Summary
The failure to prove one explanation must be distinguished from a finding of fact establishing the opposing explanation.
6.1The Standard by Which the Path Opens
If the reason for the loss is circulated as the establishment of a contrary fact, it produces a stigma even outside the dispute. Free evaluation of evidence, too, is bound by the results of oral argument and examination of evidence, and by the rules of logic and experience. Within that boundary, the object of the court's determination is whether the factual allegations are true, and the place to which that determination ultimately fails to reach is what this section calls an undetermined fact. When such an undetermined fact remains, the question that remains is precisely this: as to a fact the plaintiff failed to prove, can one say that the explanation of defendant B is true?
The provision corresponding to this question is Article 202 of the Civil Procedure Act. That provision states that the court, taking into consideration the entire tenor of oral argument and the results of examination of evidence, determines by free evaluation of evidence whether factual allegations are true (Article 202 of the Civil Procedure Act). The subject indicated by this text is the court, the object is the factual allegations appearing in oral argument and examination of evidence, and the criteria are the rules of logic and experience. The provision prescribes only the method of free evaluation of evidence; it does not pre-determine which explanation shall be accepted as true.
Accordingly, one determination comprises two steps, and the distinction divides the conclusion. The determination that the cause explanation of plaintiff A is insufficiently supported stops at the point that the explanation has not been proven, and is a matter separate from the recognition that the alternative explanation of defendant B is true. This remedy operates where the question whether the requirement facts have been proven is precisely linked to the person who bears the risk of that undetermined fact. The remedy does not convert a failure of proof into proof of a contrary fact; its function lies in leaving the undetermined fact as it stands and attributing the risk of losing to a particular person.
The strongest counterargument is that this distinction conceals substantive inequality. If the party holding the materials remains silent, the ordinary burden of proof entrenches substantive inequality. If the explanations are mutually incompatible, the failure of one ends up supporting the other, and if that relative weight is excluded, the disparity in the held materials congeals as such into a loss. Whether this explanation is correct, however, is a fact that must be separately proven, and a failure of proof cannot be converted into proof of a contrary fact. The disadvantage pointed out by the counterargument remains, but it does not furnish grounds for reversing the plaintiff's failure of proof into an established fact of victory for the defendant.
The synthetic scene is one in which the cause explanation of plaintiff A is insufficiently supported, yet the alternative explanation of defendant B is likewise unproven. What is confirmed in this scene is the fact that neither explanation has ultimately been established, and that state corresponds to the undetermined fact defined in this section. However, who bears the risk of that undetermined fact is not determined by the scene alone; the records of per-requirement allegations, evidence, statutory presumptions, fact-findings and burden-of-proof determinations fill that place. Even for the same undetermined fact, if the applicable rule of the burden of proof differs, the attribution of the risk of losing changes.
The conclusion permitted by this section extends no further than to distinguish the failure of proof of one explanation from the fact-finding on the contrary explanation, and to identify the person who shall bear the risk of that undetermined fact and attribute the risk of losing accordingly. The conclusion not permitted is to establish, on the basis of a fact the plaintiff failed to prove, that the alternative explanation of defendant B is true. Where it is not specified which fact is undetermined or who bears that risk, whether the remedy operates at all remains undetermined.
6.2The Conditions That Block Relief
It proceeds on the premise of the scene in which the cause explanation of plaintiff A is insufficiently supported and the alternative explanation of defendant B is likewise unproven. On the premise that free evaluation of evidence, too, is bound by the results of oral argument and examination of evidence, and by the rules of logic and experience, this stage asks one question. If the plaintiff fails to prove, is the defendant's explanation true? To which is added: what are the conditions under which the remedial channel closes?
The text corresponding to this question is the wording of Article 202 of the Civil Procedure Act. That provision states that "the court, taking into consideration the entire tenor of oral argument and the results of examination of evidence, by free evaluation of evidence" determines (Article 202 of the Civil Procedure Act). The subject indicated by this text is the court; its act is the determination of the truth or falsity of factual allegations; and the condition of that determination means that it is bound by the materials termed the entire tenor of oral argument and the results of examination of evidence. The expression free evaluation of evidence does not mean an arbitrary choice unconstrained by those materials.
When that condition is linked to the stipulated conclusion, the two steps of the determination come to light. The first step is to discern whether some fact has been sufficiently established in neither direction; the second step is to determine who bears the risk of that undetermined fact. Here, undetermined means the state in which the fact has not been sufficiently established as either side's fact. The reason these two must be distinguished is that, once the preceding determination stands, the risk of losing is attributed by the following determination, whereas with only the latter determination and without the former, it is not even specified which fact remains unresolved. Where a key requirement fact has ultimately not been proven and the claimant concerned bears the risk of that undetermined fact, the remedial channel closes if any one of the statutory requirements is not satisfied.
The loss this conclusion aims at is the stigma that spreads outside the dispute. If the mere fact that one explanation failed to be proven circulates as though the opposing explanation had been established as fact, the reason for the loss is transformed into the establishment of a contrary fact, and the stigma of liability follows even into other relations. The strongest counterargument aims at this point. If the explanations are mutually incompatible, the failure of one may support the other, and if the party holding the materials remains silent, the ordinary burden of proof entrenches substantive inequality. Without erasing that disadvantage, the answer nonetheless stands as it is: a failure of proof cannot be converted into proof of a contrary fact.
