Summary
An expert examination, too, is subject to evaluation in light of the evidence as a whole and the rules of logic and experience.
6.1The Standard by Which the Path Opens
Accepting the opinion of a court-appointed expert is one thing; passing on the responsibility for the judgment is another. Relying on an expert is one thing; transferring responsibility for the judgment is another. Overlapping here is the premise left by the preceding section: the procedural requirement that the parties be given an opportunity to state their views on the expert's statement. This requirement concerns not the content of the expert opinion but the guarantee of an opportunity to respond to that content. Plaintiff A and Defendant B understand the underlying materials of the opinion submitted by Expert C differently from each other. This gap in understanding is the scene set out here. Once an expert reaches a conclusion, must the court simply follow it? This question narrows, at present, to how the court is to situate this expert opinion.
The statutory provision relevant to this question sets out the general standard for evaluating evidence. Article 202 of the Civil Procedure Act declares that the court "takes into consideration the purport of the whole oral argument and the results of the examination of evidence, and, by free conviction," determines the truthfulness of the factual assertions. The subject of this language is the court. The acts are consideration and determination, and the materials of that determination are the purport of the whole oral argument and the results of the examination of evidence. The free conviction spoken of here means that one is not bound to any particular model of conviction. That freedom, however, operates under the ideals of social justice and equity and under the laws of logic and experience. The appointment of an expert and the question of recusal determine which expert stands on the stage of this determination.
This statutory language converges with the conclusion that an expert's statement, too, is placed alongside the other evidence. Evidence assessment here means a determination of the degree to which the evidence supports the facts. That determination of degree is not the conclusion reached by the expert itself, but the work of asking whether that conclusion accords with the laws of logic and experience and harmonizes with the whole of the evidence. The opportunity to submit an opinion required by the preceding section broadens the materials for this work. When the parties respond to the expert's statement, their differing understandings of the underlying materials enter the record, and the court takes that record into consideration as well. Herein lies the reason for separating the two steps. The opportunity to be heard is the procedural requirement at the entrance; evidence assessment is the standard of the substantive determination after passing through that door. Substitute one for the other and both are lost.
Once this distinction is drawn, the strongest counterargument takes direct aim. It is the concern that, since judges lack specialized knowledge, their error may be all the greater. Faced with the precise calculations of chemistry, medicine, or accounting, all a judge can bring to bear are the laws of logic and experience, and if that assessment is inaccurate, it only hardens a distorted conclusion. The discomfort of the expert's specialized knowledge being lost, and the loss of the benefit of having called an expert at all, occupy the ground of this counterargument. Even so, the adoption of an expert opinion cannot be converted into an exemption of the court's own determination. The worry that the court's determination is clumsy is not grounds for excusing that determination; it is the reason for demanding a procedure that discloses the grounds of the determination. The opportunity to submit an opinion is precisely the channel for gathering those grounds.
Examining the standard by which the channel of this procedure opens, the course of the appointment of the court-appointed expert and of the application for recusal, the written expert opinion, the notice of the opportunity to submit an opinion, and the record of submission must all be placed in the same position. The status of the court-appointed expert and the question of recusal must first be confirmed, and the opportunity to submit an opinion on the expert's statement must then be arranged. Only after those two conditions are met, and when the requested relief, the parties, and the conditions are specified in the claim and the right of the chosen action can be defended, does the entrance to this remedy open. If a lawful opportunity to submit an opinion and a record of the response are confirmed, mere non-adoption is not classified as a deprivation of opportunity. However, where the course of the provision of the written expert opinion and of the opportunity to submit an opinion is not preserved, the opening of the channel cannot be established on this record alone. It is more accurate to leave the matter undetermined.
In sum, that an expert's conclusion does not bind the court is an admissible conclusion. The mere circumstance that an expert opinion was not adopted cannot be treated as a deprivation of opportunity; conversely, if there was no opportunity to be heard and the case was brought to a close solely on the expert's determination, that determination stands alone. What weight the expert's view carries remains the province of the judgment. What has been set out here, however, is only the condition at the entrance and not the calculation of this weight; the reliability of the expert opinion itself and the effects flowing from the outcome of the submission of an opinion lie outside this section.
6.2The Conditions That Block Relief
Where the status of the court-appointed expert and the question of recusal and the opportunity to submit an opinion on the expert's statement are secured, this remedy operates. The question remaining at this point is the opposite case. Where no opportunity to submit an opinion on the expert's statement was given and the channel of response to the premises and methods was closed, this remedy is blocked. Only by placing this alongside the conditions of operation discussed in the preceding section does it become clear what separates the state in which this remedy is alive from the state in which it is switched off. The analysis now examines the point that, in proportion to the weight of the expert's authority, the presence or absence of the response procedure attached to those premises governs the very seat of the determination.
An expert opinion, too, is an object to be assessed under the whole of the evidence and the laws of logic and experience. The underlying provision, Article 202 of the Civil Procedure Act, provides: "The court takes into consideration the purport of the whole oral argument and the results of the examination of evidence, and, by free conviction, on the basis of the ideals of social justice and equity and in accordance with the laws of logic and experience, determines whether the factual assertions are true or not." This language designates as the court the subject that determines the truth of the factual assertions, and at the same time sets out the objects of consideration and the standard through which that determination must pass. The subject revealed in the language is the court; the act is the determination of the truth of the factual assertions; the condition is the formation of conviction after taking into consideration the purport of the whole oral argument and the results of the examination of evidence. Insofar as an expert's statement enters as material for this determination, it is placed within the court's assessment as no exception.
