Summary
This chapter examines who appoints the court-appointed expert and distinguishes that expert's opinion from opinions submitted by the parties.
1.1The Standard by Which the Path Opens
Plaintiff A and defendant B understand differently from one another the underlying materials of the opinion submitted by appraiser C. What the two sides dispute in this scene is not the name tag of an expert but the route by which that opinion entered the court. The designation 'expert' does not erase the difference in the route of submission. Accordingly, the point to be decided in this section is narrowed down not to which side's content of the expert opinion is more plausible, but to whose expert opinion is that of the court's appraiser—in other words, what the standard is by which the gateway to this remedy opens. In the preceding section, the attitude was confirmed of "separately determining the statutory conditions, such as the purpose of hindering the other party's use and the destruction of documents subject to a duty to produce." Carrying forward the same attitude of separation, this section deals only with distinguishing the source of the opinion on the basis of the appointing authority.
The textual provision that answers this question lies in Article 335 of the Civil Procedure Act. That article states that "an appraiser is appointed by the court of jurisdiction, a commissioned judge, or an entrusted judge" (Civil Procedure Act, Article 335). What is fixed by this wording is the person who appoints the appraiser, and that person is limited to the court of jurisdiction, a commissioned judge, or an entrusted judge. The status of a person appointed by the court for the purpose of expert judgment—that is, of an appraiser—derives from this act of appointment. Thus the axis of conduct divides between a party's submitting an expert's writing to the court and the court's appointing a particular person for the purpose of expert judgment, while the axis of conditions lies in whether the person has been appointed. This article deals only with the appointing authority; other issues, such as grounds for recusal or the probative value of the appraisal results, are not addressed at this point.
The conclusion pointed to by this wording and the distinction following it is clear. The gateway to this remedy opens where the status and recusal of a court-appointed appraiser and the opportunity to submit opinions on the appraiser's statements are secured. Here, an appraiser means a person appointed by the court for the purpose of expert judgment. Whether there has been an appointment and whether an opportunity has been secured are distinct stages of determination. The former asks who has obtained this qualification; the latter asks how the parties responded to those statements. If the two stages are mixed, errors arise, such as substituting appointment itself for the omission of the procedure for submitting opinions, or conversely creating an appointment out of the mere opportunity to submit. The reason for examining the appointing authority first is so that these two questions are not mixed together in the same place.
Of course, the force of the counterargument is far from negligible. If the judge lacks the ability to re-evaluate specialized knowledge, independent evaluation may amount to form alone, and a private opinion may prove more accurate. So long as expert qualification and actual accuracy do not necessarily coincide, there is the anxiety that cases may in practice arise in which an appraisal possessing only form is inferior to a substantive private investigation. The loss this counterargument aims at is the divergence between expertise and accuracy, and the value is the substantive discovery of truth. Yet the answer is maintained without erasing the factual observation of the counterargument. The status of a court-appointed appraiser cannot be conferred merely by the submission of a private opinion report. Even if a private opinion is more accurate, the act of submitting it cannot take the place of an appointment by the court of jurisdiction, a commissioned judge, or an entrusted judge. Leaving aside the question of superior or inferior accuracy, the fact remains that the source of the status is different.
Returning to the synthetic scene, what plaintiff A and defendant B understand differently is the underlying material of the opinion submitted by appraiser C. This fact alone does not determine when and how C was appointed, whether an application for recusal was made, or whether notice of the opportunity to submit opinions accompanied the appraisal report. The materials to be examined in this section are the appointment of the appraiser, the course of the recusal application, the appraisal report, the notice of the opportunity to submit opinions, and the submission records. Meanwhile, where a lawful opportunity to submit opinions and records of the response are confirmed, a mere non-adoption is not classified as a deprivation of opportunity. Only where the course of the provision of the appraisal report and the opportunity to submit opinions has not been preserved does the matter remain undetermined. Undetermined does not mean that relief is unavailable; it means only that there is insufficient basis for judging the difference in route.
The conclusion permitted by the foregoing is narrow. Whether one is the court's appraiser is determined by who the appointing authority for a court-appointed appraiser is, and it can be said only that the gateway to this remedy opens where that status and the securing of the opportunity are in place. Conversely, the mere fact that a private opinion report was submitted to the court cannot be taken to mean that its submitter acquired the status of a court-appointed appraiser. Matters that this material cannot fix—the accuracy of the expert opinion, the probative value of the appraisal results, the existence or absence of grounds for recusal—are left undecided as they are. The Next question follows the line of the conclusion of this section.
1.2The Conditions That Block Relief
The statutory conditions, such as the purpose of hindering the other party's use and the destruction of documents subject to a duty to produce, remain to be judged separately. After the preceding stage has determined which expert opinions are to be regarded as court appraisals, one must now examine the conditions that block the procedure leading to that determination. The question continues without repeating the conclusion of the preceding stage. For the circumstance that the response channel has been closed does not itself open the channel of relief. This writing distinguishes the basis for confirming the status of a court-appointed appraiser from the conditions thereby closed. On the premise of that distinction, it now deals only with the blocking conditions of the second stage.
