakens the substantive hearing. The answer given above, however, is that the request itself is neither abolished on account of the risk of delay nor expanded into a right of compulsory examination.
The facts that can be confirmed in this scene are that a contract was submitted and that the cause of action does not state what obligation went unperformed and in what manner. Whether facts contained in the materials remain unsubmitted as a party's allegations, and whether a request was actually made, cannot be determined from this scene alone. Accordingly, they remain undetermined. The counterargument that repeated demands for explanation can become a means of delay, however, cannot overturn the existence of the power to make a request.
The conclusion permitted in this section remains within the scope that a party may ask the presiding judge to require the opposing party to provide the necessary explanation, and that such a request is called a request for inquiry. The conclusions not permitted here are that a party has thereby obtained the right to examine the opposing party directly, or that a duty to explain arises from the request alone.
3.9Application of the Text of the Provisions and the Holdings of Precedents
이 장면에서 상대방이 무엇을 다투는지 먼저 분명해져야 반박할 대상이 생긴다. 그리하면 당사자는 어느 범위에서 설명을 구할 수 있는가. 이 물음은 해당 문언이 어떤 청구를 허용하는지에 한정된다.
해당 원문은 민사소송법 제136조에 “③당사자는 필요한 경우 재판장에게 상대방에 대하여 설명을 요구하여 줄 것을 요청할 수 있다.”(민사소송법 제136조)고 정한다. 이 문언에서 주체는 당사자이고, 행위는 재판장에 대한 요청이며, 대상은 상대방에 대한 설명 요구이다. 조건으로는 필요한 경우가 놓이며, 이것이 요청의 한계를 표시한다. 다른 항의 내용은 이 물음의 근거로 끌어오지 않는다.
그 문언은 당사자가 재판장에게 상대방의 필요한 설명을 요구해 줄 것을 요청할 수 있다는 절차상 청구의 형성을 정한다. 이 청구를 여기서 구문 요청, 즉 재판장을 통해 상대방의 설명을 구하는 요청으로 부른다. 구문 요청의 형성과 그에 따른 설명의 내용 확정은 별개의 단계로 나누어 읽는다. 전자는 문언만으로 성립하고, 후자의 충족 여부는 이 문언 밖의 판단에 맡긴다.
어떤 당사자가 답변을 미루려고 상대방의 서면마다 다시 설명을 요청한다면, 상대방은 반박 준비를 멈추고 기다려야 하는 부담을 진다. 실질적 청문의 측면에서 법률지식이 없는 당사자에게 주장 형식을 요구하면 오히려 설명이 약해진다는 비판도 겨냥점이 같다. 구문 요청은 요청에 그치며, 강제로 설명을 끌어내는 권한으로 확장되지 않는다.
합성 장면에서 확인되는 것은 계약서의 제출과 청구원인의 누락뿐이다. A가 어떤 의무를 지고 어떻게 이행하지 않았는지 적지 않았으므로, 상대방이 다툴 대상이 먼저 드러나야 한다. 이 판단은 소장, 답변서, 준비서면, 석명과 보완 경과, 각하 재판으로 확인된다. 다만 어느 의무가 미이행인지, 상대방이 반박했는지, 설명 기회가 열렸는지는 장면이 정하지 않았다. 그 항목들은 미확정으로 남는다. 만약 불명료한 주장이 보완된 것으로 확인되면 설명 부재만을 근거로 한 차단 판단은 유지되지 않는다.
따라서 이 절이 허용하는 것은 이 조문의 문언만으로 구문 요청의 형성을 판단하는 것이고, 허용하지 않는 것은 판결이유를 끌어와 설명의 이행을 확정하는 일이다. 자료가 모자라면 미확정으로 두며, 그 부족이 곧 구제 불능을 뜻하지는 않는다. 다음으로 남는 경계는 이 형성 이후 무엇을 정리하는지이다.
