Summary
This chapter reads together the deemed confession where a fact is not clearly disputed and the exception under which the fact is regarded as disputed in light of the entire oral argument.
2.1The Standard by Which the Path Opens
A judicial confession of fact in court carries the effect of dispensing with proof, yet its subject matter and the conditions for revocation must be examined together. If the silence of a single sentence is read as acquiescence throughout the entire lawsuit, the real dispute disappears. What is asked here, then, is whether silence always amounts to a confession, and the question is narrowed so as to identify the standard on which the gateway to this relief opens. Defendant B answered that the facts were unknown, while plaintiff A invokes that answer as a statement admitting them. In this scene, the decisive question is how the silence or ignorance of B is to be read.
Article 150 of the Civil Procedure Act provides: "① If a party, at oral argument, does not expressly contest a fact asserted by the opposing party, that party shall be deemed to have confessed that fact. However, this shall not apply where, in light of the purport of the whole oral argument, the party is deemed to have contested that fact." This provision designates as its subject the party who speaks at oral argument, as the act the response to a fact asserted by the opposing party, and as the condition the case where the fact is not expressly contested. Here, deemed confession means the effect of regarding a fact as confessed upon the statutory conditions being met. The same paragraph at the same time lays down an exception where the party is deemed to have contested the fact in light of the purport of the whole oral argument.
Accordingly, when the deeming created by the text and the exception under which that deeming does not stand are read together, the entrance to this relief divides. By distinguishing the applicable requirements of confession, contest, and manifest facts, and, where the statutory conditions for revocation of confession are satisfied, reflecting that, the entrance to this relief opens. In other words, one does not sever and judge a single fragment of silence; only when the context in which the statement is placed and the traces of contest are set side by side does the door of deemed confession open. The deeming where there is no express contest and the exception deeming contest in light of the whole oral argument are not requirements pointing in one direction but two sides of the same judgment.
The counterargument that the burden of not having expressly denied rests with the party, however, aims at the substantive loss. If B answered only that the facts were unknown, and that answer is recorded not as ignorance but as acquiescence, even the fact that was to be contested disappears from the trial, and that burden redounds entirely to the opposing party's benefit. In particular, where a fact different from reality hardens through a party's own mistake, the inconvenience and injustice of the trial being bound remain. Even so, one cannot delete the contest across the whole oral argument and fix a confession upon silence alone. For a reading that erases the traces of contest and leaves only silence would itself undo the exception this provision lays down.
The facts relevant to this scene are that B answered that the facts were unknown, and that plaintiff A invokes that answer as a statement admitting them. Whether the statement of B stopped at "not knowing" or went on to "no other contest is raised" must be recorded in the context of the statement. Here, if a claim for revocation of confession and erroneous material are set side by side, the statutory grounds for revocation are examined, but whether those conditions are met cannot be determined on the present material alone. If a statement of not knowing has been recorded as an admission, the conclusion is corrected under the rule that presumes contest. This comparison, however, is a check that changes the conditions of adjudication, not a record that changes the facts of the scene.
What this section thus permits is a judgment that reads silence as deemed confession upon the statutory conditions, but does not hold to that deeming where a contest remains in the purport of the whole oral argument. Conversely, a conclusion that fixes acquiescence across the entire lawsuit upon the silence of a single sentence alone is not permitted. Whether non-knowledge is the same as a finding of fact is not addressed here.
2.2The Conditions That Block Relief
On this premise, the present stage examines together the point at which silence leads to deemed confession and the conditions under which the route to re-deny the fact thereby produced is closed. In this scene, silence and express answer remain as different records, so it is first at issue which statement satisfied the requirements of deemed confession.
Article 150, paragraph (1) of the Civil Procedure Act provides as follows: "① If a party, at oral argument, does not expressly contest a fact asserted by the opposing party, that party shall be deemed to have confessed that fact." The text, however, lays down an exception in the same paragraph: "This shall not apply where, in light of the purport of the whole oral argument, the party is deemed to have contested that fact." (Civil Procedure Act, Article 150) The subject indicated by this provision is the party confronted with the opposing party's assertion at oral argument; the act is the presence or absence of an express contest of the fact so asserted; and the condition is the case where the party is not deemed to have contested in light of the purport of the whole oral argument.