What determines the status of a court-appointed appraiser? Article 335 of the Civil Procedure Act provides that "an appraiser is appointed by the court of jurisdiction, a commissioned judge, or an entrusted judge" (Civil Procedure Act, Article 335). What this wording fixes is the appointing authority of the appraiser, and that authority is limited to the court of jurisdiction, a commissioned judge, or an entrusted judge. Even if a person who has not been appointed submits an opinion embodying specialized insight, that submission alone does not satisfy the requirement of appointing authority that the above wording demands. Here, an appraiser means a person appointed by the court for the purpose of expert judgment, and this definition meets the limitation on the appointing authority stated in the above wording. The act spoken of in the wording is appointment; the object is a person appointed for the purpose of expert judgment; and the condition is an appointment by an institution or judge possessing the authority to appoint. Other issues in the wording are not the office of this sentence.
Connecting the above wording with the foregoing conclusion makes clear the axis that divides a private opinion report from a court appraisal. One is the axis that fixes the status of a court-appointed appraiser; the other is the axis that confirms whether an opportunity to submit opinions on the appraiser's statements has been secured. The two axes do not substitute for one another. If the requirement of the appointing authority is not met, one cannot be regarded as a court-appointed appraiser, and in that state the mere fact that a private opinion report was submitted does not make one a court-appointed appraiser. Meanwhile, where the status and recusal of a court-appointed appraiser and the opportunity to submit opinions on the appraiser's statements are secured, the channel of this remedy opens. Conversely, where no opportunity to submit opinions on the appraiser's statements was given and the response channel as to the premises and methods is closed, if any one of the statutory requirements is not satisfied, the channel of this remedy is closed. Here the requirements are not newly created, but mean the already-set conditions of the appointing authority and the securing of the opportunity.
The counterargument that a private opinion may be more accurate aims at a real loss. Even though the accuracy of expert judgment may come out higher along a private route, if it is excluded on form alone, there is the worry that the court will lose the better material and the parties will lose the chance to respond. The observation that, if the judge lacks the ability to re-evaluate specialized knowledge, independent evaluation may amount to form alone points in the same direction. Nevertheless, the basis of the status of a court-appointed appraiser does not lie in the submission of a private opinion report but in the appointment prescribed in the above wording. Without erasing the loss of accuracy pointed to by the counterargument, the judgment of the present stage, which examines the appointing authority, remains as it is.
Returning to the synthetic scene, plaintiff A and defendant B understand differently the underlying material of the opinion submitted by appraiser C. This circumstance alone does not determine whether appraiser C received the appointment under the above wording, how the course of the recusal application has been preserved, or in what form the provision of the appraisal report and the opportunity to submit opinions were notified. The Records to be confirmed are the appointment of the appraiser, the course of the recusal application, the appraisal report, the notice of the opportunity to submit opinions, and the submission records. Where the course of the provision of the appraisal report and the opportunity to submit opinions has not been preserved, whether there is blocking remains undetermined. Matters that the scene cannot confirm are left unfixed.
Accordingly, the conclusion permitted is narrow. A court-appointed appraiser means a person appointed by an authority possessing the power to appoint, and the status does not arise from the submission of a private opinion report alone. This sentence neither denies the accuracy of private opinions nor predicts actual performance in implementation. Conversely, it places only the conditional distinction that where status, recusal, and the opportunity to submit opinions are secured, that channel opens. What remains is the question of in what procedure this concern is raised.
1.3The Boundary That Remains When There Is No Data
Where the course of the provision of the appraisal report and the opportunity to submit opinions has not been preserved, matters for which the materials for determination are not specified are left undetermined, distinct from impossibility. Whether the person who offered such an expert opinion is a court-appointed appraiser must be examined not by the name or the fineness of the content of the opinion, but by what procedure the opinion entered the court's materials for decision. The present question is how far such a distinction can be made in a situation where even whether a particular material was used in the determination has not been fixed.
The wording corresponding to this question points to the appointing authority. The Civil Procedure Act states that "an appraiser is appointed by the court of jurisdiction, a commissioned judge, or an entrusted judge" (Civil Procedure Act, Article 335). What this wording fixes is the appointing authority of the appraiser, and the appointed person is called an appraiser. Accordingly, whether the court made an appointment becomes the axis of this distinction, and an opinion prepared by a person other than the authorities stated in the article is, in itself, placed on a different route.
Connecting this wording with the conclusion of this section divides the order of determination. First it is fixed who appointed that person, and thereafter it is examined what the content he submitted took as its premise. Because the former determination cannot take the place of the latter, even an opinion that has crossed the threshold of appointment cannot be nailed down as a conclusion in that part so long as the confirmation of its underlying materials is unfinished. What is left here means neither that the opinion cannot be believed nor that proof by that opinion is impossible. Only the fact remains that what should be taken as the basis has not yet been specified.
