Summary
An expert examination may be stated in writing or orally, and joint and individual statements by multiple experts are also distinguished.
4.1The Standard by Which the Path Opens
How does this narrative continue? What is the standard by which the channel of this remedy opens? If only the final figure is available, opinions that rested on different premises may appear to reach the same conclusion. The oath expresses the duty of faithful expert evaluation, and, carrying forward the conclusion of the previous step that the accuracy of method and the accuracy of result must be considered separately, it asks whether the expert opinion submitted in writing and the oral explanation are different forms of the same opinion or different submissions altogether. Because Plaintiff A and Defendant B understand differently the premise materials underlying the opinion submitted by Expert Witness C, the final figure alone does not reveal upon which premise the opinion rests. The question of form becomes the object of analysis in this section.
The statute leaves open two avenues for the form of submission of an expert opinion. Article 339 of the Civil Procedure Act provides that "the presiding judge may have the expert witness state his or her opinion in writing or orally" (Article 339 of the Civil Procedure Act). The subject referred to here is the presiding judge, and the object is the court-appointed expert witness. The act is the statement of expert opinion, by which an expert opinion is presented to the court, and the two forms of writing and speech are stipulated not as fixed to either one but as selectable. This wording merely indicates that the presiding judge may decide whether the opinion is to be submitted in writing or explained orally, and does not entail any determination that one form takes precedence.
That wording links the choice of submission form with the need to confirm premises. The reason why written expert opinions and oral explanations are regulated separately is that, even after a written opinion has been submitted, a separate channel is needed to confirm how the parties understood its premise materials. The entrance to this remedy opens when the performance, parties, and conditions demanded are specified in the claim, the chosen right of action is not obstructed, and the status of and grounds for challenge to the court-appointed expert witness, together with an opportunity to submit opinions on the expert opinion, are secured. This determination is distinct from the meaning of the oath, in the same way that the oath cannot substitute for the accuracy of method and result.
The inconvenience that adding one more form increases costs is a real one. Hearing an oral explanation takes additional time, and where explanations are called from each of multiple expert witnesses, the burden of cost grows heavier. There also remains the concern that, if the judge lacks the ability to re-evaluate specialized knowledge, independent assessment may be nothing more than form. Even so, the joint statement of multiple expert witnesses cannot be turned into evidence of independent agreement. Even if a joint statement has the appearance of several voices speaking the same conclusion, whether their premise materials were the same remains a task to be confirmed separately.
In the scene where Plaintiff A and Defendant B understand differently the premise materials underlying the opinion submitted by Expert Witness C, all that can currently be confirmed is the fact that their understanding of the premise materials diverges. Where the records of the appointment of the expert witness, the course of the application for disqualification, the written expert opinion, the notice on submission of opinions, and the submissions are secured, the channel for confirming premises opens; but where no opportunity to submit an opinion on the expert opinion was given, so that the channel of response on premises and method is closed, it is closed. Where the course of the provision of the written expert opinion and the opportunity to submit opinions is not preserved, the determination remains undetermined. The year, the amount, and the outcome of the judgment have not been set.
Written expert opinions and oral explanations lead to a choice of form, the determination stands that a channel through which to confirm the premise materials must be open for them to follow one another, and the conclusion remains that the oath alone cannot be taken to satisfy the confirmation of premises. Where a lawful opportunity to submit opinions and a record of response are confirmed, a mere non-adoption is not classified as a deprivation of opportunity. Conversely, if there was no opportunity to submit opinions at all, the confirmation of premises is not established. To which case this determination applies cannot be settled on this scene alone.
4.2The Conditions That Block Relief
The scene in which Plaintiff A and Defendant B understand differently the premise materials underlying the opinion submitted by Expert Witness C reveals this. After the previous step concluded that the oath and accuracy must be considered separately, this step asks how that statement is to be received in writing and in speech, and under what conditions this response stage is blocked.
Article 339 of the Civil Procedure Act provides that "(1) The presiding judge may have the expert witness state his or her opinion in writing or orally." In this wording, the 'expert witness' is the subject who presents an expert opinion to the court, and the act of 'stating an opinion in writing or orally' is precisely the statement of expert opinion. The provision confers upon the presiding judge the authority to choose the manner of statement, and presupposes that writing and speech are two aspects of the same statement.
The same provision continues: "(2) Where the presiding judge orders several expert witnesses to give an expert evaluation, he or she may have them state their opinions jointly or severally." If the distinction between writing and speech in the preceding paragraph concerns the form of the statement, then the joint and individual statements in this paragraph concern the composition among multiple expert witnesses. If these two are treated together, the error arises of taking the agreement in a joint statement straightaway as grounds for independent agreement. Form and composition must therefore be considered separately.
Even so, the counterargument that costs increase as the modes of explanation multiply cannot be ignored. The concern is that, if the court lacks the capacity actually to re-evaluate specialized knowledge, independent assessment may be nothing more than the form of the procedure. Yet the recognition of this disadvantage does not reverse the conclusion, for the joint statement of multiple expert witnesses cannot be turned into evidence of independent agreement.
In the synthetic scene, where Plaintiff A and Defendant B understand differently the premise materials underlying the opinion submitted by Expert Witness C, the final figure alone cannot respond to that difference. Where no opportunity to submit opinions was given, so that the channel of response on premises and method is closed, if any one of the statutory requirements is not met, the channel of this remedy is closed. However, if the records of the appointment of the expert witness, the course of the application for disqualification, the written expert opinion, the notice on submission of opinions, and the submissions are not preserved, the course itself remains unverified.
