Summary
Even free evaluation of evidence is bound by the results of oral argument and examination of evidence and by the rules of logic and experience.
5.1The Standard by Which the Path Opens
The word freedom is not a license by which a groundless conviction decides defeat. If the court judges freely, does the burden rule disappear? Free evaluation of evidence is itself bound by the tenor of oral argument as a whole and the results of the examination of evidence, and by the rules of logic and experience. The previous section concluded that, as to confessions and manifest facts, the rule dispensing with proof arises first, while the conditions for revocation of confession remain separate. Having carried over the preceding conclusion as it stands, this section asks what standards remain at the stage at which the court freely evaluates probative value. Whether the judge's conviction being individual renders the rule allocating the burden of proof useless, and, if that rule remains, in what state the entrance to this remedy opens, are the heart of the question. This question departs not from the subjectivity of the person applying free evaluation of evidence, but from the boundaries of that principle.
The relevant text of this section is as follows. Article 202 of the Civil Procedure Act provides that "the court ... judges on its free conviction, taking into consideration the tenor of oral argument as a whole and the results of the examination of evidence." This sentence identifies the court as the body that determines the truth or falsity of factual allegations, the tenor of oral argument as a whole and the results of the examination of evidence as the material for that determination, and the rules of logic and experience as the criterion of determination. Here, free evaluation of evidence means the principle by which the court determines probative value, departing from statutory evaluation of evidence. The text prescribes only these three things—the subject, the act, and the conditions—and says nothing directly about the allocation of the burden of proof. Accordingly, the reading that this provision abolishes the burden-of-proof rule exceeds the scope of the text.
Understood in this way, when the status of free evaluation of evidence is combined with the allocation of the burden of proof, the entry standard for this remedy is revealed. The task of evaluating the probative value of individual items of evidence and the task of determining who bears the disadvantage of a fact that is ultimately left unproved are separated. The former lies in the area in which the court judges freely as to each item of evidence; the latter applies where the question whether a requisite fact has been proved and the person who will bear the risk of its non-ascertainment are precisely connected. The reason for distinguishing the two determinations is simple. Even if the evaluation of evidence is free, the attribution of non-ascertainment remains bound by rules, and the entrance to the remedy opens where that rule operates. The amplitude of conviction cannot take the place of the rule.
The strongest counterargument targets the point that the language of this regulation does not prevent actual bias in adjudication. If the party that holds the materials remains silent, the ordinary burden of proof entrenches substantive inequality. Where the party bearing the burden of proof is at a disadvantage in access to information, the burden rule fixed by law structurally solidifies that disadvantaged position and produces the result of aiding the other party's silence, so the criticism goes. This disadvantage must not be minimized. Yet even accepting that reality, free evaluation of evidence cannot be replaced by groundless intuition. That a rule produces inequality does not justify the direction of leaving fact-finding to groundless convictions. The rule is retained because, although it bears the limitation of not wholly removing actual bias, it demands grounds for adjudication in a way that the absence of such a rule would not.
Contrast this standard against this scene. The cause of action asserted by plaintiff A was not sufficiently supported, but the alternative explanation of defendant B was not proved either. This scene corresponds to a state in which the requisite fact is ultimately left unproved, but whether plaintiff A bears the risk of that non-ascertainment is not determined by this scene alone. Unless it is specified which fact remains unascertained and who bears that risk, the determination remains undetermined. If it is confirmed that one of the adjudication conditions is different, the result changes. If it is confirmed that the applicable burden-of-proof rule is different, the conclusion on the attribution of the risk of defeat changes. The records of the allegations and evidence by requisite, legal presumptions, findings of fact, and the determination of the burden of proof are the place where this connection is confirmed, and since the scene fixes no year, amount, or outcome of judgment, no further conclusion can be written.
The conclusion permitted by this section is narrow. Even if the court judges freely, the burden-of-proof rule does not disappear, and the entrance to the remedy opens where the question whether a requisite fact has been proved and the person who will bear the risk of its non-ascertainment are precisely connected. Conversely, a determination that replaces free evaluation of evidence with groundless intuition, or a conclusion reached without specifying which fact is unascertained and who bears that risk, does not meet this standard. A lack of materials is undetermined and does not mean that no remedy is available, and therefore the unfixed range is left unfilled by conjecture.
5.2The Conditions That Block Relief
Under what conditions is the remedy pathway blocked? Free evaluation of evidence means the principle by which the court determines probative value, departing from statutory evaluation of evidence. This principle opens room for the court's judgment, but it does not mean that this room immediately erases even the allocation of the burden of proof. It is precisely at this point that the relationship between free evaluation of evidence and the burden rule diverges.
Article 202 of the Civil Procedure Act provides that the court determines the truth or falsity of factual allegations "on its free conviction, taking into consideration the tenor of oral argument as a whole and the results of the examination of evidence." Here, free conviction is not empty confidence, but a mode of determination that grounds its consideration in the concrete material of the tenor of oral argument as a whole and the results of the examination of evidence. The text also presupposes that it must be based on the ideals of social justice and equity and accord with the rules of logic and experience. These three criteria delimit what the court, the subject of determination under free evaluation of evidence, must take as its ground. It is therefore difficult to regard the principle of free evaluation of evidence itself as replacing the burden-of-proof rule.