The strongest counterargument aims at the point that accuracy may come before form. If a private opinion is more precise than the work of a court-appointed appraiser, and if the judge finds it difficult to re-evaluate the details of a specialized field on his or her own, there is the worry that independent judgment may stop at outward appearance and may rather pass deficient grounds through as they are. In that the quality of the judgment is not raised while only the formal wall remains, this counterargument is not a discomfort to be ignored. Yet one cannot confer the status of a court-appointed appraiser by the act of submission itself while ignoring the appointing authority; instead, an accurate private opinion remains a matter to be dealt with through the status and the means of review fitting its route of submission.
This scene shows only the fact that the accounts of the two parties diverge as to what the materials for determination should be taken to be. That there was disagreement about the appointment itself, and how the responses to the opinion went back and forth, lie outside the scene. Yet if the discrepancy of understanding surrounding the confirmed underlying materials is set against the foregoing standard that asks who the appointing authority of the court-appointed appraiser is, one cannot skip over that difference on the view that the legal position of the opinion has been fixed.
Accordingly, what has been confirmed is the boundary of what the person who offered that opinion should be called, and the fact that so long as the differences in the confirmed premises remain, one cannot record what matters have been determined in what way. Undetermined means that judgment is deferred for lack of materials, while impossibility means that no determination can be made no matter how much is confirmed; the two differ. Where the course of the provision of the appraisal report and the opportunity to submit opinions has not been preserved, that course cannot be guessed at and filled in; conversely, once records are in place, a mere non-adoption is not classified as a deprivation of opportunity. With this distinction in mind, the reader can read together the conclusions the confirmed wording permits and the conclusions the materials do not yet permit.
1.4The Records Needed for Determination
The preceding stage addressed the question whether an expert opinion submitted by someone is a court's expert examination, and what remains at this stage is what records are needed to determine that distinction. Before deciding how to handle this difference in understanding, it must first be settled in what capacity the opinion submitted by C was submitted. Only once the capacity determination is established can the response procedure for that opinion be discussed. The question is therefore narrow. To make this judgment, which records are needed?
The provision that answers this question is Article 335 of the Civil Procedure Act. That Article provides that "an expert witness shall be appointed by the court in charge of the case, a commissioned judge, or an entrusted judge." The appointing authority is limited to the court in charge of the case, a commissioned judge, or an entrusted judge. In other words, the status of a court-appointed expert arises from the act of the court selecting and appointing a person for purposes of specialized judgment. An expert opinion paper that a party selects on its own and submits does not pass through this route. That difference in the route of submission in turn leads to a difference in status.
That wording and the conclusion of this section connect as follows. Only when the appointing authority is recorded in the appointed materials can the judgment that the person is a court-appointed expert be established. Accordingly, only the prescribed records are used for the stage determination. Those Records are the appointment of the expert, the course of the challenge application, the expert report, the notice on the submission of opinions, and the submission records. The appointment and the course of the challenge application distinguish who appointed whom and whether the parties raised an objection to that appointment. The expert report and the notice on the submission of opinions and the submission records distinguish what statements and responses were exchanged after that appointment. Why must these two be distinguished? Because the former records speak to the establishment of the status, while the latter records speak to whether the procedure continued under that status. Missing Records are not filled in by presumption.
Then the point at which the counterargument is aimed is clear. If a judge lacks the ability to re-evaluate specialized knowledge, independent evaluation may remain a mere formality. A private opinion may be more accurate, yet if status is divided by the route of submission alone, the loss arises that substance is disregarded. If the adjudicator's capacity for judgment lies outside, the very act of setting documentary requirements is of little consequence. Accuracy is a matter separate from the question of the appointing authority. If a private opinion acquires the status of a court-appointed expert, the basis for applying a challenge application against the person who submitted that opinion, or the opinion-submission procedure, is shaken along with it. The limits of adjudicative capacity pointed out by the counterargument remain as they are.
The facts placed in this scene extend no further. On these facts alone it cannot be determined whether C is a person appointed as a court-appointed expert, or a private opinion produced by one of the parties. Only when the appointment records and the course of the challenge application, the expert report, and the notice on the submission of opinions and the submission records are placed together can that stage be determined. Whether those records remain has also not been confirmed in this scene. Where the course of the provision of the expert report and the opportunity to submit opinions has not survived, it is left undetermined. The understanding adopted and the actual outcome of implementation are also unsettled. The gap is not filled with materials from outside the scene.