The conclusion connected with the language above is this. Here two steps must be distinguished. The former is the determination of the degree to which the evidence supports the facts, that is, a matter of evidence assessment; the latter is a matter of procedure, asking whether the channel for properly conducting that assessment was opened. Without the procedure of an opportunity to submit an opinion, there arises no occasion, before the expert or before the court, to correct the state in which Plaintiff A and Defendant B understand the expert's underlying materials differently. Where the question of adoption is decided while that occasion remains closed is precisely the condition under which this remedy is blocked.
The strongest counterargument lies in the point that the non-specialized determination of a judge may produce a greater error. The more the matter handled by the expert opinion requires specialized knowledge, so the concern runs, the greater grows the risk that, in the course of the judge probing the premises and methods of the expert opinion and making a fresh determination, presumptions devoid of expertise will be enforced. That independent assessment may be reduced to formality while its substance is filled with the judge's conjecture is also part of that concern. Even leaving those disadvantages in place, the adoption of an expert opinion cannot be converted into an exemption of the court's own determination. To treat as a state in which the remedy is blocked the case where, without an opportunity to be heard, the channel of response was closed, does not mean that opening that door hands over to the expert the court's responsibility for the determination as well; it merely restores the occasion to contest the premises and methods of the expert opinion.
One fact is confirmed in the synthetic scene of this section. This mismatch of understanding concerns not the underlying materials of the expert opinion themselves but the manner in which the parties read them, and so there must be a channel for inquiring which reading accords with the premises of the opinion. What is designated as that channel is the opportunity to submit an opinion on the expert's statement, and the state in which this opportunity was not given is precisely the case where the channel of response is closed. What the scene fixes, however, is only the fact of the mismatch of understanding; when and to whom the written expert opinion was provided, and whether notice of the opportunity to submit an opinion was given, are not settled. If that course is not preserved, the matter must be left in a state of being undeterminable for want of materials.
The conclusion permitted by this section is narrow. It is that, where no opportunity to submit an opinion was given and the channel of response to the premises and methods was closed, this remedy is held to be blocked; and that this language does not convert the court's adoption of an expert opinion into an exemption of its own determination. Where the opportunity to submit an opinion and the record of the response are secured, this remedy operates as stated in the preceding section, so mere non-adoption is not classified as a deprivation of opportunity. Who the expert is, the grounds for recusal, and the effect of the oath lie outside this section.
6.3The Boundary That Remains When There Is No Data
In the scene where Plaintiff A and Defendant B understand the underlying materials of the opinion submitted by Expert C differently from each other, it was left as a question above whether the court may simply write down the expert's conclusion as it stands. In the preceding section, it was held that, where no opportunity to submit an opinion on the expert's statement was given and the channel of response to the premises and methods was closed, this remedy is blocked. Now the boundary of what cannot be determined for want of materials must be fixed; in other words, what it is that, when unconfirmed, requires the determination to be deferred.
The statutory provision corresponding to this question is Article 202 of the Civil Procedure Act. Its language provides that the court takes into consideration the purport of the whole oral argument and the results of the examination of evidence, and, by free conviction, on the basis of the ideals of social justice and equity and in accordance with the laws of logic and experience, determines whether the factual assertions are true or not (Article 202 of the Civil Procedure Act). The subject indicated by this language is the court; the act is the determination of the truth of the factual assertions; the condition is taking into consideration the purport of the whole oral argument and the results of the examination of evidence.
On this basis, an expert opinion, too, is an object to be assessed under the whole of the evidence and the laws of logic and experience. The reason these two must be distinguished is that the work of gauging how far an expert's opinion supports some fact, and the work of the court's performing that gauging itself, cannot be merged into a single step. Where the course of the provision of the written expert opinion and of the opportunity to submit an opinion is not preserved, the responses to the premises and methods have not been fully gathered, and so the determination is left undetermined. This is distinct from the case where the remedy is blocked.
The counterargument that the non-specialized determination of a judge may produce a greater error aims at a substantive loss. If the judge lacks the capacity to re-evaluate specialized knowledge, so the concern runs, independent assessment is reduced to formality, and in the meantime a wrong conclusion may harden. To defer the determination when the opportunity to respond to the expert's premises and methods has been closed does not mean that the court intends to approve that specialized knowledge in the expert's stead; it means that the materials to be assessed have not yet been fully gathered. The possibility of error pointed out by the counterargument remains as it stands.
The fact confirmed in this scene, where Plaintiff A and Defendant B understand the underlying materials of the opinion submitted by Expert C differently from each other, is that the two sides' understandings of what the opinion rests upon diverge. This divergence does not show how the course of the opportunity to submit an opinion proceeded, and so it cannot be established on this scene alone whether the provision of the written expert opinion and the opportunity to submit an opinion were secured. It remains, however, that where the channel of response to the premises is closed the remedy is blocked, and where the opportunity to respond remains or its course is unconfirmed the matter stays within the realm of the undetermined.