The freedom pointed to by the text of this provision and the question who bears the risk of non-ascertainment when proof of a core requisite fact ultimately fails are located at different stages. The former concerns how the court evaluates the evidence presented; the latter concerns, when the fact nonetheless remains unascertained after evaluation is complete, to whom the risk of defeat is attributed. Only if the distinction that the former cannot substitute for the latter holds can the conditions under which the remedy pathway is closed be specified. Where proof of a core requisite fact ultimately fails and the corresponding claimant bears the risk of that non-ascertainment, if any one of the statutory requirements is not satisfied, the remedy pathway is closed.
The loss and inconvenience that arise from emphasizing this distinction are plain. A structure in which the gap in access to information is reflected as-is in the allocation of the risk of defeat leaves a claimant without materials at a repeated disadvantage. Even so, free evaluation of evidence cannot be replaced by groundless intuition. Even if the mere word "rules" does not completely prevent actual bias in adjudication, allowing a groundless conviction to decide defeat beyond a determination bound by the results of oral argument and the examination of evidence invites a greater risk. It is an answer that does not erase the inequality the counterargument points out, while also not toppling the blocking condition itself.
The facts given in the synthetic scene are that the cause of action asserted by plaintiff A was not sufficiently supported, and that the alternative explanation of defendant B was not proved either. Contrasting these two facts with the preceding conditions, it must be specified which fact is unascertained and who bears the risk of that non-ascertainment. The records for determination in this section are the allegations and evidence by requisite, legal presumptions, findings of fact, and the determination of the burden of proof. On the basis of these records, the blocking condition is established only where proof of a core requisite fact ultimately fails and the corresponding claimant bears the risk of that non-ascertainment. Where it is not specified which fact is unascertained, or who bears that risk, the determination is left undetermined. The premise that, if it is confirmed that the applicable burden-of-proof rule is different, the conclusion on the attribution of the risk of defeat changes also falls here.
The fact that the term free evaluation of evidence broadens the court's room for judgment does not mean that the burden rule disappears or that the remedy pathway opens automatically. The conclusion permitted by this section is the determination that, where proof of a core requisite fact ultimately fails and the corresponding claimant bears the risk of that non-ascertainment, if any one of the statutory requirements is not satisfied, the remedy pathway is closed. The conclusion not permitted by this section is the determination that, merely because the court judges freely, the allocation of the burden of proof vanishes, or that a groundless conviction is allowed to decide defeat. Declaring that no remedy is available without specifying which fact is unascertained also falls outside the conclusion of this section. The question that remains next is whether the alternative explanation of defendant B is true.
5.3The Boundary That Remains When There Is No Data
The preceding stage confirmed that, under the principle of free evaluation of evidence, the court's formation of conviction does not flow arbitrarily. This question asks about the relationship between free evaluation of evidence and the burden of proof, and within it lies the narrower question: where is the boundary that cannot be fixed for lack of materials?
The ground for answering this question is provided in Article 202 of the Civil Procedure Act. The court determines "taking into consideration the tenor of oral argument as a whole and the results of the examination of evidence," and its conviction, though called a "free conviction," is exercised "in accordance with the rules of logic and experience, based on the ideals of social justice and equity" (Article 202 of the Civil Procedure Act). This text fixes the court as the subject of determination, the truth or falsity of factual allegations as the object of determination, and the tenor of oral argument as a whole and the results of the examination of evidence as the conditions of determination.
The conditions pointed to by the text of Article 202—that is, the tenor of oral argument as a whole, the results of the examination of evidence, and the rules of logic and experience—become the boundaries of free evaluation of evidence. Even if the court determines on its free conviction, that determination is bound by the materials to be considered and by the rules, and where there are no materials, no room remains for free evaluation of evidence to fill. Accordingly, where it is not specified which fact is unascertained, or who bears that risk, a matter for which the material of determination is unspecified is left undetermined, distinguished from impossibility. Impossibility is a state in which the ground of determination has vanished; being undetermined is a state in which there is a ground but it cannot be fixed. The two states must be distinguished in order to know where the determination stopped.
The strongest view opposed to this distinction argues that the mere word "rules" cannot prevent actual bias in adjudication. The loss this counterargument points out is real, and the possibility of bias is not erased. The reply to the counterargument is that, even if a determination bound by rules is imperfect, it is better than letting a groundless conviction decide defeat. The disadvantage the counterargument leaves behind is acknowledged as it stands.
Looking at the synthetic scene, the cause of action asserted by plaintiff A was not sufficiently supported, but the alternative explanation of defendant B was not proved either. In this scene, the question whether a requisite fact has been proved and the person who will bear the risk of its non-ascertainment were not precisely connected. Since which fact is unascertained and who bears that risk were not specified, this matter cannot be fixed and remains undetermined. Even with the same non-ascertainment, if the applicable burden-of-proof rule changes, the attribution of the risk of defeat changes; therefore, the conclusion for a case in which the application of the rule differs is not adjudicated by this scene. The synthetic scene confirms only this distinction of conditions and does not fix the facts or results of an actual case.