Returning to the synthetic scene, the cause explanation of plaintiff A is insufficiently supported, yet the alternative explanation of defendant B is also unproven. On these facts alone, one cannot say that either explanation has been established as fact; if anything is settled between the two explanations, it is that the state is an undetermined fact. What form the records of per-requirement allegations, evidence, statutory presumptions, fact-findings and burden-of-proof determinations must take is prescribed; but which fact is undetermined, or who bears that risk, is not specified by this scene alone and therefore remains undetermined. If it is confirmed that the applicable rule of the burden of proof differs, the conclusion on the attribution of the risk of losing changes.
The conclusion permitted by this section is narrow. The failure of proof of one explanation must be distinguished from the fact-finding on the contrary explanation, and reading that failure as proof of a contrary fact is not what has been prescribed. Two conclusions are not permitted: a determination that converts the plaintiff's failure of proof directly into the truth of the defendant's explanation; and a determination that fixes the opening or closing of the remedial channel while leaving unspecified which fact is undetermined and who bears that risk. That said, converting a state of insufficient materials directly into a denial of relief is not the conclusion of this section either.
6.3The Boundary That Remains When There Is No Data
On the premise that free evaluation of evidence, too, is bound by the results of oral argument and examination of evidence, and by the rules of logic and experience, it remains a problem whether, when the cause explanation of plaintiff A is insufficiently supported, the alternative explanation of defendant B is nevertheless to be accepted as true. To transcribe an unestablished state as one side's fact is itself a new fact-finding.
The corresponding text states the criteria of determination as follows. Article 202 (principle of free evaluation of evidence): The court, taking into consideration the entire tenor of oral argument and the results of examination of evidence, by free evaluation of evidence, based on the ideals of social justice and equity, and in accordance with the rules of logic and experience, determines whether factual allegations are true (Article 202 of the Civil Procedure Act). This text stipulates that the subject determining the truth of factual allegations is the court, the material of determination is the entire tenor of oral argument and the results of examination of evidence, and the manner of determination is free evaluation of evidence conforming to the rules of logic and experience. However free it may be, a conviction that departs from these materials and this manner is not the determination spoken of here.
Applying that criterion, failure of proof and fact-finding are placed at different stages. That the cause explanation of plaintiff A is unsupported means that the explanation has not been established as true; it does not mean that the alternative explanation of defendant B is true. A state in which the fact has been sufficiently established in neither direction — that is, the undetermined — is the point at which both determinations remain unfinished. A matter whose materials are not specified is placed within this undetermined, and is left undetermined, distinguished from an inability to determine, which denotes a state in which no determination can be made.
The explanation opposing this distinction is clear. If the two explanations are mutually incompatible, the failure of proof of one logically supports the other, and if the party holding the materials remains silent, the ordinary allocation of the burden of proof entrenches substantive inequality. The loss and inconvenience this counterargument targets are considerable. Yet its validity cannot be carried through to the recognition of a contrary fact. The answer that a failure of proof cannot be converted into proof of a contrary fact stands, and the remaining disadvantage is moved over to the question of which side's risk it shall be attributed to.
In the synthetic scene, the fact corresponding to this question is a single one: the cause explanation of plaintiff A is insufficiently supported, yet the alternative explanation of defendant B is likewise unproven. Even when these two items are set alongside the record items of per-requirement allegations, evidence, statutory presumptions, fact-findings and burden-of-proof determinations, they do not say which side's fact has been established. The hypothesis that, if it is confirmed that the applicable rule of the burden of proof differs, the conclusion on the attribution of the risk of losing changes, is not an established fact but only shows that the attribution varies according to the rule. Which side that rule applies to is not determined by this scene alone and remains undetermined.
The conclusion permitted by this section is narrow. The failure of proof of one explanation does not turn into a fact-finding on the contrary explanation, and the state of the undetermined remains undetermined, with the materials of determination unspecified.
6.4The Records Needed for Determination
Within that framework, the present question is whether, if the plaintiff fails to prove, the defendant's explanation is true. To answer this question, one must first settle what materials were used in the determination. It therefore asks what records are needed for the determination. Here, Records denotes the kind of material that served as the basis of the determination.
The framework of determination has already been set by the statutory text. Article 202 of the Civil Procedure Act provides that the court, taking into consideration the entire tenor of oral argument and the results of examination of evidence, determines the truth or falsity of factual allegations. In this text, 'the court' is the subject that finds facts, the object of determination is the truth or falsity of factual allegations, and the materials of determination are the entire tenor of oral argument and the results of examination of evidence. The determination is made by free evaluation of evidence but is bound by the rules of logic and experience. Accordingly, the list of materials that may be used to establish any fact is limited to the scope indicated by the provision. Other issues are not addressed here.
This text and the conclusion of this section connect as follows. Since the materials of determination are limited to the entire tenor of oral argument and the results of examination of evidence, the stage determination is made only on the prescribed records. What this section calls records is the material recorded in per-requirement allegations, evidence, statutory presumptions, fact-findings and burden-of-proof determinations. Not filling absent records by inference follows from the same logic. The failure of proof of one explanation and the fact-finding on the contrary explanation must be distinguished. The former means that the explanation is unsupported; the latter means that the contrary explanation has been established as true; and the two stages are each determined upon their own records.
