Summary
The deemed confession for non-appearance is also subject to an exception where notice of the hearing date was given by service by public notice.
4.1The Standard by Which the Path Opens
The reason for non-appearance and the method of court notice are not the same. If a party does not appear on the hearing date, are all statements deemed admitted? The preceding section concluded that the statutory provision presuming a statement of lack of knowledge to have contested the fact is followed, and on the strength of that wording the way to resist Plaintiff A's invocation was already open. The question, however, is whether the same yardstick can be applied even to a case in which a party fails to appear after receiving notice of the hearing date. In the synthetic scene, Defendant B answered that he did not know the facts, and Plaintiff A invokes this as an admitted statement. In this situation, the question is what standard should be taken as opening the entrance to this remedy.
Article 150 (3) of the Civil Procedure Act provides: "(3) Where a party fails to appear on the date for oral argument, the provisions of paragraph (1) shall apply mutatis mutandis. Provided, however, that this shall not apply where a party who has been served with a notice of the hearing date by service by public notice fails to appear." This wording makes two things clear. The subject is a party who fails to appear on the date for oral argument, and the act is the failure to appear itself. The condition is the method by which the notice of the hearing date was received; where it was served by service by public notice, the mutatis mutandis application is excluded.
Linking that wording with the conclusion of this section, one can see that non-appearance does not by itself lead to the admission of all statements. Confession, contestation, and manifest facts each have different requirements, and a revocation of confession is reflected only where the statutory conditions are met. The reason these two must be distinguished is that the earlier distinction at once determines the later judgment. It must be regarded as opening the entrance to the remedy, and no new requirement should be added here.
The weight of the counterargument, however, is not light. If every reason for non-appearance is examined, a speedy trial becomes difficult, and it is unjust to hold the trial hostage to a fact contrary to reality because of a party's own mistake. This targets the point where the value of expedition in procedure and the value of the parties' right of defense collide. Without erasing this loss and inconvenience, the conclusion nevertheless remains that all non-appearance cannot be treated as a deemed confession while the public-notice exception is erased. So long as the statutory provision clearly places an exception, the answer that all cases are treated by the same yardstick runs counter to the wording.
Returning to the synthetic scene, Defendant B answered that he did not know the facts, and Plaintiff A invoked this as an admitted statement. Now that the statutory provision presuming a statement of lack of knowledge to have contested the fact has already been confirmed, this scene alone cannot show that Plaintiff A's invocation was accepted. Whether the notice of the hearing date was received by service by public notice, however, is not revealed in the scene. Accordingly, whether the public-notice exception may apply in the case of non-appearance remains undetermined, and before that fact is brought to light it cannot be asserted that the channel of this remedy has been opened.
The conclusion permitted by this section is that non-appearance alone does not mean that all statements invoked by the opposing party are deemed admitted. Non-appearance by a party notified by service by public notice falls within the exception to the mutatis mutandis application, and confession, contestation, and manifest facts must each be distinguished by different requirements. What is not permitted is the treatment that lumps all non-appearance together as the same deemed confession without confirming the method of notice.
4.2The Conditions That Block Relief
The preceding stage confirmed the direction of following the statutory provision that treats a statement of lack of knowledge as a contested one. The question now posed is whether failure to appear on the hearing date means that all statements are admitted, and what conditions block the remedy. This question does not ask at once about the form of non-appearance and the content of the judgment that follows it; specifically, it asks whether the method of notice of the hearing date and the handling of statements diverge from one another. Moving beyond this scene, the discussion below makes clear whether the matter may be handled as non-appearance, and only under what conditions it may be so handled.
The statutory provision corresponding to this question is Article 150 (3) of the Civil Procedure Act. Its wording states: "(3) Where a party fails to appear on the date for oral argument, the provisions of paragraph (1) shall apply mutatis mutandis. Provided, however, that this shall not apply where a party who has been served with a notice of the hearing date by service by public notice fails to appear" (Article 150 of the Civil Procedure Act). The subject indicated by this wording is the party who fails to appear on the date for oral argument, and the act is failure to appear on the date for oral argument. The condition, in turn, divides according to the method by which the notice of the hearing date was served. Where a party who has been served with the notice of the hearing date by service by public notice fails to appear, the mutatis mutandis application of paragraph (1) is excluded. Here, service by public notice means service effected by the statutory method of public notice. This exception prevents the mere outward form of non-appearance from resulting in the same treatment.