The conclusion permitted by this section is narrow. Free evaluation of evidence is bound by the results of oral argument and the examination of evidence, and matters for which those results are unspecified remain undetermined rather than impossible. The conclusion not permitted by this section is equally clear. Replacing free evaluation of evidence with groundless intuition, or treating matters that could not be fixed as impossible and deciding the risk of defeat in advance, falls outside this distinction. Unless it is specified which fact is unascertained, or who bears that risk, the determination stops right there.
5.4The Records Needed for Determination
When the court determines facts under free evaluation of evidence, the word freedom is not a license by which a groundless conviction decides defeat. As to confessions and manifest facts, the rule dispensing with proof arises first, while the conditions for revocation of confession remain separate. The question that lies behind this is plain. The more specific question is what records are needed for the adjudication. Here, stage means the procedure for deciding the attribution of the risk of defeat arising from an unascertained fact. The author takes the view that this question does not stop at asking the scope of the principle of free evaluation of evidence, but also demands a list of the materials to be used for the adjudication.
The text that answers this question is in Article 202 of the Civil Procedure Act. That provision states: "The court determines whether a factual allegation is true or not on its free conviction, taking into consideration the tenor of oral argument as a whole and the results of the examination of evidence, in accordance with the rules of logic and experience, based on the ideals of social justice and equity." The subject spoken of by this text is the court; the act is the determination of the truth or falsity of factual allegations; and the conditions are the consideration of the tenor of oral argument as a whole and the results of the examination of evidence, and subjection to the rules of logic and experience. Here, free evaluation of evidence refers to the principle by which the court determines probative value, departing from statutory evaluation of evidence; this definition means only that the court evaluates the probative value of evidence, and does not mean that even the grounds of determination vanish. This section addresses only this part of Article 202.
Thus, the fact that free evaluation of evidence frees the form of determining probative value and the fact that such determination is bound by materials already examined hold at the same time. The author separates the two. First, he determines what materials are recorded in the allegations and evidence by requisite, legal presumptions, and findings of fact; next, he examines what the determination of the burden of proof fixes upon those materials. This distinction is necessary because the evaluation of probative value and the attribution of the risk of defeat are different matters. The former deals with how far which materials support a fact; the latter determines who bears the risk of that non-ascertainment when proof ultimately fails. If these two stages are mixed into one without recorded materials, what remains is a determination in which what was taken as its ground is not revealed under the name of free evaluation of evidence. Therefore, the stage is adjudicated only on the records that have been fixed, and absent records are not filled in by conjecture.
A counterargument is raised that this record requirement is nothing more than theoretical neatness. What that counterargument targets is substantive inequality. The observation that the mere word "rules" cannot prevent actual bias in adjudication lies in the same context. The loss this counterargument identifies is clear: when a fact left unascertained and unrecorded flows as-is into the attribution of the risk of defeat, the party that has difficulty accessing the materials ends up bearing that risk in full. The author does not erase this disadvantage. The demand of equity raised by the counterargument is no reason to move over to groundless convictions; rather, it adds to the need to reveal through the records which materials are missing.
Contrasting this fact with the record requirement, the stage can be adjudicated only where the question whether a requisite fact has been proved and the person who will bear the risk of its non-ascertainment are precisely connected. Where proof of a core requisite fact ultimately fails and the corresponding claimant bears the risk of that non-ascertainment, the attribution of the risk of defeat turns to that party. However, if the scene alone does not specify which fact is unascertained and who bears that risk, that side remains undetermined. That the mere fact that the plaintiff's explanation is unsupported does not make the explanation of defendant B true lies within the boundary this scene can determine.
The conclusion permitted by this section is narrow. The burden-of-proof rule does not vanish merely because the court determines facts freely, and the stage is adjudicated only on the materials recorded in the allegations and evidence by requisite, legal presumptions, findings of fact, and the determination of the burden of proof. If facts not in the records are filled in by guesswork, that determination loses the ground this section requires. Conversely, the circumstance that nothing can yet be asserted for want of materials does not immediately mean that no remedy is available, and where it is not specified which fact is unascertained and who bears that risk, the adjudication itself must be deferred. Within this boundary, free evaluation of evidence remains a principle that opens the form of determination, and the burden rule remains the standard that fixes attribution when the determination is not yet complete.
5.5Circumstances That Change the Decision
If it was found earlier that the burden rule remains intact even when the court judges freely, what now remains at issue is which change overturns a step determination that has already been made. This question is a work of identifying where the condition for overturning the result of a determination is located. If the locus of change is unclear, the term re-determination ends as no more than a repetition of judgment.
Civil Procedure Act Article 202 provides that "the court, in consideration of the gist of the entire oral argument and the results of the examination of evidence," determines the truthfulness of factual assertions. That determination is made by free conviction, but it must accord with the rules of logic and experience. The so-called principle of free evaluation of evidence refers to the principle by which the court determines probative value beyond statutory evaluation of evidence, and it is not a power that departs from the materials and methods of judgment.