The conclusion this section permits lies within this range. When the appointing authority appears in the prescribed records, one may speak of the establishment of the status of a court-appointed expert, and whether the procedure continued under that status is examined by the same records. The conclusion not permitted is the direction of granting the status of a court-appointed expert on the mere submission of a private opinion. An evaluation of accuracy alone does not create status. Conversely, it is not held that relief is immediately barred merely because records are missing. Whether the channel for answering the expert examination and contesting fairness has been closed is determined by separate records.
1.5Circumstances That Change the Decision
It asks whose expert opinion is a court's expert examination, and what change overturns an existing stage determination. Statutory conditions such as the purpose of hindering the other party's use and the destruction of documents subject to a duty of submission are judged separately. What now remains as the question is under what changes the stage determination that the previous analysis reached with respect to blocking and effect is discarded and must be established anew.
The source text corresponding to this question is a single Article that determines the appointing authority of an expert witness. Article 335 of the Civil Procedure Act provides that "an expert witness shall be appointed by the court in charge of the case, a commissioned judge, or an entrusted judge" (Article 335 of the Civil Procedure Act). The authorities this wording designates are limited to the institutions within the court and the judges holding the power of appointment. Accordingly, a private opinion paper that a party submits under the name of expert cannot reach the court-appointed expert by the route of its submission alone, and inquiring who holds the power of appointment becomes the first judgment.
The reason for clarifying this distinction among the authorities is that the criterion for subsequent stage determinations is staked precisely here. This definition requires distinguishing two judgmental stages that separate the appointed person from the submitted materials. The judgment on the status of a court-appointed expert and the judgment on how a party may handle the opinion produced by a person holding that status do not proceed together. If the former is closed off, the latter examination cannot find its proper place.
When this distinction is read narrowly, what is lost becomes clear. A private opinion may also be more accurate. Just as there is the concern that, if a judge lacks the ability to re-evaluate specialized knowledge, independent evaluation may remain a mere formality, so the result may be that better materials are excluded on the pretext of the route of submission. The way of dealing with the discomfort this concern calls forth is not to expand status as a matter of grace, but to place it on confirming the opportunity to submit opinions and the channel as a record of response.
This confrontation itself does not directly determine the distinction between a private opinion and a court-appointed expert. However, if the course of the provision of the expert report and the opportunity to submit opinions has not survived, whether the channel of response to the premises was opened remains undetermined. Once the specified change is confirmed, the existing blocking and effect determinations are discarded and the determination is made anew from the stage.
What this section permits is only the distinction according to the appointing authority and the conditions for re-determination upon confirmation of a change. If it is read that the status of a court-appointed expert arises from a single private opinion paper, this distinction collapses. However, whether the actual records have been collected and the outcome of the case have not been determined in this scene, and the fact that undetermined items have not been confirmed does not by itself render relief impossible.
1.6The Strongest Counterargument and the Answer
However outstanding the specialized knowledge of the party that submitted the private opinion paper, and however much more accurate its analysis appears than the conclusion of a court-appointed expert, whether that opinion was prepared as the court's expert examination is a separate question. Continuing the flow of the preceding stage, which asked whose expert opinion is a court's expert examination, this stage asks whether the fact that the expert opinion may be better can serve as a ground for conferring status. This question lies in distinguishing not the quality of the conclusion but the source of the procedural status.
The source passage that answers this question is found in Article 335 of the Civil Procedure Act. Its wording provides that an expert witness shall be appointed by the court in charge of the case, a commissioned judge, or an entrusted judge (Article 335 of the Civil Procedure Act). The authority this wording establishes is the court institution holding the power of appointment, and the act is the appointment of a person for purposes of specialized judgment. Accordingly, the status of a court-appointed expert arises through the act of appointment. However actively a party may submit an expert's opinion paper, that submission itself is not a form of appointment.
Connecting this wording with the terms defined earlier makes the criterion of judgment clear. Here an expert witness means a person appointed by the court for purposes of specialized judgment (Article 335 of the Civil Procedure Act). The judgment that the content of an opinion paper is excellent and the judgment that the person who produced that opinion holds the status of an expert witness belong to different stages. The former is a matter of the probative value of evidence, and the latter is a matter of who participated as a court-appointed expert. The conclusion supported by the wording on the appointing authority is that the status of a court-appointed expert cannot be conferred by the mere submission of a private opinion paper.
The strongest opposing voice is this: a judge has no specialized knowledge and therefore lacks the ability to compare the two opinions substantively, and if, in the end, the court-appointed expert is favored on form alone, a private opinion may be buried even if it is more accurate. This counterargument targets both the discomfort that substantive examination may remain a mere formality and the possibility of judicial error. However, the wording that fixes the source of status does not change into such a question of evaluative capacity. While maintaining the conclusion that the status of a court-appointed expert cannot be conferred by the mere submission of a private opinion paper, the evaluation of the content of the opinion is left to a separate process of judgment.