The conclusion permitted by this section is to defer the determination when the course of the provision of the written expert opinion and of the opportunity to submit an opinion is not preserved, and to distinguish that state from the unavailability of a remedy. What it does not permit is the immediate assertion that the remedy is blocked on the sole ground that the materials have not been fully gathered, and the conversion of the adoption of an expert opinion into an exemption of the court's own determination. The undetermined is a state in which the materials for a determination are insufficient; the unavailability of a remedy is a state in which the channel of response is closed. The distinction between evidence assessment and the attribution of its result is the condition for holding this boundary.
6.4The Records Needed for Determination
Continuing from the preceding section, which left the determination undetermined where the course of the provision of the written expert opinion and of the opportunity to submit an opinion was not preserved, and distinguished this from the case where the remedy is blocked, this section now asks about the range of the record upon which such a determination must stand. This opposition leads beyond a mere difference of interpretation to the problem of discerning what materials the court may rely upon in receiving the expert opinion.
In answering this question, the language relied upon is Article 202 of the Civil Procedure Act. The provision states that the court "takes into consideration the purport of the whole oral argument and the results of the examination of evidence, and, by free conviction," determines the truth of the factual assertions (Article 202 of the Civil Procedure Act). Here the subject is the court; the object of the determination is the purport of the whole oral argument and the results of the examination of evidence; and the mode of determination is free conviction following the laws of logic and experience on the basis of the ideals of social justice and equity. There is no separate place, set apart from this structure of determination, to which an expert opinion is assigned. The provision does not distinguish kinds of evidence; it sets out only the framework of determination.
What this language indicates is that the court's assessment of an expert opinion never ends as a mere formal procedure. The court is not in a position to decide the question of adoption immediately upon the written expert opinion alone, but stands in a position to take into consideration together the purport of the whole oral argument and the results of the examination of evidence. The course of the appointment of the expert and of the application for recusal, the written expert opinion, the notice of the opportunity to submit an opinion, and the record of submission are the grounds showing whether this consideration was actually carried out. Only where the record preserves how the disputes over the expert's qualifications and neutrality were handled, and whether the parties were notified of the opportunity to submit an opinion on the expert's statement and did submit one, can the conclusion be reached that the court assessed the expert opinion as one of the pieces of evidence. Without that record, the conclusion remains undetermined.
The strongest counterargument is directed against the very method of requiring all these procedural records: that it may instead allow the judge's non-specialized determination to produce a greater error. If a judge untrained in the field must re-evaluate a conclusion reached by an expert on the basis of specialized knowledge and experience, there is no guarantee that the assessment will accord with expertise, and the concern is that an assessment reduced to formality may impair the reliability of the expert opinion. This concern points to losses and inconveniences that cannot be ignored in practice. An expert opinion is an object to be assessed under the whole of the evidence and the laws of logic and experience, and the circumstance that this assessment is a difficult task is no reason to omit the assessment itself.
Returning to this scene, the state in which Plaintiff A and Defendant B understand the underlying materials of the opinion submitted by Expert C differently from each other is itself a reason why the record must be complete. To discern which understanding accords with the premises of the opinion, the written expert opinion and the course of the parties' submission of opinions on it must be placed together. The course of the appointment of the expert and of the application for recusal shows how the dispute over the expert's status was handled; the written expert opinion and the notice of the opportunity to submit an opinion and the record of submission show, respectively, whether the channel of response to the expert's statement was actually open. Yet the scene does not fix when the written expert opinion was provided or how the notice of the opportunity to submit an opinion proceeded, and the content of the actual record of submission is also unknown. Accordingly, on this scene alone it cannot be established at what point the actual record went missing, or to which party that omission is favorable. Insufficiency of materials is undetermined, and is distinct from the case where the remedy is blocked.
The conclusion permitted by this section is narrow. Only where the course of the appointment of the expert and of the application for recusal, the written expert opinion, the notice of the opportunity to submit an opinion, and the record of submission are all in place can it be said that the court made the expert opinion an object of evidence assessment within the purport of the whole oral argument and the results of the examination of evidence. What this determination does not permit is the interpretation that converts the adoption of an expert opinion into an exemption of the court's own determination, and likewise the interpretation that reads the absence of a record directly as the unavailability of a remedy.
6.5Circumstances That Change the Decision
Accepting an expert's view widens the materials of judgment, but one cannot hand over even the responsibility of finally declaring the truth or falsity of allegations of fact. In the scene where plaintiff A and defendant B understand differently the underlying materials of the opinion submitted by expert C, this difference again rises to the surface. One side considers it sufficient to accept the conclusion of the opinion as it stands, in light of the underlying materials, while the other side rebuts that the underlying materials themselves have been misunderstood and that the conclusion of the opinion therefore cannot be carried over. If, as here, relying on the expert's conclusion and handing over the responsibility of judgment are two different things, is it enough for the court simply to follow the conclusion the expert has put forward?
The provision that answers this question is Article 202 of the Civil Procedure Act. Here the court is the subject of judgment, the object of judgment is the truth or falsity of allegations of fact, and the criteria of judgment are the purport of the whole oral argument, the result of the examination of evidence, and the rules of logic and experience. It is also contained within the structure of this provision that free evaluation does not mean an arbitrary choice departing from those criteria, but the work of forming conviction in one's mind under the prescribed criteria. Although this provision does not treat expert examination specially, since expert examination is likewise one among the results of the examination of evidence, it is not carved out as an exception from those criteria of judgment.