There is a clear seam between the constraint on judgment set by the statute and the present conclusion. However freely the results of oral argument and of the examination of evidence may be considered, who bears the uncertainty of a requirement fact that remains ultimately unconfirmed lies outside the operation of that conviction. The author distinguishes two stages here. One is the operation of fact-finding based on evidence; the other is the rule that attributes the risk of losing when that finding is not completed.
Yet there is a counterargument that merely invoking the burden-of-proof rule cannot prevent actual bias in judgment. This counterargument does not overlook the point that applying the rule may carry an imbalance in the materials straight through to the result, and it also points out that the word rule does not erase the existence of bias. Even so, the author's answer does not change. Free evaluation of evidence cannot be replaced by intuition without reasons. While leaving in place the inequality the counterargument points out, only the locus of attribution fixed by the rule is maintained.
This scene specifies only a state in which both accounts remain unfinished, and it does not determine outcomes such as victory or defeat or amounts. Where both accounts are simultaneously incomplete, if a key requirement fact as to causation is ultimately not proved and plaintiff A bears the risk of that uncertainty, the proof of the requirement fact and the risk of uncertainty are linked to the specified person. Conversely, if it is confirmed that the applicable burden-of-proof rule is different, the conclusion on the attribution of the risk of losing changes, so that an existing blocking determination or effectiveness determination no longer remains. Insofar as it is not specified which fact is uncertain or who bears that risk, the matter cannot be determined on the basis of this scene alone.
The conclusions this section permits are narrow. Free evaluation of evidence does not erase the burden rule, and if a change in the applicable rule is confirmed, the step determination is redone from the beginning. This section does not permit asserting whose risk of losing it is while it is not specified which fact is uncertain, nor does it permit settling in advance the conclusion of an issue whose determination is not complete. To regard relief as impossible merely because there is no data also goes beyond the scope defined earlier.
5.6The Strongest Counterargument and the Answer
The word rule alone cannot prevent actual bias in judgment. The starting point is that the word freedom is not a license by which unfounded conviction decides the loss of a case. The conclusion was that the burden rule does not disappear even when the court judges freely. Now the counterargument aims at whether that sentence actually operates. If the court invokes its inner conviction and is sparing with words, any judgment can be justified under the name of free evaluation of evidence. The counterargument says that a rule that cannot prevent such loss of control only entrenches substantive inequality. This question is how to answer the strongest counterargument.
The relevant source text corresponding to this question is as follows. Civil Procedure Act Article 202 declares that the court determines factual assertions "in consideration of the gist of the entire oral argument and the results of the examination of evidence." The subject indicated by this wording is the court, and the act is the determination of the truthfulness of factual assertions. The condition of the judgment is the consideration of the gist of the entire oral argument and the results of the examination of evidence. The court cannot find the starting point of judgment within itself. The materials of judgment are the oral argument advanced by the parties and the results of the examination of evidence conducted, and a conviction that goes beyond that scope is not a conviction permitted by this Article.
The link that connects the wording above with the conclusion lies in the latter part of the statute. The court determines factual assertions "on the basis of the idea of social justice and equity and in accordance with the rules of logic and experience." Here two stages of judgment must be distinguished. The first is the stage of evaluating the probative value of evidence without being bound by statutory forms, and the second is the question whether that evaluation may be replaced by intuition without reasons. That the former is permitted does not mean that the latter is permitted. Freedom in the determination of probative value does not mean freedom in the grounds of judgment.
At the heart of the counterargument is the loss if this distinction is not accepted as it stands. What the counterargument fears is a situation in which formal equality conceals a real imbalance of power. If the plaintiff cannot access the materials and therefore cannot prove the account, is it right to attribute that disadvantage to the plaintiff as it stands? The conclusion can be maintained without erasing such inconvenience and unfairness. That substitution is prohibited does not resolve the problem of inequality. It means only that the resolution of that problem does not justify a channel that permits unfounded conviction.
In the synthetic scene, the facts relevant to this question are as follows. Both accounts remain undetermined. In this scene, even if the court judges in accordance with free evaluation of evidence, the materials of judgment are limited to the gist of the entire oral argument and the results of the examination of evidence. The mere circumstance that one account has not been proved does not make the other account true. Which fact is uncertain, and who bears the risk of that uncertainty, are not specified by this scene alone. This assumption is not a fact added to the scene but a case that changes the conditions of determination.
Summarizing the boundary between the conclusions this section permits and those it does not: for the court to judge in accordance with free evaluation of evidence means a freedom that departs from the forms of evidence evaluation. Yet that freedom does not mean departing from the constraints of the results of oral argument and of the examination of evidence and the rules of logic and experience. Unfounded conviction cannot be read as a license by which losing is decided. At the same time, the name of free evaluation of evidence is not a device that prevents all bias in judgment, and the inequality entrenched by the ordinary burden of proof is not resolved by this principle alone. Items that remain unverified are left as they are, and undetermined matters are not filled in with conjecture.