What can be confirmed in this scene is only the fact that understandings of the underlying materials diverge, and it cannot decide who is more accurate. Accordingly, even leaving open the possibility that a private opinion may be better than the conclusion of a court-appointed expert, status is not conferred by that alone. Whether the appointment of the expert, the course of the challenge application, the expert report, the notice on the submission of opinions, and the submission records remain cannot be determined on this scene alone.
The permissible conclusion is that however more accurate a private opinion may appear, its submission alone does not create the status of a court-appointed expert; the impermissible conclusion is that the submission of a private opinion paper itself produces the same effect as an appointment. The accuracy of an opinion is left as a matter of content evaluation, and the wording on the appointing authority is limited to fixing the source of status. Since the synthetic scene alone cannot confirm the course of the opportunity to submit opinions and the submission records, that part remains undetermined.
1.7The Link to the Application and the Dispositive Part
It must be examined whether the expert opinion that plaintiff A and defendant B each accepted according to their own understanding is the same thing as the expert examination used by the court. The preceding section confirmed that the status of a court-appointed expert cannot be conferred by the mere submission of a private opinion paper. Building on that conclusion, this section answers the question whose expert opinion is a court's expert examination. The axis of judgment is not the accuracy of the document or the career of its author but the route of appointment. Only once it is first settled from whom the qualification to be called an expert witness begins can it be decided whether an opinion submitted by a party can be placed in the same position.
Article 335 of the Civil Procedure Act provides regarding the appointment of an expert witness that "an expert witness shall be appointed by the court in charge of the case, a commissioned judge, or an entrusted judge." This wording names three as the appointing authorities: the court in charge of the case, a commissioned judge, and an entrusted judge. The court in charge of the case is the court that hears the case; a commissioned judge is a judge who performs a task assigned to one of the judges of the court; an entrusted judge refers to a judge entrusted by another court to undertake that task. What they have in common is that all three are institutions performing adjudicative functions. An expert opinion prepared by a person not included among these three, whom the wording sets down as the appointing authorities, cannot, by that route of appointment alone, be called the product of a court-appointed expert.
This wording and the conclusion of the preceding section stand on the same distinction. An expert witness is a person appointed by the court for purposes of specialized judgment. More precisely, the person must be one appointed not by the court but by the authority within the court that holds the power to appoint expert witnesses. What is recognized as a court-appointed expert is not the content of the opinion but the appointment procedure. Accordingly, an opinion submitted by expert witness C is evaluated in the same position as a private opinion submitted by a party, unless its route of appointment originates from an authority included among these three. Conversely, if the appointing authority is lawful, the author holds the status of a court-appointed expert even if the party receives that opinion and actively makes use of it.
A private opinion may also in itself be more accurate. The author may have accumulated long field experience, or the method of examination may be more precise, so that it may be better than the conclusion of a court-appointed expert. The complaint that, if a judge lacks the ability to re-evaluate specialized knowledge, independent evaluation may remain a mere formality is also substantive. The loss this complaint targets is clear: the court overlooks the better ground, and superiority and inferiority are decided on form alone, so that the evaluation of expertise is wasted. The reason is that the wording on the appointing authority does not absorb private submission into the act of appointment. Accuracy is not a requirement that cures the defect in the route of appointment.
This fact has meaning only in the passage relevant to this question. The divergence of understanding of the underlying materials means that, without settling by whom that opinion was brought to the position of a court expert examination, the criterion for evaluating the opinion cannot be fixed. However, among the appointment of the expert, the course of the challenge application, the expert report, the notice on the submission of opinions, and the submission records, the part that clarifies who the appointing authority is has not been given in the synthetic scene, so whether C is a court-appointed expert cannot be confirmed from the scene alone. This item remains undetermined. What is confirmed is only the criterion of distinction that, if the appointing authority is not among these three, the person cannot be called a court-appointed expert.
What this section permits is narrow. A person who can be called a court-appointed expert is limited to a person appointed by the court in charge of the case, a commissioned judge, or an entrusted judge. Other expert opinions are placed in the position of private submissions even if their content is outstanding. This distinction alone cannot determine the reliability of the expert examination, the lawfulness of a challenge, or whether the opportunity to submit opinions on the expert's statements was guaranteed. Whether the court must necessarily follow the expert's conclusion also lies outside this question. What must be confirmed together is whether that material may be adopted as the underlying materials, and this remains a separate problem.
1.8The Scope This Section Undertakes
The first thing to ask in this scene is whether the expert opinion submitted is that of the court's expert witness. The preceding section examined who designates a court expert witness in order to distinguish it from opinions submitted by the parties. The present question is confined to examining what premises that distinction rests on and how it meshes with the conclusion reached here.
The statutory language corresponding to this question is Article 335 of the Civil Procedure Act. Its text provides, "An expert witness shall be designated by the trial court, a commissioned judge, or an entrusted judge." Here, the designating body is limited to the trial court, a commissioned judge, or an entrusted judge. The person designated is a person appointed by the court for professional judgment, that is, an expert witness. Accordingly, what this text addresses is who determines the expert witness, and the question of whose expert opinion a party submits lies outside this text.