The counterargument that if the explanations are mutually incompatible, the failure of one may support the other bears the greatest share. This counterargument holds that if the two explanations cannot both be true, defendant B's explanation must stand in the place where plaintiff A's explanation has collapsed. If so, there remains the loss that if the party holding the materials stays silent, the ordinary burden of proof entrenches substantive inequality — precisely because the distinction fixed above applies as it is. The inequality the counterargument points out is not erased, but it cannot be resolved by converting a failure into an establishment.
The synthetic scene presupposes that the cause explanation of plaintiff A is insufficiently supported but that the alternative explanation of defendant B is likewise unproven. The fact confirmed in this scene is only that neither of those explanations is supported upon its own materials. There is no fact in the scene that the alternative explanation of defendant B has been established as true. Therefore, the records needed for the determination are the per-requirement allegations, evidence, statutory presumptions, fact-findings and burden-of-proof determinations, while all other circumstances remain undetermined. This, however, is not a fact of the scene but a contrast in which only one condition of determination has been altered.
The conclusion permitted by this section is narrow. The stage determination is made only upon the prescribed records, and absent records are not filled by inference. To say that the defendant's explanation is accepted as true merely because the plaintiff failed to prove exceeds this scope. Conversely, it is likewise not permitted to say that because of such a distinction the inequality pointed out by the counterargument has been resolved. This section fixes only the state of the undetermined and its meaning; it does not determine here which undetermined fact is borne by whom. Next, the question moves to how this determination operates in practice.
6.5Circumstances That Change the Decision
Earlier it was summarized that free evaluation of evidence, too, is bound by the results of oral argument and examination of evidence, and by the rules of logic and experience. To this is added that what is asked now is a somewhat more concrete point. Put simply, the question is whether the empty place on one side may be read as the completion of the other side. In the synthetic scene, the state is set in which the cause explanation of plaintiff A is insufficiently supported, whereas the alternative explanation of defendant B is likewise unproven.
The text answering this question is Article 202 of the Civil Procedure Act. The text states that the court, "taking into consideration the entire tenor of oral argument and the results of examination of evidence, by free evaluation of evidence," determines the truth or falsity of factual allegations. Here the subject is the court, the act is the determination of the truth of factual allegations, and its condition is the taking into consideration of the entire tenor of oral argument and the results of examination of evidence. As the criteria of determination, the ideals of social justice and equity, together with the rules of logic and experience, are also stated. What this provision deals with is only the manner of fact-finding; it does not directly determine the attribution of the risk of losing when one party fails to prove.
Accordingly, the conclusion established on the basis of the foregoing text is clear. The failure of proof of one explanation must be distinguished from the fact-finding on the contrary explanation. The reason the two stages must be viewed separately is this: the first is the assessment that some explanation is unsupported; the second is whether the other explanation has been accepted as true. Even if the court confirms the foregoing insufficiency, reaching the fact-finding that follows requires a separate determination.
The strongest counterargument aims at two branches. One is that if the explanations are mutually incompatible, the failure of one may support the other. The other is that if the party holding the materials remains silent, the ordinary burden of proof entrenches substantive inequality. The loss this counterargument has in its sights is the inconvenience that the person who lacks the materials to reveal the side closer to the truth must, on that circumstance alone, bear even the stigma outside the dispute. That difficulty is not erased. Even so, the answer stands unchanged as follows: the verification of a negation and the establishment of a rival hypothesis are manifestly different tasks.
Contrasting only with the facts set in the synthetic scene, A's cause explanation is insufficiently supported. At the same time, B's alternative explanation is likewise unproven. In other words, the state in which the fact has been sufficiently established in neither direction — that is, the undetermined — remains as it is. In this case, the stage determination begins with whether the question of whether the requirement facts have been proven is precisely linked to the person who bears the risk of that undetermined fact. However, since this scene fixes neither a year nor an amount, which fact is undetermined, or who bears that risk, remains unspecified and undetermined.
In sum, the conclusion permitted by this section is narrow. The mere fact that one explanation failed to be proven does not bring about a fact-finding on the contrary explanation, and the remaining undetermined may vary in its attribution depending on the rules of the burden of proof. Conversely, what this section does not permit is the interpretation that establishes the shortfall on the plaintiff's side directly as the truth of the defendant's explanation. Only when the per-requirement allegations, evidence, statutory presumptions, fact-findings and burden-of-proof determinations are placed together is the attribution of the risk of losing at last specified.
6.6The Strongest Counterargument and the Answer
This statement does not mean that the court may establish facts as it pleases. The question at this stage is concrete. If the explanations are mutually incompatible, one failure may support the other side. Then how should the strongest counterargument be answered? The strongest counterargument holds that where the party possessing the materials remains silent, the ordinary burden of proof entrenches substantive inequality. What the counterargument targets is not surface fairness but the inequality arising from the silence of the party possessing the materials. Before answering this question, one first examines the wording that binds the court when it determines facts.
