Summary
Once liability is recognized, the hearing required by precedent, including the court's active exercise of the power of elucidation and urging of proof regarding the amount of loss, is necessary.
3.1The Standard by Which the Path Opens
If the gap in the amount that can be supplemented is immediately attributed to a failure of the right, harm is left behind. The occurrence of harm to Plaintiff A is recognized, but some transaction records are missing, making it difficult to ascertain the specific amount. In this scene, may the court dismiss the claim outright if the amount is inadequate, or is there a separate standard by which the channel of this relief is opened? The preceding section made clear that the statutory text requires cases in which proof of the specific amount is extremely difficult in light of the nature of the case. What that wording takes as its condition is what must be examined in this question.
The basis corresponding to this question points to the manner of deliberation that the court must perform when liability for damages is recognized. Supreme Court Decision 2018Da301336 decided March 26, 2020 holds that, even where the parties' allegations and proof as to the amount of harm are inadequate, the court must actively exercise its power of elucidation and urge proof, and, where circumstances warrant, must examine and determine the amount of harm ex officio. Here the actor is the court, the conduct is elucidation and the urging of proof, and the condition is that liability for damages is recognized. The elucidation and urging of proof performed by the court consist of demanding the supplementation needed to remedy inadequate proof.
The above wording does not treat inadequacy of the amount as a ground for halting the deliberation. Because that wording prescribes what deliberation the court is to conduct after liability has been recognized, the recognition of liability and the deliberation as to amount must be distinguished. Recognition of liability asks whether liability for damages has been established; deliberation as to amount asks how large the amount of harm under that liability is. On this distinction, where the occurrence of harm is recognized, proof of the specific amount is extremely difficult in light of the nature of the case, and the available indirect facts have been examined, the gateway to assessment of a reasonable amount opens.
The counterargument that the court would excessively fill the gaps in a party's proof is aimed at substantive loss. Opposite to the concern that, if an exact amount is demanded, the party that created the harm may enjoy the benefit of the missing records, there arises an anxiety that, if the court fixes the amount itself, the opposing party may lose the opportunity to defend and bear an unexpected burden. Where the values on both sides collide, the case law answers that deliberation as to amount cannot be omitted merely on the ground that allegations and proof are inadequate. That deliberation is not omitted does not mean that the court stands in for the proof of the exact amount.
Returning to the synthetic scene, the occurrence of harm to Plaintiff A is recognized, but some transaction records are missing, making it difficult to ascertain the specific amount. Since the occurrence of harm is recognized, the foregoing condition, namely the recognition of liability, may be treated as satisfied, and the partial absence of transaction records may constitute a circumstance making proof of the amount difficult. However, whether the available indirect facts were actually examined, what performance, parties, and conditions specified in the claim's statement of relief are, and whether the right underlying the chosen action could be defended against, are not determined by this scene alone. If the recognition of the occurrence of harm is negated, the conclusion of fixing a reasonable amount on the difficulty of the amount alone is suspended.
What this section permits is not omitting deliberation or immediately dismissing the claim on the ground that the amount is inadequate, but the judgment that, after liability is recognized, the channel for dealing with the amount through the court's deliberation, such as elucidation and the urging of proof, is opened. Conversely, what this section does not permit is fixing a reasonable sum on the difficulty of the amount alone, even where the occurrence of harm itself is not recognized. This distinction is maintained so long as the condition required by the wording and the deliberation matching that condition are not severed from one another.
3.2The Conditions That Block Relief
The statutory text requires cases in which proof of the specific amount is extremely difficult in light of the nature of the case. Yet where that requirement is not met, may the court dismiss the claim as soon as it confirms the insufficiency of the amount, or is there a separate condition that blocks the assessment of a reasonable amount? Premised on the circumstance that the occurrence of harm to Plaintiff A is recognized but that, because some transaction records are missing, it is difficult to ascertain the specific amount, this question properly opens only when the result of an inadequate amount and the condition of the absence of deliberation handling that inadequacy are viewed apart from one another. The case law thus prescribes the attitude the court must adopt where liability is recognized. That is the wording: "Where liability for damages is recognized, even where the parties' allegations and proof as to the amount of harm are inadequate, the court must actively exercise its power of elucidation and urge proof." (Supreme Court Decision 2018Da301336 decided March 26, 2020)
In this wording, the actor is the court in cases where liability for damages is recognized, the conduct is the active exercise of the power of elucidation and the urging of proof, and the condition is cases in which the parties' allegations and proof as to the amount of harm are inadequate. Here, the urging of proof means demanding the supplementation needed to remedy inadequate proof. In other words, inadequacy itself is read not as a ground for ending the deliberation but rather as a marker of the situation in which the court must intervene. Since this wording contains no determination on the requirements for the establishment of liability for damages or on other methods of calculating the amount of harm, it cannot be extended to other issues. The scope it addresses is limited to whether the court may dismiss at the point when the amount is inadequate, and what the conditions are that close off the assessment of a reasonable amount.