The reason the foregoing provision requires the two steps to be separated is that the earlier requirements for deeming and the later assessment of the exception pose different questions. First, one determines whether the deeming is established by asking whether the party expressly contested the fact in question, and then assesses the exception by asking whether the party is deemed to have contested in light of the purport of the whole oral argument. Where a judicial confession remains validly in place and, the statutory requirements for revocation not being satisfied, the route to re-deny that fact is closed, the gateway of relief is shut if even one of the statutory requirements is unmet. Put differently, what is handled is the fact fixed without proof and the binding force thereof, and its reflection is permitted only where the statutory conditions for revocation of confession are satisfied. If the establishment of deeming and the escape from binding force are mixed into one question, it does not become apparent at what point the gateway closed.
The strongest counterargument targets the point that the burden of not having expressly denied rests with the party: it is said that it better accords with expedition and clarity in the lawsuit for the disadvantage to fall upon a party who did not expressly contest, and that even where the fact differs from reality, that error is the lot of the party who failed to make it sufficiently clear. The reason the proviso to Article 150, paragraph (1) makes the purport of the whole oral argument an object of examination is that a partial answer or an indirect rebuttal may also be read as a contest upon the litigation record. Accordingly, while the burden identified by the counterargument is retained, taking silence as the sole ground for the fact and thereby replacing the whole of the reasoning falls outside the scope of what is handled here.
The facts relevant to this scene are the record that Defendant B answered that the facts were unknown, and the point that plaintiff A invoked that answer as a statement admitting them. When these two records are contrasted with the statutory conditions, it is first determined whether the answer of not knowing was recorded as an express contest of a particular fact. If it is confirmed that a statement of not knowing has been recorded as an admission, the conclusion is corrected under the rule that presumes contest. The scene, however, fixed only the wording of the statement and did not specify the purport of the whole oral argument or the scope of the record of contest. Nor was it specified what content the party's statement record, the answer brief, the claim for revocation of confession, and the erroneous material contained. Accordingly, whether the requirements for revocation of confession are satisfied and whether actual relief is realized remain undetermined.
The conclusion this section permits is the judgment that, after deemed confession was established, the route to re-deny that fact is closed because the statutory requirements for revocation were not satisfied. What this judgment does not permit is erasing the contest across the whole oral argument upon a single silence and fixing all the facts, or asserting the success of actual recovery or performance on the basis of unverified records. A state of insufficient material is not an inability to grant relief but indeterminacy; where the context of the statement or the fact serving as the subject of confession is unclear, adjudication is withheld.
2.3The Boundary That Remains When There Is No Data
It is precisely at this point that the question whether silence always amounts to a confession reopens. Whether an answer of ignorance may be placed in the same position as the silence of acquiescence is not clear. What must now be asked is where the boundary lies that cannot be determined for want of material.
The provision in question, Article 150, paragraph (1) of the Civil Procedure Act, provides as follows: "If a party, at oral argument, does not expressly contest a fact asserted by the opposing party, that party shall be deemed to have confessed that fact. However, this shall not apply where, in light of the purport of the whole oral argument, the party is deemed to have contested that fact." The subject indicated by this provision is the party confronted with the opposing party's assertion at oral argument, and the act is the express contest of that fact. The condition is the absence of contest, and the proviso of the same article makes the purport of the whole oral argument an exception.
This effect arises from the absence of express contest prescribed by the text, so the presence or absence of contest and the interpretation of context must not be bound together as one. Matters for which the materials of judgment are not specified are left indeterminate, distinguished from impossibility. Indeterminacy does not mean a state in which the ground has been negated, but a state in which there is as yet no material to make clear what fact a given statement concerns, or whether that statement takes the place of contest. Impossibility means that there is no means of judgment at all, so if the two are read as overlapping, the examination of the proviso is cut off.
If an unproven disadvantage is left to fall upon the party as it stands, the trial is delayed and a fact different from reality may harden; that is the loss. The burden identified by the counterargument arises from the deficiency of material that the party failed to make clear on its own, but if that deficiency is immediately replaced by deemed confession, the contest across the whole oral argument laid down by the proviso is lost. Hence this section maintains the conclusion while leaving in place the point that the burden the party must bear is an issue separate from the fixation of confession.
What is revealed in the synthetic scene is only that Defendant B answered that the facts were unknown, and that plaintiff A invokes that answer as a statement admitting them. What fact the answer of Defendant B concerned, and what statement plaintiff A takes as the subject of confession, were not determined in this scene. Accordingly, where the context of the statement or the fact taken as the subject of confession is unclear, it cannot be judged whether deemed confession is established, nor whether the proviso applies. If it is confirmed that a statement of not knowing has been recorded as an admission, the conclusion changes under the rule that presumes contest.
The conclusion this section permits is narrow. Reading the text of deemed confession and the proviso together, so that the absence of contest and the purport of the whole oral argument must be judged separately, and matters whose context and subject are unclear are left indeterminate, distinguished from impossibility — that much is the confirmed scope. From this it cannot be asserted at once that a confession is, or is not, established.