The above wording and its conclusion connect as follows. The rule of deemed admission on non-appearance also has an exception for a notice of the hearing date by service by public notice. This is no mere proviso; it concerns the gateway that determines to what treatment non-appearance is linked. If notice was received by service by public notice, the party cannot be moved to the stage of the mutatis mutandis application of paragraph (1) merely because he failed to appear. Only where, in contrast, notice was received by another method and the party failed to appear, can the matter proceed to that stage. This distinction is a separate stage of judgment from whether a judicial confession validly remains in effect, and whether the statutory requirements for revocation are met so that the channel to deny that fact again is open. In the present question, which asks about the blocking conditions of the preceding stage, if even one of the statutory requirements is not met, the channel of remedy is closed. The remedy operates only where all requirements are met; if even one is missing, it is closed.
The most persuasive counterargument concerns the scales of expedition and fairness. If every reason for non-appearance is examined, a speedy trial becomes difficult. If each reason is investigated one by one, dates are postponed, and both the remaining parties and the court must bear the cost of that delay. The question whether a confession can be undone merely on the ground that it was a mistake likewise arises from the concern that if reasons are admitted after the fact, disputes will continue without end. The observation that it is unjust to hold the trial hostage to a fact contrary to reality because of a party's own mistake points in the same direction. The author answers this counterargument, however, by saying that all non-appearance cannot be treated as a deemed confession while the public-notice exception is erased. The meaning is that, without erasing the loss suffered by the side that places expedition first, generalization that abolishes the exception the statutory provision has already made is not permissible.
What can actually be confirmed in this scene is that Defendant B answered that he did not know the facts, and that Plaintiff A invokes this as an admitted statement. If the statutory provision presuming a statement of lack of knowledge to have contested the fact is followed, it is difficult to treat B's response immediately as an admitted statement. Yet this scene contains no fact as to the method by which notice of the hearing date was given, that is, whether it was service by public notice or not. This item remains undetermined. In light of the statutory provision seen above, where a party who has been served with the notice of the hearing date by service by public notice fails to appear, the mutatis mutandis application of paragraph (1) does not occur. Accordingly, this scene alone cannot determine which treatment follows. The contrasting sentence that, if a statement of lack of knowledge has been recorded as an admission, the conclusion is corrected under the rule that presumes it to have contested the fact, is only a condition for altering the record; it is not a fact newly added to the scene.
In sum, the conclusion permitted by this section is that the rule of deemed admission on non-appearance also has an exception for a notice of the hearing date by service by public notice, and that this exception opens only within the requirements set by the statutory provision. The conclusion this section does not permit is the generalization that any non-appearance may be treated as a deemed confession. Treating all non-appearance as a deemed confession while erasing the public-notice exception would be a judgment contrary to the wording of the statutory provision. Other judgments, namely whether a confession validly remains in effect and whether the statutory requirements for revocation have been met, are outside the scope of this section; those judgments are left to the established distinction of requirements. Nor should the state in which the legal channel is open be read as actual results of payment, delivery, or recovery.
4.3The Boundary That Remains When There Is No Data
Defendant B answered that he did not know the facts, and Plaintiff A invokes this as an admitted statement. Even if the statutory provision presuming a statement of lack of knowledge to have contested the fact is followed, it must first be determined with respect to what fact that statement is to be read. It is precisely at this point that the question opens up: if a party does not appear on the hearing date, are all statements admitted, and where lies the boundary that cannot be fixed for want of materials?
This wording limits its object to a party who fails to appear on the date for oral argument, and states its act as the case of failing to appear. Above all, the proviso makes an exception of the case in which a party who has been served with the notice of the hearing date by service by public notice fails to appear.
The effect of non-appearance cannot be judged while omitting the exception this wording has laid down. Therefore, one cannot assert that all of the opposing party's statements are admitted merely because the party did not appear on the hearing date. In the same flow, where the context of a statement or the fact taken as the object of confession is unclear, a standard is required by which matters not specified as materials of judgment are left undetermined, distinguished from impossibility. Here, impossibility means a state in which there are no means of judgment at all, while undetermined means a state in which the clues have not yet been filled in. Although both share the common feature of lacking materials, they are kept apart because the reason for halting judgment differs.
If every aspect of the public-notice exception is examined, the materials themselves increase and time is consumed. The counterargument that a speedy trial becomes difficult if every reason for non-appearance is examined targets this point. Moreover, the observation that it is unjust to hold the trial hostage to a fact contrary to reality because of a party's own mistake also carries great weight. Even so, one cannot pretend that the loss the counterargument seeks to erase never existed. The answer that all non-appearance cannot be treated as a deemed confession while the public-notice exception is erased means that the value of expedition cannot extend so far as to cover the wording of the exception.