This text and the distinction drawn in the preceding section are connected by a single line. A court expert witness obtains that status by the court's act of designation, whereas an expert opinion submitted by a party differs only in the route by which it is submitted. That the preceding section distinguishes court expert witnesses from expert opinions submitted by the parties is of the same import. The distinction of status is a matter of asking through which route the submission was made, and through which route the status of expert witness was obtained is determined according to that distinction. The author holds that a private opinion report can be compared with the product of a court expert witness only when these two steps are not conflated.
The counterargument that attaches most strongly to this distinction is that a private opinion may be more accurate. If a judge lacks the ability to re-evaluate specialized knowledge, an independent assessment may amount to a formality, and then a high-quality opinion may be displaced on account of its route of submission. This inconvenience is not erased. The author's answer, however, is that the status of court expert witness cannot be conferred merely by the submission of a private opinion report. The degree of accuracy is a question separate from the route of submission, and the conferral of status is left to the text that asks who the designating body is.
Returning to this scene, all that is confirmed is that plaintiff A and defendant B understand differently the underlying materials of the opinion submitted by expert witness C. This fact means that their understanding of the underlying materials diverges; it does not mean that expert witness C was an undesignated expert. Conversely, the scene does not state that the opinion report submitted by one of the parties reached a conclusion different from the opinion of expert witness C. The designation of the expert witness, the course of the challenge application, the expert report, the notice on the submission of opinions, and the submission records are merely the kinds of materials to check, and the contents of those records remain undetermined.
In sum, examining who designates a court expert witness is the criterion that separates expert opinions submitted by the parties from the court's expert examination. This does not mean that the value of a private opinion report disappears; rather, which opinion to accept is left to a separate determination. If the status of court expert witness were conferred merely by the submission of a private opinion report, this distinction would collapse. What is settled in this section is only the distinction of status based on the designating body, and the credibility of the expert examination or whether it is adopted is not asserted here. How does the text of Article 335 of the Civil Procedure Act support this conclusion?
1.9Application of the Text of the Provisions and the Holdings of Precedents
The preceding stage asked whose expert opinion is that of the court's expert witness, and left to be judged separately the statutory conditions such as the purpose of hindering the opposing party's use and the destruction of documents subject to a duty of production. Now, taking the opinion submitted by C in this scene, what must be relied upon in determining whether the person who gave that opinion is a court expert witness is opened to inquiry. That is, it must be confirmed whether, regardless of the appellation of expert, a difference in the route of designation can serve as the criterion.
The source text corresponding to this question is Article 335 of the Civil Procedure Act. Its text provides: “An expert witness shall be designated by the trial court, a commissioned judge, or an entrusted judge.” The actors this text indicates are the bodies that designate an expert witness, namely the trial court, a commissioned judge, and an entrusted judge. The act is designation, and the condition is that the designation was made by such a body possessing authority within the court. Because the scope in question is no more than the single provision of Article 335, methods of designation or qualification requirements placed in other provisions are not read into it. This section addresses only the text necessary to distinguish an expert witness from opinions submitted by the parties by identifying the designating body.
This text binds the status of an expert witness to the court's act of designation. A person designated by the court for professional judgment is an expert witness, and a person not designated, however expert, cannot obtain the status provided by that text. The author takes this distinction of the designating body as the branching point between court expert witnesses and opinions submitted by the parties. A private opinion report does not go beyond being material submitted by its submitter, and unless it satisfies the requirement of the designating body, it cannot become a court expert witness. As a result, the route for contesting fairness with respect to an expert witness is bound to the criteria of determination premised on the designation indicated by this text. Disputes over the status of expert witness open only for opinions that have passed the designation requirement, while submissions that have not passed are evaluated through other routes.
The strongest counterargument is that a private opinion may be more accurate than a court expert examination, and further that if a judge lacks the ability to re-evaluate specialized knowledge, an independent assessment may amount to a formality. The loss this counterargument aims at is the inconvenience of missing, on account of a formal distinction, professional judgment that comes closer to the truth, and the risk that the judge examines the matter only on paper without actually verifying the specialized field. Yet the relevant text defines a court expert witness only by the designating body. The disadvantage pointed out by the counterargument remains. That a professional judgment not designated by the court may be more accurate, and that the judge's capacity for re-evaluation is limited, are acknowledged, but they alone cannot serve as grounds for replacing the designation requirement.
In the synthetic scene, the fact relevant to this question is that plaintiff A and defendant B understand differently the underlying materials of the opinion submitted by expert witness C. This fact shows that a route is needed to respond to the premises and method of that opinion, but the conditions concerning the designating body of the expert witness and the status of court expert witness are determined separately. The items to be confirmed in the records are the designation of the expert witness, the course of the challenge application, the expert report, the notice on the submission of opinions, and the submission records. Accordingly, only the comparison can be applied that, where a proper opportunity to submit opinions and response records are confirmed, a mere failure to adopt is not classified as a denial of opportunity, and other circumstances cannot be determined from this scene.