2.4The Records Needed for Determination
If nothing is said, is it always a confession? Under the premise that a judicial confession of fact in court carries the effect of dispensing with proof, yet that its subject matter and the conditions for revocation must be examined together, the question "Which records are needed?" is opened in order to judge this issue. The deeming where there is no express contest and the exception deeming contest in light of the whole oral argument must be read together. What remains here is to fix the range of records necessary for that judgment.
The provision in question is Article 150, paragraph (1) of the Civil Procedure Act. It provides: "If a party, at oral argument, does not expressly contest a fact asserted by the opposing party, that party shall be deemed to have confessed that fact. However, this shall not apply where, in light of the purport of the whole oral argument, the party is deemed to have contested that fact" (Civil Procedure Act, Article 150). Here the subject is the party confronted with the opposing party's assertion at oral argument, the act is whether that fact is expressly contested, and the condition is that both the case where no contest is raised and the case where the party is deemed to have contested in light of the purport of the whole oral argument are examined together.
What connects this provision with the effect of deemed confession is the material left in the record. Deemed confession means the effect of regarding a fact as confessed upon the statutory conditions; to confirm this effect, the stage is determined solely by the material recorded in the party's statement record, the answer brief, the claim for revocation of confession, and the materials on mistake. The stage that asks the requirements of deeming must be distinguished from the stage that asks the conditions for revocation of confession. The former examines the presence or absence of contest; the latter examines the ground for undoing a confession already established. The stage determination is made upon the settled record alone, and gaps in the record are not filled by conjecture.
The counterargument that the burden of not having expressly denied rests with the party aims at the injustice that even a fact different from reality binds the trial because of the party's own mistake. This answer, without erasing the disadvantage identified by the counterargument, leaves in place the exception that where a contest appears across the whole oral argument, the fact is not deemed confessed.
What is to be seen in this scene is whether the statement in which B answered that the facts were unknown remains in the record, what fact plaintiff A took that statement to be a confession of, and what fact became the subject of contest. Where the context of the statement or the fact taken as the subject of confession is unclear, the matter remains indeterminate.
The conclusion this section permits is that, distinguishing the applicable requirements of confession, contest, and manifest facts, and, where the statutory conditions for revocation of confession are satisfied, reflecting that in determining the stage, and where no such record exists, deemed confession is not fixed. The conclusion it does not permit is a reading that removes the whole of the contest and fixes a confession upon silence alone.
2.5Circumstances That Change the Decision
B, the defendant, answered that B did not know the facts, but plaintiff A cites this as a statement already admitting them. In the preceding stage, the premise was accepted that a confession of fact made in court carries the effect of dispensing with proof, while its subject matter and the conditions for revocation must be examined together. What is at issue here, however, is not the confession of the preceding stage itself, but the threshold that determines whether there was a confession at all from the outset. If a confession is fixed solely on the ground that no statement was left, it will also cover situations in which the party did in fact contest the matter but the contest was not properly entered in the records. On what conditions, then, does the rule that recognizes a confession where the party did not expressly deny operate, and what circumstances can reverse the earlier determination? The question at this stage is narrowed to asking anew, within the flow of the overall oral argument, the meaning of silence.
The provision that addresses this question is Article 150, paragraph (1) of the Civil Procedure Act. That provision stipulates, “Where a party fails to expressly deny a fact asserted by the other party in oral argument, the party shall be deemed to have admitted such fact,” and then adds the proviso, “Provided, That this shall not apply where the party is deemed to have denied such fact in light of the purport of the entire oral argument” (Civil Procedure Act, Article 150). The former sentence refers to cases in which a party does not expressly deny a specific fact advanced by the other party in oral argument, and here a confession is not fixed merely on the ground that the party said nothing. The latter sentence sets forth, as an exception, cases in which the purport of a denial of the same fact appears throughout the overall oral argument, and thereby excludes the deemed confession of the former sentence. In other words, the provision places “the case of no express denial” and “the case in which the party is deemed to have denied the fact in light of the purport of the entire oral argument” as distinct stages of determination, so that once the latter is confirmed the former deemed admission cannot take hold.