In this scene, Defendant B answered that he did not know the facts, and Plaintiff A invokes this as an admitted statement. In this situation, the materials to be taken as the basis of judgment are limited to the party's statement record, the answer, the claim for revocation of confession, and the materials of error. However, the scene does not determine at what fact that statement is directed or what its context is. That portion cannot be judged from this scene alone and remains undetermined. At the same time, it is noted that if a statement of lack of knowledge has been recorded as an admission, the conclusion is corrected under the rule that treats it as contested.
The conclusion permitted by this section is the line that, in dealing with the rule of deemed admission on non-appearance, the exception for a notice of the hearing date by service by public notice must without fail be read together with it. Accordingly, no judgment can be made that all statements are admitted merely because the party did not appear on the hearing date. Conversely, a judgment that at once declares a matter that cannot be fixed for want of materials to be impossible, or that fills the place of the undetermined with an arbitrary fact, likewise lies outside this section.
4.4The Records Needed for Determination
The statutory provision treating a statement of lack of knowledge as a contested one is followed. From the question whether failure to appear on the hearing date means that all statements are admitted, what this stage asks is what must serve as the ground when that admission is judged. A party may not know how his own statements have been handled merely because he did not appear in time.
The relevant statutory provision is written thus in Article 150 of the Civil Procedure Act: "Where a party fails to appear on the date for oral argument, the provisions of paragraph (1) shall apply mutatis mutandis. Provided, however, that this shall not apply where a party who has been served with a notice of the hearing date by service by public notice fails to appear." The subject established by this wording is the party who fails to appear on the date for oral argument, its act is non-appearance, and the condition of the exception is the case of being served with the notice of the hearing date by service by public notice.
Here lies the reason why the stage must be adjudged on the materials left in the record alone, that is, only on what is written in the party's statement record, the answer, the claim for revocation of confession, and the materials of error. If whether the rule of deemed admission is applied depends on the condition of the method of service, then the rule of deemed admission cannot be presupposed without a record concerning that condition. Therefore, the judgment on the rule of deemed admission and the judgment on the fact that is the object of the deemed statement must be read as two separate matters. If the two are combined and settled at once, only a conclusion remains while what record is missing goes unexposed.
The counterargument that a speedy trial becomes difficult if every reason for non-appearance is examined targets the speed of the trial and the early resolution of the dispute. Behind it lies the concern that if a review of circumstances is added to every non-appearance, cases will be delayed, and an answer that one does not know the facts will in truth have to be treated as a statement close to a nonexistent one. Yet all non-appearance cannot be treated as a deemed confession while the public-notice exception is erased. The trouble of examining the circumstances after non-appearance occurs, and the disregard of the distinction by method of service that the statutory provision has already laid down, are different matters. If the latter is abolished, what remains is not the expedition of the former, but only the result of filling in facts that are not in the record.
Comparing this scene with the established record materials leaves a gap where the context of the statement of lack of knowledge and the fact taken as the object of confession are unclear. That gap is a state of undetermination for want of materials to adjudge the stage. Since the method of service and whether the requirements for revocation are met cannot be determined from the scene alone, those parts are left unjudged.
What this section permits is to adjudge the stage only by the established record materials and not to fill absent records with presumptions. What it does not permit is to regard, merely from the fact that a certain statement was admitted, everything contained in that statement and even the opposing party's unilateral invocation as likewise settled. If a statement of lack of knowledge has been recorded as an admission, the conclusion is corrected under the rule that treats it as contested.
4.5Circumstances That Change the Decision
In the scene where Defendant B answered that he did not know the fact, but Plaintiff A cited it as a statement admitting the fact, if a party does not appear on the hearing date, are all statements deemed admitted? This question takes its exact form only when nonappearance itself and the resulting deeming are examined separately. The situation in which a statement of non-knowledge was recorded and the situation of failure to appear call for different sources.
The text corresponding to this question is Article 150, paragraph (3) of the Civil Procedure Act. Its wording provides: "Where a party fails to appear at a date for oral argument, the provisions of paragraph (1) shall apply mutatis mutandis." It then adds the proviso: "Provided, That this shall not apply where a party who was served with a written notice of a date through service by publication fails to appear." The subject spoken of here is the party who failed to appear at the date for oral argument; the act is that nonappearance; and the condition depends on which manner of service was used for the written notice of the date.