3.10Fine Distinctions Within the Stage
계약서를 냈지만 어떤 의무가 어떻게 이행되지 않았는지 적시하지 않은 청구원인 앞에서, 반박할 쟁점 자체가 흐려진다. 그런 답이 나온 뒤에 남는 물음은 이 절의 것이다. 당사자가 스스로 상대방의 설명을 구할 수 있는지, 그리고 그 요청 안에서 다시 판정할 단위를 어떻게 나눌지가 문제다. 이 물음은 법원이 직권으로 무엇을 물을 수 있는지와는 구분된다.
이 물음에 대해서는 “③당사자는 필요한 경우 재판장에게 상대방에 대하여 설명을 요구하여 줄 것을 요청할 수 있다.”(민사소송법 제136조)고 규정한다. 이 문언이 정하는 주체는 당사자이고, 행위는 재판장에게 상대방에 대한 설명을 요구해 줄 것을 요청하는 것이다. 즉 당사자가 직접 상대방을 추궁하는 것이 아니라 재판장을 매개로 설명을 요청한다는 점이 문언에 드러난다. 요청의 시점에 필요한 경우라는 문언은 조건이다. 조문이 설명의 방식이나 효과까지 규정하지 않은 부분은 이 항의 해설로 메우지 않는다.
위 문언과 단계 판정 기준을 잇는 고리는 명시한 조건이다. 작동하는 경우는 어느 사실을 주장하고 다투는지 드러나며 불명확한 점에 관한 필요한 설명과 증명 기회가 열린 경우이다. 막히는 경우는 취지가 불명료한 공격과 방어방법에 대해 법정 보완 기회 뒤에도 설명이 없어 각하된 경우이다. 미확정인 경우는 제출 취지 또는 법원이 준 보완 기회의 내용을 확인할 수 없는 경우이다. 이 셋을 나누는 이유는 앞서 문언이 보장한 것이 요청의 길인지 강제의 결과인지 확인하기 위해서다. 명시한 조건 밖의 판정 단위를 새로 만들지 않는다.
그러나 설명 요구를 반복하면 지연 수단이 될 수 있다는 점은 빼놓을 수 없다. 반박의 대상이 늦게 특정되면 상대방은 대응 준비를 미루고, 그 사이 소송 지연의 비용을 상대가 감당하게 된다. 법률지식이 없는 당사자에게 주장 형식을 요구하면 실질적 청문이 약해진다는 우려도 같은 결에 있다. 형식에 밝지 못한 당사자가 설명을 요구받는 자리에서 기회를 잃을 수 있다는 것이다. 지연의 가능성은 요청의 방식을 조심스럽게 다루어야 할 이유일 뿐, 조문이 정한 매개 구조까지 뒤집는 근거가 되지 않는다.
이 장면에서 확인되는 사실은 계약서 제출과 청구원인의 부실 서술뿐이다. 어느 의무가 어떻게 이행되지 않았는지 드러나 있지 않은 상태에서, 원고 측이 구문 요청을 했는지, 재판장이 어떤 보완 기회를 주었는지, 어떤 각하 재판이 있었는지는 이 장면으로 정해지지 않았다. 소장, 답변서, 준비서면, 석명과 보완 경과, 각하 재판의 내용이 확인되지 않는 한 미확정인 경우의 상태에 머문다. 만약 불명료한 주장이 보완된 것으로 확인되면 설명 부재만을 근거로 한 차단 판단을 유지하지 않으며, 보완 여부가 기록에 드러날 때에만 판정이 갈린다.
이 절이 허용하는 결론은 좁다. 당사자는 재판장을 통해 상대방의 설명을 구하는 요청을 할 수 있고, 그 요청이 어느 단계에서 작동하는지는 명시한 세 조건으로만 나눈다. 그 세 범위 밖에서 요구·지연·박탈 여부를 따로 판정하는 일은 이 절이 허용하지 않는다. 기록이 미확정이면 미확정으로 두되, 곧바로 기회 박탈이나 구제 불능으로 돌리지 않는다.