This provision and the conclusion of this section connect as follows. Expert examination too is something to be evaluated under all of the evidence and the rules of logic and experience, and here evidence evaluation means the assessment of the degree to which evidence supports a fact. In other words, evidence evaluation is the work of gauging whether the evidence fully supports the fact, supports only part of it, or scarcely supports it at all, and the expert's opinion is likewise merely something to be examined for that degree; it is not a device that substitutes for and fixes the conclusion itself. This distinction matters because the two stages answer different questions. Up to what point the content of the expert examination is to be trusted is decided at the stage of evaluation, while whether, after that evaluation, the final fact is to be determined by synthesizing all of the evidence is decided at the stage of judgment. However highly the court may evaluate the expert examination, the role and responsibility of judgment do not pass to the expert.
The loss at which the strongest counterargument to this position is aimed is clear. If, lacking specialized knowledge and experience, a judge cannot properly examine the content of the expert examination, independent evaluation may become a mere formality, and the judge's non-specialist judgment may instead create a greater error. A judgment rendered without properly understanding the details of a specialized field bears the risk of error as it is, whether it disregards or accepts the expert's view, and in the end that inconvenience and loss are borne by the parties. The possibility of error pointed out by the counterargument is real and hard to ignore; but it cannot be said that the way to reduce that error is to do away altogether with the court's responsibility of judgment.
Taking out only the facts belonging to this question from the synthetic scene, the point that plaintiff A and defendant B understand differently the underlying materials of the opinion submitted by expert C touches upon the foregoing condition. Because this fact means that the two parties read differently not the conclusion of the expert examination itself but the underlying materials by which the conclusion is reached, which of the two parties' understandings is correct, and how close the underlying materials are to reality, cannot be determined from this scene alone. What this scene does show is that, where understandings of the underlying materials diverge, there is room for one condition to be established: that the opinion cannot be carried over as it stands. Conversely, the contrasting condition that, if a lawful opportunity to submit an opinion and response records are confirmed, a mere non-adoption is not classified as a deprivation of opportunity cannot be carried over to a determination, since within this scene the actual course of the opportunity to submit an opinion and the response records has not been confirmed.
In sum, the conclusion this section permits is limited to the range that, whichever course the court chooses—accepting or not accepting the expert examination—if that evaluation took place within the purport of the whole oral argument, the result of the examination of evidence, and the rules of logic and experience, it is not in itself classified as a deprivation of opportunity or a renunciation of the responsibility of judgment. The conclusions not permitted are that, once an expert examination has been adopted, the court is exempted from independent judgment, or that the conclusion of the expert examination is at once the determination of fact. The conditional distinction that, if the designated change is confirmed, the existing blocking and effectiveness determinations are discarded and adjudication is redone from the stage is bound up only with the confirmation of the opportunity to submit opinions and the response records dealt with in this paragraph, and does not extend to circumstances beyond them.
6.6The Strongest Counterargument and the Answer
Up to the preceding stage of analysis, the conclusion remains that the parties must be given an opportunity to state their views on the expert's statement. In this state, the counterargument that a judge's non-specialist judgment may create a greater error arises from the difficulty for the court of verifying the accuracy of the expert examination. Yet the question whether, once an expert reaches a conclusion, the court merely follows it asks what status expert opinion holds. Whether responsibility for the judgment can be transferred to the expert is the problem this paragraph poses.
On this question, Article 202 of the Civil Procedure Act provides that "the court shall determine the truth or falsity of allegations of fact by taking into consideration the purport of the whole oral argument and the result of the examination of evidence, based on free evaluation" (Article 202 of the Civil Procedure Act). This provision fixes the court as the subject of judgment and the purport of the whole oral argument and the result of the examination of evidence as the materials of judgment. Free evaluation means that the court judges under the ideals of social justice and equity and the rules of logic and experience. The judgment spoken of here is the discernment of whether allegations of fact are true, and the expert's opinion enters into those materials of judgment as one among them. Other issues under the provision are separated from this question.
This provision and the conclusion confirmed above meet at the point that adopting an expert examination does not exempt the court from independent judgment. Accepting expert opinion and entrusting the judgment of the case to it differ in degree. The former stops at fixing its weight, together with other evidence, within the purport of the whole oral argument; the latter means handing over to the expert the formation of conviction that Article 202 assigns to the court. The reason the provision expressly names the court as the subject of judgment is that even an expert's conclusion does not substitute for the court's evaluation. Accordingly, even if, the more one relies on experts, judgment may lapse into a mere formality, an expert's conclusion must not be allowed to take the place of the court's independent judgment.
The loss this conclusion aims at is that responsibility for the outcome of the trial becomes unclear. If the court, on the ground that it cannot properly re-evaluate the expert's specialized knowledge, exempts itself from judgment, the parties lose the object with which to dispute how the court's conviction was formed. The counterargument answers this that a judge's non-specialist judgment instead creates a greater error, and this disadvantage is left in place. Yet the answer does not change. The fact that evaluation by the court is a difficult task cannot serve as grounds for holding that evaluation unnecessary.
In this scene, plaintiff A and defendant B understand differently the underlying materials of the opinion submitted by expert C. Contrasting this fact with the structure of judgment under the provision, the purport of the whole oral argument fixed by Article 202 is the occasion on which the opposed understandings are brought out together, and the opinion of expert C rests upon premises in which those understandings differ. Fixing the weight of an opinion in a state where the underlying materials are understood differently remains within the scope of evidence evaluation. However, which understanding the court adopted, and the course by which it confirmed which side the premises of the opinion matched, have not been recorded. Whether an opportunity to submit an opinion was in fact given is likewise unconfirmed. The parts that cannot be determined from this scene remain undetermined.