The point at which this wording and the conclusion of this section meet is as follows. Once liability for damages is recognized, the deliberation required by the case law, such as active elucidation and the urging of proof as to the amount of harm, is necessary; the fact that allegations and proof are insufficient therefore cannot constitute a ground for omitting deliberation. This determination takes definite shape only when the two stages of recognition of the occurrence of harm and proof of the amount are distinguished. If the occurrence of harm is presupposed, the gap in the amount is something to be filled; where the occurrence of harm itself is not recognized and there is no premise for fixing the amount of compensation under the relaxed rules of proof as to amount, the channel for filling that gap is not opened at all. Where the occurrence of harm itself is not recognized and there is no premise for fixing the amount of compensation under the relaxed rules of proof as to amount, if any one of the statutory requirements is not satisfied, the channel of relief is closed. Even without adding any new requirement or exception here, merely clarifying the sequence of the stages changes the point at which dismissal occurs.
The counterargument that this distinction imposes an excessive burden on the court has weight. If the court excessively fills the gaps in a party's proof, the party that was remiss in preparation may reap the gains of the deliberation, while the opposing party may lose the thread of the argument without even securing the materials to respond. In addition, if an exact amount is demanded, it works to the disadvantage that the party that created the harm may enjoy the benefit of the missing records. Even so, this counterargument cannot change the conclusion. For the answer that deliberation as to amount cannot be omitted merely on the ground that allegations and proof are inadequate has already been fixed. What this answer means, however, is not that the court may fabricate an amount without proof, but that, even after confirming inadequacy, an opportunity to supplement through elucidation and the urging of proof must first be provided. The burden identified by the counterargument remains a matter of defining the scope of that procedure.
This fact alone does not negate the occurrence of harm itself; the premise for fixing the amount of compensation under the relaxed rules of proof as to amount is therefore maintained. However, the scene does not determine which transaction records are missing and why that absence makes proof of the specific amount difficult, or what the court demanded through elucidation and what the party supplemented. The record items examined in this section are the evidence of the occurrence of harm, the reasons for the difficulty of proving the amount, the course of elucidation, the indirect facts, and the reasons for assessment. Accordingly, the range within which it remains unallocated which part of the occurrence and the amount is unproven must be left undetermined, and this indeterminacy does not itself mean that no relief is available. If it is confirmed that the recognition of the occurrence of harm is negated, the conclusion of fixing a reasonable amount on the difficulty of the amount alone cannot be reached.
Accordingly, dismissing the claim on the mere fact that the amount is inadequate is not permitted. What is permitted is the path that, where liability for damages is recognized, proof of the specific amount is extremely difficult in light of the nature of the case, and the available indirect facts have been examined, proceeds to calculation through elucidation and the urging of proof. What is not permitted is the attitude of halting the deliberation the moment inadequacy is confirmed, and the attitude of fixing a reasonable sum citing only the difficulty of the amount, when the occurrence of harm itself is not recognized and there is thus no premise for fixing the amount of compensation under the relaxed rules of proof as to amount. This boundary is, apart from the practical results of payment or recovery, a judgment as to whether the legal channel is open. What materials and bases of assessment the reasonable sum is derived from is not addressed here.
3.3The Boundary That Remains When There Is No Data
Where the occurrence of harm itself is not recognized and there is no premise for fixing the amount of compensation under the relaxed rules of proof as to amount, this relief is blocked. Where is the boundary of the state in which adjudication is impossible for want of materials? May the court dismiss outright on the mere ground that the amount is inadequate?
The wording in question prescribes the attitude of deliberation where liability is recognized. Supreme Court Decision 2018Da301336 decided March 26, 2020 made clear that, where liability for damages is recognized, even where the parties' allegations and proof as to the amount of harm are inadequate, the court must actively exercise its power of elucidation and urge proof, and where circumstances warrant must examine and determine the amount of harm ex officio. Here the court is the adjudicative body that deals with the amount of harm, and the exercise of the power of elucidation denotes demanding supplementation of inadequate proof, that is, the urging of proof. The premise is cases where liability is recognized, and the subject matter is the allegations and proof as to the amount of harm.
The deliberation required by this wording becomes clear when one distinguishes the situation in which the amount can be set on a relaxed basis from the situation in which that situation is blocked. Once liability is recognized, the deliberation must not be folded up on account of uncertainty of the amount alone; the court first explores the remaining possibilities of supplementation. Yet if the occurrence of harm itself is negated, there is no premise for dealing with the difficulty of the amount, and that relief stops. These are not the same failure but states in which the point at which the judgment halts differs.
The greatest burden on the parties lies in the court excessively filling the gaps in proof and fabricating on their behalf an amount beyond the scope they must prove. This disadvantage does not disappear. Even so, deliberation as to amount cannot be omitted merely on the ground that allegations and proof are inadequate. So long as liability is recognized, the court must first demand the necessary supplementation, and whether that demand was made remains a separate question of the record.