3.11Synthesis of Effectiveness, Blockage, and Undetermination
이전 단계는 재판장이 소송관계를 분명하게 하기 위해 사실상 사항을 질문하고 증명을 촉구할 수 있다는 점을 확인하는 데 그쳤다. 이제 그 질문이 어느 방향으로 작동하는지, 즉 재판장이 직접 묻는 경우와 당사자가 재판장을 통해 상대방의 설명을 구하는 경우가 절차적으로 어떻게 다른지에 따라 판단할 주장과 반박의 형성이 어떻게 열리고 막히며 확정되지 않는지가 갈린다. 이번 분석 단계는 이 셋을 구별하는 기준을 정한다.
해당 원문은 민사소송법 제136조 제3항으로, "당사자는 필요한 경우 재판장에게 상대방에 대하여 설명을 요구하여 줄 것을 요청할 수 있다"라고 규정한다(민사소송법 제136조). 이 문언에서 주체는 소송의 당사자이고, 행위는 재판장에게 상대방의 설명을 요구해 줄 것을 요청하는 것이다. 조건은 필요한 경우이며, 그 요청이 받아들여지는지는 문언이 직접 정하지 않는다. 따라서 이 조문은 당사자가 설명을 구하는 길을 열어 두되, 그 결과를 법원이 정한다는 취지로 읽힌다.
이 문언과 이 절의 결론을 이어 보면, 요청을 보내는 것과 설명이 실제로 제출되는 것은 별개의 단계라는 점이 드러난다. 구문 요청, 즉 재판장을 통해 상대방의 설명을 구하는 요청이 접수되면 어느 사실을 주장하고 다투는지가 드러나고 불명확한 점에 관한 필요한 설명·증명 기회가 열린다. 반면 요청에도 설명이 따라오지 않고 취지가 불명료한 공격·방어방법이 그대로 남으면, 법정 보완 기회 뒤에도 설명이 없어 각하되는 조건에 이른다. 이 두 가지 사이에 놓인 경우, 즉 제출 취지나 법원이 준 보완 기회의 내용을 확인할 수 없으면 미확정으로 남는다.
가장 강한 반론은 설명 요구가 반복되면 지연 수단이 될 수 있다는 점, 그리고 법률지식이 없는 당사자에게 주장 형식을 요구하면 실질적 청문이 약해진다는 데 있다. 무명한 주장도 받아들여야 한다는 취지와 형식에 맞춘 설명을 요구하는 현실이 충돌하며, 반박을 준비하는 쪽은 반복되는 설명 요청에 응하다 시점을 잃는 불이익을 감수해야 한다. 이 불이익을 지우지 않으면서도 결론을 유지하는 근거는 문언의 범위다. 제136조 제3항은 재판장에게 설명을 요구해 줄 것을 요청할 권한만 정할 뿐, 당사자가 상대방을 직접 신문할 수 있는 지위를 새로 만들지 않는다. 따라서 설명 요구를 반복해도 직접적인 강제심문권이 생긴다고 바꿀 수는 없다.
이 사실을 위 기준에 대조하면, 계약서 제출만으로 어느 사실을 주장하는지 드러났다고 보기는 어렵다. 어떤 의무가 어떤 방식으로 불이행되었는지가 적시되지 않았다면 구문 요청을 통해 상대방의 설명을 구할 요지가 생긴다. 다만 이 장면에는 제출 취지의 확정, 법원이 준 보완 기회의 내용, 이후 설명의 유무나 각하 재판이 기록되어 있지 않다. 그래서 어떤 조건이 성립했는지 판정할 수 없는 구간이 남는다.
이 절에서 확정할 수 있는 것은 세 가지 조건을 분리하여 붙여야 한다는 것이고, 확정할 수 없는 것은 개개 사건에서 어느 조건이 실제로 성립했는지다. 계약서 제출이나 문언만으로 승패를 예단할 수 없고, 설명 요청을 보냈다는 사실만으로 기회가 열렸다고 특정할 수도 없다. 판단할 주장과 반박의 형성은 어느 사실을 주장하고 다투는지가 드러나고 불명확한 점에 관한 설명·증명 기회가 열릴 때 실효로 나아가며, 반복되는 요청 자체는 강제심문의 지위를 만들지 못한다.