Deemed confession here means the effect of treating a fact as admitted under statutory conditions. This effect leads to the stage at which the fact is determined without proof, but the threshold that presupposes it remains separate. The reason the deemed admission in “the case of no express denial” must be distinguished from the exception of “the case in which the party is deemed to have denied the fact in light of the purport of the entire oral argument” is that only by passing the former stage can one move to the latter. The Records showing that B, the defendant, answered that B did not know the facts is not records accepting as they stand the facts asserted by plaintiff A. In this case, the work of correcting the conclusion is not to devise new conditions for revocation of confession, but to apply the exception already laid down by the text and return matters to a state in which the deemed confession never arose.
Of course, there is a counterargument to the effect that the party must bear the burden of not expressly denying. In a lawsuit, if a fact is settled as admitted even though the party did not squarely rebut the other party's assertion, the resulting disadvantage should be borne by the party that failed to take care. What this counterargument effectively demands, however, is to erase from the records even the contest that actually occurred and to fix a confession on silence alone. Rather, the provision leaves intact the burden pointed out by the counterargument, while ensuring that the deemed admission does not reach a case in which the same statement appears as the purport of a denial. The case in which B, the defendant, answered that B did not know the facts falls within the latter, and the records transcribing that answer as a statement admitting the fact is itself a misclassification. The burden of defending against the opposing party's assertions, which the counterargument emphasizes, remains; yet that burden can be properly measured only after the classification of the statement has been corrected.
What must be observed in this scene narrows to the single fact that the classification of this statement has been reversed. What plaintiff A drew out was an answer of not knowing, and recording that answer as a statement admitting it is the whole of this stage. Contrasting this records with the exception in Article 150, paragraph (1), it falls within a case in which the purport of a denial appears throughout the overall oral argument, and the deemed confession therefore does not arise. There are, however, matters that cannot be fixed by this scene. Which of the record of the party's statement, the answer, the assertion of revocation of confession, and the materials on mistake remained in the actual preparatory brief, and in what manner that records was organized, is not specified. Accordingly, the context of B's statement “that I did not know the facts,” and what the fact taken as the subject of the confession was, remain unverified. Where the context of the statement or the fact taken as the subject of the confession is unclear, the stage determination cannot be fixed either.
The conclusion permitted in this section is narrow. Silence, or the mere circumstance of not having expressly denied, does not fix a confession; once the purport of a denial throughout the overall oral argument is confirmed, the place for the deemed confession disappears. This does not mean that a party who mounted no defense whatsoever is protected without limit by this distinction, and that burden remains intact in the area not revealed as contest. Conversely, the records that changed a statement of not knowing into an admission already falls under the confirmed exception, and on that basis the effect of dispensing with proof of a confession cannot be invoked. Contexts not fixed by the scene are left undetermined, but the conclusion changes within the scope in which a clear classification error has been confirmed.
2.6The Strongest Counterargument and the Answer
In the scene where B, the defendant, answered that B did not know the facts while plaintiff A cites this as a statement admitting it, the issue is whether B's silence becomes a confession at once. It follows that the question to be examined is whether a confession can be established even in a situation where no such record exists—that is, going further, in a case where nothing at all was said.
The provision that answers this question is found in Article 150 of the Civil Procedure Act. Paragraph (1) thereof reads: "① Where a party fails to expressly deny a fact asserted by the other party in oral argument, the party shall be deemed to have admitted such fact: Provided, That this shall not apply where the party is deemed to have denied such fact in light of the purport of the entire oral argument." Here the subject is the party responding in oral argument, the act is the denial of the fact asserted by the other party, and the condition is the case in which that denial is not express. Deemed confession means the effect of treating a fact as admitted under these statutory conditions.
The preceding pronouncement and the following proviso are not separate but form a single process of determination, the latter being a device that asks in what sense silence, which remains only in the preceding clause, was left in the overall lawsuit. If a confession is fixed by looking only at the requirements of the former and the exception of the latter is left empty, one departs from the conclusion the author has established—namely, the judgment that one cannot delete the contest throughout the overall oral argument and fix a confession on silence alone.
The strongest counterargument is aimed at the point that this distinction is harsh on the party. The party must bear the burden of not expressly denying, and even where the fact differs from the truth, it is unjust for the trial to be bound by the party's mistake. This dissatisfaction does not disappear. Yet the answer is already contained in the proviso. Because the place where the deemed admission in the case of no express denial is situated lies within the frame of the purport of the entire oral argument, deleting the contest throughout the overall oral argument and fixing a confession on silence alone goes beyond the boundary drawn by this provision.
Returning to the synthetic scene, B's answer and the record of B's statement are the subjects of the records, and whether materials on mistake or an assertion of revocation of confession were contained in them is not determined by this scene alone. The contrast that, if a statement of not knowing was recorded as an admission, the conclusion is corrected under the rule presuming a denial, shows only the condition that the determination is reversed when the form of the records changes. Accordingly, now that the context of B's statement and the subject of the confession are not clear, whether a deemed confession arose must be left undetermined.