The conclusion this section permits is this: by evaluating the expert's opinion within all of the evidence, the court relies on the expert's specialized knowledge yet does not entrust the judgment of the case to it. Conversely, what this section does not accept is that the expert's opinion stands in for the court's conviction and that the expert's conclusion is taken as the judgment itself. The actual records and the course of the submission of opinions, which the synthetic scene does not confirm, do not allow the analysis to proceed beyond this range. Next, is the occurrence of harm also denied on the ground that the amount has not been specified?
6.7The Link to the Application and the Dispositive Part
Accepting an expert's view and entrusting the attribution of the judgment to that view are different questions. As concluded in the preceding section, adopting an expert examination cannot be converted into an exemption of the court's independent judgment. In this state, the question opens whether, once an expert reaches a conclusion, the court merely follows it. The heart of this question is whether the court is a place where the expert examination is copied out uncritically, or a place where, as the adjudicator, it keeps for itself the share it must examine.
The provision that serves as the foundation in answering this question is found in Article 202 of the Civil Procedure Act. It stipulates that "the court shall determine the truth or falsity of allegations of fact by taking into consideration the purport of the whole oral argument and the result of the examination of evidence" (Article 202 of the Civil Procedure Act). In this provision, the subject of judgment is the court, and the materials of judgment are the purport of the whole oral argument and the result of the examination of evidence. The method of judgment is fixed as one of free evaluation, yet grounded in the ideals of social justice and equity and following the rules of logic and experience. No separate place is opened by which an expert examination slips out of this subject of judgment or method of judgment.
This definition makes the court's attitude toward expert examination, at the least, not a matter of 'whether to follow it,' but something that must be examined as a matter of 'to what degree it provides support.' If expert examination is separated from the other evidence and placed on a footing of exceptional deference, the structure of the provision requiring that the purport of the whole oral argument and the result of the examination of evidence be taken into consideration together collapses. That the court makes the expert examination an object of judgment leads to the work of examining what weight its underlying materials and method bear in the light of the rules of logic and experience.
The counterargument that a judge's non-specialist judgment may create a greater error, however, carries weight. In matters requiring specialized technique or scientific knowledge, if the judge often sets up occasions to overturn the results of an expert examination, error arising not from expertise but from the lack of it may enter the judgment. Thinking of the accuracy of the judgment, it cannot be erased that it may be better to give weight to the expert's conclusion. What this answer settles is that the specialized character of an expert examination cannot take the place of the court's duty of judgment. The loss indicated by the counterargument is acknowledged, but the attribution of judgment cannot be transferred in order to bear that loss.
This fact alone does not determine which understanding of the expert examination is correct, or what the actual content of those underlying materials is. What this scene does show is that, under the foregoing criteria of judgment, one cannot stop at simply following the expert examination. Where understandings of the underlying materials diverge, the court is placed in the position of examining, in the light of the rules of logic and experience, to what degree those premises and methods support the fact. However, since the course of such an opportunity is not contained in this scene, how the opportunity to submit an opinion was given cannot be determined at this point.
The conclusion this section permits thus goes no further than regarding the expert examination as something to be evaluated by the court together, under all of the evidence and the rules of logic and experience. It can also be confirmed that the court's attitude of accepting the expert's conclusion is not at once a handing over of responsibility for judging that conclusion. Conversely, it does not mean either that the court's evaluation of an expert examination must always overturn the expert's view. What cannot be determined in this section is simply the circumstances as to how that evaluation actually proceeded.
6.8The Scope This Section Undertakes
When an expert reaches a conclusion, does the court merely follow it, or must that conclusion too pass through the adjudicative procedure of judgment? That an opportunity to give one's opinion must be afforded is taken as a premise. What can be determined in this scene is only the fact that the two parties did not take the same material in the same sense. Which interpretation is correct, and what effect that difference has on the outcome of the judgment, are not determined by the records. When the expert's words enter as one item of evidence, the question remains: whose share is the final judgment of the trial?
Here the subject is the court, the act is the judgment as to the truth or falsity of allegations of fact, and it is given together that the judgment is made in a manner that takes into consideration the purport of the whole oral argument and the result of the examination of evidence. The fact that the provision uses the words 'free evaluation' does not mean that the court may depart from any ground whatsoever and judge as it pleases.
The fact that the subject of judgment fixed by the statute is the court connects directly with the conclusion of this question. The conclusion an expert reaches is submitted merely as one item among the evidence, and the court evaluates it under all of the evidence and the rules of logic and experience. The word 'degree' matters because there are cases where whether the evidence supports a fact cannot be marked yes or no, and judgment is complete only after weighing to what degree it provides support. If, on the ground that the expert examination embodies specialized knowledge, even that assessment of degree is omitted, then instead of taking into consideration the purport of the whole oral argument and the result of the examination of evidence, the court has simply dragged in one piece of evidence as it stands.
There is the concern that, where a judge re-examines in a few weeks the knowledge an expert has acquired through years of training, a clumsy judgment may result, and the judge may end up posing as an expert himself. This inconvenience must not be erased. Yet this counterargument cannot overturn the answer that adopting an expert examination cannot be converted into an exemption of the court's independent judgment. To abandon judgment itself because the possibility of error is great is nothing other than transferring the share that Article 202 assigns to the court. The judge need not reconstruct specialized knowledge by his own power, but it is the court that must make clear what weight that conclusion bears under all of the evidence and the rules of logic and experience.