In the synthetic scene, Plaintiff A has the occurrence of harm recognized but, having lost some transaction records, cannot ascertain the specific amount. In this case, the occurrence stands and only the amount is obscured, which is distinct from the blockage where the premise of relief has vanished. However, what indirect facts remain and within what range the amount can be fixed are not determined by this scene alone.
The state of being unable to adjudicate for want of materials is left undetermined not in the sense that the amount cannot be fixed, but in the sense that it is not allocated which part of the occurrence and the amount is unproven. Conversely, where liability is recognized and only the amount is difficult, the conclusion of omitting the deliberation cannot be reached. Here, indeterminacy does not turn the lack of materials into an absence of relief, and preserves the distinction from cases in which relief is blocked.
3.4The Records Needed for Determination
The preceding section left the adjudication undetermined where the parts of the occurrence and the amount that are unproven are not separated, and distinguished this from cases in which relief is blocked. If that division stands, the remaining question is now what grounds that adjudication rests upon. This question arises concretely in a state like Plaintiff A's case, where the occurrence of harm is recognized but, because some transaction records are missing, it is difficult to ascertain the specific amount. If the door of relief of rights is closed merely because the amount is inadequate, a gap that can be supplemented would lead directly to the neglect of the harm. Therefore, the court must first ask whether it may dismiss outright when the amount is inadequate.
The basis for answering this question is the direction of deliberation stated by the case law. Supreme Court Decision 2018Da301336 decided March 26, 2020 states: "Where liability for damages is recognized, even where the parties' allegations and proof as to the amount of harm are inadequate, the court must actively exercise its power of elucidation and urge proof, and where circumstances warrant must examine and determine the amount of harm ex officio." This wording presupposes cases in which liability for damages is recognized. Under that premise, the court actively exercises its power of elucidation. The power of elucidation is not an authority by which the court fills in the content itself, but the act of demanding the supplementation needed to remedy inadequate proof. Here the urging of proof is so defined. The wording also leaves open the path that may proceed from the urging of proof to ex officio deliberation. This does not mean that a party may be heard only if it has prepared and submitted everything.
Connecting this basis to the conclusion of this section, it becomes clear that this adjudication rests upon the evidence of the occurrence of harm, the reasons for the difficulty of proving the amount, the course of elucidation, the indirect facts, and the reasons for assessment. Two things must be distinguished here. One is the basis requiring deliberation; the other is the record of what that deliberation actually left behind. The former sifts what the court must do; the latter sifts how that performance appeared. The evidence of the occurrence of harm shows that the premise of liability stood; the reasons for the difficulty of proving the amount show why the exact amount could not be ascertained. The course of elucidation and the indirect facts contain how the court continued its urging and what materials it used as stepping stones. The reasons for assessment reveal where the reasonable amount produced in that process came from. Without that record, the conclusion remains undetermined.
The strongest counterargument targets the concern that such a structure would lead the court to excessively fill the gaps in a party's proof. The worry is that the principle of liability may be shaken if the court takes upon itself the proof of the exact amount that should be borne not by the party that caused the harm but by the party that suffered it. Nor can the other side of the counterargument be left out: if an exact amount is demanded, the party that created the harm may conversely enjoy the benefit of the missing records. The result of attributing to the wrongdoer, to his advantage, a gap created because the party holding the materials does not produce them does not accord with fairness. The losses on both sides lie together. What the court must do is not to prove in the party's stead, but to demand the supplementation needed to remedy inadequate proof and to leave the course of that process in the record.
In the synthetic scene, the facts relevant to this question are narrow. Contrasting this fact with the foregoing conditions, since the occurrence of harm is recognized, the premise demanding deliberation as to the amount stood, and the absence of some transaction records falls within the reasons for the difficulty of proving the amount. However, how much of which transaction records are missing, how the elucidation actually proceeded, and what indirect facts were examined are not fixed by the scene. These items remain undetermined.
The boundary between the conclusions this section permits and those it does not is as follows. What is permitted is the judgment that, once liability is recognized, the deliberation required by the case law, such as active elucidation and the urging of proof as to the amount of harm, is necessary. And the judgment requiring as the record upon which that adjudication stands the evidence of the occurrence of harm, the reasons for the difficulty of proving the amount, the course of elucidation, the indirect facts, and the reasons for assessment also stands at the same time. What is not permitted is the disposition of omitting the deliberation and dismissing the claim on the mere ground that the amount is inadequate. Nor is it the conclusion of this section to assert flatly that relief is blocked merely because there are no materials. Leaving the conclusion undetermined because the record is lacking and declaring a failure of the right are separate matters.
3.5Circumstances That Change the Decision
In the preceding section, it was settled that this determination rests on evidence of the occurrence of harm, the reasons for difficulty in proving the amount, the course of elucidation, circumstantial facts, and the reasons for calculation, and that without those records the conclusion remains undetermined. What happens if, even after this determination has been formed, its foundations are shaken? The question of whether the court may dismiss the case outright when the amount is inadequate remains standing here.