The above wording, when applying the deeming with respect to nonappearance, applies the provisions of paragraph (1) mutatis mutandis, but carves out as an exception the case where a party served with a written notice of a date through service by publication fails to appear. The reason for laying down this exception separately is that, depending on the manner of service, the very likelihood that the party learned of the date differs. The provision that presumes a statement of non-knowledge to have been contested, and the deeming that converts nonappearance into acceptance of statements, are judgments at different stages; even while discussing the latter stage here, the former rule cannot be carried over as is. If it is confirmed that a statement of non-knowledge was recorded as one of admission and the conclusion is revised under the rule presuming it to have been contested, the prior determination is discarded and the matter is adjudicated anew from the beginning.
If this distinction is maintained, the inconvenience remains that a speedy trial is delayed. Examining every reason for nonappearance is no different from conducting an inquiry at each date, and the longer the case is drawn out, the greater the burden of waiting borne by the party that appeared. Moreover, if even cases in which a fact contrary to reality is used as a ground and the trial is held up are permitted, an error in the statement record can stall the entire procedure. Even so, all nonappearance cannot be handled as deemed confession by erasing the service-by-publication exception. If the deeming covers even the range for which the original text leaves the exception open, the result is that the limitation set by the wording erases itself. While the delay and inconvenience pointed out by the counterargument remain as they are, the existence of the exception must be preserved.
The fact confirmed in the synthetic scene is only one: Defendant B answered that he did not know the fact, but Plaintiff A cited it as a statement admitting the fact. This scene does not specify whether there was appearance or the manner of service of the written notice of the date, and sets no year, amount, starting date, or judgment outcome. Accordingly, whether this is the nonappearance of a party served with a written notice of a date through service by publication, or a case notified in some other manner, cannot be determined from this scene alone. The conditional distinction drawn by this section, however, is clear. If it is confirmed that the direction of the record changes, the prior determination is discarded and the matter is adjudicated anew from the beginning. The range in which the context of the statement or the fact taken as the object of the confession is unclear remains undetermined.
What this section permits is narrow. It confirms that the deeming with respect to nonappearance is also subject to the exception for dates noticed through service by publication, and the scope of this question extends no further than preventing all nonappearance from being treated as deemed confession with that exception removed. What is not permitted is equally clear. A determination that reads the mere fact of nonappearance as immediate acceptance of every statement cited by the opposing party, and a determination that bundles all nonappearance together into a single mass regardless of the reason, lie outside the conclusion of this section.
4.6The Strongest Counterargument and the Answer
Following the earlier confirmation of the legal provision that presumes a statement of non-knowledge to have been contested, the problem produced by the way nonappearance is handled now comes into view. This is where the counterargument—that a speedy trial can hardly be guaranteed if the reasons for missing appearance are examined one by one—collides most forcefully. If it is confirmed that a statement of non-knowledge was recorded as one of admission, the conclusion changes under the rule presuming it to have been contested. What remains as a question here is whether the consequences of nonappearance can be converted wholesale into deemed confession.
The wording relevant to that question can be confirmed in the very form prescribed by Article 150 of the Civil Procedure Act. It reads: "Where a party fails to appear at a date for oral argument, the provisions of paragraph (1) shall apply mutatis mutandis. Provided, That this shall not apply where a party who was served with a written notice of a date through service by publication fails to appear." This wording is divided into two parts. The first part directs that a party who failed to appear at a date for oral argument be dealt with under the provisions of paragraph (1), and the second part leaves out of that application the case where a party served with a written notice of a date through service by publication fails to appear. Accordingly, the act subject to the deeming rule is one alone—failure to appear—and the condition applied to that party varies with the manner in which the notice was received. The other issues of Article 150 lie outside this explanation.
This wording and the conclusion of this section point in the same direction. That the provision, in dealing with nonappearance, separately exempts the case of notice through service by publication means that not all statements of a party who failed to appear can be converted into accepted statements in the same manner. This distinction arises because the stages differ. Examining the reason for failing to appear is one task, and confirming the manner in which notice was effected is another. If the claim that the former must be examined in every case is accepted along with it, the statutory exception for the latter disappears as well. Even without adding anything fresh about other situations of deemed confession or the requirements for revocation of confession, the conclusion stands simply because the wording of Article 150, paragraph (3) has separated the two.
