Summary
The requirements for dismissing means of attack or defense whose purport is unclear and the requirements for dismissal for untimeliness are applied separately.
4.1The Standard by Which the Path Opens
Only by distinguishing what came late from what is unclear does the way to remedy become visible. As noted above, preparatory proceedings proceed with the exchange of briefs and applications for evidence within a set period. When, near the close of such procedure, a party produces the remaining material, the opposing party views it as intentional delay and signals its refusal to accept it. In the synthetic scene, Defendant B produces new material as oral argument is drawing to a close, and Plaintiff A contests it as intentional delay; what is asked here is whether what came late and what went unexplained receive the same treatment. Along with this, one must consider what the standard is for opening the channel of this remedy, for only after that standard is fixed first does the way open to deal with that material in oral argument.
The wording that can answer this question comes from Article 149 of the Civil Procedure Act. Article 149, paragraph (1) provides: "(1) Where a party, in violation of the provisions of Article 146, belatedly submits a means of attack or defense through intent or gross negligence, thereby delaying the completion of the lawsuit, the court may, ex officio or upon the application of the opposing party, dismiss it without prejudice by decision." What this wording designates is a case in which a party who violated the standard set forth in Article 146 belatedly submits a means of attack or defense through intent or gross negligence, with the result that the completion of the lawsuit is recognized to have been delayed, and the ground for dismissal on procedural grounds is that the court may, ex officio or upon the application of the opposing party, dismiss it by decision. Here, a ground for dismissal on procedural grounds means, as stated above, the condition that justifies the relevant exclusion in procedure, and it carries a proviso different from the treatment of an unclear import provided in Article 149, paragraph (2).
Article 149, paragraph (2) provides: "(2) Where the import of a means of attack or defense submitted by a party is unclear, and the party fails to give a necessary explanation or fails to appear on the date set for explanation, the court may, ex officio or upon the application of the opposing party, dismiss it without prejudice by DECISION." Placing the two paragraphs of the same Article side by side, one sees that there are two paths leading to dismissal on procedural grounds: the dismissal on procedural grounds for untimely submission opens only when the violation of Article 146 and intent or gross negligence, together with the delay in the completion of the lawsuit, are all recognized, whereas the dismissal on procedural grounds of a means of attack or defense whose import is unclear opens separately where the import of the assertion submitted is not clear and that unclarity has not been resolved through an explanation or an appearance on the date set for explanation. Thus the entrance to this remedy opens, and this presupposes together those cases in which, on examining the timing of submission and the delay effect, the requirements for dismissal on procedural grounds for untimely submission are not met, or the method is lawfully accepted.
One must respond to voices seeking to simplify this distinction. The contention is that since both delay the trial, the same sanction is simpler, and the argument follows that if the material is important it should be accepted regardless of timing so as to prevent an erroneous judgment. A late submission creates new matters to be examined beyond the time limit set in the preparatory proceedings, and an unclear import makes it impossible to gauge what that material says, so in the effect of delaying the trial there is a point of resemblance. Yet even if that inconvenience is the same, the grounds for dismissal on procedural grounds are not the same. The ground for dismissal on procedural grounds for untimely submission requires both the culpability of intent or gross negligence and the effect of delay in completion, whereas the ground for dismissal on procedural grounds for unclarity rests on the fact that the necessary explanation was not given or that there was no appearance on the date set for explanation. Accordingly, the answer holds that unclarity cannot be substituted for the intent or gross negligence of untimeliness, and the step of examining the timing of submission and the delay effect is not omitted merely because the value of the important material is high.
Among the facts appearing in the synthetic scene, what bears on this question is only the time at which the material appeared and the dispute over its submission. Defendant B produces new material as oral argument draws to a close, and Plaintiff A contests it as intentional delay, but from this scene alone it is not determined whether the late submission violated the standard of Article 146, and whether, for that reason, the completion of the lawsuit is recognized to have been delayed. Such a determination must be supported by records containing the submission record, the preparatory order, the reason for the delay, the anticipated hearing burden, and the reasons for dismissal on procedural grounds; because those records are not carried in this scene, those items remain undetermined. If what remains is mere tardiness, and intent or gross negligence, or the delay in completion, is denied, the conclusion of dismissal on procedural grounds for untimely submission must be reexamined, and this change of condition is not a newly arisen fact in an actual case but merely an assumption that alters one of the conditions of the determination.