Accordingly, written expert opinions and oral explanations are merely two routes for conveying the same statement of expert opinion, not a channel through which the joint statement of multiple expert witnesses is elevated to evidence of independent agreement. Whether the opportunity to respond to that statement was closed becomes the criterion of decision, and unconfirmed records are not used to adorn an established conclusion.
4.3The Boundary That Remains When There Is No Data
On that premise, one must again ask how the written expert opinion and the oral explanation follow one another. A statement of expert opinion means the act of presenting an expert opinion to the court. Plaintiff A and Defendant B understand differently the premise materials underlying the opinion submitted by Expert Witness C. In this scene, the form of the opinion alone makes it difficult to distinguish the difference in premises.
The wording capable of answering this question is divided into two paragraphs. Article 339 (1) of the Civil Procedure Act provides that "(1) The presiding judge may have the expert witness state his or her opinion in writing or orally," and paragraph (2) of the same Article provides that "(2) Where the presiding judge orders several expert witnesses to give an expert evaluation, he or she may have them state their opinions jointly or severally" (Article 339 of the Civil Procedure Act). The subject referred to here is the presiding judge, the act is the statement of opinion by the expert witness, and writing and speech are the manners of statement.
These two paragraphs govern only the choice of manner and the arrangement of statements by multiple expert witnesses, respectively. Within the same wording, both writing and speech count as forms of the statement of expert opinion, and the joint and individual statements of several expert witnesses are likewise left open as separate arrangements within the same paragraph. Accordingly, in keeping with the purpose of the oath that the accuracy of method and of result must be considered together, these two paragraphs determine only in what form the statement was carried out, and do not determine the accuracy of its content as well. Discerning what remains as the material of decision is placed at a stage separate from the fixing of form.
The counterargument that costs increase as the modes of explanation multiply is indeed weighty. A procedure requiring both writing and speech, or summoning several expert witnesses separately to hear explanations, increases time and cost, and if the judge lacks the ability to re-evaluate specialized knowledge, independent assessment may be nothing more than form. The format of a joint statement is merely an arrangement chosen by the presiding judge, and that arrangement alone cannot establish that two opinions reached the same conclusion independently. The circumstance that costs increase cannot erase this distinction.
What is confirmed in the synthetic scene is only the difference in understanding of the premise materials. In the state where Plaintiff A and Defendant B understand differently the premise materials presented by Expert Witness C, where the course of the provision of the written expert opinion and the opportunity to submit opinions is not preserved, it cannot be established in what the material of decision was determined to consist. This case is left undetermined, distinguished from impossibility. If the channel of response was closed and no opportunity was given to submit opinions on premises and method, room remains for viewing the matter as a deprivation of opportunity; but where a lawful opportunity to submit opinions and a record of response are confirmed, a mere non-adoption is not classified as a deprivation of opportunity.
The conclusion permitted by this section is narrow. The choice of the manner of stating in writing and in speech, and the arrangement for several expert witnesses to do so jointly or severally, may be determined by the presiding judge, and by that form alone neither the specification of the material of decision nor the accuracy of the opinion is altered. The boundary that cannot be settled because no records remain is not asserted as impossibility but is left undetermined.
4.4The Records Needed for Determination
The stage is adjudicated solely on the materials recorded in the records of the appointment of the expert witness, the course of the application for disqualification, the written expert opinion, the notice on submission of opinions, and the submissions. If one accepts the foregoing distinction that the oath expresses the duty of faithful expert evaluation and that the accuracy of method and of result must be considered separately, what remains is how the written expert opinion and the oral explanation that follows it are connected within a single flow. The concern that, if only the final figure is available, opinions resting on different premises may appear to reach the same conclusion is the starting point of this question. Where Plaintiff A and Defendant B understand differently the premise materials underlying the opinion submitted by Expert Witness C, what records remain becomes the coordinate of the next determination, more than whether the opinion was submitted in writing or stated orally. The question "Which records are needed?" in order to make this determination asks not about the content of the opinion but about the trace of the route by which the opinion was submitted.
If a statement of expert opinion means the act of presenting an expert opinion to the court, then the provision first determines in what forms that act may be carried out. Article 339 (1) of the Civil Procedure Act provides for "having the expert witness state his or her opinion in writing or orally" (Article 339 of the Civil Procedure Act). What is determined by this wording is the subject called the expert witness, the manners of statement called writing and speech, and the condition that the presiding judge fixes that manner. Article 339 (2), for the case of multiple expert witnesses, provides that "he or she may have them state their opinions jointly or severally" (Article 339 of the Civil Procedure Act), leaving it to the presiding judge to determine whether several expert witnesses state their opinions all together or each separately. Written expert opinions and oral explanations are the two forms of statement permitted by this wording, and the wording is not to be read as placing one in a relationship of substituting for or absorbing the other.