The conclusion permitted by this section is narrow. The text of the relevant source alone answers as to the expert examination and is used as the ground for determining the route for contesting fairness, and it distinguishes court expert witnesses from opinions submitted by the parties by a difference in the designating body. The conclusions not permitted are equally clear. Conferment of the status of court expert witness on the strength of the accuracy of a private opinion report alone, an interpretation that broadens the ground for determining fairness disputes regardless of the designation requirement, and moreover a reading that adds requirements or effects not found in Article 335 are not reached in this section.
1.10Fine Distinctions Within the Stage
On the premise that the statutory conditions such as the purpose of hindering the opposing party's use and the destruction of documents subject to a duty of production are judged separately, plaintiff A and defendant B understand differently the underlying materials of the opinion submitted by expert witness C. What A and B read differently in this scene is not the accuracy of the opinion but the question of in what capacity that opinion entered the court. Between an opinion already classified as that of a court expert witness and an expert opinion attached by a party at its own discretion, the grounds and procedures differ. What is presently asked is at which stage the part that must be divided again and determined in this scene lies.
The designation of a court expert witness is not the parties' choice but an authority on the court's side. What this text provides is the designating body. The trial court may designate, a commissioned judge in charge of the case may designate, and an entrusted judge may designate. Whichever of them made the designation, that designation produces the qualification of the expert witness. Conversely, a party's finding an expert and submitting an opinion report is not an act of this designating body. That the provision provides only for the designating body means that a difference in the route of submission leads to a difference in qualification.
This distinction of the designating body separates two determinations. One is which expert opinion is treated as that of the court's expert witness, and the other is what response a party may make to that opinion. The former is determined by the single act of designation. A person designated by the court is an expert witness, and a person who is not obtains no such status. The latter is a separate matter that opens only after that designation is completed. If the presence or absence of designation and the presence or absence of the subsequent opportunity to submit opinions are conflated and judged as a single step, one slides into the result of conferring the status of expert witness upon a private opinion that has not undergone designation. These two determinations are separated only within the conditions stated.
The counterargument that a private opinion may be more accurate emphasizes substance. If the judge's ability to evaluate specialized fields is limited, the difference in qualification between an opinion formally designated by the court and an opinion formally submitted by a party may have no bearing on the accuracy of the outcome. The loss aimed at by this counterargument is rather the case in which a high-quality professional judgment is excluded before the qualification requirement. The requirement of qualification prescribed by the text on the designating body is not replaced merely by the circumstance that the content of the submitted opinion is more sophisticated. The substantive inconvenience pointed out by the counterargument remains, but that inconvenience cannot be resolved by broadening the qualification of private opinions.
In the synthetic scene, what A and B understand differently is the underlying material of the opinion submitted by expert witness C. If one examines whether there remain the designation of the expert witness, the course of the challenge application, the expert report, the notice on the submission of opinions, and the submission records, the ground for determining whether that opinion was submitted in the capacity of a court expert witness is settled. Where the status of the court expert witness, the question of challenge, and the opportunity to submit opinions on the expert's statement are secured, a response to the premises and method is possible within this route. Where no opportunity to submit opinions on the expert's statement was given and the route of response to the premises and method is closed, that response is classified as having been omitted. Which of these applies to the disagreement between A and B is not determined by the scene alone.
What this section permits is the distinction of qualification based on the designating body and the detailed distinctions within the step limited to the stated conditions. Taking the status of the court expert witness, the question of challenge, and the securing of the opportunity to submit opinions as conditions, and leaving matters undetermined when those conditions are not confirmed, is the extent of this distinction. Beyond this, a determination that incorporates private opinions into the court expert examination, or a determination that newly extends the procedures after designation, is not permitted by this section. By what procedure are concerns about the expert witness raised?
1.11Synthesis of Effectiveness, Blockage, and Undetermination
The question of the preceding section—whose expert opinion is that of the court's expert witness—drew its boundary on the basis of the designating body. Then, when the parties reach the point of understanding the underlying materials of the expert examination differently, it remains at issue whether the route for responding to the expert examination and contesting fairness is actually open or blocked, or whether the stage for such determination has not yet been reached. In short, this section distinguishes the route's efficacy, its blockage, and its undetermined state.
The statute relevant to this question concerns the designation of an expert witness. The actors indicated by this text are the trial court, a commissioned judge, and an entrusted judge as bodies that designate an expert witness; the act is the designation of a person to whom professional judgment is entrusted; and the condition is that the court's designation procedure was undergone. Here, an expert witness means a person designated by the court for professional judgment. The provision does not regulate other issues unrelated to the designation procedure.