What this section permits is the work of reading together the deemed admission in the case of no express denial and the exception of the entire oral argument, and what it does not permit is fixing a confession on a single instance of silence alone. The definition that a deemed confession is the effect of treating a fact as admitted under statutory conditions stands on the premise of this distinction.
2.7The Link to the Application and the Dispositive Part
Taking up the conclusion of the preceding section—that one cannot delete the contest throughout the overall oral argument and fix a confession on silence alone—this section now isolates and examines the place of silence itself. The question that remains is: if nothing is said, is it always a confession?
The provision that answers this question is borrowed from Article 150, paragraph (1) of the Civil Procedure Act. Paragraph (1) reads, 「Where a party fails to expressly deny a fact asserted by the other party in oral argument, the party shall be deemed to have admitted such fact」. The subject designated by this provision is the party speaking in oral argument, the act is the response to the fact asserted by the other party, and the condition is the case in which that response does not expressly deny.
The provision continues in the same breath but adds the proviso, 「Provided, That this shall not apply where the party is deemed to have denied such fact in light of the purport of the entire oral argument」 (Civil Procedure Act, Article 150). Because of this proviso, the deemed admission and its exception do not part ways at a single condition. The preceding provision asks after the form of a given response, while the proviso asks after the purport of the overall oral argument in which that response is situated. Hence the judgment of “the case of no express denial” and the judgment that the party “may be regarded as having denied the fact throughout the overall oral argument” must be read as two distinct stages.
The reason this distinction feels weighty is that unless the burden of not expressly denying is placed on the party, the trial is repeatedly held up. Yet beyond this burden, one cannot delete the contest throughout the overall oral argument and fix a confession on silence alone. To fix it in that way would erase the disadvantage contained in the proviso. That is, a result arises in which, although a contest actually exists, only a single instance of silence is left and hardened into a confession.
Returning to this scene, plaintiff A cites B's response as a statement admitting it, and B, the defendant, answered that B did not know the facts. What can be confirmed in this scene is only the form of those two statements. The contrast that, if a statement of not knowing was recorded as an admission, the conclusion is corrected under the rule presuming a denial, is no more than a check that changes a single direction of the records. Whether the statement of not knowing itself constitutes a denial, and whether an assertion of revocation of confession and materials on mistake were submitted together, are matters outside the scene and cannot be fixed.
Accordingly, the conclusion permitted by this section is the narrow judgment of reading together the deemed admission in the case of no express denial and the exception under which the party may be regarded as having denied the fact throughout the overall oral argument. What this section does not permit is the judgment of hardening silence directly into a confession and thereby erasing the denial from the overall oral argument.
2.8The Scope This Section Undertakes
In the scene where B, the defendant, answered that B did not know the facts while plaintiff A cites this as a statement admitting it, the boundary to be determined this time is whether the plaintiff's citation can at once be recorded as B's confession. If a single silent phrase is enlarged to the whole of the utterance, the plaintiff's asserted facts become the premise of the judgment as they stand. The question here is how far that enlargement is permitted.
The provision stipulates, "Where a party fails to expressly deny a fact asserted by the other party in oral argument, the party shall be deemed to have admitted such fact." What this provision establishes is that the subject is the party who spoke in oral argument, the act is the absence of a denial of the fact asserted by the other party, and the condition is the case in which that absence is express. Here, “deemed to have admitted” does not mean converting the fact into an actual statement of confession, but refers to the effect of the statutory condition treating that fact as confessed.
The proviso that immediately follows this provision binds the scope of the deemed admission. The same provision declares, "Provided, That this shall not apply where the party is deemed to have denied such fact in light of the purport of the entire oral argument." If the two are read separately, the deemed admission appears to arise at the first step, but the structure in which that deemed admission recedes at the second step is already within the provision. Which statement is recorded as a deemed confession is determined only after both steps have been passed.
If a confession is fixed on silence alone without this distinction, the loss suffered by the party is great. The counterargument that the party must bear the burden of not expressly denying points out that placing the weight of an utterance upon a place where nothing was said makes the trial faster. If a rebuttal made at another point during the oral argument remains, a confession fixed after erasing it departs from the factual records. While acknowledging the gain in efficiency spoken of by the counterargument, the answer above is that this gain does not extend so far as to nullify the denial throughout the overall oral argument.