The analysis returns to this scene. In this state, in order to judge how far that material supports the fact, it must first be settled which interpretation was taken as the basis. Yet in this scene it is not made clear whether there remain the course of the application for designation and challenge of the expert, the content of the expert opinion, notice of the opportunity to submit views, and records of submission. Accordingly, which party read those underlying materials more soundly, and whether an opportunity to give one's opinion was in fact opened, cannot be determined from this scene alone. Unverified items are left undetermined, but the conclusion itself—that an expert examination is something to be evaluated under all of the evidence and the rules of logic and experience—is not shaken.
The boundary between the conclusion this section permits and the conclusion it does not permit is thus drawn. The court is under no duty to follow a conclusion simply because an expert has reached it, and an expert examination is likewise something to be evaluated under all of the evidence and the rules of logic and experience. Yet that evaluation does not mean that the specialized character of the content of the expert examination must be replaced by the judge's personal knowledge, nor does it advance to the stage of determining which expert examination is right and which is wrong. The next question is whether a channel of rebuttal remains when the expert's conclusion is carried over into the conclusion of the trial, and what the scope handled by this section is.
6.9Application of the Text of the Provisions and the Holdings of Precedents
전문가의 말을 듣는 일과 그 말에 따라 판결 책임을 넘기는 일은 갈린다. 이제 이 물음을 맡은 쪽은 조문의 어떤 문언이 감정을 평가 대상에 넣는지, 그리고 그 평가가 공정성을 다툴 통로에 어떻게 닿는지여야 한다. 감정인 C가 제출한 의견의 전제 자료를 원고 A와 피고 B가 서로 다르게 이해하고 있는 장면이 그 출발점이다.
이 절에서 다룰 문언은 민사소송법 제202조뿐이다. 그 조문은 “법원은 … 논리와 경험의 법칙에 따라 사실주장이 진실한지 아닌지를 판단한다.”라고 적고 있다(민사소송법 제202조). 여기서 ‘법원’은 사실주장의 진실 여부를 판단하는 주체이고, ‘판단한다’는 그 판단을 스스로 끝내야 하는 행위를 가리킨다. ‘논리와 경험의 법칙’은 그 판단이 놓여야 할 기준이다. 이 문언은 감정서가 어디서 왔는지나 감정인을 어떻게 고르는지를 규정하지 않으며, 다만 판단의 자리에 있는 것이 누구인지와 무엇에 기준을 두는지를 가리킬 뿐이다.
조문이 가리키는 판단의 구조는 이 물음의 결론과 직결된다. 감정이 전문지식을 빌린 판단이더라도, 그 판단을 사실의 뒷받침으로 삼는 일은 전문가에게 넘겨진 일이 아니라 법원에 남겨진 일이다. 감정도 이 판단의 대상에 들어오며, 그 결과에 따라 다른 증거와 함께 참고되는 정도가 정해진다. 이 문언만으로 감정 채택이 법원의 독자적 평가를 면제한다는 결론에는 닿지 않는다.
그런데 법관이 전문지식을 직접 헤아릴 능력이 부족하다면, 법원의 평가가 형식에 그치고 오히려 더 큰 오류를 낳을 수 있다. 특히 원고 A와 피고 B가 감정의 전제 자료를 서로 다르게 이해하는 장면에서는, 법원이 그 전제를 골라 내는 일조차 전문지식의 도움 없이는 어려울 수 있다. 조문이 사실주장의 진실 여부를 법원의 판단으로 남겨 둔 것은 전문가의 오류를 상수로 삼기 위해서가 아니라, 전문가의 오류가 생겼을 때 법원이 그것을 걸러 낼 자리를 비워 두기 위해서다. 비전문적 평가의 어려움은 인정하되, 그 어려움으로 판단 주체를 옮길 수는 없다.
이 장면에서 확인되는 것은 감정인 C가 제출한 의견의 전제 자료를 원고 A와 피고 B가 서로 다르게 이해하고 있다는 사실뿐이다. 두 당사자의 이해가 갈리는 상태에서 감정서가 제출되었다면, 그 전제에 대한 응답을 남길 기회가 있었는지가 공정성을 다툴 통로의 조건이 된다. 다만 감정인 지정·기피 신청 경과·감정서·의견제출 안내와 제출 기록이 남아 있는지는 확인되지 않았고, 이 절은 그 기록의 유무로 어떤 결과를 확정하지 않는다.
이 절이 그어 둔 경계는 명확하다. 감정이 전체 증거와 논리·경험법칙 아래 평가될 대상이라는 판단은 서지만, 감정을 반드시 채택하거나 반드시 배척하라는 결론은 여기에 없다.
6.10Fine Distinctions Within the Stage
전문가가 결론을 내리면 법원은 따르기만 하는가?라는 앞 절의 물음에 대해 감정도 전체 증거와 논리·경험법칙 아래 평가될 대상이라는 결론으로 이어받았다. 이제 그 통로 안에서 감정에 답하고 공정성을 다툴 부분을 어떻게 다시 나누어 판정할지가 남는다. 나누는 일 자체가 새 심판 단계를 만들어 내는 것은 아니다.