This issue begins from the standard of determination set by Article 202 of the Civil Procedure Act. The Article provides that the court, taking into consideration the purport of the oral argument as a whole and the results of the examination of evidence, determines by its free conviction whether a claim of fact is true, grounded in the ideals of social justice and equity and in accordance with the rules of logic and experience (Article 202 of the Civil Procedure Act). The subject indicated by this wording is the court, the object of determination is the truth or falsity of the claim of fact, and the basis of the determination is the purport of the oral argument as a whole and the results of the examination of evidence. Free conviction is the freedom to construe this basis, not the freedom to create facts outside that basis. Even without expounding the other issues of the Article, what is needed for the present question is how far the basis of this determination extends.
The conclusion under the above wording is this. To understand this determination, two distinctions are needed. One is the failure of proof of a single explanation; the other is the finding of fact of the opposing explanation. The former is the state in which a certain claim of fact is not supported by a basis; the latter is a confirmation that the opposite fact actually occurred. The state of non liquet marks only the former failure and does not include the latter's success. What the wording that the determination be made in accordance with the rules of logic and experience requires is a basis for the latter, not a presumption that fills the latter merely from the deficiency of the former. Without adding any new requirement or exception, this distinction already lies between the basis of determination in the wording and the conclusion.
The strongest counterargument holds that this distinction rather conceals inequality. Where the plaintiff finds it difficult to prove its explanation, the materials are in the hands of the defendant, and the defendant remains silent, is it fair to impose the cost of that silence on the plaintiff alone through the ordinary burden of proof? The loss that the counterargument fears is plain. This concern must be read together with the adverse portion that the counterargument leaves. If one speaks only of formal rules while turning a blind eye to the reality of uneven distribution of materials, the counterargument does not disappear. Yet within the scope of the foregoing answer, the conclusion stands. Correcting inequality is a question that varies according to where the burden-of-proof rule is bound, and it is not resolved by reading failure as success.
Taking out only the facts relevant to this question from the synthetic scene, the causal explanation of plaintiff A was not sufficiently supported, but the alternative explanation of defendant B was not proved either. This scene coincides exactly with the definition of non liquet. It is a state not sufficiently confirmed as either fact. Only the records of element-by-element allegations, evidence, statutory presumptions, findings of fact, and determinations of the burden of proof serve as the material of determination. The unevenness of materials spoken of by the counterargument is not set, within the scene, as a fact indicating the location of the materials. Hence which side possesses the materials remains undetermined. This assumption is not a fact added to the scene but merely a case that changes the adjudication conditions, and items that cannot be confirmed from the scene are left blank as they are.
The boundary between the conclusions this section permits and those it does not permit may be set out as follows. What is permitted is the distinction of not confirming, as the fact opposite to an explanation, the failure of that explanation to be supported. This distinction precisely designates the state of non liquet and leaves the stage of determining who will bear the risk of that non liquet. The attribution of the risk of losing is fixed only where whether the requirement fact has been proved and the person who will bear the risk of that non liquet are exactly linked, and where which fact is in non liquet or who bears that risk is not specified, no determination can be reached. Even where a core requirement fact remains ultimately unproved and the claimant concerned bears the risk of that non liquet, proof of the opposite fact is not thereby established. What is not permitted is the reading that converts failure of proof into proof of the opposite fact.
6.7The Link to the Application and the Dispositive Part
The preceding section answered that failure of proof cannot be converted into proof of the opposite fact. This question continues from the scene in which the burden of proof determines the direction of the loss.
The wording relevant to this question is Article 202 of the Civil Procedure Act. That wording provides that the court, taking into consideration the purport of the oral argument as a whole and the results of the examination of evidence, determines by its free conviction. The subject of determination is the court, the object of determination is whether the claim of fact is true, and the criterion of determination is the rules of logic and experience grounded in the ideals of social justice and equity. The principle of free evaluation of evidence is merely a wording that sets the criterion binding the determination; it does not predetermine which explanation is true.
The same wording places the starting point of determination upon the materials and criteria to be taken into consideration, and the conclusion of this section distinguishes the failure of proof of one explanation and the finding of fact of the opposing explanation. The two stages differ. If the former is the determination that the causal explanation of A was ultimately unsupported, the latter must be a separate finding that the alternative explanation of B is true in accordance with the rules of logic and experience. Merely because one side alone is unsupported, while it is not specified which explanation the materials indicate, the other side is not supported. So long as this distinction is maintained, the failure of proof of one explanation is not converted into the finding of fact of the opposing explanation.
The counterargument targets the point that, where the explanations are mutually incompatible, one failure may support the other side. Also raised is the loss that, where the party possessing the materials remains silent, the ordinary burden of proof entrenches substantive inequality. The inconvenience this counterargument causes is not slight. For when B, who holds more of the records, offers no explanation, a structure may harden in which A bears that burden as well. Yet even if the adverse portion of the counterargument is removed, failure of proof still cannot be converted into proof of the opposite fact. What this section determines is not such substitution, but leaving as non liquet the state in which neither fact is sufficiently confirmed.