The conclusion permitted by this section is as follows. By applying separately the requirements for dismissal on procedural grounds of a means of attack or defense whose import is unclear and the requirements for dismissal on procedural grounds for untimely submission, where—on examining the timing of submission and the delay effect—the requirements for dismissal on procedural grounds for untimely submission are not met, or the method is lawfully accepted, and where the performance, parties, and conditions required are specified in the claim's statement and the right can be defended through the selected action, the entrance to this remedy opens. Together with this, the conclusion this section does not permit is that of binding delayed submissions and unclear imports into one and treating them under the same ground for dismissal on procedural grounds, and an interpretation that, relying solely on delay, substitutes unclarity for the intent or gross negligence of untimeliness also belongs here. Whether the actual material is adopted and performance is paid cannot be determined in this section, and the insufficiency of the material is merely a state of being undetermined, not a conclusion that no remedy is available.
4.2The Conditions That Block Relief
Against this preparation, Defendant B produces new material as oral argument draws to a close, and Plaintiff A contests it as intentional delay: are a late assertion and an unexplained assertion the same?
The provision corresponding to this question is Article 149 of the Civil Procedure Act. Within the same provision, Article 149, paragraph (1) provides: "Where a party, in violation of the provisions of Article 146, belatedly submits a means of attack or defense through intent or gross negligence, thereby delaying the completion of the lawsuit, the court may, ex officio or upon the application of the opposing party, dismiss it without prejudice by decision." The subject designated by this paragraph is the party who violated the provisions of Article 146; the act is the late submission of a means of attack or defense; and the condition is the delay in the completion of the lawsuit caused by intent or gross negligence.
Paragraph (2) of the same provision provides: "Where the import of a means of attack or defense submitted by a party is unclear, and the party fails to give a necessary explanation or fails to appear on the date set for explanation, the court may, ex officio or upon the application of the opposing party, dismiss it without prejudice by DECISION." Here the ground for dismissal on procedural grounds means the condition that justifies the relevant exclusion in procedure. That is, paragraph (1) takes the timing of submission and its delay effect as its condition, whereas paragraph (2), in a case where the import of the means of attack or defense submitted is unclear, takes the absence of an explanation or an appearance as its condition; accordingly, the grounds for dismissal on procedural grounds of the two paragraphs are adjudicated separately as different sets of conditions. This distinction is the author's application and evaluation, confirming only that paragraph (1) takes violation of the provisions of Article 146 as the starting point of its wording.
The strongest counterargument is the contention that since both delay the trial, the same sanction is simpler. On that view, if the material is important it should be accepted regardless of timing so as to prevent an erroneous judgment, and to refuse it leaves the loss of missing the substantive truth together with the inconvenience of the party bound up in the lawsuit's delay. Yet no matter how important that thread of proof may be, unclarity cannot be substituted for the intent or gross negligence of untimeliness. If unclarity itself is transposed into the intent or gross negligence of a late submission, the absence of explanation or appearance required by paragraph (2) disappears and only the conditions of paragraph (1) remain; thus the task of reducing the risk of judgment error noted by the counterargument and the task of aligning the grounds for dismissal on procedural grounds remain distinct questions.
In this scene there remain the submission record of the material produced by Defendant B, the preparatory order set by the court, the reason for the delay, the anticipated hearing burden of that material, and the reasons for dismissal on procedural grounds. Placing these facts under the conditions of paragraph (1), Plaintiff A's contention of intentional delay is an attack made to support intent or gross negligence, but it has not been confirmed on the records that the submission of the material delays the completion of the lawsuit. So long as the cause of the delay or the delay effect of a further hearing cannot be known, the ground for dismissal on procedural grounds of this paragraph remains undetermined, and if mere tardiness remains and intent or gross negligence, or the delay in completion, is denied, the conclusion of dismissal on procedural grounds for untimely submission is reexamined.