5.7The Link to the Application and the Dispositive Part
On the premise that free evaluation of evidence cannot be replaced by intuition without reasons, the next question is whether the court's judging freely renders the burden-of-proof rule powerless. The statutory evaluation of evidence referred to here is a method that assigns predetermined values according to the kind and number of items of evidence, while free evaluation of evidence refers to a method that, freed from that constraint, reads individual evidence and the entire flow of the oral argument together to judge the truthfulness of factual assertions. Yet that freedom does not eliminate even the grounds of judgment.
The wording corresponding to this section is Civil Procedure Act Article 202. Article 202 provides: "The court determines whether a factual assertion is true or false in free conviction, considering the gist of the entire oral argument and the results of the examination of evidence, in accordance with the idea of social justice and equity and the rules of logic and experience." In this wording the subject of judgment is the court, and the object of judgment is the truthfulness of factual assertions. The materials of judgment are the gist of the entire oral argument and the results of the examination of evidence, and the criteria the judgment must observe are the idea of social justice and equity, and the rules of logic and experience. Free conviction is merely a method of evaluating probative value between the preceding materials and the succeeding criteria; it does not denote a conviction detached from the materials. Accordingly, the principle of free evaluation of evidence is a rule that broadens the court's evaluation of evidence while binding the grounds of judgment narrowly.
Reading this wording together with the conclusion of this section, one can see that free evaluation of evidence and the burden rule are regulations of different stages. Free evaluation of evidence is a method that determines the degree to which each item of evidence supports the truthfulness of a factual assertion, and what finding is reached when several items of evidence are gathered. The burden-of-proof rule determines who bears the risk of losing when, that finding not being reached, the fact remains ultimately uncertain. The reason the two stages must be distinguished is that the former does not substitute for the latter. Even if the court judges freely, if the result of the judgment does not reach the requirement fact, someone to bear the risk of that uncertainty remains. The evaluation of probative value and the attribution of uncertainty proceed together only when this connection is precisely woven, and free evaluation of evidence does not erase the latter rule.
The strongest counterargument aims at the point that the word rule cannot even prevent actual bias in judgment. The counterargument says this: if the party holding the materials closes its mouth, the court sees only the remaining evidence, and at that point the rules of logic and experience can entrench as they stand the inequality that the ordinary burden of proof has already set. This observation is adverse. If the experience described by the rule is biased, free evaluation of evidence may repeat that bias. This is because the method by which unfounded conviction decides losing makes the control of bias, if anything, more difficult. The answer lies in binding the grounds of judgment to oral argument and examination of evidence and to the rules of logic and experience, but it cannot make the inconvenience the counterargument points out disappear.
The fact relevant in the synthetic scene is one. Contrasting this scene with the foregoing conditions, A's account of the cause is situated in a state where proof of the requirement fact is ultimately not reached, and B's alternative account likewise has not been independently proved. Following the criteria to which free evaluation of evidence is bound, the court reads both accounts through oral argument and examination of evidence and the rules of logic and experience, but this reading does not decide which account is made true. Which fact is uncertain, and who bears the risk of that uncertainty, are not confirmed by this scene alone. One can only apply the test that, even for the same uncertainty, a change in the applicable burden-of-proof rule alters the attribution of the risk of losing.
The conclusions permitted in this section are these. The court's free evaluation of evidence is bound by the materials of the gist of the entire oral argument and the results of the examination of evidence, and by the criteria of the rules of logic and experience; and notwithstanding that constraint, the burden-of-proof rule separately remains to distribute the risk of uncertainty. The conclusion not permitted is the one that free evaluation of evidence is itself unfounded conviction and therefore leaves any judgment as it is. Replacing free evaluation of evidence with intuition without reasons removes the criterion of rules, and at that point, even if the burden rule remains alive, the judgment is not freed from bias. Unverified matters remain. The facts of an actual case, the results of service or performance, and judgment results not present in the scene are not determined by this section, and the attribution that varies with the choice of the burden-of-proof rule is stated only conditionally.
5.8The Scope This Section Undertakes
The question that now remains is whether the burden rule loses its force when the court freely evaluates evidence. This question turns on identifying the scope of free evaluation of evidence and its limits.
The ground of free evaluation of evidence and the conditions of its constraint are provided together in a single Article. Civil Procedure Act Article 202 reads: "The court determines whether a factual assertion is true or false in free conviction, considering the gist of the entire oral argument and the results of the examination of evidence, in accordance with the idea of social justice and equity and the rules of logic and experience." This wording fixes the subject of judgment as the court and the object of judgment as the truthfulness of factual assertions. The materials of judgment are the gist of the entire oral argument and the results of the examination of evidence.
Free evaluation of evidence is the principle by which the court determines probative value beyond statutory evaluation of evidence. In this definition, freedom means that the court can determine the probative value of evidence without being bound to a statutory method. That freedom, however, is bound by the materials and the rules of the wording seen above. Judging freely and asserting without any grounds are different stages. If the former is a principle concerning the method of evaluating evidence, the latter is a state in which no grounds of judgment are provided at all. Only by distinguishing these two can one say that the burden-of-proof rule is not erased by free evaluation of evidence.