The distinction between forms of statement fixed by the provision meshes with the distinction in the records. A statement of expert opinion made in writing remains as a written expert opinion, while one made orally becomes, in itself, the object of a record in a different form. The course of the appointment of the expert witness and of the application for disqualification, the submission of the written expert opinion, the notice on submission of opinions, and the parties' records of submission are each traces of different stages, and the materials recording their sequence and any omission become the sole material for adjudicating the stage. The premise that missing records are not filled in by conjecture operates here. The procedure for confirming what these records show, and the determination that fixes what can be established on those records alone, must be distinguished. The former is the work of confirming the presence or absence of materials; the latter is the work of specifying the stage according to that presence or absence. If the two are mixed, an unverified course of events has been filled in as fact.
The counterargument that costs increase as the modes of explanation multiply is aimed at a genuine inconvenience. As the stages requiring both written and oral explanations increase, the matters that the expert witness, the parties, and the court must each prepare and respond to increase, and the burden of matching the records grows accordingly. Going further, the concern that, if the judge lacks the ability to re-evaluate specialized knowledge, independent assessment may be nothing more than form, means that imposing strict record requirements may not improve the quality of actual adjudication. This adverse aspect is not erased. Even so, the answer is maintained that the joint statement of multiple expert witnesses cannot be turned into evidence of independent agreement. The form in which several expert witnesses stated their opinions together is not thereby elevated as such to the evidentiary value of agreement between two independent opinions, and the record form of the joint statement and the separate provenance of the opinions must each be confirmed.
Returning to the synthetic scene, it is premised that Plaintiff A and Defendant B understand differently the premise materials underlying the opinion submitted by Expert Witness C. This fact, in the question connecting written expert opinions and oral explanations, is not to be read as a request to judge which understanding is correct. Instead, the first task is to confirm in what form of statement the opinion was submitted, how the course of the appointment of the expert witness and of the application for disqualification was recorded before and after it, and whether the written expert opinion, the notice on submission of opinions, and the records of submission were preserved together. Matters that the scene does not specify—for example, when and how each understanding was expressed, or to what outcome that difference in understanding led—remain undetermined. The condition of adjudicating the stage solely on the materials contained in the records applies to this scene as well, and no facts outside the specified range are drawn in.
The conclusion permitted in this section is that written expert opinions and oral explanations are the two forms of statement fixed by the provision, and that the materials for judging the connection between them are the limited materials of the records of the appointment of the expert witness, the course of the application for disqualification, the written expert opinion, the notice on submission of opinions, and the submissions. What is not permitted is a manner of filling in courses of events absent from the records with business practice or ordinary experience, or of reading the joint statement of multiple expert witnesses as itself evidence of independent agreement. The confirmation of the form of statement and the evaluation of the opinion contained in that form must be distinguished, and the latter is not determined together with the former merely because the former has been confirmed. Provided that what was submitted in writing and what was stated orally are not mixed at the same level of the record, the adjudication of the stage is conducted only within the range of the remaining records.
4.5Circumstances That Change the Decision
Accepting the premise that the oath expresses the duty of faithful expert examination and that the accuracy of method and the accuracy of result must be viewed separately, this stage asks how a written expert opinion and an oral explanation are connected. In this scene, the parties look at the same concluding figure yet read separately what the premises beneath it were. What must therefore be confirmed now is not whether the content of the expert opinion is right, but how the manner of presenting such an opinion to the court is determined. Here, a statement of expert opinion means the act of presenting an expert opinion to the court. The analysis examines how the statutory provision frames the form in which this act is carried out.
Article 339, paragraph (1) of the Civil Procedure Act provides that "the presiding judge may have an expert witness state his or her opinion in writing or orally" (Civil Procedure Act, Article 339). In this wording, the subject of the statement is the expert witness, the act is the statement of an opinion, and the method is one of writing and speech. It is also stated together that the presiding judge may determine that method. Both the case in which the expert witness submits an opinion in writing and the case in which he or she explains orally fall within this wording, and the two are treated as two forms of the same statement of expert opinion. Even an explanation that follows in speech after a written submission is not in itself a separate procedure but continues as a mode of stating the same opinion.
Paragraph (2) of the same Article deals separately with the case in which an expert examination is ordered to several expert witnesses. Under Article 339, paragraph (2) of the Civil Procedure Act, where the presiding judge orders an expert examination to several expert witnesses, he or she may have them state their opinions all together or separately (Civil Procedure Act, Article 339). This distinction is important, for however the statements of multiple expert witnesses are gathered, that in itself does not guarantee the accuracy of the opinion. As seen above, the oath expresses only the duty of faithful expert examination, and the accuracy of method and the accuracy of result must be viewed separately. Thus, although a joint statement may show the fact that several persons reached the same conclusion, that alone does not make it independent evidence of agreement.
The counterargument that increasing the modes of explanation also increases costs is a substantive one. When an oral explanation is added to the writing and several expert witnesses state their opinions together or separately, the time and cost borne by the parties and the court increase together with it. Even so, the joint statement of multiple expert witnesses cannot be converted into independent evidence of agreement. This is because the record that several persons made the same statement does not show whether those persons each started from the same premises. The increase in cost is a matter of the mode of statement, while whether it may be recognized as evidence of agreement is a matter to be judged separately.