이 절에서 살피는 원문은 「민사소송법 제202조」이다. 그 문언은 「법원은 변론 전체의 취지와 증거조사의 결과를 참작하여」 사실주장의 진실 여부를 판단한다고 정한다(민사소송법 제202조). 여기서 주체는 법원이고, 행위는 변론 전체의 취지와 증거조사의 결과를 참작한 판단이며, 조건은 자유로운 심증 아래 사회정의와 형평의 이념, 논리와 경험의 법칙에 입각하는 것이다. 이 문언은 감정만을 떼어 특별 취급하는 내용을 담고 있지 않다.
이 문언을 이 절의 결론과 잇는다. 즉 증거평가, 곧 증거가 사실을 뒷받침하는 정도의 판단은 감정에 대해서도 법원이 맡는다. 세부 구분은 작동하는 경우와 막히는 경우와 미확정인 경우로 정한 조건에 한정된다. 작동하는 경우는 법정 감정인의 지위와 기피 여부와 감정진술에 대한 의견제출 기회가 확보된 경우이고, 막히는 경우는 그 의견을 낼 기회가 주어지지 않아 전제와 방법에 대한 응답 통로가 닫힌 경우이며, 미확정인 경우는 감정서 제공과 의견 제출 기회의 경과가 남아 있지 않은 경우다. 이 세 구분을 지키는 이유는 절차 통로가 열렸는지와 법원의 평가가 있었는지를 한꺼번에 묻지 않기 위해서다.
법관이 전문지식을 재평가할 능력이 없다면 독자적 평가는 형식에 그치고, 그 형식적 개입이 오히려 정확한 전문 판단을 흔들 수 있다는 뜻이다. 감정인 지정·기피 신청 경과·감정서·의견제출 안내와 제출 기록은 이런 우려를 따져 볼 자료의 종류다. 반론이 지적한 오류의 위험을 지우지 않은 채, 최종 판단의 귀속은 법원에 남긴다.
이 사실은 전제 자료를 놓고 응답 통로가 실제로 필요한 상황이라는 점을 보여 준다. 만약 의견제출 기회가 열려 있었는지가 확인되면 결론이 달라질 수 있으나 여기서는 확인되지 않으므로 미확정으로 둔다. 실제 사건의 사실·송달·이행 결과와 여기 없는 판결 결과는 정해지지 않았다.
이 절이 허용하는 결론은 명시한 조건에 따른 세부 구분과 그 안의 법원의 독자 판단이다. 허용하지 않는 것은 감정 채택을 법원의 독자 판단 면제로 바꾸는 해석이나, 세 조건 밖의 판정 단계를 새로 세우는 일이다. 감정에 답하고 공정성을 다툴 통로 안에서 다시 나누어 판정할 부분은 여기까지다.
6.11Synthesis of Effectiveness, Blockage, and Undetermination
감정 진술에 답할 통로가 열려 있는지, 막혀 있는지, 아직 판단할 수 없는지에 따라 갈리는 지점이 이번 단계의 문제다. 앞의 분석은 전문가가 내린 결론을 법원이 그대로 받아들이는 것은 아니라고 정리했는데, 이제 그 불수용을 절차상 어떻게 다루는지가 남는다. 이 구별은 전문가 의견의 내용을 평가하기 전에, 당사자가 그 내용에 응답할 수 있었는지를 묻는 절차적 질문과 맞물린다. 그러므로 통로의 상태를 판단하는 일은 채택 여부를 정하는 일과 분리되어야 한다.
이 물음에 대해서는 민사소송법 제202조가 판단의 방향을 가리킨다. “법원은 변론 전체의 취지와 증거조사의 결과를 참작하여 자유로운 심증으로 사회정의와 형평의 이념에 입각하여 논리와 경험의 법칙에 따라 사실주장이 진실한지 아닌지를 판단한다.” (민사소송법 제202조) 이 문언에서 말하는 주체는 법원이고, 행위는 사실주장의 진실 여부에 대한 판단이며, 참작 대상은 변론 전체의 취지와 증거조사의 결과다. 감정은 이 범위 안에 들어오는 증거의 하나이고, 이 조문은 감정의 내용뿐 아니라 감정을 둘러싼 절차가 남긴 기록까지도 판단의 재료가 된다는 절을 남긴다.
이 정의는 감정이 무효한 것이 아니라, 감정이 지지하는 사실의 범위를 가늠하는 작업을 지칭한다. 통로의 개폐는 이 평가 이전에 놓인다. 감정서가 제공되고 감정진술에 대한 의견을 낼 기회가 주어졌다면 그 응답은 증거평가의 재료로 들어오고, 반대로 의견을 낼 기회가 주어지지 않아 전제·방법에 대한 응답 통로가 닫혔다면 그 평가는 밑자료가 빠진 채로 이뤄진다. 이 둘을 섞지 않아야 법원의 판단이 절차적 결함을 끌어안는 일이 생기지 않는다.