The counterargument that the word rule alone cannot prevent actual bias in judgment is emotional. The observation that the ordinary burden of proof entrenches substantive inequality when the party holding the materials is silent aims in the same direction. This counterargument squarely reveals the loss that, even when the formation of the court's conviction invokes experience and logic, it cannot reverse the biases of reality. Because intuition without reasons demands no grounds, it widens rather the channel through which bias operates without grounds.
Even if the court operates free evaluation of evidence in this scene, neither account is adopted thereby. Free evaluation of evidence is a principle for determining the probative value of evidence, not a principle that ignores the risk of uncertainty concerning unproved facts. So long as it is not specified which fact remains ultimately uncertain and who bears that risk, the existence or nonexistence of the claim cannot be confirmed by this scene alone.
The conclusions this section permits are narrow. Even if the court judges freely, the burden rule does not disappear, and free evaluation of evidence is bound by the results of oral argument and of examination of evidence and by the rules of logic and experience. What is not permitted is reading free evaluation of evidence as a license for unfounded conviction, and putting a determination forward while the locus of the burden of proof remains unset.
5.9Application of the Text of the Provisions and the Holdings of Precedents
The question remaining here is different. At issue is who shall bear the risk of losing arising from a fact on which proof is not completed under free evaluation of evidence. Placed before this scene, the question examined is whether the burden rule disappears when the court judges freely.
The relevant source text for this question is Civil Procedure Act Article 202 alone. Its wording provides that "the court determines whether a factual assertion is true or false in free conviction, considering the gist of the entire oral argument and the results of the examination of evidence, in accordance with the idea of social justice and equity and the rules of logic and experience" (Civil Procedure Act Article 202). Here the court is the subject that determines the truthfulness of factual assertions, and the materials of judgment are the gist of the entire oral argument and the results of the examination of evidence. Free conviction is a method of gauging probative value upon these materials, and the rules of logic and experience are the boundary beyond which that gauging cannot pass.
When this wording is applied to the attribution of the risk of losing arising from uncertain facts, the basis for determination is only the wording within the relevant scope. It is not extended to other parts of the reasons for judgment. The wording distinguishes the act of determining the truthfulness of factual assertions from the question who bears the risk when that determination ultimately fails to stand. Free evaluation of evidence is a clause that opens the former method of judgment, while the allocation of the latter risk merely leaves that judgment to be made and does not determine it in its stead. Accordingly, the circumstance that free judgment has been opened does not mean that the burden rule is erased.
There is a separate strongest voice opposing this distinction. It is that the word rule alone cannot prevent actual bias in judgment. It means that even if the party holding favorable materials is sparing with words, the fixed burden rule may accept that silence as it stands. The rules of logic and experience that the wording leaves in place may not completely eliminate the risk of bias, but they leave behind at least the minimal demand that conviction be placed upon grounds.
The fact confirmed in the synthetic scene is this one line. This state corresponds to the case where a key requirement fact is ultimately not proved and the claimant in question bears the risk of that uncertainty. Only when, upon the records of requirement-by-requirement assertions, evidence, legal presumptions, factual findings, and burden-of-proof determinations, it is specified both which fact is uncertain and who bears that risk does the attribution of the risk stand. Since it is not confirmed from the scene alone which applicable rule has been set, if it is confirmed that the applicable burden-of-proof rule is different, the conclusion on the attribution of the risk of losing changes.
The conclusions this section permits are narrow. Only the wording of the relevant source text is used as the basis for determining the attribution of the risk of losing arising from uncertain facts, and only the wording within the scope of the relevant source text is applied. Even if free evaluation of evidence gives freedom to the court's judgment, that freedom does not become a license to decide losing by unfounded conviction. Conversely, to regard free evaluation of evidence as erasing the burden rule itself is also a conclusion the wording does not contain. Items remaining unverified are left undetermined, and the confirmed scope is not extended outward.
5.10Fine Distinctions Within the Stage
The preceding step examined the relationship between the scope within which the court judges freely and the burden rules. Continuing that discussion, the analysis now asks what remains to be adjudicated separately within the allocation of the risk of loss arising from unclear facts. This question is not one of enlarging or narrowing the scope of free evaluation of evidence; it is a matter of discerning which conditions must be passed through separately within the stage of adjudication. This step introduces fine distinctions only within the conditions stated.
The provision corresponding to this question is Article 202 of the Civil Procedure Act. Under its text, the court judges whether a factual allegation is true "in consideration of the purport of the entire oral argument and the results of the examination of evidence" (Civil Procedure Act Article 202). Here the actor is the court, the act is the judgment as to the truth of a factual allegation, and the condition is the consideration of the purport of the entire oral argument and the results of the examination of evidence. While this text prescribes the principle by which the court judges probative value—that is, free evaluation of evidence—it also binds the materials for that judgment to the oral argument and the examination of evidence. Issues arising under other provisions are not placed within the scope of this question.