Returning to the synthetic scene, it is confirmed that Plaintiff A and Defendant B understand differently the underlying materials of the opinion submitted by Expert Witness C. This fact does not determine how the written opinion and the oral explanation were connected, or whether the multiple expert witnesses stated their opinions together or separately. Accordingly, that course of events cannot be fixed from this scene alone. However, once the opportunity to submit opinions and the record of response are confirmed, one condition is clear: a mere non-adoption is not classified as a deprivation of opportunity. Conversely, if no opportunity to submit an opinion was given and the channel of response as to the premises and method was closed, the existing determination of blocking and effectiveness is discarded and the matter is re-adjudicated from this stage onward. The service or the result of performance in an actual case is not dealt with in this scene.
What this section permits is nothing more than the distinction that a statement of expert opinion may be made in writing or in speech, and that the statements of multiple expert witnesses may be made together or separately. This distinction does not itself guarantee the accuracy of that opinion, nor does it elevate the agreement of multiple expert witnesses to independent evidence. What is not permitted is a judgment that fixes the content of the opinion by looking only at the mode of statement, or that classifies a non-adoption immediately as a deprivation of opportunity without confirming whether a deprivation of opportunity occurred. The next question leads on to whether a written expert opinion may be judged upon as soon as it is submitted.
4.6The Strongest Counterargument and the Answer
Behind the question of how, in such a situation, a written expert opinion and an oral explanation are connected lies the question of what form the expert opinion takes as it reaches the court. When the act of presenting an expert opinion to the court is called a statement of expert opinion, the starting point of this question is that, whether that statement comes in writing or in speech, the underlying materials of the opinion must not be omitted. The scene in which Plaintiff A and Defendant B understand differently the underlying materials of the opinion submitted by Expert Witness C shows that, even if the concluding figures that appear on the surface are the same, the starting points beneath them may have been different.
There is a provision that sets out the method by which the court receives an expert witness's opinion. Article 339, paragraph (1) of the Civil Procedure Act provides: "(1) The presiding judge may have an expert witness state his or her opinion in writing or orally." (Civil Procedure Act, Article 339). Here the subject of the statement is the expert witness, the act is the submission of an opinion, and its form is open to two, writing and speech. This wording apprehends the act called a statement of expert opinion as the submission of an opinion that reaches the court, and merely distinguishes whether the means of that submission is writing or speech.
In the next paragraph, the case of multiple expert witnesses is dealt with separately. Article 339, paragraph (2) of the Civil Procedure Act provides: "(2) Where the presiding judge orders an expert examination to several expert witnesses, he or she may have them state their opinions all together or separately." (Civil Procedure Act, Article 339), making clear that several expert witnesses may state their opinions together or separately. This distinction concerns the question of the forms of statement gathering and diverging, and does not extend the mere fact that statements have been gathered into a separate evaluation of evidence. Accordingly, the conclusion stands that the joint statement of multiple expert witnesses cannot be converted into independent evidence of agreement. Just as with the premise that the oath expresses the duty of faithful expert examination and that the accuracy of method and the accuracy of result must be viewed separately, here too the form in which the statements have gathered and the evaluation that their contents independently coincide are separated into distinct stages.
The counterargument that increasing the modes of explanation also increases costs contains the worry that, if the court lacks the capacity to re-evaluate specialized knowledge, an independent evaluation may remain a matter of form. That worry is realistic. If the writing and the speech are each taken down, the underlying materials cross-checked, and the responses of each expert witness followed, the procedure lengthens, and in the interval it may become difficult to confirm what the judge actually evaluated. Yet the joint statement of multiple expert witnesses cannot be converted into independent evidence of agreement merely because it entails cost. In that case, the outward appearance that the statements have gathered would pass for the ground that each person's separate judgment overlapped and reached the same result, erasing precisely the differences in the underlying materials that must be confirmed. The risk of formalization that the counterargument points out is left standing, but it is not answered by elevating the form of a joint statement to evidence of agreement.
This fact alone determines neither which understanding is right, nor on which premise Expert Witness C stands, nor whether the method and result of that opinion are accurate. What is fixed is only that the differing premises are concealed by the final figure alone, and that the difference in those premises is not resolved by the mere form of having been stated jointly. The kinds of materials are set—the designation of the expert witness, the course of the recusal application, the expert opinion report, and the notice of submission of opinions together with the record of submission—but what those records actually contain is not revealed in this scene. Accordingly, so long as the difference in the underlying materials remains, the judgment remains at the view that the fact that those opinions reached the same conclusion cannot be regarded as independent agreement.
The conclusion this section permits goes no further than declining to convert the so-called joint statement of multiple expert witnesses into independent evidence of agreement. What is not permitted is a judgment that, merely because there are several expert witnesses and they submitted their opinions together, each person's judgment separately coincided, or that such agreement immediately furnishes the ground that the underlying materials were the same as well. Conversely, whether the form of the statement is writing or speech, and whether several expert witnesses submitted it together or separately, is left as it is in accordance with what the earlier wording indicates, and it is not said that such a form guarantees the accuracy of the content. May a judgment be made immediately upon submission of an expert opinion report?
4.7The Link to the Application and the Dispositive Part
Whether a statement of expert opinion is to be received in writing or in speech is not the starting point of this section. If at this point a statement of expert opinion means the act of presenting an expert opinion to the court, in what relation do the mode of submitting the opinion and the form of the statements of multiple expert witnesses stand? The preceding section left behind the premise that the joint statement of multiple expert witnesses cannot be converted into independent evidence of agreement.