The counterargument is aimed at the loss of delay that this conclusion brings. In the course of examining one by one the reasons for not appearing, the trial is slowed, and instead handling matters swiftly by deemed confession is far more practical; it is added that it is unjust to hold up a trial because of a fact contrary to reality that arises from a party's mistake. This disadvantage is not erased. Even so, all nonappearance cannot be handled as deemed confession with the service-by-publication exception erased. Once the provision has already set apart parties notified through service by publication, erasing that exception would also eliminate the distinction by manner of notice that the provision sets. The author's judgment is not to narrow the exception by weighing the lightness of the reason or the magnitude of the mistake so as to create requirements, but to leave the exception intact in the provision and reduce the scope of deemed confession.
Placed alongside the foregoing conditions, the synthetic scene reads: Defendant B answered that he did not know the fact, but Plaintiff A cited it as a statement admitting the fact. What deserves attention here is the content of the answer. A statement of non-knowledge must be recorded as contesting the fact, and converting it into one of admission is a separate matter. The range within which a determination can be rendered on this problem is narrow. This scene does not include whether the defendant was served with a written notice of a date through service by publication, and no values usable for that determination, such as year or amount, are fixed. Accordingly, whether a party's mistake actually existed, and how serious such a mistake was, cannot be concluded from this scene alone.
The conclusion permitted by this section is that all nonappearance cannot be handled as deemed confession with the service-by-publication exception erased. Beyond that, converting even the nonappearance of a party notified through service by publication into an accepted statement on the sole ground that a speedy trial is difficult lies outside what this paragraph can bear. Conversely, it would not be right to read it as saying that processing must unconditionally be delayed merely because the service-by-publication exception has been left in place. As with the conclusion of the preceding section, the provision that treats a statement of non-knowledge as contested remains intact. That the deeming with respect to nonappearance is also subject to the exception for dates noticed through service by publication is the foundation of the remaining judgment, and the next issue, such as revocation of confession, is dealt with at another stage.
4.7The Link to the Application and the Dispositive Part
The question now remaining is whether all statements are accepted if one does not appear at the date. In the scene where Defendant B answered that he did not know the fact, but Plaintiff A cited it as a statement admitting the fact, that question is intertwined not with a simple matter of appearance but with the question of by what notice the date was announced. In fixing the status of a party who did not appear, how the date was notified to that party becomes a precondition.
The basis for answering this question is Article 150, paragraph (3) of the Civil Procedure Act. Its wording is as follows: "③Where a party fails to appear at a date for oral argument, the provisions of paragraph (1) shall apply mutatis mutandis." A proviso then follows: "Provided, That this shall not apply where a party who was served with a written notice of a date through service by publication fails to appear." The provision sets two things here. The first part designates a party who failed to appear at a date for oral argument as subject to the mutatis mutandis application of paragraph (1). The second part excludes from that application a party who was served with the written notice of a date through service by publication. The other issues of paragraph (1) are not addressed on this occasion.
The two sentences of the provision stand not as separate stages of judgment but in the relation of a rule and its exception. The part directing the mutatis mutandis application for a party who failed to appear takes effect first, and a party notified by service by publication falls outside its application. There is one condition for asking whether the exception applies: whether the written notice of a date was served through service by publication. In this determination, service by publication means service made by the statutory method of public notice. The conclusion that the deeming with respect to nonappearance is also subject to the exception for dates noticed through service by publication derives precisely from this distinction.
The side opposing this conclusion points to harm and inconvenience. If the reasons for not appearing are examined one by one, the trial is slowed, and it is unjust that the entire trial is held up because a party dozed in the meantime or omitted a response. This criticism is not light. It cannot be denied that the value of a speedy trial returns as actual harm. Since the provision has made an exception, all nonappearance cannot be driven into the same treatment without asking about the manner of notice.
In this scene, the facts suited to this question narrow down to two. One is that Defendant B answered that he did not know the fact; the other is that Plaintiff A cited it as a statement admitting the fact. The synthetic scene, however, does not specify how the written notice of a date was served on Defendant B. Accordingly, whether it falls within the service-by-publication exception cannot be determined from this scene alone. If the manner of service is confirmed, deemed confession applies or does not apply accordingly, but at the present stage this cannot be fixed. This determination is bound up with the facts established without proof and with the stage of their binding force, and if a statement of non-knowledge has been recorded as one of admission, the conclusion is revised under the rule presuming it to have been contested.
The conclusion of this section draws the boundary that the result of accepting the opposing party's statements does not automatically follow from the bare fact of nonappearance itself. If the manner of notice was service by publication, not all statements are accepted merely because the party did not appear at the date. Conversely, even if it was not service by publication, not all statements are accepted at once. How the other requirements and the consideration of expedition are balanced is not settled in this section.