The passage of the original text that accompanies an answer to this question is that the court "shall actively exercise the power of elucidation to urge proof, even if the parties' assertions and proof as to the amount of harm are inadequate" (Supreme Court Decision 2018Da301336 decided March 26, 2020). This wording presupposes a case in which liability for damages is recognized, and, under that premise, states that the court must demand the necessary supplementation of insufficient proof—that is, must proceed to urge proof. The subject is the court, the object is proof as to the amount of harm, and the condition is the recognition of liability.
Accordingly, the circumstance that the amount is difficult to ascertain and whether the occurrence of harm itself is recognized must be read separately. In a scene where Plaintiff A's occurrence of harm is recognized but, because some transaction records are missing, it is difficult to ascertain the specific amount, the former is at issue, and the premise of the recognition of liability is already satisfied. Under that premise, the court does not omit the examination of the amount but arrives at a judgment through elucidation and urging of proof.
The counterargument with which this distinction collides most forcefully is the observation that the court will excessively fill the gap of a party's insufficient proof. It also targets the loss that, if an exact amount is demanded, the party that caused the harm may enjoy the benefit of the shortage of records. The inconvenience pointed to by this counterargument is real, and it meets the demand that one be wary of a situation in which the court itself searches out evidence and manufactures an amount. What the original text requires is not the work of manufacturing an amount in the party's stead, but a procedure that asks what more is needed for insufficient proof; and the path that skips that procedure and goes to dismissal runs counter to the conditions of the original text.
What can be confirmed in the synthetic scene is only the fact that Plaintiff A's occurrence of harm is recognized and that some transaction records are missing. Since the preceding condition of the recognition of the occurrence of harm is satisfied, the difficulty as to the amount does not lead to a denial of liability but remains a subject of examination. Conversely, the fact that the recognition of the occurrence of harm itself has been overturned in this scene is not set out. Nor has anything been settled as to the facts or the judgment outcome of an actual case, so no further judgment can be drawn from this scene.
The conclusion this section permits is narrow. If liability is recognized, the examination required by precedent—such as active elucidation as to the amount of harm and urging of proof—is necessary, and dismissing the case with that examination omitted on that ground alone is not permitted. At the same time, in order for a reasonable amount to be determined on the ground of difficulty as to the amount, the premise of the recognition of the occurrence of harm must first stand; if that premise collapses, the same conclusion cannot follow. Nor should one move back and forth between the two premises and change the judgment on the mere ground that assertions and proof are inadequate.
3.6The Strongest Counterargument and the Answer
In the preceding stage, the direction was set that the court cannot dismiss the case outright on the sole ground that the amount is inadequate, but the question that now remains is how far the court must carry that examination. If this gap is left as it is, recognized harm remains without any compensation. What, then, should the court demand of a plaintiff whose proof is insufficient?
As to this question, the relevant original text is Summary of Decision [1] of Supreme Court Decision 2018Da301336 decided March 26, 2020. Its wording declares: "[1] Where liability for damages is recognized, the court shall actively exercise the power of elucidation to urge proof even if the parties' assertions and proof as to the amount of harm are inadequate, and, where necessary, shall examine and determine the amount of harm ex officio" (Supreme Court Decision 2018Da301336 decided March 26, 2020). In this wording the court stands as the subject of the examination of the amount of harm, the object is the parties' assertions and proof as to the amount of harm, and the condition is a case in which liability for damages is recognized. Under that condition the court's acts are the active exercise of the power of elucidation and the urging of proof, and, where necessary, extend even to ex officio examination and determination of the amount of harm.
This wording is joined to a fixed conclusion. If liability is recognized, the examination required by precedent—such as active elucidation as to the amount of harm and urging of proof—is necessary. That requirement arises from separating the antecedent judgment of the recognition of liability for damages and the subsequent judgment of the determination of the amount of harm placed after it. Since liability has already been recognized at the antecedent stage, the gap as to the amount at the subsequent stage is not a denial of the right but remains a state in which the examination has not yet been completed. Therefore, the examination of the amount cannot be omitted on the sole ground that assertions and proof are inadequate. The court's passing over insufficient proof as it stands is an interruption of the examination, not a completion of judgment.
The strongest counterargument, however, targets this very distinction head-on: that the court will excessively fill the gap of a party's insufficient proof. In that requiring an exact amount may allow the party that caused the harm to enjoy the benefit of the shortage of records, the counterargument points to the loss and inconvenience whereby consideration for the plaintiff instead favors the side that neglected proof. The value that one must prevent the counterparty that created the liability from raising the data gap it caused as a shield is also contained in the counterargument. Answering without erasing this unfavorable aspect: a discussion that eases the burden of proving the amount is necessary, but it cannot serve as grounds for skipping the examination itself. The demand to fill the shortage of proof and the demand that the examination not be omitted do not conflict; and if the latter is abandoned on the mere ground of inadequacy, the harm the counterargument identifies is rather cemented.