The facts corresponding to this question in the synthetic scene are simple. The causal explanation of A was not sufficiently supported, and the alternative explanation of B was not proved either. Contrasted with the foregoing conditions, these two determinations are each separately confirmed, and neither replaces the other. In light of the fact that the meaning of non liquet is a state in which neither fact is sufficiently confirmed, what can be determined in this scene extends no further than that neither explanation led to a finding of fact. How the records of element-by-element allegations, evidence, statutory presumptions, findings of fact, and determinations of the burden of proof were constituted is not set by this scene and therefore remains undetermined. The point that even with the same non liquet a different applicable burden-of-proof rule changes the attribution of the risk of losing also indicates a difference in adjudication conditions rather than a fact confirmed in the present scene.
The conclusion this section permits is narrow. The determination that the causal explanation of plaintiff A was unsupported is separated from the finding that the alternative explanation of defendant B is true. Therefore, the fact that the plaintiff failed to prove must not be read as the defendant's explanation being true, and the circulation of the reason for losing as the confirmation of the opposite fact is also blocked. The conclusion that is not permitted is that of converting the failure of proof of one explanation into proof of the opposite fact and confirming which fact is true. So long as the state of non liquet remains, what remains is only a determination under the rules of the burden of proof.
6.8The Scope This Section Undertakes
A person who loses at trial bears, beyond a negative evaluation of his or her own conduct, the further burden of the story presented by the opposing party hardening into fact. The conclusion received from the preceding section was that the failure of proof of one explanation must be distinguished from the finding of fact of the opposing explanation. Yet why this distinction is necessary, and upon what premise it rests, has not yet been explained.
Before answering this question, the wording governing the court's fact-finding must first be examined. Article 202 of the Civil Procedure Act provides as follows. "The court, taking into consideration the purport of the oral argument as a whole and the results of the examination of evidence, and by its free conviction," determines the claim of fact (Article 202 of the Civil Procedure Act). Here, 'the court' is the subject that determines the existence or nonexistence of facts, and 'the purport of the oral argument as a whole and the results of the examination of evidence' is the basis serving as the material of determination. 'Free conviction' means determining without being bound by rules of legal evidence.
The principle of free evaluation of evidence does not completely release the court's determination. The same wording requires that the determination be made "in accordance with the rules of logic and experience" (Article 202 of the Civil Procedure Act). This requirement binds free conviction and the constraints of the rules of logic and experience together. Thinking upon this premise, the failure of proof of one explanation and the finding of fact of the opposing explanation belong to different stages of determination. The former is an evaluation that a particular explanation has not been sufficiently supported; the latter is a confirmation that another explanation is true. The two determinations each require separate bases, and the mere fact that one has failed does not bring about the other.
There is a separate counterargument that most strongly demands this distinction. If the two explanations are logically mutually incompatible, may not one failure support the other side? Furthermore, there is also the criticism that where the party possessing the materials remains silent, the ordinary burden of proof entrenches substantive inequality. The attribution of the risk of losing according to the allocation of the burden of proof is already a fixed rule, and this rule does not convert one side's failure into the other side's success by equivalence. The inequality the counterargument points out is a problem that must be eliminated, but whether the solution lies in converting failure of proof into proof of the opposite fact requires separate examination.
Rearranging the synthetic scene to fit this question, the causal explanation of plaintiff A was not sufficiently supported, but the alternative explanation of defendant B was not proved either. In this case, since neither explanation has been sufficiently confirmed, it corresponds to a state not confirmed as either fact, that is, 'non liquet.' From this scene it cannot be confirmed that the explanation of plaintiff A is false, nor can it be confirmed that the alternative explanation of defendant B is true. Which fact is in non liquet, and who bears the risk of that non liquet, must be specified through the records of element-by-element allegations, evidence, statutory presumptions, findings of fact, and determinations of the burden of proof.
The conclusion this section permits is narrow. The principle of free evaluation of evidence binds the court's determination to the rules of logic and experience, and upon this premise it is only confirmed that the failure of proof of one explanation cannot be substituted by the finding of fact of the opposing explanation. Going beyond this distinction to draw a confirmation that the opposing explanation is true, or to declare the victory or defeat of a particular party, is not dealt with by this section. Which fact is in non liquet, and who bears the risk of that non liquet, remains undetermined, and this item is due to a lack of materials and does not immediately mean that no relief is available. How does the wording of Article 202 of the Civil Procedure Act support this conclusion?
6.9Application of the Text of the Provisions and the Holdings of Precedents
The confirmation of the opposite fact means that the alternative explanation of defendant B is found to be true, and the failure of proof of plaintiff A must not lead to such a confirmation. This distinction is the first stage in adjudicating the attribution of the risk of losing arising from unclear facts, and it asks how the wording of the source in question applies.
The source relevant to this question is Article 202 of the Civil Procedure Act. That wording provides: "The court, taking into consideration the purport of the oral argument as a whole and the results of the examination of evidence, by its free conviction, grounded in the ideals of social justice and equity, and in accordance with the rules of logic and experience, determines whether a claim of fact is true or not" (Article 202 of the Civil Procedure Act). The subject of this wording is the court, the act is the determination of the truth or falsity of a claim of fact, and the conditions are the taking into consideration of the purport of the oral argument as a whole and the results of the examination of evidence, free conviction, the ideals of social justice and equity, and observance of the rules of logic and experience. The scope in question is limited to Article 202, and no other Article or reasoning of a judgment is drawn in. This wording only sets the method of finding facts.