4.8The Scope This Section Undertakes
Following the legal provision confirmed at the previous stage—that a statement of non-knowledge is presumed to have been contested—a second question is now placed within the same section. In the scene where Defendant B answered that he did not know the fact, but Plaintiff A cited it as a statement admitting the fact, if a party did not appear at the date in the first place, how is the scope of acceptance of statements determined? In short, if one does not appear at the date, are all statements written by the opposing party accepted as they are, or does even the deeming of acceptance have a boundary that varies with the manner of notice?
The basis for answering this question lies in one paragraph of Article 150 of the Civil Procedure Act. Its wording first declares, "③Where a party fails to appear at a date for oral argument, the provisions of paragraph (1) shall apply mutatis mutandis," and then adds the proviso, "Provided, That this shall not apply where a party who was served with a written notice of a date through service by publication fails to appear." The subject spoken of by this proviso is the party served with a written notice of a date through service by publication; the act is failing to appear at the date for oral argument; and the condition is the case in which that manner of service and nonappearance coincide (Civil Procedure Act, Article 150). That is, even for the same nonappearance, whether the deeming applies is divided according to how the written notice of the date reached the party.
The reason the provisions of paragraph (1) designated as applying mutatis mutandis by the above wording must be distinguished from the operation of the proviso that cuts off that application is this. If the main text of paragraph (3) opens the general route for handling nonappearance, the proviso is a device that blocks the deeming on that very route for the sole reason of the manner of notice. Therefore one cannot assert that all statements of the opposing party are accepted merely because the party did not appear at the date, and nonappearance coinciding with the statutory condition of a date noticed through service by publication is placed outside that deeming. In this determination, service made by the statutory method of public notice, namely service by publication, serves as the standard of the boundary, and this is a factor distinct from the motive or circumstances of the nonappearance.
Nonappearance has its own circumstances in each case, and it is a cost worth acknowledging that if those circumstances are examined and questioned one by one, the swift progress of the trial becomes difficult. There is also a convenience that cannot be ignored: if all nonappearance is dealt with alike, disputes end quickly and the opposing party's written pleadings do not go to waste. Even so, all nonappearance cannot be handled as deemed confession with the exception for dates noticed through service by publication erased on the strength of the value of expedition. Because the wording has already left that exception in place, it accords with the conclusion of this section to observe the boundary as set, even at the cost of that disadvantage.
In the synthetic scene, only the situation is presupposed in which Defendant B answered that he did not know the fact, but Plaintiff A cited it as a statement admitting the fact. In this scene it is not settled in what manner of service the written notice of the date reached the party, or whether the defendant actually appeared at the date for oral argument. Therefore the matter cannot be judged on the basis of whether the conditions of the proviso are satisfied alone, and the proviso operates only where the fact of a date noticed through service by publication coinciding with nonappearance is confirmed. So long as the context of the statement or the fact taken as the object of the confession remains unclear, the application of the deeming remains undetermined.
The conclusion permitted in this section is that the deeming with respect to nonappearance is also subject to the exception for dates noticed through service by publication, and service by publication means service made by the statutory method of public notice. The conclusion not permitted is the categorical assertion that all statements are accepted if one does not appear at the date, and the method of handling all nonappearance as deemed confession with the service-by-publication exception erased is likewise not accepted by this section.
4.9Application of the Text of the Provisions and the Holdings of Precedents
The earlier discussion asked whether all statements are deemed approved if one fails to appear at the hearing, and confirmed that even in the deemed treatment of non-appearance there is an exception for a notice of the date served by public notice. The next question is what range the wording of that exception covers, in the place where facts determined without proof and their binding force are adjudicated.
The source provision is Article 150, paragraph (3) of the Civil Procedure Act, which reads: "(3) Where a party fails to appear on the date of oral argument, the provisions of paragraph (1) shall apply mutatis mutandis. Provided, that this shall not apply where a party who was served with the notice of the date by service by public notice fails to appear." The subject this wording addresses is a party who fails to appear on the date of oral argument; the act is the failure to appear; and the condition for mutatis mutandis application is such a failure to appear. The proviso carves out the case of a party who was served with the notice of the date by service by public notice and fails to appear. Since the scope covered by this section is Article 150, paragraph (3) alone, the wording of the other paragraphs is not addressed here.