Comparing the facts set in the synthetic scene with the preceding conditions makes the boundary clear. The occurrence of harm is recognized, so the premise for continuing the examination of the amount remains alive, and the circumstance that, because some transaction records are missing, it is difficult to prove the specific amount remains as a reason for the difficulty of proof. However, the reasons for the judgment and the detailed facts were not taken as the basis to be read, and victory or defeat, recovery, and on-site effects cannot be determined either. From the scene alone it cannot be judged to what extent any circumstantial fact has been examined, or how far calculation is possible. Those parts remain undetermined.
Accordingly, what this section permits is, in a case where liability is recognized, not to conclude the examination on the ground that proof as to the amount is inadequate; and what it does not permit is, on the strength of that inadequacy, to give up the determination of the amount. So long as the court demands supplementation through elucidation and urging of proof, the examination continues; it does not revert to a denial of liability.
3.7The Link to the Application and the Dispositive Part
In the preceding section, it was held that the examination of the amount cannot be omitted on the sole ground that assertions and proof are inadequate. Taking that conclusion as the premise, this time the joining of the stages is asked about. Can the court dismiss the case outright when the amount is inadequate? What should the court's first stance be in this scene?
Summary of Decision [1] of Supreme Court Decision 2018Da301336 decided March 26, 2020, reads as follows. "Where liability for damages is recognized, the court shall actively exercise the power of elucidation to urge proof even if the parties' assertions and proof as to the amount of harm are inadequate, and, where necessary, shall examine and determine the amount of harm ex officio." In this wording the subject is the court, the occasion for its invocation is the recognition of liability for damages, and the object is the assertions and proof as to the amount of harm. Urging proof is the work of demanding the supplementation needed for insufficient proof.
The wording above treats the inadequacy of the amount and the recognition of liability as distinct aspects. If liability is recognized, the court exercises the power of elucidation, urges proof, and, if necessary, examines the amount of harm ex officio. Conversely, the circumstance that only the amount is lacking cannot substitute for judging the existence or nonexistence of liability. Therefore, dismissing the complaint outright on the ground that the amount is inadequate has the result of skipping the stage of examination that must come first.
The strongest counterargument targets this direction. The burden that, if an exact amount is demanded, the party that caused the harm may enjoy the benefit of the shortage of records is also laid upon it. This criticism does not lose sight of the practical inconvenience of the distribution of loss. Even so, the conclusion of the criticism cannot be accepted. That is because the examination of the amount cannot be omitted on the sole ground that assertions and proof are inadequate.
In the synthetic scene only the circumstance that some transaction records are missing is settled. This circumstance points to the difficulty of proving the specific amount, but it does not overturn the recognition of the occurrence of harm itself. Accordingly, the recognition of liability, which is the premise of the examination of the amount, stands as it is, and the court proceeds to the urging of proof as to the amount of harm. However, as the counterargument notes, the scene does not settle which side bears the shortage of which records, or what circumstantial facts are to be used. Such items remain undetermined.
If the complaint is dismissed on the mere fact that the amount is inadequate, the court reverses the order of examination. So long as liability comes first, it must tread first the path of elucidation and urging of proof and, where necessary, determination of the amount of harm ex officio. This is the conclusion this section permits. The actual method of calculating the amount of harm, or the size of the result, is not within this section's remit.
3.8The Scope This Section Undertakes
The preceding section arrived at the conclusion that, if liability is recognized, the examination required by precedent—such as active elucidation as to the amount of harm and urging of proof—is necessary. The reason this conclusion is asked about again now is that counterarguments remain unless it is made clear on what premise that examination opens. In this scene, can the court dismiss the case outright when the amount is inadequate?
Before answering this question, the relevant original text is read. Summary [1] of Supreme Court Decision 2018Da301336 decided March 26, 2020, reads: "Where liability for damages is recognized, the court shall actively exercise the power of elucidation to urge proof even if the parties' assertions and proof as to the amount of harm are inadequate, and, where necessary, shall examine and determine the amount of harm ex officio." There is no word here that brings even cases not covered by the premise within the scope of examination. The author settles the subject this wording addresses as the court that calculates the amount of harm, and the acts as the exercise of the power of elucidation and the urging of proof and, where necessary, examination ex officio.
The demand for supplementation and the completion of calculation are not one and the same stage. The court demands of the party supplementation of insufficient proof; only if, even after that supplementation, the amount remains blocked, is the path of examining and determining the amount opened. This demand and the earlier duty of examination do not oppose each other. The more difficult a matter is to prove, the less remains to be filled in judgment if the examination is omitted, so elucidation and urging must come first.