The channel of this remedy opens where, on examining the timing of submission and the delay effect, the requirements for dismissal on procedural grounds for untimely submission are not met or the method in question is lawfully accepted, but it closes where the statutory condition is recognized—that the completion of the lawsuit is delayed by a late submission through intent or gross negligence—and the means of attack or defense in question is dismissed without prejudice. Accordingly, in the adjudication of this section it is not permitted to convert lateness itself into unclarity in reading, nor conversely to treat unclarity as evidence of lateness. At the same time, material is not dismissed without prejudice immediately merely because it is late, nor does an unclear import alone make out a dismissal on procedural grounds for untimely submission.
4.3The Boundary That Remains When There Is No Data
Within the frame in which this preceding step is placed, Defendant B produces new material as oral argument draws to a close, and Plaintiff A contests it as intentional delay. In this scene, are a late assertion and an unexplained assertion the same? This question asks after the boundary that, where the cause of the delay or the delay effect of a further hearing cannot be known, leaves a matter on which the materials of adjudication are not specified in a state of being undetermined, distinguished from impossibility. If so, the distinction between what came late and what is unclear is the starting point of this boundary.
The wording corresponding to this question is divided into two paragraphs in Article 149 of the Civil Procedure Act. Paragraph (1) of the same Article provides: "(1) Where a party, in violation of the provisions of Article 146, late submits a means of attack or defense through intent or gross negligence, thereby delaying the completion of the lawsuit, and this is recognized, the court may, ex officio or upon the application of the opposing party, dismiss it by DECISION." (Civil Procedure Act, Article 149) The subject designated by this wording is the party who violated the provisions of Article 146; the act is the late submission of a means of attack or defense; and as requirements, intent or gross negligence and the recognition of a delay in the completion of the lawsuit stand together. Paragraph (2) of the same Article provides: "(2) Where the import of a means of attack or defense submitted by a party is unclear, and the party fails to give a necessary explanation or fails to appear on the date set for explanation, the court may, ex officio or upon the application of the opposing party, dismiss it by DECISION." (Civil Procedure Act, Article 149) Here the unclarity of the import and the failure to give an explanation or to appear on the date set for explanation take their places as requirements.
Placing these two wordings together, one sees that the ground for dismissal on procedural grounds—that is, the condition that justifies the relevant exclusion in procedure—is composed in each paragraph of different requirements. Paragraph (1) takes dereliction in point of time as its material, yet requires the culpability of intent or gross negligence and the effect of a delay in the completion of the lawsuit. Paragraph (2) takes not a temporal tardiness but a qualitative defect, the unclarity of the import of the means of attack or defense submitted itself, as its material, yet requires the act that the party failed to give the necessary explanation or did not appear on the date set for explanation. Accordingly, the requirements for the dismissal on procedural grounds of a means of attack or defense whose import is unclear and the requirements for dismissal on procedural grounds for untimely submission are applied separately. This distinction is the task of specifying what defect the materials of adjudication bear, and it stands at a different stage from reaching a conclusion of impossibility with respect to a matter that has not been so specified.
The strongest counterargument is aimed at the point that since both delay the trial, the same sanction is simpler. If a delay actually occurs, whether it be the delay of late-arriving material or the stagnation of the hearing caused by an unexplained assertion, the trial pays a loss of the same magnitude. The counterargument appeals to this uniformity of loss, and even draws in the value that if the material is important it should be accepted regardless of timing so as to prevent an erroneous judgment. Yet this counterargument looks only at the result of the delay and blurs the composition of the requirements. The answer given above is that unclarity cannot be substituted for the intent or gross negligence of untimeliness. That is, the convenience of the same sanction cannot dismantle the combination of the requirements, and the importance of the material emphasized by the counterargument does not replace the judgment of the culpability and the delay in completion required by paragraph (1).
In the synthetic scene, Defendant B produces new material as oral argument draws to a close, and Plaintiff A contests it as intentional delay. What is set in this scene is only the time of the material's submission and the dispute over the delay; the year, amount, and commencement date are not fixed. Contrasted with the foregoing conditions, no material concerning the cause of the delay and the delay effect of a further hearing is given within the scene. Therefore, whether the delayed material also bears the quality of an unexplained assertion, or bears only a temporal tardiness, cannot be determined from this scene alone. What must serve as the records of adjudication are the kinds of the submission record, preparatory order, reason for delay, anticipated hearing burden, and reasons for dismissal on procedural grounds, and matters that cannot be determined for want of material are left undetermined rather than disposed of as impossibility.