When this wording is taken as the basis for adjudicating facts determined without proof and their binding force, its application remains within the scope of that source provision. Why the distinction of subject, act, and condition in the preceding paragraph is necessary is taught by what the proviso shows. The mere appearance of non-appearance does not settle which applies; what divides them is by what method the notice of the date was served. The author takes the view that this wording alone must serve as the basis of adjudication. One cannot draw on circumstances stated in the reasons for the judgment or on items not addressed this time to widen the range of that binding force. To apply without extension means not going beyond the distinction the wording has set up.
If one examines one by one the circumstances for which a party could not appear on the date, the procedure is delayed, and the opposing party is put to the inconvenience of waiting long for the result. This loss is difficult to deny. That the proviso leaves that place empty is not an omission but a distinction; if it is handled with that distinction erased, the boundary the wording has drawn disappears. The demand to reduce inconvenience cannot substitute for the distinction this wording draws, and the scope of application of that wording remains as it stands.
The question asked here is what force that invocation has upon facts determined without proof and their binding force. Yet that source provision divides the case of non-appearance from the exception for a notice of the date served by public notice, while the scene does not settle by what method the notice of the date was served. So long as the method of service or the context of the statement is not clarified, one cannot determine from the scene alone which wording to apply. That point remains undetermined.
What this section permits is to apply the distinction set by the wording of that source provision only where the conditions of that wording are met; it does not permit deriving an across-the-board deemed confession from the mere appearance of non-appearance. The source provision the author has confirmed is the wording as written, and the conclusion that it carries with it the determination of the facts of the case or the entire range of binding force is not one that is drawn here. The requirement that carves out the public notice exception is left as stated in the wording, and its application is not broadened by the content of the reasons for the judgment or of unaddressed items.
4.10Fine Distinctions Within the Stage
What remains to be separately divided and adjudicated within facts determined without proof and their binding force under this presumption is the question now.
That wording is a provision limiting the effect of non-appearance. The subject it designates is a party who fails to appear on the date of oral argument; the act is the failure to appear on the date of oral argument; and the condition is the distinction between the mutatis mutandis application of paragraph (1) and the route of notice, namely receipt of the notice of the date by service by public notice.
Linking the above wording with the settled conclusion reveals that even in the deemed treatment of non-appearance there is an exception for a notice of the date served by public notice. Here one must distinguish 'the stage of applying the effect of being deemed' from 'the object to be separately divided and adjudicated under that effect.' The former is determined by the method of notice prescribed by the above wording; the latter is bound by the stated criteria, namely the requirements for the application of confession, dispute, and notorious facts, and the statutory conditions for revocation of confession. Facts determined without proof are separately divided and adjudicated only within the binding force of the public notice exception.
If all reasons for non-appearance are examined, what the counterargument that a speedy trial becomes difficult targets is the delay of the procedure and the burden on the court. If the reasons for non-appearance are investigated one by one, the hearing is postponed, the resolution of the other parties' dispute is delayed, and the utility of the materials already gathered also declines. Service by public notice is service made by the statutory method of public notice, and the non-appearance of a party who was served with the notice of the date by that method falls under the exception in the above wording. This exception operates not in the direction of eliminating the burden of reviewing reasons but in the direction of preventing the application of the deemed treatment according to the method of notice.
Taking out only the facts relevant to this question from the synthetic scene, Defendant B answered that he did not know the facts, and Plaintiff A invokes this as a statement admitting them. From this scene alone it is not settled by what method of notice the notice of the date was served upon Defendant B, nor whether the judicial confession validly remains and, because the statutory requirements for revocation are not met, the route to deny that fact again is closed. Accordingly, only the determination that it falls under the case where the context of the statement or the fact taken as the object of confession is unclear is retained, and all other matters are left undetermined.
The conclusion this section permits goes no further than examining separately the non-appearance deemed treatment and the detailed distinctions beneath it, within the binding force of the wording of the public notice exception. The conclusions it does not permit are treating all non-appearance as deemed confession while ignoring that exception, or placing a new stage of adjudication outside the expressly stated conditions.
4.11Synthesis of Effectiveness, Blockage, and Undetermination
The question here is under what conditions facts determined without proof and their binding force divide into effect, blocking, and undetermined. One must begin by separating from one another the requirements for the application of confession, dispute, and notorious facts. The case where the statutory conditions for revocation of confession are met and the case where they are not are also placed side by side and examined. The case where the context of the statement or the fact taken as the object of confession is unclear is left separately.
This wording takes as its subject a party who fails to appear on the date of oral argument. The act is non-appearance on the date of oral argument, and the condition is the mutatis mutandis application of the provisions of paragraph (1). The condition of the exception is whether the notice of the date was served by service by public notice. Matters prescribed by the other paragraphs of the Article are not included in this question.