What the counterargument that the court will excessively fill the gap of a party's insufficient proof targets is the burden of examination and the possibility of misunderstanding as to the calculation of facts. The disadvantage that, if an exact amount is demanded, the party that caused the harm may enjoy the benefit of the shortage of records is also set down together. The author acknowledges the weight of this counterargument yet does not change the answer. This answer does not mean the court is to invent facts that do not exist. The statutory requirement of cases where proof of the specific amount is extremely difficult in light of the nature of the matter already limits the scope of calculation, and within that limit the examination required by precedent remains.
Returning to the synthetic scene, only the facts belonging to this question are drawn out. The occurrence of harm is recognized, and, because some transaction records are missing, it is difficult to ascertain the specific amount. This scene possesses together the premise of a case in which liability is recognized and the condition of a matter in which proof of the amount is difficult. Therefore, the determination of outright dismissal runs counter to the conditions of this scene. However, the scene is not a reproduction of the facts of an actual case, and whether the circumstantial facts to be used have been examined, and whether the course of elucidation has remained on the record, are not made clear here. The determination stands only while the preceding conditions are maintained.
In sum, the conclusion this section permits is that, in a matter where liability is recognized and proof of the amount is extremely difficult in light of the nature of the matter, the court does not omit the examination of the amount on the ground of inadequate assertions and proof but conducts the examination of elucidation, urging of proof, and the like. The conclusion it does not permit is to deny liability for damages itself on the sole circumstance that the amount could not be ascertained, or that the examination may be skipped and the case dismissed on the sole ground of insufficient proof. The next question clarifies how that wording supports this conclusion. How does the wording of Supreme Court Decision 2018Da301336 decided March 26, 2020, support this conclusion?
3.9Application of the Text of the Provisions and the Holdings of Precedents
In this scene, where Plaintiff A's occurrence of harm is recognized but, because some transaction records are missing, it is difficult to ascertain the specific amount, the question remains whether the court may dismiss the case outright when the amount is inadequate. This question concerns not the formation of liability but the scope of the examination for determining the amount of harm. Respecting the conclusion of the previous stage of analysis, what is addressed now is the court's stance in fixing the amount and the boundary that stance leaves.
Summary of Decision [1] of Supreme Court Decision 2018Da301336 decided March 26, 2020, states: "Where liability for damages is recognized, the court shall actively exercise the power of elucidation to urge proof even if the parties' assertions and proof as to the amount of harm are inadequate, and, where necessary, shall examine and determine the amount of harm ex officio" (Supreme Court Decision 2018Da301336 decided March 26, 2020). The subject of this wording is the court, and the point of application is a case in which liability for damages is recognized. The acts spoken of here divide into two. One is urging proof, which demands the supplementation needed for insufficient proof; the other is the work of examining and determining the amount of harm ex officio on the basis of that result. This wording belongs to the Summary of Decision; it is not extended to the Reasons for the Judgment and is read only within this scope.
When applying this wording to the judicial calculation of the amount of harm where proof is difficult, one must distinguish the stage of elucidation and urging from the stage of ex officio examination and determination. The former is a procedure that gives an opportunity to supplement omitted proof; the latter is a judgment in which the court takes the uncertainty remaining thereafter as its basis and fixes the amount. Since, as stated above, the statute requires cases where proof of the specific amount is extremely difficult in light of the nature of the matter, the urging and examination in this wording meet that requirement. That is, the examination cannot be skipped on the mere circumstance that the amount is inadequate, and so long as liability is recognized, active elucidation and urging of proof are required first. This judgment fixes the order of examination that the wording in question indicates; it does not add new requirements or exceptions.
The counterargument this wording targets most strongly is that the court will excessively fill the gap of a party's insufficient proof. The concern that, if an exact amount is demanded, the party that caused the harm may enjoy the benefit of the shortage of records points to the loss and inconvenience whereby an excessive burden may fall upon the person who has reason to fill in the amount. Even so, this counterargument cannot change the settled conclusion. That is because the core of the counterargument is not that an exact amount must always be demanded, but that the examination of the amount cannot be omitted on the sole ground that assertions and proof are inadequate. If the amount remains insufficient even after the court has gone through the urging and examination demanded above, it need only leave that circumstance on the record; omitting the examination itself on the basis of insufficient proof alone is not permitted by the wording.
The facts that can be confirmed in the synthetic scene are that Plaintiff A's occurrence of harm is recognized and that, because some transaction records are missing, it is difficult to ascertain the specific amount. Contrasting this fact with the conditions of the wording, it falls under a case in which liability for damages is recognized, so the court is placed at the stage of first urging the insufficient proof as to the amount and then determining the amount through the remaining examination. However, the scene has only designated part of the transaction records and has not made clear what circumstantial facts are to be used or how the elucidation actually proceeded. If the occurrence of harm itself is denied, the conclusion of determining a reasonable amount on the difficulty as to the amount alone comes to a halt. The judgment outcome or the performance of an actual case cannot be settled from this scene either, and so remains undetermined.