This text and the distinction of the preceding section carry over into the present determination as they stand. Because the designating body of a court expert witness lies on the court's side, the route of response comes into operation only when the opportunity to submit opinions on that expert's statement is open to the parties. Conversely, where that opportunity is not given and the route of response to the premises and method is closed, the way to contest fairness is regarded as blocked. The reason for dividing these two cases is that the accuracy of the contents of the expert examination and the presence or absence of an opportunity to respond to the expert examination are distinct issues. The step of status, challenge, and the opportunity to submit opinions has already been fixed, and no new requirement need be added to it.
Nevertheless, the strongest counterargument is aimed at accuracy. If a judge lacks the ability to re-evaluate specialized knowledge, an independent assessment may amount to a formality, and for all that such a formal procedure is open, a private opinion may prove to be the more accurate. Even without denying this disadvantage, the status of court expert witness remains a matter of the designating body. Accordingly, the status of court expert witness cannot be conferred merely by the submission of a private opinion report, and the merit of accuracy that a private opinion possesses takes effect only in a separate place and cannot change the conditions of this route.
The determination diverges according to how such disagreement lies within the verifiable course of the designation of the expert witness, the course of the challenge application, the expert report, the notice on the submission of opinions, and the submission records. Where the status of the court expert witness, the question of challenge, and the opportunity to submit opinions on the expert's statement are secured, the route is divided toward being open; where the response is closed because no opportunity to submit opinions was given, it is divided toward being blocked. By contrast, where the course of the provision of the expert report and the opportunity to submit opinions still remain, matters are left undetermined.
Accordingly, the conclusion permitted in this section is the case in which the opportunity to submit opinions is secured and efficacy can be distinguished from blockage, and where no records remain and the course cannot be confirmed, matters are left as unconfirmed. The state in which the way is open must not be restated as an outcome of actual payment, delivery, or recovery, and a lack of materials does not immediately mean that no relief is available. Finally, what remains after dividing the route's efficacy, blockage, and undetermined state is the place for directly voicing concerns about the expert witness.
1.12Conclusion Carried Over to the Next Section
On the question whether the expert opinion someone submitted constitutes an expert examination by the court, the next thing to examine is how the status of a court-appointed expert should be determined. In such a scene, unless one distinguishes who the submitting party is and in what capacity that party entered the judicial procedure, one cannot determine through which channel a dispute over the underlying data should be handled. This question is not about evaluating the accuracy of the expert opinion but about the source of the status.
As the basis for answering this question, Article 335 of the Civil Procedure Act enumerates the bodies that designate an expert. Its text states that an expert is designated by the court trying the case, a commissioned judge, or an entrusted judge. Here, the court trying the case means the court that hears the case, a commissioned judge means a judge designated by that court, and an entrusted judge means a judge entrusted with the matter by another court. The core point this provision indicates is that all three bodies lie within the court organization. It means that one is called a court-appointed expert only when the source of the designation lies with the court, and other procedural issues raised by the provision are not explained here.
The text stating that the designating body is the court and the conclusion of this section follow directly from one another. The definition of an expert as a person designated by the court for professional judgment and the enumeration of designating bodies in Article 335 of the Civil Procedure Act point in the same direction. A person who submitted a private opinion merely set out professional insight but, having received no designation from the court, does not attain the status of a court-appointed expert. The reason for distinguishing here between an opinion rendered upon designation and an opinion submitted by a party is that the applicability of the safeguards provided by judicial procedure differs between the two. The judgment that a difference in status leads to a difference in procedure is the conclusion of this section.
The counterargument that a private opinion may be more accurate than a court-appointed expert examination is strongly raised on substantive grounds. The concern that, if a judge lacks the ability to reassess professional knowledge, an independent evaluation may amount to no more than a formality targets the loss that formal requirements alone may be held to at the expense of better professional judgment. This is because there is no basis for conferral that goes beyond the text that the designating body is the court, and the line distinguishing status is maintained while leaving aside the adverse aspect to which the concern points.
Returning to the scene, it is confirmed that plaintiff A and defendant B understand differently the underlying data of the opinion submitted by Expert C. This fact alone cannot determine which of the two understandings is correct or whether the underlying data itself is valid, so that part remains undetermined. In this scene, however, one can examine through the enumeration of designating bodies whether C submitted the opinion in the capacity of a person designated by the court. This condition is not a confirmed fact but merely a test that alters the conditions of judgment.
What can be confirmed in this section is the narrow conclusion that an opinion submitted in a capacity designated by the court and a private opinion submitted by a party are distinguished in the status of a court-appointed expert. This distinction does not disparage the value of a private opinion or mean its rejection. The distinction stays at identifying where the designating body lies and does not extend to an evaluation of the credibility or accuracy of an expert opinion. How to handle the difference in understanding of the underlying data is not determined here either.