This text shows that free evaluation of evidence operates upon a foundation, and upon that foundation one may place the fine distinctions within the stage. This definition and the condition in the preceding text point to two different stages. The former concerns the question of what foundation the court relies on in gauging probative value; the latter concerns the question of what that gauge is bound to. The reason the two must be distinguished is that one must not read the name of free evaluation of evidence as though the latter condition vanished as well. Premised on this distinction, the fine distinctions within the stage are confined to the operative, blocked, and undetermined conditions, and no further stages are created.
The loss this counterargument targets is that, if the party holding the materials falls silent, the ordinary burden of proof can entrench substantive inequality. Even if the court promises to follow the logic and the rules of experience, a skew can already arise in determining which materials reach the screen, and that skew is felt all the more heavily depending upon whom the burden of loss falls. The inequality identified by the counterargument is not erased, but that inequality does not furnish grounds for leaving the court's judgment to unfounded conviction—that is the answer given above.
One fact is involved in the synthetic scene. Contrasting this scene with the operative-case condition, the proof of the requirement facts and the person who bears the risk of that uncertainty must be exactly linked; and this scene shows the side on which the requirement facts were ultimately left unproved. The blocked-case condition is the case in which a core requirement fact was ultimately not proved and the claimant bears the risk of that uncertainty; if here it remains unspecified which fact is uncertain and who bears that risk, it becomes the undetermined-case condition. The scene does not determine which of the three it is. Even with the same uncertainty, if the applicable burden-of-proof rule changes, the allocation of the risk of loss changes.
The conclusion this section permits is narrow. The fine distinctions within the stage are confined to the stated conditions—that is, the case in which proof and the bearer of the risk of its uncertainty are linked, the case in which a core requirement fact is uncertain and the claimant bears that risk, and the case in which it is not specified which fact is uncertain or who bears that risk. One must not invent additional stages beyond these three. The principle of free evaluation of evidence means that the court judges probative value but remains bound by the purport of the entire oral argument and the results of the examination of evidence, and it is not permitted to transpose this into unfounded conviction. In the interval where it is not specified which fact is uncertain, one leaves that interval undetermined rather than deferring the conclusion.
5.11Synthesis of Effectiveness, Blockage, and Undetermination
That sentence was merely the result of confirming what foundation the court is bound to in judging facts under free evaluation of evidence; the question now open here is different. The present question is whether the burden rules disappear if the court judges freely, and, more concretely, how the allocation of the risk of loss arising from unclear facts is distinguished as operative, blocked, or undetermined. One premise is carried over from the preceding section. Taking this premise as a clue, the task of this paper is to examine separately what becomes open and what becomes blocked when a state of incomplete proof remains under free evaluation of evidence.
What free evaluation of evidence is, is confirmed by the text fixed within Korean judicial procedure. Article 202 of the Civil Procedure Act gives its provision the title "principle of free evaluation of evidence" and provides that the court judges the truth of a factual allegation "in consideration of the purport of the entire oral argument and the results of the examination of evidence" (Civil Procedure Act Article 202). In this text, the subject of the judgment is the court, the object of the judgment is the truth of the factual allegation, and the basis of the judgment is the purport of the entire oral argument and the results of the examination of evidence. What this text says is not that the court may arbitrarily fabricate conviction, but that, departing from legal rules of evidence, it establishes the principle by which the court judges probative value, while requiring that judgment to be connected to the oral argument and the examination of evidence. Issues arising under other provisions are not addressed here.
The above text is joined by the judgment that free evaluation of evidence does not erase the burden rules. Since the basis of the court's judgment is limited to the purport of the entire oral argument and the results of the examination of evidence, the question of upon whom to shift the burden of that uncertainty, when it cannot be determined which factual allegation is true, cannot vanish of itself. Here the reason for distinguishing the two stages becomes clear. The first stage is to determine whether the requirement facts have been proved; the second stage is to determine who bears the risk of that uncertainty when that proof is ultimately not achieved. If these two judgments are mixed into one, free evaluation of evidence is misunderstood as amounting to unregulated conviction. Conversely, where the two are exactly linked, the operative condition is established; where a core requirement fact was ultimately not proved and the claimant bears the risk of that uncertainty, the blocked condition is established.
The counterargument that the mere word "rules" cannot prevent actual bias in judgment targets the loss that the text of the norm may diverge from the way it operates in practice. The observation that, if the party holding the materials falls silent, the ordinary burden of proof entrenches substantive inequality comes from the same direction. This counterargument is accepted without erasing the disadvantage whereby unfounded conviction decides a loss, and without erasing the inconvenience whereby concentration of materials distorts the distribution of the risk of loss. Yet, for all one's concern about that inequality, free evaluation of evidence cannot be replaced by reasonless intuition. Even though free evaluation of evidence is the principle by which the court judges probative value outside the legal rules of evidence, it remains bound to the purport of the entire oral argument and the results of the examination of evidence, and the moment an intuition beyond the logic and the rules of experience takes its place, the basis of the judgment disappears (Civil Procedure Act Article 202). The concern about inequality only makes further demands upon the basis of judgment; it cannot justify unfounded conviction.