On the basis of conditions distinguished from that wording, the framework of this conclusion is set. First, one separately confirms the requirements as to which of confession, dispute, and notorious facts applies. Next, if the judicial confession validly remains and the statutory requirements for revocation are not met, the route to deny that fact again is closed. Conversely, where the statutory conditions for revocation of confession are met, this is reflected and the binding force is opened. The reason for dividing these two stages is that even for the same statement, the fact taken as its object and the state of the binding force attaching to that fact differ. No new requirement or exception is added here.
The strongest counterargument targets the point that a speedy trial becomes difficult unless all reasons for non-appearance are examined. Alongside it is placed the complaint that it is unjust for a trial to be held up by a party's mistake even where the facts are not as they truly are. Delay in the trial, or the inconvenience borne by the opposing party rather than the one who erred, is not erased. This answer stands while leaving the exception condition of the Article as it is. The loss pointed out by the counterargument is acknowledged, but it is not accepted in the form of abolishing the exception.
The facts relevant to this question in this scene are that Defendant B answered that he did not know the facts and that Plaintiff A invokes this as a statement admitting them. One must first cross-check which requirement among confession, dispute, and notorious facts is met. Yet what is contained in the assertion of revocation of confession and the mistaken materials is not settled on the record. The context of the statement and the fact taken as the object of confession are also not clear from the scene alone. Therefore, which among open, blocked, and undetermined it is cannot be determined from this scene alone.
The conclusion this section permits is to examine separately the requirements for the application of confession, dispute, and notorious facts, and to divide the binding force according to whether the statutory conditions for revocation of confession are met. If the judicial confession validly remains and the statutory requirements for revocation are not met, the route to deny that fact again is closed. If the context of the statement or the fact taken as the object of confession is unclear, it is left undetermined, and this is not immediately converted into an incurable bar. A determination fixing non-appearance itself as deemed confession is not permitted by this section.
4.12Conclusion Carried Over to the Next Section
What is to be asked at this point is simple. That is, whether by the single circumstance of non-appearance alone the opposing party's entire statement is placed beyond dispute, or whether the circumstances of the non-appearance and the method of notice are conditions that must be examined together, is the question. If the two are handled as one bundle, the distinction between fact-finding and procedural fairness disappears.
The wording that answers this question lies in Article 150, paragraph (3) of the Civil Procedure Act. Here the subject is a party who fails to appear on the date of oral argument; the act is the mutatis mutandis application of the provisions of paragraph (1) to that non-appearance; and the condition is whether the notice of the date was served by service by public notice. This paragraph alone is the scope addressed in this section.
The conclusion of this section stands upon the conditions that wording sets. It is the fact that even in cases of non-appearance the deemed treatment does not operate without exception. Service by public notice means service made by the statutory method of public notice; if one received the notice of the date by that method and still did not appear, the route of mutatis mutandis application is closed. The reason this distinction matters is that the formation of a confession and the revocation of a confession are different stages of judgment. Asking at the earlier stage whether a statement was recognized as a confession, and asking at the later stage whether that confession can be undone, are not the same question. Even if the determination at the earlier stage has become final, the statutory conditions at the later stage remain separately.
If this distinction is upheld to the end, inconvenience arises. The bench must examine the circumstances of each absence at every hearing, and the case has time taken from it by procedural contest preceding adjudication on the merits. Moreover, there remains the injustice of a trial being held up by mistake even where the facts are not as they truly are. While acknowledging the delay and burden pointed out by the counterargument, a uniform treatment that omits the method of notice results in erasing the exception the wording has established.
In the synthetic scene, the facts bearing on this question are narrow. The issue in this scene is not the non-appearance but what kind of statement the statement of not knowing was recorded as. Since the scene does not state the method of service of the notice of the date or whether service by public notice was used, whether the exception in Article 150, paragraph (3) applies cannot be determined from this scene alone. The Records used for the determination are limited to the record of the parties' statements, the answer brief, and the materials on the assertion of revocation of confession and mistake.
The conclusion this section permits is that the approval of statements arising from non-appearance on a date varies according to the method of notice. The conclusion it does not permit is to regard all of the opposing party's statements as approved by the single circumstance of non-appearance. Since the wording makes an exception, the matter cannot be handled uniformly. Whether the statutory conditions for revocation of confession have been met is not determined in this section. Can a confession be undone by a mere assertion that it was a mistake?