Where the cause of the delay or the delay effect of a further hearing cannot be known, leaving a matter on which the materials of adjudication are not specified in a state of being undetermined, distinguished from impossibility, is the conclusion permitted by this section. This conclusion neither reaches a conclusion as to the existence of the delay nor confirms the establishment of a ground for dismissal on procedural grounds; it goes no further than marking a boundary so that an unspecified requirement is not carried to the terminal disposition of impossibility. If mere tardiness remains and intent or gross negligence, or the delay in completion, is denied, the conclusion of dismissal on procedural grounds for untimely submission is reexamined.
4.4The Records Needed for Determination
In this scene, the court must treat the fact that the material came in late and the question of what the import of that material is as separate inquiries. Through the preceding section, preparatory proceedings rested on the premise that a period is set for the exchange of written pleadings and applications for evidence. Under that premise, whether a late assertion and an unexplained assertion are subject to the same sanction, and what records are needed to judge that distinction, become the questions of this stage.
Among these provisions, the conditions for dismissal on procedural grounds for late submission are first set out as follows. Article 149 (1) of the Civil Procedure Act refers to the case where a means of attack or defense is submitted belatedly in violation of Article 146, through intent or gross negligence, thereby delaying the conclusion of the lawsuit. The party designated by this wording is the party who submitted the means of attack or defense, the act is the belated submission in violation of Article 146, and the conditions are the finding of intent or gross negligence together with the delay in conclusion. The dismissal on procedural grounds for lack of clarity under paragraph (2) of the same Article presupposes a separate party and act. Its wording refers to the case where, as to a means of attack or defense whose import is not clear, a party fails to make the necessary explanation or fails to appear on the date set for explanation, and here intent or negligence as to delay is not required by the wording.
Placing these two wordings side by side reveals that the conditions set out in the preceding paragraph do not overlap. The ground for dismissal under paragraph (1) is constituted only when the two requirements of timing and attitude are both met, whereas the ground for dismissal under paragraph (2) is constituted by the different requirement of the absence of explanation. Here, a ground for dismissal means the condition that justifies exclusion in the relevant procedure. The reason the two must be distinguished is therefore that the composition of their requirements differs, and if the requirements of one are drawn over and substituted for the other, the scope fixed by each wording is exceeded. The author's assessment is to divide the stages and judge in the direction of preserving this distinction, and the wording of the provision itself becomes the basis for that judgment.
The counterargument that the same sanction is simpler because both delay the trial is aimed at practical loss and inconvenience. The counterargument stresses that, if the material is important, it should be received regardless of timing so that an erroneous judgment may be prevented, and that only when the person who filed material late and the person who neglected the explanation are distinguished will it be seen that the result of delaying the trial is the same. The conclusion is maintained without erasing the value indicated by this counterargument, namely, that the substance must be approached through the hearing. Even so, lack of clarity cannot be replaced by the intent or gross negligence of late submission. If the requirement of the absence of explanation set out in paragraph (2) is moved over to the intent-or-gross-negligence requirement of paragraph (1), an attitude not required by that wording is newly demanded or a demanded attitude is omitted, so the distinction drawn by the wording cannot be preserved.
In the synthetic scene, the facts relevant to this question are only the timing of Defendant B's submission of material and Plaintiff A's assertion of delay. Confronting these facts with the foregoing conditions, it must first be confirmed how the record stands as to intent or gross negligence and delay in conclusion, among the requirements of paragraph (1). Only the materials designated as the record of submission, the preparatory order, the reason for delay, the anticipated burden of hearing, and the reason for dismissal serve as the basis for this judgment. The scene says only that the material came out late, and since it tells neither the cause of the delay nor the delay effect of additional hearing, whether the requirements for dismissal on procedural grounds for late submission are met cannot be determined on this scene alone. In the same way, whether there is an absence of explanation under paragraph (2) can be determined only if there are records as to what the import of the material is and whether the necessary explanation was demanded, and on the present records alone that fact remains undetermined.