If one sets out a single synthetic scene in which these conditions overlap, plaintiff A's account of causation was not sufficiently supported, but defendant B's alternative explanation was not proved either. What deserves attention here is the contrast between the two. On plaintiff A's side, proof of the requirement facts was not sufficiently achieved; yet neither was defendant B's alternative explanation itself proved. That is, one must first specify whether the object left unproved is A's requirement fact or B's fact negating it, and only then apply the burden-of-proof rule corresponding to who bears the risk of that uncertainty. The records of requirement-specific allegations and evidence, statutory presumptions, fact-finding, and burden-of-proof determinations furnish the basis for this contrast. If it remains unspecified which fact is uncertain, or if it remains unconfirmed who bears that risk, no judgment can be made from this scene alone, and it must be left undetermined. If it is confirmed that the applicable burden-of-proof rule differs, the assumption that the conclusion on the allocation of the risk of loss changes accordingly shows precisely this boundary.
The conclusion this section permits divides into three. Only where the proof of the requirement fact and the person bearing the risk of that uncertainty are exactly linked does the matter reach the operative condition for the allocation of the risk of loss. Where a core requirement fact was ultimately not proved and the claimant bears the risk of that uncertainty, it reaches the blocked condition, and that claim does not break through. Where it is not specified which fact is uncertain or who bears that risk, the matter fits neither of the above and must be left undetermined. This distinction does not speak to the actual results of payment, delivery, or recovery; it presents a standard for judging whether the conditions for allocating the risk of loss open or remain blocked, after passing through requirement-specific allegations and evidence, statutory presumptions, fact-finding, and burden-of-proof determination. A shortage of materials is merely a reason for undetermined status and does not immediately mean that no relief is available.
5.12Conclusion Carried Over to the Next Section
Setting aside the point that, as to confession and manifest facts, the rule dispensing with proof is the first issue and the conditions for revocation of confession remain to be treated separately, the remaining question takes the form of whether free evaluation of evidence can shake the structure of the burden of proof. This question is not a mere arrangement of scholarly positions; it is bound up with the problem of what remains in the adjudication records and who bears the risk of uncertainty upon those records.
The provision corresponding to this question is found in Article 202 of the Civil Procedure Act. That provision states: "The court shall, in consideration of the purport of the entire oral argument and the results of the examination of evidence, by free conviction, in accordance with the ideals of social justice and equity, and following the logic and the rules of experience, determine whether a factual allegation is true" (Civil Procedure Act Article 202). Here the subject is the court, the act is the judgment on the truth of the factual allegation, and the materials for the judgment are the purport of the entire oral argument and the results of the examination of evidence. The expression "free conviction" refers to the principle of handling that judgment as a matter of probative value outside the framework of legal rules of evidence—that is, free evaluation of evidence—and the logic and the rules of experience are written together as the criterion upon which that judgment rests.
The point at which this text touches the settled conclusion is that the freedom of conviction and the binding of adjudication are written side by side. That the court may freely evaluate probative value, and that when some fact is ultimately left uncertain it is not thereby determined who will bear that uncertainty, are matters of different stages. The former concerns the question of what standard is used to examine the truth of the requirement facts; the latter concerns the question of which side bears the risk of loss when that truth is not determined by adjudication. If the two stages are mixed, it appears that free evaluation of evidence immediately leads to the extinction of the burden rules; but so long as the results of the oral argument and the examination of evidence, which the provision treats as materials for consideration, remain, it cannot be read as such an extinction.
Yet here one cannot dodge the strongest counterargument. It is the observation that the mere word "rules" cannot prevent actual bias in judgment. The criticism that, if the party holding the materials falls silent, the ordinary burden of proof entrenches substantive inequality, targets which side suffers when the criterion written in the text does not operate at the site of deliberation. For all the weight of such criticism, the conclusion stands. The concern that the logic and the rules of experience may not fully operate in actual judgment does not migrate into a permission to discard that criterion and adjudicate by unfounded conviction.
What is confirmed in this scene is a single state of facts and no more. In this scene it is asked whether the proof of the requirement fact and the person bearing the risk of that uncertainty are exactly linked. If A's explanation went unsupported and B's explanation was not proved either, it has not been determined which of the two explanations is true. The range in which it is not specified which fact is uncertain, and who bears that risk, remains undetermined. The only adjudication condition that can be confirmed in this scene is that, even with the same uncertainty, if the applicable burden-of-proof rule differs, the allocation of the risk of loss changes.
Accordingly, what is permitted here is the confirmation that free evaluation of evidence is a principle of judgment bound to the oral argument and the results of the examination of evidence, and that the burden rules do not disappear by that judgment alone. Here free evaluation of evidence means the principle by which the court judges probative value outside the legal rules of evidence, and this definition points to the manner of evaluating probative value, not to any fresh allocation of the risk of uncertainty. Beyond this scope it is not permitted to draw the conclusion that defendant B's alternative explanation is true, or to determine which side loses. What remains next is: if the plaintiff fails to prove, is the defendant's explanation true?