Contrasting these conditions with this scene, the portion in which plaintiff A cited B's answer as a statement admitting it has not yet been fixed as a confession. If there are records showing that B, the defendant, answered that B did not know the facts, room remains for it to be recognized as a denial in light of the purport of the entire oral argument. However, exactly which fact the plaintiff's citation and B's statement targeted, and what the context was in which that statement was recorded, is not determined by the scene.
The conclusion permitted by this section is that silence is not always a confession. The deemed admission in the case of no express denial remains as the effect of the statutory condition of deemed confession only when it is read together with the exception under which the party may be regarded as having denied the fact throughout the overall oral argument. The conclusion not permitted by this section is an interpretation that fixes a confession on a single silent phrase alone and closes the path for denying that fact again. The statutory conditions for revocation of confession, and whether they are satisfied, are not determined here.
2.9Application of the Text of the Provisions and the Holdings of Precedents
In this scene, B's answer is closer to a denial in the form of saying that B does not know than to silence; and if it is converted into assent, the dispute to be addressed at trial is erased in advance. Here, taking up this scene, I address the question of whether silence is always a confession, dealing with how the facts fixed without proof under the relevant provision's wording are determined and how the constraint attaches to them. The reason that the deemed treatment at the time of an express failure to dispute and the exception whereby a dispute may be found in the overall tenor of the oral argument must be read together lies precisely in this scene.
The relevant wording is set out in Civil Procedure Act Article 150 paragraph (1). Its wording provides that where a party, in oral argument, does not expressly dispute a fact asserted by the opposing party, that fact shall be deemed confessed, and it then adds the proviso that this shall not apply where the fact is found to have been disputed in light of the overall tenor of the oral argument (Civil Procedure Act Article 150). In this wording, the subject is the party speaking in oral argument, the act is the attitude of not expressly disputing the fact advanced by the opposing party, and the condition is that such an attitude must appear in the oral argument. The object of attention here is not a claim demanding recognition of a fact, but the presence or absence of a dispute; and the exception, whereby the effect of deeming the fact confessed does not arise where the fact is found to have been disputed, is read as part of a single bundle.
If the term deemed confession is attached to this wording, deemed confession means the effect of deeming a fact confessed upon statutory conditions. This effect concerns the stage at which, without undergoing a separate proof procedure, the fact is deemed confessed; and the stage at which the constraint surrounding that fact follows is judged after the former stage has been established. The reason the two stages must be distinguished is that, if the conditions required by the wording are not met at the former stage, the constraint spoken of at the latter stage cannot be discussed. Deemed confession is the effect of deeming a fact confessed upon statutory conditions; and although the fact subject to this effect and the constraint upon it are bundled within the same sentence, they are not the same determination. Because only the relevant wording is taken as the basis here, one cannot bring in other grounds or the wording of other paragraphs not covered by this provision to broaden the scope of this constraint.
The counterargument most forcefully raised against this wording is that the burden of not having clearly denied should be borne by the party. This counterargument takes the view that, just as the responsibility for not having spoken in a lawsuit is heavy, imposing on a person who did not distinctly deny the fact presented by the opposing party the unfavorable attribution of that fact accords with the fairness of bringing the dispute to a swift end. If a fact different from reality is fixed, the loss remains entirely with the side that did not speak, and the opportunity to submit evidence thereafter has already been diminished. Yet however heavy that burden may be, the disputes of the overall oral argument cannot be deleted and a confession fixed on silence alone. The reason the proviso leaves room for cases in which the fact is found to have been disputed in light of the overall tenor of the oral argument lies here; and the convenience of early fixation emphasized by the counterargument cannot lead to the result of erasing this proviso.
In this scene, B's statement was an answer that B did not know the fact, and Plaintiff A cites it as a statement admitting it. Placing these two side by side, the conditions of the wording as to falling within the case of not expressly disputing and the position in which B's statement is placed diverge from each other. There remains room for reading the statement of not knowing, in the overall tenor of the oral argument, as finding a dispute; but it cannot be moved directly to a statement admitting it and given the effect of being deemed confessed. On the strength of this scene alone, it cannot be held that the context of this statement and the fact taken as the object of the confession have been fixed.
The conclusion this section permits is to judge together, on the sole basis of the relevant provision's wording, the effect of deeming a fact confessed at the time of not expressly disputing and the exception whereby a dispute may be found in the overall oral argument, and to distinguish the two stages and place the scope of that constraint within that wording. The conclusions it does not permit are to fix a confession on silence alone by omitting the proviso that surveys disputes across the board, or to broaden that constraint on other grounds not covered by this provision. That the context of the statement remains unclear is undetermined, and it cannot itself be fixed that deemed confession does not arise.