This wording and the attribution of the risk of losing arising from unclear facts are two distinct stages. Article 202 sets out the manner in which the court takes into consideration the purport of the oral argument as a whole and the results of the examination of evidence and determines by free conviction, and separately from this, it must be determined who bears the risk of non liquet when a certain fact is ultimately not confirmed. Accordingly, an adjudication is possible only where whether the requirement fact has been proved and the person who will bear the risk of that non liquet are exactly linked. If the two stages are mixed, the determination by free conviction may appear to substitute for the allocation of the burden of proof; therefore, the basis of adjudication uses only the wording of the source in question and is not extended to the reasoning of a judgment.
The strongest counterargument targets the point that where the party possessing the materials remains silent, the ordinary burden of proof entrenches substantive inequality. Even if defendant B, who holds materials close to proof of the opposite fact, keeps silent, the burden of proof remains with plaintiff A, and consequently the risk of losing turns only in accordance with the fixed rule — such is the criticism. The disadvantage the counterargument points out is plain and does not disappear. Yet even as to the counterargument that, where the explanations are mutually incompatible, one failure may support the other side, failure of proof cannot be converted into proof of the opposite fact. That is, the mere circumstance that the proof of the causal explanation of plaintiff A has failed does not result in the alternative explanation of defendant B being found as fact. This answer, without erasing the counterargument's concern about inequality, separates the determination of the two explanations.
In this scene, the fact relevant to this question is only that neither explanation has been proved. Since which fact is in non liquet — that is, for which requirement the state of not being sufficiently confirmed as either fact obtains — is not specified, who bears the risk of that non liquet cannot be specified from this scene alone either. An adjudication is possible only where the records of element-by-element allegations, evidence, statutory presumptions, findings of fact, and determinations of the burden of proof remain. Accordingly, what can be confirmed from this scene is limited to the proposition that the determinations of the two explanations be separated.
The conclusion this section permits is that the failure of proof of one explanation is not converted into the finding of fact of the opposing explanation. What this section does not permit is the conclusion that, on the basis of the failure of proof of plaintiff A alone, the alternative explanation of defendant B is confirmed as true. Where a core requirement fact remains ultimately unproved and the claimant concerned bears the risk of that non liquet, the risk of losing may be attributed, but this is limited to the case where element-by-element allegations, evidence, statutory presumptions, findings of fact, and determinations of the burden of proof are linked. Where which fact is in non liquet or who bears that risk is not specified, it remains undetermined.
6.10Fine Distinctions Within the Stage
자유심증의 판단이 기록에 묶인다는 전제 아래, 이번에는 불명확한 사실에 따른 패소 위험의 귀속 안에서 다시 나누어 판정할 부분을 묻는다. 앞 절에서 다룬, 원고가 못 증명하면 피고 설명이 참인가라는 물음과 지금의 물음은 겹치지 않는다. 지금 정할 것은 증명이 되지 않은 상태 자체가 아니라, 그 불명을 누가 떠안는지에 따라 갈리는 구분의 범위다.
해당 문언은 「민사소송법」 제202조에 있다. 그 조문은 "법원은 변론 전체의 취지와 증거조사의 결과를 참작하여" 사실주장의 진실 여부를 판단한다고 정한다. 이 문언이 가리키는 주체는 법원이고, 판단의 재료는 변론 전체의 취지와 증거조사의 결과다. 판단의 방식은 자유로운 심증이지만 그 자유는 논리와 경험의 법칙에 묶인다. 조문의 다른 쟁점은 다루지 않으며, 이번 물음과 연결되는 부분은 판단이 특정 기준에 묶인다는 문언에 한정한다.
이 문언과 앞서 정의한 불명, 즉 어느 쪽 사실로도 충분히 확정되지 않은 상태를 연결하면 한 설명의 증명 실패는 반대 설명의 사실 인정과 구별되어야 한다는 결론이 나온다. 두 단계는 다른 질문에 답하기 때문이다. 전자는 원고 A의 원인 설명이 뒷받침되었는지, 후자는 피고 B의 대체 설명이 사실로 인정되는지를 묻는다. 이 구별을 지키지 않고 한쪽의 실패를 곧바로 반대쪽의 성공으로 읽으면, 판정 기준은 명시한 조건을 넘어선다. 이 절의 세부 구분은 작동하는 경우·막히는 경우·미확정인 경우라는 조건에 한정되며, 여기에 새 단계를 더하는 것은 허용되지 않는다.
양립 불가능한 설명이라면 하나의 실패가 다른 쪽을 지지할 수 있다는 반론은 실질적인 손실을 겨눈다. 억울한 쪽이 분쟁 밖에서까지 낙인을 받는 현실을 이 반론은 지우지 않는다. 그래도 앞의 답은 유지된다. 증거가 없는 틈을 상대방의 사실 인정으로 메우는 것은 판단 기준을 바꾸는 일이며, 제202조가 정한 참작의 틀 안에 들어오지 않는다. 반론이 지적한 불평등은 남지만, 그 불평등을 해소하는 방식으로 반대사실의 확정을 끌어들이는 것은 이 절의 범위 밖에 있다.