The conclusion this section permits is that the requirements of the two grounds for dismissal are separated and determined on the record, and it does not permit substituting the requirements of one for the other or filling in facts absent from the record by assumption. If the designated record materials are insufficient, the determination is merely suspended, and that state is not immediately converted into an absence of remedy. What is needed to judge dismissal for late submission is a record as to the timing of submission and the delay effect, and what is needed to judge dismissal for lack of clarity is a record as to the import and the demand for explanation. Which ground for dismissal is at issue varies according to what remains in the record, and if a missing record is filled in by assumption, the judgment falls outside the requirements fixed by the wording. A late assertion and an unexplained assertion cannot be treated as the same, because of that distinction in requirements.
4.5Circumstances That Change the Decision
In the scene where, within this procedure, Defendant B presents new material as oral argument is drawing to a close and Plaintiff A disputes it as intentional delay, it asks whether a late assertion and an unexplained assertion receive the same treatment. Although both assertions may slow the flow of the trial, it must first be distinguished that a late assertion is a matter of the point of submission whereas an unexplained assertion is a matter of the clarity of what was submitted, and only then does it become clear under what conditions each is excluded. This section examines how that distinction issues in a change of the stage-by-stage determination.
Article 149 (1) of the Civil Procedure Act provides: "(1) Where a party, in violation of Article 146, submits a means of attack or defense belatedly through intent or gross negligence, and the court finds that this delays the conclusion of the lawsuit, the court may, ex officio or upon application of the opposing party, dismiss it by decision." This wording fixes as its respective elements the party who violated Article 146 as the subject, the belated submission of a means of attack or defense as the act, and intent or gross negligence together with the delay in the conclusion of the lawsuit as the conditions. Here, a means of attack or defense refers to the means put forward in the lawsuit to support one's own contention or to defend against the opposing party's contention, and dismissal for late submission is the means by which the court excludes, by decision, such specified delayed submissions.
Paragraph (2) of the same Article, "(2) Where the import of a means of attack or defense submitted by a party is not clear, and the party fails to make the necessary explanation or fails to appear on the date set for explanation, the court may, ex officio or upon application of the opposing party, dismiss it by decision," sets out different grounds for dismissal. Grounds for dismissal mean the conditions that justify exclusion in the relevant procedure: paragraph (1) takes the timing of submission and the delay, and paragraph (2) takes the unclarity of the import submitted and the absence of explanation, as their respective conditions. If the two provisions are combined into one condition, the result is that an unclear assertion without delay is excluded for late submission, or a clear assertion without delay is excluded for absence of explanation; only by applying the requirements separately at the stage of determination is the conclusion of this section maintained.
The strongest counterargument is that the same sanction is simpler because both delay the trial. If it is stressed that, where the material is important, it should be received regardless of timing so that an erroneous judgment may be prevented, the rule restricting late submission itself looks like an obstacle standing in the way of substantive justice, and that disadvantage is felt as the grave loss of an incorrect outcome of the trial. Yet the delay of the trial and the legitimacy of the material aimed at by the counterargument cannot replace the subjective requirement of intent or gross negligence required by paragraph (1) and the result requirement of delay in conclusion. Accordingly, lack of clarity cannot be substituted for the intent or gross negligence of late submission, and the need to receive material pointed out by the counterargument cannot serve as a ground for widening the scope of application of the requirements for dismissal for late submission.
In the synthetic scene, Defendant B presents new material as oral argument is drawing to a close and Plaintiff A disputes it as intentional delay, but on this fact alone the record of submission, the preparatory order, the reason for delay, the anticipated burden of hearing, and the reason for dismissal are not all established, so neither the cause of the delay nor the delay effect of additional hearing can be known. Confronting this scene with the conditions of paragraph (1), if intent or gross negligence and delay in conclusion are confirmed and the relevant means of attack or defense is dismissed, the dismissal for late submission stands; but if only simple tardiness remains and intent, gross negligence, or delay in conclusion is negated, the conclusion of dismissal for late submission is judged anew. Where lack of clarity is at issue, the requirement of absence of explanation under paragraph (2) must be examined separately, and on the scene alone it cannot be determined which dismissal is justified.