As to the means of stating an expert examination, Article 339, paragraph (1) of the Civil Procedure Act provides: "The presiding judge may have an expert witness state his or her opinion in writing or orally." (Civil Procedure Act, Article 339). In this wording, the subject of the statement is the expert witness, the act is the submission of an expert opinion, and writing and speech stand open in parallel as means. The presiding judge may only choose one among these and have the statement made; he or she does not fix either one as the authentic form.
Connecting the provision on means in Article 339, paragraph (1) with the conclusion of this section, the mode of stating an expert examination is the choice of a vessel that holds the opinion, and accordingly the indication of premises and method may differ. The stage that separates joint statements from individual statements in the same provision is distinct from the preceding choice of means. Whether in writing or in oral explanation, a single expert witness may submit it alone, and several expert witnesses may submit it together. An expansion of methods does not immediately lead to corroboration of agreement of opinions.
There is the counterargument that, as the modes of explanation increase, the expert witness's time and cost and the court's burden of organization grow together. This counterargument targets the economy of the choice of form and, further, points out that, if the judge lacks the capacity to re-evaluate specialized knowledge, an independent evaluation may remain a matter of form. Yet even if one proceeds in the direction of avoiding that loss, the answer of this section does not change.
What is confirmed in this scene is a divergence in the understanding of the underlying materials, and the fact of whether an expert opinion report or an oral explanation is at issue is not settled. Accordingly, in what manner the statement was made cannot be fixed from this scene alone, and whether the statements of several expert witnesses were all made together also remains undetermined. What is confirmed is that the condition requiring joint statements and individual statements to be distinguished operates apart from writing and speech.
The conclusion this section permits is that an expert examination may be stated in writing or in speech, and that the joint and individual statements of multiple expert witnesses must be distinguished. Yet if the writing is an individual expert opinion report, it does not become evidence of agreement in itself, nor does independent agreement arise merely from the circumstance that an oral explanation was conducted together before several expert witnesses.
4.8The Scope This Section Undertakes
If a statement of expert opinion means the act of presenting an expert opinion to the court, the distinction between submitting it in writing and stating it in speech is a matter of the manner of that presentation. The oath expresses the duty of faithful expert examination, and the accuracy of method and the accuracy of result must be viewed separately. This carried-over premise merely confirms the meaning of the oath; the present question concerns what form a statement of expert opinion takes as it reaches the court. What is asked here is how a written expert opinion and an oral explanation are connected.
Article 339, paragraph (1) of the Civil Procedure Act provides that 「the presiding judge may have an expert witness state his or her opinion in writing or orally」. The subject of this wording is the presiding judge, the counterpart he designates is the expert witness, and its object is the opinion of the expert witness. The presiding judge may have the expert witness state his or her opinion in writing, or have him or her state it in speech. Whether in writing or in speech, the expert witness presents an expert opinion to the court, and that presentation is the statement of expert opinion. Paragraph (1) merely chooses between writing and speech as the medium of the statement; it contains no meaning of taking the content or the conclusion of the expert opinion as the conclusion of the judgment.
Reading this wording across the concept of a statement of expert opinion reveals the relation between a written expert opinion and an oral explanation. An expert opinion submitted in writing and an explanation given in speech differ only in their outward form; both are acts of presenting an expert opinion to the court and therefore fall within the single category of a statement of expert opinion. What must be distinguished here is the manner of presentation, so that the difference of method is not mixed with the accuracy of result. Even leaving untouched the duty of good faith attaching to a sworn expert examination, whether it was submitted in writing or stated in speech remains a separate question. This distinction is not the conclusion that the weight of an expert examination automatically diverges according to the method, but the confirmation that the two are two aspects of the same act of presentation.
Increasing the modes of explanation also increases cost. If, in addition to a written expert opinion, an oral explanation is permitted as well, the time and cost required to prepare, hear, and record that explanation increase for both the parties and the court. Further, there is also the worry that, if the judge lacks the capacity to re-evaluate specialized knowledge, an independent evaluation may remain a matter of form. Setting these disadvantages aside, the joint statement of multiple expert witnesses cannot be converted into independent evidence of agreement. This answer, which prevents the mere fact that a plurality of opinions has gathered from hardening into a separate ground, stands while leaving the weight of the counterargument of increased cost untouched.
Article 339, paragraph (2) of the Civil Procedure Act provides that 「where the presiding judge orders an expert examination to several expert witnesses, he or she may have them state their opinions all together or separately」. Where an expert examination has been entrusted to multiple expert witnesses, they may submit their opinions all together or each separately. These two cases differ only in the bundling of their outward expression; the mere fact that they were submitted jointly does not make those opinions independent evidence of agreement. In the scene in which Plaintiff A and Defendant B understand differently the underlying materials of the opinion submitted by Expert Witness C, it is not settled in what manner C submitted the opinion, and only the difference of understanding between the parties regarding the underlying materials is confirmed. Whether a response to the premises remained through an opportunity for submission cannot be judged from this scene alone.
Whether submitted in writing or stated in speech, and whether several expert witnesses submitted them together or separately, the connection between a written expert opinion and an oral explanation is determined only within the range that a statement of expert opinion is an act of presenting an expert opinion to the court. The conclusion this section permits lies in distinguishing the difference in the manner of presentation from the difference in the bundling of the statements of multiple expert witnesses, and this section does not permit the direction whereby, according to the mode of statement, that opinion immediately becomes the conclusion of the judgment.