이 장면에서 이 물음에 관련된 사실은 하나다. 이 장면이 작동하는 경우 조건과 대조하면, 요건사실의 증명 여부와 그 불명의 위험을 부담할 사람이 정확히 연결되었는지가 먼저 특정되어야 한다. 막히는 경우 조건에 해당하려면 핵심 요건사실이 끝내 증명되지 않았고 그 불명의 위험을 해당 청구자가 부담하는 경우여야 하는데, 장면만으로는 어떤 요건이 핵심인지 특정되지 않았다. 어떤 사실이 불명인지 또는 누가 그 위험을 부담하는지 특정되지 않은 미확정인 경우이므로 지금의 기록으로는 그 범위를 확정할 수 없다.
이 절이 허용하는 결론은 좁다. 한 설명의 증명 실패를 반대 설명의 증명으로 바꾸는 것은 이 절이 허용하지 않는 결론이다. 같은 불명이라도 적용되는 증명책임 규칙이 달라지면 패소 위험의 귀속을 바꾸지만, 그 규칙이 무엇인지 특정되지 않은 채로 판정을 확정할 수는 없다.
6.11Synthesis of Effectiveness, Blockage, and Undetermination
그 결론은 한 설명이 끝내 입증되지 않았다는 사실만으로 반대 설명이 곧 참으로 확정된다고 볼 수 없다는 점을 남겨 두었다. 앞 절에서 확인한 자유심증의 한계는 변론·증거조사의 결과와 논리·경험법칙에 묶인다는 것이었다. 여기서 다룰 물음은, 이런 상황에서 패소 위험이 어느 쪽에 귀속되는지, 그 귀속이 실효를 얻는지 차단되는지, 아니면 미확정으로 남는지를 어떻게 구별하는가이다. 이 장면은 원고 A의 원인 설명은 충분히 뒷받침되지 않았지만 피고 B의 대체 설명도 증명되지는 않았다는 상태를 전제로 한다.
이 물음을 가늠하는 근거는 민사소송법 제202조가 두는 판단 기준이다. 여기서 자유로운 심증이라는 말은 법원이 마음대로 정할 수 있다는 뜻이 아니라, 참작할 자료가 변론 전체의 취지와 증거조사의 결과로 한정되고 판단의 준거가 논리와 경험의 법칙에 묶인다는 문언으로 읽힌다. 따라서 법원이 판단하는 대상은 사실주장의 진실 여부이며, 판단 주체는 법원이고, 판단 조건은 참작할 자료와 준거의 제한이다. 이 조문이 직접 정하는 것은 사실 인정의 방법이지, 증명책임의 분배 규칙이 아니다.
이 문언과 이 절의 결론을 연결하면, 증명 여부의 판단과 불명의 위험 부담자의 특정이 서로 다른 두 단계라는 점이 드러난다. 전자는 제202조가 정한 대로 사실주장의 진실 여부를 판단하는 일이고, 후자는 그 판단이 어느 쪽으로도 확정되지 않았을 때 그 손해를 누가 감수할지 정하는 일이다. 이 둘은 구별되어야 한다. 열리는 조건은 요건사실의 증명 여부와 그 불명의 위험을 부담할 사람이 정확히 연결된 경우이고, 막히는 조건은 핵심 요건사실이 끝내 증명되지 않았고 그 불명의 위험을 해당 청구자가 부담하는 경우이다. 여기서 불명이란 어느 쪽 사실로도 충분히 확정되지 않은 상태를 뜻하며, 입증 실패를 반대사실의 증명으로 바꾸면 안 된다.
가장 강한 반론은 양립 불가능한 두 설명이 마주 선 자리에서 제기된다. 두 설명이 서로 양립할 수 없다면, 한쪽 설명의 실패가 다른 쪽 설명을 뒷받침하는 증거가 될 수 있지 않느냐는 것이다. 그 반론이 겨냥하는 손실은 분명하다. 자료를 쥔 쪽이 밝히지 않아도 그 불이익이 자료가 없는 쪽에 전가된다면, 절차는 자료의 불균형을 그대로 결과로 굳힌다. 이런 불이익을 완화하려는 요구는 타당하지만, 그렇다고 입증 실패를 반대사실의 증명으로 바꿀 수는 없다. 한쪽의 입증 실패는 반대사실의 확정이 아니라, 그 설명이 끝내 뒷받침되지 않았다는 것만을 남긴다.
이 장면을 이 물음과 관련된 사실만으로 대조해 보면, 원고 A의 원인 설명은 충분히 뒷받침되지 않았고, 피고 B의 대체 설명도 증명되지는 않았다. 이 장면은 불명이 어느 쪽에도 확정되지 않은 상태를 그대로 보여준다. 판정 기록은 요건별 주장·증거·법정 추정·사실인정과 증명책임 판단의 형식을 따른다. 여기서 요건사실의 증명 여부와 그 불명의 위험을 부담할 사람이 정확히 연결되면 귀속이 실효를 얻고, 핵심 요건사실이 끝내 증명되지 않았고 그 불명의 위험을 해당 청구자가 부담하면 귀속이 막힌다. 그러나 어떤 사실이 불명인지 또는 누가 그 위험을 부담하는지 특정되지 않으면 미확정으로 남는다. 지정된 대조 문장에 따르면, 같은 불명이라도 적용되는 증명책임 규칙이 달라지면 패소 위험의 귀속을 바꾼다.