The conclusion this section permits is that the grounds for dismissal of a late assertion and of an unexplained assertion are applied separately, and that, once the designated change is confirmed, the existing blocking and effectiveness determinations are discarded and the determination redone from the stage. The conclusions not permitted are treating lack of clarity as the intent or gross negligence of late submission and disposing of the two as a single ground for dismissal, and arbitrarily filling in an undetermined cause of delay or burden of hearing so as to establish the dismissal for late submission. The redetermination in the case where only simple tardiness remains is merely a procedural judgment revisiting the requirements for dismissal for late submission, and it does not mean that actual payment, delivery, or recovery is thereby altered.
4.6The Strongest Counterargument and the Answer
This question does not simply repeat the treatment of late submission addressed above, but asks whether, merely because the result of delaying the trial is the same, the two grounds for dismissal may be bundled into one. In the synthetic scene, Defendant B presents new material as oral argument is drawing to a close and Plaintiff A disputes it as intentional delay, and at this point the question diverges as to on what basis the court should examine the timing of submission and on what basis it should examine the deficiency of explanation. The present question is to confirm whether the convenience afforded by the simplicity of combining the two sanctions extends so far as to change the statutory conditions of the grounds for dismissal.
The wording corresponding to this question is divided into two paragraphs. First, Article 149 (1) of the Civil Procedure Act provides that, where a party submits a means of attack or defense belatedly through intent or gross negligence, thereby delaying the conclusion of the lawsuit, the court may dismiss it (Article 149 of the Civil Procedure Act). This wording takes the timing of submission, the effect of the delay, and the attribution of fault that led to the delay as its requirements. By contrast, paragraph (2) of the same Article sets out as the condition for dismissal the case where, as to a means of attack or defense whose import is not clear, a party fails to make the necessary explanation or fails to appear on the date set for explanation (Article 149 of the Civil Procedure Act). The subject dealt with here is the same party, and the act is the same means of attack or defense, but the position of the conditions required by each paragraph differs.
The wording of paragraph (1) grounds the basis for delayed submission in the violation of the standard of preparatory proceedings set by Article 146, and requires that the violation reach intent or gross negligence and also produce the result of delaying the conclusion of the lawsuit. Paragraph (2), by contrast, sets up as separate requirements the state in which the import submitted is itself unclear and the attitude of the party in failing to make the necessary explanation or in not appearing on the date set for explanation. Accordingly, the requirements for dismissal for late submission and the requirements for dismissal for lack of clarity must each satisfy different conditions, and the mere fact that the requirements of one are met cannot be taken to mean that the requirements of the other are met as well. So long as this distinction is maintained, replacing the two grounds by a single standard merely because the common inconvenience of delay has arisen exceeds the scope permitted by the wording.
The strongest counterargument here appeals to the simplicity of the result: important material should be received regardless of timing so that an erroneous judgment may be prevented, and since in either case the trial is delayed in any event, using the same sanction is clearer in practice. The loss and inconvenience aimed at by this counterargument are real. If the value of the material and the timing of its submission are classified separately, both the court and the parties must explain the criteria of judgment twice, and the risk remains of losing the material used for judgment while the procedure is delayed. Yet so long as the thrust of the counterargument lies in the irrelevance of timing, the conclusion that lack of clarity cannot be substituted for the intent or gross negligence of late submission stands. The direction of holding that the importance of the material allows the timing of submission to be disregarded, and the direction of holding that an unclear import can be substituted for the requirements for late submission and dismissed, are not the same question, and the latter direction skips over the separate condition of the deficiency of explanation required by paragraph (2).
In the synthetic scene, only the fact that Defendant B's submission of material took place as oral argument was drawing to a close, and the fact that Plaintiff A disputes it as intentional delay, are established. The intent or gross negligence required by paragraph (1), and the delay in the conclusion of the lawsuit, are not facts immediately established by Plaintiff A's assertion alone, but remain matters to be examined through the record of submission, the preparatory order, the reason for delay, the anticipated burden of hearing, and the reason for dismissal. Whether the import of that material is unclear, whether the necessary explanation was made, and how the appearance on the date set for explanation stands, the scene does not fix, and so remain undetermined. Even where neither the cause of the delay nor the delay effect of additional hearing can be known, the dismissal for late submission cannot be established.