4.9Application of the Text of the Provisions and the Holdings of Precedents
On the premise that the oath expresses the duty of faithful expert examination and that the accuracy of method and result must be viewed separately, plaintiff A and defendant B understand the premise material of the opinion submitted by expert C differently from one another. In this scene where, even when the same figures are placed side by side, understandings of the premise material diverge, how do the written expert opinion and the oral explanation connect? Here, a statement of expert opinion means the act of presenting an expert opinion to the court, and what is at issue is the manner of that presentation and how that manner opens the route through which the parties may respond to the opinion.
The subject of this wording is the presiding judge, the act is the expert's statement of opinion, and the means are open in two forms, writing and speech. The written expert opinion and the oral explanation are not two different cases but are linked as options for having a single statement of expert opinion presented in the manner determined by the presiding judge. Paragraph (2) of Article 339 of the Civil Procedure Act in the same Article provides: "(2) Where the presiding judge orders several experts to conduct an expert examination, the judge may have them state their opinions jointly or separately." (Article 339 of the Civil Procedure Act) Whether the statements of multiple experts are made jointly or separately, the distinction concerns the arrangement of the statements, and neither draws in an evaluation outside the wording.
Because the wording of paragraph (1) and paragraph (2) prescribes the means of statement and the arrangement of statements respectively, the two are distinguished and applied as the basis for determining the route through which one answers the expert examination and contests fairness. The wording of paragraph (1), that a statement may be made in writing or orally, prescribes that a statement of expert opinion can be presented without being bound to any particular form, and the wording of paragraph (2), that they may be made to state their opinions jointly or separately, prescribes the arrangement in which the statements of multiple experts are placed. Since the objects of judgment of these two paragraphs differ, the wording of one is not extended to serve as the basis for the other. Only the wording of the relevant original provision is used as the basis for determining the route through which one answers the expert examination and contests fairness, and only wording within the scope of that original provision is applied.
As the modes of explanation increase, so do the costs. If an oral explanation is added to the written expert opinion, both the presiding judge and the parties bear a greater burden in verifying and responding to that statement, and there follows the concern that, if the judge lacks the ability to re-evaluate specialized knowledge, an independent evaluation may amount to form alone. This concern is directed at the loss that, as explanation grows, the risks of cost and formalization grow together. The distinction between joint and separate prescribed in paragraph (2) concerns the arrangement of statements; that the arrangement of a joint statement is converted into evidence that several experts independently reached the same conclusion is an evaluation this wording does not prescribe. The burdens of cost and form identified in the counterargument remain as they are.
In the scene where plaintiff A and defendant B understand the premise material of the opinion submitted by expert C differently from one another, the facts this section can confirm are that understandings of the premise material diverge and that the wording stating that a statement of expert opinion may be presented in writing or orally stands. Contrasting these two facts with the foregoing conditions, what becomes decisive is whether the route through which the parties may respond to the opinion is open with respect to the premise material on which their understandings diverge. Where the status of the court-appointed expert and whether a challenge was raised, together with the opportunity to submit opinions on the statement of expert opinion, are secured, that route functions; where no opportunity to submit opinions on the statement of expert opinion was given and the route of response to the premises and methods is closed, it is blocked. The appointment of the expert, the course of the challenge application, the expert report, the notice of opinion submission and the submission records show this course, but where the course of provision of the expert report and of the opportunity to submit opinions does not remain, the matter remains undetermined.
The conclusion this section permits is that the wording of paragraphs (1) and (2) of Article 339 of the Civil Procedure Act prescribes the means of a statement of expert opinion and the arrangement of multiple experts, and that only that wording is used as the basis for determining the route through which one answers the expert examination and contests fairness. The conclusion not permitted is to extend the choice of statement in writing or orally, or the joint and separate arrangement, into other evaluations, or to convert the joint statement of multiple experts into evidence of independent agreement. If judgment is rendered within the subject, act, and conditions prescribed by the wording, the burden of the counterargument that an increase in the modes of explanation raises costs remains with it.
4.10Fine Distinctions Within the Stage
In such a scene, whether each statement of expert opinion is in writing or in speech is a matter of the form of the statement, and asking toward which side the premises are directed is a matter of the object of response. Even though the oath expresses the duty of faithful expert examination, the conclusion is that the accuracy of method and result must be viewed separately. If that distinction is held in place, then at the place of asking how the written expert opinion and the oral explanation connect, this question opens—namely, what are the parts to be divided and determined anew within the route for answering the expert examination and contesting fairness. This is because, even within a single expert opinion, form and premises are axes that do not overlap.
This wording prescribes the manner of statement and the arrangement of the subjects of statement together. Under Article 339 of the Civil Procedure Act, the presiding judge may have the expert state an opinion in writing or orally (Article 339 of the Civil Procedure Act). Here the subjects are the presiding judge and the expert, the act is the statement of expert opinion that presents an expert opinion to the court, and the condition is that the expert is made to state it in one of the two modes, writing or speech. The second item of the same Article prescribes that, when several experts are appointed, they may be made to state their opinions jointly and may also be made to state their opinions separately (Article 339 of the Civil Procedure Act). Since joint and individual are arrangements possible in parallel, the mere circumstance that several people signed a single document does not erase the individual statements.