이 절이 허용하는 결론은, 증명 여부와 위험 부담자의 연결이 정확할 때에만 귀속이 성립하고, 그 연결이 특정되지 않으면 미확정으로 남긴다는 것이다. 허용되지 않는 결론은, 한쪽의 입증 실패만으로 반대사실이 확정된다고 보는 쪽이다. 어떤 사실이 불명인지, 또는 누가 그 위험을 부담하는지가 특정되지 않은 경우에는 미확정으로 두며, 자료 부족을 곧바로 구제 불능으로 바꾸지 않는다.
6.12이 권의 결론과 남는 물음
그런 유통이 생기지 않도록 앞 절은 요건사실의 증명 여부와 그 불명의 위험을 부담할 사람이 정확히 연결된 경우에는 작동하고, 핵심 요건사실이 끝내 증명되지 않았고 그 불명의 위험을 해당 청구자가 부담하는 경우에는 막히며, 어떤 사실이 불명인지 또는 누가 그 위험을 부담하는지 특정되지 않은 경우에는 미확정으로 남는다고 정리했다. 이 결론을 전제로 지금 물어야 할 것은 하나이다. 한 설명이 끝내 뒷받침되지 않았다는 사실만으로 반대 설명의 진실이 함께 확정되는지 여부이다.
이 물음에 답하는 데 필요한 문언은 민사소송법 제202조에 있다. 여기서 '법원'은 판단의 주체이고 '사실주장이 진실한지 아닌지'가 판단의 대상이며, 변론 전체의 취지와 증거조사의 결과가 판단의 재료이다. 자유로운 심증이라는 표현은 판단을 법정 증거규칙에 묶지 않되 논리와 경험의 법칙에는 묶인다는 뜻이다.
이 문언이 가리키는 판단의 구조 위에서 이 절의 결론은 선명하다. 법원이 자유롭게 심증을 형성한다고 해서 어떤 주장의 미증명이 그 반대 주장의 진실로 이어지는 것은 아니다. 미증명은 그 주장 자체가 진실로 확정되지 못한 상태이고, 반대사실의 인정은 반대 주장이 진실로 확정된 상태이다. 전자를 후자로 바꾸는 순간 심증의 자유가 사실 인정의 자유가 아니라 사실 창설의 자유가 된다. 한 설명의 증명 실패는 반대 설명의 사실 인정과 구별되어야 하는 이유가 여기에 있다. 이 구별은 새로운 요건을 더한 것이 아니라 판단의 대상이 무엇인지 구분하는 작업이다.
가장 강한 반론은 이 구별이 설명 사이의 관계를 무시한다는 데 겨눈다. 서로 양립 불가능한 두 설명이 대립할 때, 하나가 무너지면 다른 쪽이 살아남는 것은 논리의 자연스러운 귀결이며, 그 관계를 끊는 것은 인위적이라는 것이다. 자료를 가진 쪽이 침묵하면 통상적 증명책임이 실질적 불평등을 고착하고, 반대 설명의 가능성이 원고의 실패만으로 소멸하는 것이 아니라면 그 불평등은 교정되지 않는다. 그러나 그렇더라도 입증 실패를 반대사실의 증명으로 바꿀 수는 없다. 증명 실패의 의미는 그 설명이 확정되지 않았다는 것이지 반대 설명이 확정되었다는 것이 아니며, 양립 불가능성은 대립의 형식이지 인정의 근거가 아니다.
이 구별을 이 장면에 대조하면 경계가 드러난다. 여기서 확인되는 것은 어느 쪽 설명으로도 충분히 확정되지 않은 상태, 곧 불명이다. 이 불명이 남아 있는 한 피고 B의 대체 설명은 사실로 인정된 것이 아니며, 원고 A의 원인 설명이 무너졌다는 사실도 피고 B의 설명을 확정하는 근거가 되지 않는다. 어떤 사실이 불명인지 또는 누가 그 위험을 부담하는지 특정되지 않은 경우에는 이 장면만으로 패소 위험의 귀속을 확정할 수 없다. 같은 불명이라도 적용되는 증명책임 규칙이 달라지면 패소 위험의 귀속을 바꾸기 때문이다.
이 절이 허용하는 결론은 좁다. 한 설명의 증명 실패는 그 설명의 미확정으로만 읽히며, 반대 설명의 사실 인정과는 구별된다고 적는 것까지 허용된다. 허용되지 않는 것은 그 실패를 반대사실의 확정으로 옮기고, 그 확정을 분쟁 밖의 낙인으로 유통하는 읽기이다. 요건사실의 증명 여부와 그 불명의 위험을 부담할 사람이 정확히 연결된 경우에는 패소 위험의 귀속이 작동하고, 핵심 요건사실이 끝내 증명되지 않았고 그 불명의 위험을 해당 청구자가 부담하는 경우에는 막힌다. 이 구별을 지키고 나면 남는 것은 어떤 설명이 사실로 인정되는 조건이다. 자백한 사실은 왜 별도 증명을 요구하지 않는가?
Statutes referred to
Questions left open
- 자료 편재를 부담 전환 없이 완화할 수 있는가?
- 법률상 추정과 사실상 추정의 설명은 어떻게 달라야 하는가?
- 증명 실패가 낙인으로 바뀌지 않게 판결 이유를 어떻게 쓸 것인가?