2.10Fine Distinctions Within the Stage
The foregoing, on the question of whether silence is always a confession, confirmed the premise that a judicial confession of fact in court has the effect of dispensing with proof, but that its object and revocation conditions must be looked at together. Maintaining that premise, the analysis now moves to the question of what portions must again be divided and adjudicated within the facts determined without proof and the constraint thereon. The question is what distinctions must precisely be settled within, when the deemed treatment at the time of not expressly disputing and the exception whereby a dispute may be found in the overall oral argument are read together.
To this question, the relevant provision is Civil Procedure Act Article 150 paragraph (1). The preceding sentence opens the gate at which deemed confession, that is, the effect of deeming a fact confessed upon statutory conditions, is established. The following sentence states together the conditions that close that gate again. Accordingly, the Article is read not as a rule isolating silence alone, but as an instruction to examine together whether the party expressly disputed the opposing assertion and whether the fact is found to have been disputed in light of the overall tenor of the oral argument.
The reason these two sentences are read separately is that the unit of adjudication differs. The preceding stage asks how the party responded in oral argument to a specific fact advanced by the opposing party, that is, whether there was an express dispute as to an individual fact. The following stage again asks whether adjudication ended with that response alone, though it too is judged only within a set scope. That is, whether the requirements of the deemed treatment at the time of not expressly disputing were met, or whether the exception of finding a dispute in light of the overall tenor of the oral argument is established, and which of these two applies, is the detailed distinction of this stage, divided and contrasted. No separate gate of revocation of confession is newly created here. Rather, if a statement of lack of knowledge has been recorded as admitted, correcting the conclusion under the rule that presumes a dispute serves to reverse the case of the earlier dispute determination having been recorded incorrectly; it does not invent an additional stage.
The counterargument that finds this distinction burdensome is plain. The assertion that the burden of not having clearly denied should be borne by the party takes the view that, if Defendant B did not distinctly deny the fact advanced by Plaintiff A, that disadvantage falls to the party who was remiss in defense. The worry is that if the silence of one sentence cannot be read as the assent of the whole lawsuit, the side that failed to mark an actual dispute clearly may rather come to fetter the trial. The loss indicated by this counterargument is not the right of defense but delay in defense, and the inconvenience that an uncertain statement obscures the trial's endpoint. Yet that worry does not justify the convenience of fixing a confession on silence alone. Since the disputes of the overall oral argument cannot be deleted and a confession fixed on silence alone, even if the burden demanded by the counterargument arises, that burden is dealt with only within the set contrast separating the time of not expressly disputing from the time when a dispute may be found in the overall oral argument.
In the synthetic scene, the relevant facts are narrow. On this sentence alone, it does not appear whether B's reply was a failure to expressly dispute the facts asserted by Plaintiff A, or whether it is found to have been disputed in light of the overall tenor of the oral argument. The Records do not contain, as to what fact and in what context the statement 'I do not know' arose, or whether the object Plaintiff A cited is that statement itself or an answer concerning a specific fact. Accordingly, deemed confession cannot be fixed on this scene. What does remain is the possibility that B's reply might rather fall within an express dispute; and if it is confirmed that a statement of lack of knowledge was recorded as admitted, the conclusion changes under the rule that presumes a dispute.
The conclusion this section permits is this narrow one: deemed confession may be established where an individual fact was not expressly disputed, and as an exception thereto, where the fact is found to have been disputed in light of the overall tenor of the oral argument, deemed confession is not established. No new requirement or exception is added here, nor are the requirements of revocation of confession fixed at this point. The context of the statement and the fact that is the object of the confession, which cannot be adjudicated from the scene, remain undetermined.
2.11Synthesis of Effectiveness, Blockage, and Undetermination
To answer this question, the conditions of the effect of reading silence as a confession and the conditions of the case in which that effect can no longer hold must be viewed separately. How to distinguish the effectiveness, blocking, and undetermined status of the facts determined without proof and the constraint upon them is the question at this point.
The relevant provision stipulates as follows. This provision takes as its subject the party speaking in oral argument, as its act the presence or absence of an express dispute as to the fact asserted by the opposing party, and as its condition a dispute ascertainable from the overall tenor of the oral argument. It reads together the deemed treatment at the time of not expressly disputing and the exception whereby a dispute may be found in the overall oral argument.