3.12Conclusion Carried Over to the Next Section
앞서 재판장이 소송관계를 분명하게 하기 위해 사실상 사항을 질문하고 증명을 촉구할 수 있다는 점을 확인한 바, 지금은 당사자 쪽에서 같은 목적을 이루려 할 때 어떤 요청을 할 수 있는지가 남는다. 이 장면에서 상대방인 피고가 무엇을 반박해야 하는지 자체가 불분명하다. 피고는 재판장에게 무엇을 요청할 수 있는가.
민사소송법 제136조 제3항은 "당사자는 필요한 경우 재판장에게 상대방에 대하여 설명을 요구하여 줄 것을 요청할 수 있다"고 정한다. 이 문언은 요청의 주체를 '당사자', 요청의 상대를 '재판장'으로 정하고, 행위는 '상대방에 대하여 설명을 요구하여 줄 것을 요청'하는 것으로 잡는다. 이를 '구문 요청', 곧 재판장을 통해 상대방의 설명을 구하는 요청이라 부른다. 요청의 대상이 되는 설명은 '필요한 경우'에 그치며, 문언은 상대방에게 직접 답변을 강제하는 것으로 되어 있지 않다.
이 문언이 당사자에게 주는 것은 재판장에게 요청할 수 있는 자격이고, 그 요청을 받아 어떤 설명을 요구할지는 재판장이 정한다. 따라서 앞 절의 결론과 현재 결론은 단계가 다르다. 앞 절은 재판장이 스스로 소송관계를 밝히기 위해 묻고 증명을 촉구할 수 있다는 것이고, 지금의 조문은 당사자가 그러한 조치를 요청할 수 있다는 것이다. 어느 쪽이든 결과적으로 모호한 주장이 특정되는 방향으로 소송관계가 정리된다. 이것이 다음 절에서 다룰 '주장과 증거의 정리'와 만나는 지점이다.
상대방이 일정한 범위에서 설명을 거듭 청하는 동안 방어 준비와 반박의 방향이 늦춰질 수 있고, 그 사이 소송관계 정리 자체가 목적에서 수단으로 뒤바뀌는 불편도 생긴다. 법률지식이 없는 당사자에게 주장 형식을 요구하면 실질적 청문이 약해진다는 점도 같은 방향의 우려다. 요청의 결과로 어떤 설명이 오고 가는지는 재판장의 판단에 남고, 상대방에 대한 직접 질문권이나 답변 강제력이 당사자에게 생기는 것은 아니다.
합성 장면으로 돌아가 보자. 원고 A가 계약서를 냈으나 어떤 의무가 어떻게 이행되지 않았는지 청구원인에 적지 않았다면, 피고 입장에서는 무엇을 반박해야 할지 특정되지 않은 상태다. 이때 피고가 재판장에게 상대방의 설명을 요구해 줄 것을 요청하는 것은 모호한 점을 특정하게 하는 데 필요한 경우에 해당한다. 다만 이 장면만으로 설명 요구가 실제로 이루어졌는지, 어느 범위의 보완 기회가 주어졌는지, 각하 재판이 있었는지는 정해져 있지 않다. 판단할 주장과 반박의 형성 단계에서 필요한 설명·증명 기회가 열렸는지는 기록으로 확인해야 할 사항으로 남는다.
구분할 것은 이 절이 허용하는 결론과 허용하지 않는 결론이다. 허용되는 것은 당사자가 필요한 경우 재판장에게 상대방의 설명을 요구해 줄 것을 요청할 수 있다는 것이고, 그 요청이 채택되어 설명과 증명 기회가 열린다면 판단할 주장과 반박이 특정되는 방향으로 나아간다는 것이다. 허용되지 않는 것은 그 요청을 당사자가 상대방에게 직접 행사하는 권리로 바꾸거나, 설명이 오지 않았다는 사실만으로 곧바로 상대방의 주장을 배제하는 결론을 이끌어내는 것이다. 주장과 증거의 정리는 무엇을 위한 것인가?