The conclusion this section permits is that, if liability is recognized, the examination is not omitted on the ground of insufficiency of the amount and that, after elucidation and urging of proof, the amount of harm may be examined and determined ex officio. By contrast, it does not permit the conclusion of fixing the amount of compensation on the sole ground of difficulty as to the amount while the occurrence of harm is denied. The wording in question only fixes the scope within which examination is required; it cannot be broadened into other judgments.
3.10Fine Distinctions Within the Stage
If, in a case where liability is recognized, the court demands an exact calculation of the amount of damages and then dismisses the claim outright merely because the materials are insufficient, the loss that actually occurred will remain without any compensation. The preceding section concluded that, once liability is recognized, the deliberation required by precedent—such as active elucidation as to the amount of damages and the urging of proof—is necessary, and its basis is the language of Supreme Court Decision 2018Da301336, decided March 26, 2020. One of the forms of deliberation this language requires is precisely the urging of proof, and this section examines what that urging exactly means.
Summary of Decision [1] of Supreme Court Decision 2018Da301336, decided March 26, 2020, declares that "where liability for damages is recognized, the court shall actively exercise its power of elucidation to urge proof even if the parties' allegations and proof as to the amount of damages are inadequate." The actor addressed by this language is the court; its act is the active exercise of the power of elucidation; and the condition is that liability for damages is recognized. The object is the parties' allegations and proof as to the amount of damages, and the feature lies in that the urging does not cease even if those allegations and proof are inadequate. That is, the court does not occupy a passive position of waiting, but an active position of identifying what is lacking and demanding supplementation.
This language defines the urging of proof as the act of demanding the supplementation needed for inadequate proof, and this is distinct from the court's producing the amount of damages on its own. The urging is first a procedural act of requiring the party to present the materials and explanations that fill the gaps, and only when gaps remain even after such supplementation can ex officio deliberation be considered. The reason for separating the two stages is simple: the earlier stage is the work of securing the party's opportunity to defend, and the later stage is the work of the court filling the gaps that remain thereafter. The conclusion that, once liability is recognized, the deliberation required by precedent—such as active elucidation as to the amount of damages and the urging of proof—is necessary means precisely that this preceding stage will not be skipped.
Counterarguments aim at the concern that the court will excessively fill the party's lack of proof. The apprehension that, if an exact amount is demanded, the party that caused the loss may enjoy the benefit of insufficient records runs in the same direction. In cases where it is difficult to establish the amount to the end with only the materials held by the victim, the court's stepping forward to gather and estimate materials may appear to take one side. Yet this concern cannot change the meaning of the urging of proof. The deliberation on the amount cannot be omitted merely because the allegations and proof are inadequate; instead, the court must first identify what gaps remain and demand supplementation, and only then proceed to the next determination.
In this scene, liability has already been recognized; the court therefore should not dismiss the claim immediately on the ground of gaps in the transaction materials, but should stand in the position of demanding supplementation of the amount of damages. The content of this urging is the work of distinguishing the evidence of the occurrence of loss, the reasons for the difficulty of proving the amount, the course of elucidation, indirect facts, and the reasons for calculation, and demanding supplementation. However, from this scene alone neither the specific size of the gaps nor the range of materials capable of supplementation has been determined, and that part remains undetermined.
The conclusion this section permits is narrow. The urging of proof is the act of demanding the supplementation needed for inadequate proof, and the determination that, once liability is recognized, the deliberation required by precedent—such as active elucidation as to the amount of damages and the urging of proof—is necessary holds only within this definition. This determination means neither that the court may fix the amount arbitrarily, nor that the gaps are automatically filled to the victim's advantage. How the calculation after the urging operates, and in what cases it stops, has not yet been addressed. In the judicial calculation of damages that are difficult to prove as to amount, how are operation, blockage, and undetermined matters distinguished?
3.11Synthesis of Effectiveness, Blockage, and Undetermination
That sentence confirmed that the statutory text requires a case in which proving the specific amount is extremely difficult in light of the nature of the matter. Now the cases must be distinguished where that requirement opens a path for actual operation, where it is closed from the outset, and where it has not yet been decided which of the two applies. To answer this question, it must first be made clear that the recognition of the occurrence of loss and the determination of the amount are distinct stages of determination.
The Summary of Decision provides the language that serves as the starting point for this distinction. Supreme Court Decision 2018Da301336, decided March 26, 2020, stated: "[1] Where liability for damages is recognized, the court shall actively exercise its power of elucidation to urge proof even if the parties' allegations and proof as to the amount of damages are inadequate, and, as the case may be, shall deliberate and determine the amount of damages ex officio." This language first posits the premise that liability for damages is recognized. It then requires the actor, the court, to exercise its power of elucidation and to urge proof, and further, where necessary, to deliberate and determine the amount of damages ex officio.