This wording and the conclusion of this section connect as follows. For deemed confession to attach, it must be determined together what fact the opposing party asserted and whether the party did not expressly dispute that fact. Only then can that fact be taken as one determined without proof. Meanwhile, if the fact is found to have been disputed in light of the overall tenor of the oral argument, the deemed treatment slips away, and therefore a confession cannot be fixed by isolating the one sentence of silence. The determination of the presence or absence of a dispute and the determination of whether the statutory conditions for revocation of confession are satisfied occupy different stages. The former asks whether the deemed treatment begins; the latter asks whether an already valid confession can again be negated. Only when the two stages are distinguished do the conditions that open, the conditions that block, and the undetermined items remain unmixed.
The strongest counterargument aims at the allocation of the burden. The burden of not having clearly denied should be borne by the party. If a person who, having received a complaint, merely answered that he did not know later says it was a mistake, the opposing party must reassemble an attack prepared on the premise of that confession, and the center of gravity of the trial is shaken. The observation that a fact different from reality should not tie up the trial because of a party's mistake arises from the same quarter. If the circumstances of having actively disclosed a dispute remain in the overall oral argument, those circumstances cannot be erased and the burden shifted to the party alone.
In this scene, the facts corresponding to this question are the context of the statement 'I do not know' and the range of the fact that took that statement as the object of the confession. The condition that opens is the case in which the requirements of applicability for confession, dispute, and manifest fact are distinguished, and in which, where the statutory conditions for revocation of confession are satisfied, this is reflected. The condition that blocks is the case in which the judicial confession validly remains and, the statutory revocation requirements not being satisfied, the route to negating that fact again is closed. The undetermined is separated as the case in which the context of the statement or the fact taken as the object of the confession is unclear. Since the scene alone cannot fix whether 'I do not know' was a simple denial or an expression of inability to confirm, this item remains undetermined.
The conclusion this section permits is to place separately, each in its own right, the conditions under which deemed confession begins, the conditions under which a confession already arisen is negated again, and the conditions under which judgment is reserved. Unless silence and the dispute in the overall oral argument are evaluated together, a confession cannot be fixed; and unless the statutory conditions for revocation of confession are met, that fact cannot be negated again either.
2.12Conclusion Carried Over to the Next Section
In this scene, what is at issue is whether B's silence or lack of knowledge is immediately settled as assent. Whether, because B did not clearly refute the opposing party's assertion, all those disputes are erased, or whether only that one point is provisionally settled, remains to be seen.
That wording states, "Where a party, in oral argument, does not expressly dispute a fact asserted by the opposing party, that fact shall be deemed confessed," yet it then turns it into an exception if the fact is found to have been disputed in light of the overall tenor of the oral argument. Here the subject is the party who spoke in oral argument, the act is the attitude of not expressly disputing, and the condition is that this is confirmed in its placement within the overall tenor of the oral argument. The other issues contained in this Article are not dealt with at this point.
Under this wording, the court may confer upon a specific fact the effect of deeming the fact confessed upon the statutory conditions of deemed confession. Yet that effect and the truth or falsity of the actual fact are not the same question. What was said in the preceding section, that a confession has the effect of dispensing with proof but that its object and revocation conditions must be looked at together, rested on precisely this distinction having been a premise. Unless the stage at which one side's silence is deemed a confession is kept separate from the stage at which that confession can again be overturned, the adjudication is not settled.
The strongest counterargument in this section is that the burden of not having clearly denied should be borne by the party. The assertion that the side that failed to correct the opposing party's assertion must pay the price of not having spoken is rooted in the practical need to prevent delay of the lawsuit or to fill gaps in the records. If responsibility falls to that side even where B could not answer because he did not know, there is a risk that an incorrect fact will remain as the foundation of the trial. While acknowledging such inconvenience, the disputes of the overall oral argument cannot be deleted and a confession fixed on silence alone.
What is confirmed in the synthetic scene is that B answered that he did not know the fact, and that A cites it as a statement admitting it. This situation alone does not determine what fact became the object of the confession, or in what context B's statement was made. If transcripts of party statements, answer briefs, claims of revocation of confession, and materials on mistake were gathered together, the matter could be judged within that range, but no claim is made that such records have been collected. Even applying the contrast whereby, if a statement of lack of knowledge has been recorded as admitted, the conclusion is corrected under the rule that presumes a dispute, the present undetermined status, with those records not having been secured, remains as it is.
What this section permits is to read silence and dispute together and thereby determine whether deemed confession is established; what it does not permit is to erase all disputes on silence alone. Whether a fact that has undergone the former determination remains a confession and may be disputed again is governed by what separate wording provides, and is not opened in advance at this point. The parts where the records are unclear are left undetermined, and it is right to place outside the scope of this section as well whether the statutory conditions for revocation of confession have been satisfied. Is a statement of not knowing the same as acknowledgment of fact?