If this wording is transferred to the criterion of judgment for this question, the form and arrangement of the statement must be separated from the response to the content of the statement. The distinction between writing and speech, and the distinction between joint and separate, divide the route by which a statement of expert opinion reaches the court; whether the route of response is open is assessed by whether the parties were able to submit opinions on the premise material. Where the status of the court-appointed expert and whether a challenge was raised, together with the opportunity to submit opinions on the statement of expert opinion, are secured, that stage is regarded as having functioned. Conversely, where no opportunity to submit opinions was given and the route of response to the premises and methods is closed, it is regarded as blocked. If the course of provision of the expert report and of the opportunity to submit opinions does not remain in the records, it remains undetermined.
Divided in this way, the counterargument that costs grow as the modes of explanation increase remains as it is. A procedure that conducts expert examinations in several ways and hears opinions on several occasions increases the burden of records and the time of the hearing. The concern that, if the judge lacks the ability to re-evaluate specialized knowledge, an independent evaluation may amount to form alone is likewise not erased. Even so, the joint statement of multiple experts cannot be converted into evidence of independent agreement. A joint statement shows only the arrangement of statements, and the premises within it, as to which material they are directed at, must be answered separately. Only by taking the conditions of opportunity and records as the sole criteria can the conclusion be fixed while the inconvenience of increased cost is preserved.
The records to be confirmed are the appointment of the expert, the course of the challenge application, the expert report, the notice of opinion submission and the submission records. If the notice of opinion submission and the submission records remain together with respect to the premise material that A and B understood differently, that stage is regarded as having functioned, and if there was no notice or the opportunity was closed, it is regarded as blocked. If the course of provision of the expert report and of the opportunity to submit opinions does not remain in the records, the matter must be left undetermined. The year, amount, or reference date not present in the scene, and the results of service and performance of an actual case, are not set; accordingly, they are not determined here.
What is permitted in this section is to separate the form and arrangement of the statement from the route of response to the premises and to divide it into three cases—functioning, blocked, and undetermined; what is not permitted is to read a joint statement straightaway as evidence of independent agreement, or to create a fourth stage that is not here. That unverified records remain does not render relief impossible; it merely leaves the conditions in a state that cannot be fixed. The question of how the written expert opinion and the oral explanation connect is linked within this framework to the routes of form and response.
4.11Synthesis of Effectiveness, Blockage, and Undetermination
That is to say, while taking as confirmed that the oath expresses the duty of faithful expert examination and that the accuracy of method and result must be viewed separately, this time the issue addressed is distinguishing whether the route for answering the expert examination and contesting fairness actually opened, was blocked, or has not yet reached the stage for judgment. Before forcibly merging into one the opinions whose premises diverge, one must first examine whether there was an opportunity to respond to each opinion.
The statutory provision corresponding to this question first prescribes the manner of the statement of expert opinion. Article 339 of the Civil Procedure Act provides: "(1) The presiding judge may have the expert state an opinion in writing or orally." (Article 339 of the Civil Procedure Act) This wording states only that the expert may submit an opinion in either mode, writing or speech, and at the same time confirms that the presiding judge can choose the manner of that statement. The subject is the presiding judge, the object is the court-appointed expert, and the act is the statement of an opinion by writing or speech. Even without further explaining the other paragraphs of the Article, it is at least clear that the mode of answering the expert examination itself is open through two channels, written and oral.
The connection between this wording and the conclusion of this section lies in securing the opportunity of response rather than in the form of the statement. The opening condition is where the status of the court-appointed expert and whether a challenge was raised, together with the opportunity to submit opinions on the statement of expert opinion, are secured. The blocking condition is where no opportunity to submit opinions on the statement of expert opinion was given and the route of response to the premises and methods is closed. This is also why it was confirmed earlier that the accuracy of method and result must be viewed separately. Because the duty of fidelity expressed through the oath and whether the opposing party was able to respond to the premises and method are judgments at different stages, one confirmation cannot substitute for the other. Even if the form is complete, one cannot regard the route of response as having opened.
The strongest counterargument targets the point that costs grow as the modes of explanation increase. There is the worry that, if the judge lacks the ability to re-evaluate specialized knowledge, an independent evaluation may amount to form alone, and that in the meantime, if writing and speech both increase, only the burden of the lawsuit grows. The limits of cost and formalistic evaluation are a disadvantage deserving acknowledgment. Even so, the court cannot, as a choice to reduce that burden, convert the joint statement of multiple experts into evidence of independent agreement. Article 339 of the Civil Procedure Act provides: "(2) Where the presiding judge orders several experts to conduct an expert examination, the judge may have them state their opinions jointly or separately." (Article 339 of the Civil Procedure Act), leaving only the manner of bundling the statements to the presiding judge's choice. Several opinions stated jointly do not turn into evidence that, taken separately, each agrees.
Looking at this scene in light of this question, what remains is the fact that plaintiff A and defendant B understand differently the premise material of the opinion submitted by expert C. To take that record as the basis of judgment, the appointment of the expert, the course of the challenge application, the expert report, the notice of opinion submission and the submission records must remain, and if that course is insufficient, the matter is left undetermined. Undetermined refers to cases where the course of provision of the expert report and of the opportunity to submit opinions does not remain, and it does not immediately convert a lack of material into a blockage. As a test that alters one condition of judgment, where a lawful opportunity to submit opinions and response records are confirmed, simple non-adoption is not classified as a deprivation of opportunity. The results of victory or defeat or recovery that cannot be judged from the scene alone are not determined here.