가장 강한 반론은 다른 곳을 겨냥한다. 법관이 전문적 지식을 갖추지 못한 상태에서 감정을 재평가하면 오히려 더 큰 오류를 만들 수 있다는 주장이다. 감정인이 오랜 훈련으로 정리한 전제와 방법을 법관이 제대로 이해하지 못하고 뒤집는다면, 그 형식적 평가는 오히려 왜곡의 통로가 될 수 있다. 이 불리함을 지워서는 안 된다. 그러나 감정 채택을 법원의 독자 판단 면제로 바꿀 수는 없다. 의견제출 기회를 확보한 뒤에도 법원은 감정을 변론 전체의 취지와 논리·경험법칙에 비추어 평가할 책임을 그대로 진다. 통로를 열어두는 것은 법관의 능력을 속이는 일이 아니라, 평가의 재료를 완성하는 일이다.
이 사실은 통로가 실질적으로 작동해야 할 필요를 보여준다. 법정 감정인의 지위와 기피 여부가 확정되고, 감정서가 제공되어 양 당사자가 각자의 이해를 밝힐 수 있었다면 통로는 열린 것으로 본다. 반대로 감정진술에 대한 의견을 낼 기회가 주어지지 않은 상태라면 전제에 대한 응답이 기록에 남을 수 없으므로 막힌 것으로 분류한다. 다만 감정서 제공과 의견 제출 기회의 경과가 아직 남아 있는 경우에는 판단을 유보한다. 이 장면만으로 실제 송달이나 이행의 결과를 확정할 수는 없고, 적법한 의견제출 기회와 응답 기록이 확인되면 단순 불채택을 기회 박탈로 분류하지 않는다.
이 절이 허용하는 것은 조건부 구별이다. 법정 감정인의 지위·기피 여부와 감정진술에 대한 의견제출 기회가 확보된 경우 통로는 열리고, 의견을 낼 기회가 주어지지 않아 전제·방법에 대한 응답 통로가 닫힌 경우 통로는 막히며, 감정서 제공과 의견 제출 기회의 경과가 남아 있지 않은 경우 판단은 미확정으로 남는다. 여기서 열림은 곧바로 회수나 이행의 성공을 뜻하지 않고, 감정의 채택 여부나 승패를 미리 약속하지도 않는다. 다만 어떤 단계에서 통로가 닫혔는지를 적어둘 기록, 곧 감정인 지정·기피 신청 경과·감정서·의견제출 안내와 제출 기록이 필요하다.
6.12이 권의 결론과 남는 물음
법원이 전문가 의견에 기대어 심리하는 과정에서 최종 판단까지 그 의견에 귀속되는지가 문제된다. 이 물음은 감정에 답하고 공정성을 다툴 통로가 확보되었는지와 함께 살피는 것에서 한 걸음 더 나아가, 판단의 마지막 주체가 누구인지를 묻는다.
민사소송법 제202조는 “법원은 변론 전체의 취지와 증거조사의 결과를 참작하여 자유로운 심증으로 사회정의와 형평의 이념에 입각하여 논리와 경험의 법칙에 따라 사실주장이 진실한지 아닌지를 판단한다”고 규정한다. 이 문언에서 판단의 주체는 법원이고, 판단의 기준은 변론 전체의 취지와 증거조사의 결과에 대한 참작, 그리고 사회정의·형평·논리와 경험의 법칙이다. 감정인의 의견은 증거조사의 결과 가운데 하나로 자리한다.
조문이 정한 주체가 법원이라는 점이 이 물음에 대한 근거가 된다. 전문가 의견을 받아들이는 일은 증거평가의 한 사례이고, 그 정도를 따져 판단하는 주체는 법원이다. 다만 의견 채택의 형식이 전문가에게 판단을 맡긴 것으로 보일 때에도, 법원이 판단의 귀속 지점을 넘기지는 않았다.
전문가가 밝힌 기술적 근거를 법관이 다시 들여다보며 잘못된 요소를 지목하면, 그 자체로 전문지식이 재투입되지 않은 자리에서 오류가 생길 수 있다는 불안이다. 법원이 전문성을 빌리는 대목과 최종 판단을 맡는 자리를 구별해야 하기 때문이며, 반론이 가리키는 오류 가능성은 그대로 남는다.
이 장면에서 전제 자료에 대한 상반된 이해는 감정인 지정·기피 신청 경과·감정서·의견제출 안내와 제출 기록 가운데 어느 기록을 토대로 응답했는지에 따라 좌우될 수 있다. 그 이해의 차이가 의견제출 기회로 응답될 기록을 남겼다면 그것은 의견의 근거를 다툰 것에 해당하지만, 장면만으로 어느 쪽의 이해가 옳은지, 그리고 그 오류가 최종 판단에 어느 정도 반영되었는지는 확정할 수 없다. 이 점은 미확정으로 남는다.
이 절이 허용하는 결론은 감정의 채택도 법원의 판단 아래 이루어지는 것이며, 그 판단 주체가 법원으로 남는다는 데까지다. 감정에 답하고 공정성을 다툴 통로가 확보되었다면 독자적 판단이 형식에 그쳤다는 반론만으로 판단의 귀속이 바뀌는 것은 아니다. 그러나 액수를 산정하는 과정에서 생긴 불확실성이 손해 발생 자체에까지 영향을 주는지, 전문가 의견의 전제 자료를 다툰 태도가 손해의 증명을 얼마나 충족하는지까지는 이 절이 다루지 않는다.
Statutes referred to
Questions left open
- 방법이 비공개인 감정을 어떤 범위에서 채택할 수 있는가?
- 상충하는 감정의 비용은 누가 부담해야 하는가?
- 법관의 전문지식 부족을 이유 기재가 어디까지 보완할 수 있는가?