Connecting this language with the foregoing condition reveals what procedure opens after liability has been recognized. Where the occurrence of loss is recognized but some transaction materials are missing so that establishing the specific amount is difficult, and where the indirect facts to be used have been deliberated, the path for determining the amount is preserved. Conversely, where the occurrence of loss itself is not recognized, so that the premise for setting the amount of compensation under the relaxed proof rule for the amount is absent, that path is blocked. Where the parts of the occurrence and the amount that remain unproven are not separated, it cannot yet be determined which side applies. The reason the recognition of liability and the deliberation of the amount must be regarded as separate is that, if the difficulty as to the amount alone erases even the recognition of the occurrence of loss, the room for the urging of proof and ex officio deliberation prescribed by the text disappears along with it.
This distinction, however, does not silence the counterargument that the court will excessively fill the party's lack of proof. The counterargument points to two losses. One is the risk that the court appears to gather materials itself and produce the amount of damages, thereby losing the neutrality of deliberation; the other is that, if an exact amount is demanded, the party that caused the loss may enjoy the benefit of insufficient records. The answer given earlier is that the deliberation on the amount cannot be omitted merely because the allegations and proof are inadequate. This answer does not erase the disadvantage the counterargument identifies. It only makes clear that the duty of the urging of proof and ex officio deliberation required by the text does not disappear merely because the party itself has failed to fill in the amount.
Contrasting this condition with this scene sharpens the boundary. The circumstance that the occurrence of loss is recognized but some transaction materials are missing so that establishing the specific amount is difficult is a state in which the recognition of occurrence and the difficulty as to the amount are separated. In this state, whether the indirect facts to be used have been deliberated, and what course the elucidation and the urging of proof have taken, must be confirmed on the records. Accordingly, from this scene alone it cannot be determined whether the calculation of the amount has actually been completed. If the recognition of the occurrence of loss is confirmed to have been denied, the conclusion that an appropriate amount is set merely from the difficulty as to the amount comes to a halt.
Accordingly, the conclusion this section permits goes no further than that, where liability is recognized and the circumstances of difficulty as to the amount are separated, deliberation such as elucidation and the urging of proof is required. The conclusions it does not permit are that the recognition of liability is overturned merely because the amount could not be established, or, conversely, that the amount of compensation is deemed set immediately merely from the difficulty as to the amount. Where the unproven parts of occurrence and amount are not separated, the matter must be left undetermined.
3.12Conclusion Carried Over to the Next Section
The question is what deliberation the statutory text leaves open. If dismissal is not permitted, what items must be left behind and carried forward?
Here the actor is the court, the object is the allegations and proof as to the amount of damages, and the condition is that liability for damages is recognized. The acts required by the text are the active exercise of the power of elucidation and the urging of proof, and, as the case may be, extending to the deliberation and determination of the amount of damages ex officio. Since this text addresses inadequacy as to the amount alone, it leaves aside the question of the recognition of the occurrence of loss itself.
The link connecting this text with the conclusion stated earlier is the order of deliberation. The court first demands the supplementation needed for inadequate proof, and, if the amount still cannot be determined, it may go as far as deliberating and determining the amount of damages ex officio. The reason this urging must be distinguished from ex officio deliberation is that the former is a procedure that opens the remaining opportunity for the party to adduce proof, whereas the latter is a determination by which the court fixes the amount after that opportunity has been exhausted. If the two stages are merged into one, room arises to skip the deliberation on the ground that the allegations and proof are inadequate.
The strongest counterargument targets the point that the court will excessively fill the party's lack of proof. It also harbors the concern that, if an exact amount is demanded, the party that caused the loss may enjoy the benefit of insufficient records. This disadvantage is not erased, and the confirmed conclusion stands upon it. In a case where liability for damages is recognized, the court's taking upon itself the burden of demanding proof and conducting deliberation is the price of not attributing the gap in the amount directly to a failure of the right. What the court undertakes is not to adduce proof in the party's stead, but to keep unclosed for the time being the window through which the amount may be ascertained.
The facts confirmed in the synthetic scene are only the recognition of the occurrence of loss, the loss of some transaction materials, and the difficulty of proving the specific amount. Weighing these facts against the foregoing condition, since the occurrence of loss is recognized, the premise for prescribing the relaxed proof of the amount is in place. However, whether the indirect facts to be used have been deliberated, how the elucidation actually proceeded, and whether the reasons for calculation were left in the record are not fixed by the scene. Accordingly, which items among the evidence of the occurrence of loss, the reasons for the difficulty of proving the amount, the course of elucidation, the indirect facts, and the reasons for calculation appear in the record remains undetermined.
The conclusion this section permits is narrow. Only in cases where liability for damages is recognized must the court first fill in deliberation such as elucidation and the urging of proof, even if the allegations and proof as to the amount of damages are inadequate. What it does not permit is immediate dismissal on the ground of inadequacy as to the amount alone, and the creation of a new sum outside the established range. Undetermined items are to be left as they are, but that gap cannot serve as grounds for omitting the deliberation. Whence does the appropriate amount arise?