The conclusion permitted in this section goes no further than distinguishing the three states of the route of response. Where the status of the court-appointed expert and the question of challenge are settled and the opportunity to submit opinions on the statement of expert opinion is secured, the route is open; where no opportunity to submit opinions was given and the response to the premises and methods is blocked, the route is blocked; and where the course of provision of the expert report and of the opportunity to submit opinions still remains, the matter is undetermined. What this distinction does not entail is converting the joint statement of multiple experts into evidence of independent agreement, or hastening and fixing a judgment that has not yet come.
4.12Conclusion Carried Over to the Next Section
선서는 성실한 감정의 의무를 표현하며 방법과 결과의 정확성을 별도로 보아야 한다는 점을 전제로 하면, 감정진술이 어떤 모습으로 법정에 도착하는지가 문제로 남는다. 감정인 C가 제출한 의견의 전제 자료를 원고 A와 피고 B가 서로 다르게 이해하고 있는 장면에서, 서면으로 먼저 제출된 의견과 이후에 이어질 수 있는 말로 하는 설명은 어느 쪽에 기대를 두고 볼 것인가.
이 물음에 해당하는 문언은 민사소송법 제339조의 각 항이다. 제1항은 "재판장은 감정인으로 하여금 서면이나 말로써 의견을 진술하게 할 수 있다"(민사소송법 제339조)고 정하여, 진술의 형식을 서면과 말 가운데 고를 수 있음을 밝힌다. 제2항은 "재판장은 여러 감정인에게 감정을 명하는 경우에는 다 함께 또는 따로따로 의견을 진술하게 할 수 있다"(민사소송법 제339조)고 하여, 복수 감정인이 의견을 낼 때 그 진술이 함께 이어질지 따로 갈라질지도 재판장이 정할 수 있게 한다. 이 조문이 정하는 것은 진술의 방식과 묶음의 형식이지, 제출된 의견이 곧바로 받아들여질 것인지는 아니다.
이상의 문언과 앞의 판단을 이으면, 감정서 제출과 법원의 확정은 서로 다른 단계에 놓인다. 서면 감정이 도착했다는 사정만으로 전제 자료의 이해가 합쳐진 것도 아니고, 말로 하는 설명이 예정되어 있지는 않은지도 정해지지 않는다. 저자가 구별하는 이유는 최종 숫자만 보여서는 전제가 달랐던 의견들이 같은 결론처럼 보이는 위험이 남기 때문이다. 같은 결론처럼 보이는 두 의견을 하나로 묶기 전에, 그 의견이 세운 전제 자료에 대한 양측의 이해가 같은지가 먼저 확인되어야 하며, 그 확인의 자리가 진술 방식을 고르는 데 머무는 문제와 구별된다.
설명 방식이 늘어날수록 비용도 커진다는 반론은 여기서 가장 강하게 작용한다. 감정인에게 서면 외에 구두 설명을 더 요구하는 일이나, 여러 감정인을 함께 불러 세우거나 따로 불러 세우는 절차를 늘리는 일은 시간과 비용을 함께 밀어 올린다. 그 불편을 지우고 넘어갈 수는 없다. 그러나 복수 감정인의 공동 진술을 독립된 일치의 증거로 바꿀 수는 없다는 답이 남는다. 여러 감정인이 다 함께 진술한다는 형식은 재판장이 정한 진술의 모양일 뿐, 그들이 각자 세운 전제가 같다는 뜻이나 별개로 얻은 결론이 우연히 맞았다는 뜻으로 올라가지 않는다. 비용이 드는 설명 절차를 부정하지 않으면서도, 그 절차가 만들어내는 형식을 독립된 일치의 증거로 격상하지 않는 선에서 결론이 유지된다.
감정인 C가 제출한 의견의 전제 자료를 원고 A와 피고 B가 서로 다르게 이해하고 있는 장면에서, 서면으로 놓인 의견의 전제에 대한 이해 차이가 확인되었는지는 기록만으로는 정해지지 않는다. 감정인 지정·기피 신청 경과·감정서·의견제출 안내와 제출 기록이 남아 있다면, 그 기록이 법정 감정인의 지위·기피 여부와 감정진술에 대한 의견제출 기회가 확보되었는지를 보여줄 수 있다. 그러나 감정서 제공과 의견 제출 기회의 경과가 남아 있지 않다면, 전제 이해가 합쳐졌는지에 대한 판단은 미확정으로 남는다. 장면으로 확정할 수 없는 사항을 끌어와 이 절의 결론을 넓히지 않는다.
그러므로 감정서가 제출되었다는 사정만으로 감정진술이 종결되었다고 보거나, 복수 감정인의 공동 진술이 곧바로 일치의 근거가 된다고 보아서는 안 된다. 서면 진술과 말로 하는 진술은 나란히 놓인 형식이고, 그 안에서 다 함께 이어질 것인지 따로 갈라질 것인지는 진술의 모양을 정하는 문제로 남는다. 저자가 확정하는 선은 전제 자료에 대한 이해가 먼저 확인되어야 한다는 쪽에 있으며, 그 확인이 끝났는지는 장면의 기록이 가릴 부분이다.