The conclusion this section permits is narrow. If the conditions of paragraph (1) are recognized, the method of dismissal for late submission opens; if the conditions of paragraph (2) are recognized, the different method of dismissal for lack of clarity opens; and either way it means only that a legal route has opened, not that actual payment, delivery, or recovery has been achieved. There are two conclusions not permitted: the judgment that substitutes lack of clarity for the intent or gross negligence of late submission on the sole ground that the result of delaying the trial is the same, and the judgment that makes the unclarity of import a ground for dismissal on the sole ground that the material was submitted late. Where, after examining the timing of submission and the delay effect, the requirements for dismissal for late submission are not met or that method has been lawfully accepted, the path to entering the hearing is not closed; conversely, if the ground for dismissal lies under paragraph (2), whether that requirement was separately satisfied must be examined.
4.7The Link to the Application and the Dispositive Part
The preceding section reached the conclusion that unclearness cannot be replaced by the intent or gross negligence of a late submission, but it has not yet been made clear what grounds that conclusion divides and by what standard. In the scene where Defendant B produces new material near the close of oral argument and Plaintiff A disputes it as intentional delay, the court must first examine whether that material was late or whether it was left unexplained. Are a late submission and an unexplained submission the same?
To answer this question, one must read what each of the two paragraphs of Article 149 of the Civil Procedure Act presupposes. Paragraph (2) of the same Article provides: "Where the gist of a means of attack or defense submitted by a party is unclear, and the party fails to make the necessary explanation or fails to appear on the date set for explanation, the court may, ex officio or upon the application of the opposing party, dismiss it by DECISION" (Civil Procedure Act, Article 149). This language takes as the starting point of the grounds for dismissal on procedural grounds the fact that the gist of the means of attack or defense already submitted is unclear, and the fact that the necessary explanation is lacking or that the party failed to appear on the date set for explanation.
Unlike this, paragraph (1) provides: "①Where a party, in violation of the provisions of Article 146, late submits a means of attack or defense by intent or gross negligence, thereby delaying the completion of the lawsuit, and this is recognized, the court may, ex officio or upon the application of the opposing party, dismiss it by DECISION" (Civil Procedure Act, Article 149). The grounds for dismissal on procedural grounds under paragraph (1) require together the conditions of a submission in violation of Article 146, intent or gross negligence, and delay in the completion of the lawsuit. The evaluation of lateness and the evaluation of unclearness are stages that examine different conditions, and therefore cannot be covered over by a single determination.
The counterargument that maintaining this distinction as two parts is needlessly cumbersome has the greatest persuasive force. The reason is that both delay the trial, so that a single sanction is simpler. This counterargument seeks to bundle into a single value the loss from delay in procedure and the inconvenience of writings that cannot be read, and it emphasizes that if the material is important, it should be received regardless of timing so as to prevent a wrong judgment. Because the grounds for dismissal on procedural grounds are the conditions that justify the procedural exclusion in question, replacing the lack of explanation in paragraph (2) with the intent or gross negligence of paragraph (1) in applying them is a matter of altering the foregoing conditions.
In the synthetic scene, what the court must verify is the timing of the submission of the material and the state of its explanation. The Records as to whether Defendant B's material violated the preparation order, whether it was late-submitted by intent or gross negligence, and whether that submission delays the completion of the lawsuit, constitute the material for the determination of dismissal on procedural grounds for late submission. By contrast, whether the gist of that material is unclear and the necessary explanation is absent, or whether the party failed to appear on the date set for explanation, is a separate object of examination. However, where the cause of the delay or the delaying effect of additional hearing cannot be known, this cannot be determined in this section. Unless the submission records, the preparation order, the reasons for delay, the anticipated hearing burden, and the reasons for dismissal on procedural grounds gather toward one side or the other, the determination remains undetermined.
The conclusion this section permits is to apply the two grounds for dismissal on procedural grounds separately: the dismissal on procedural grounds for unclear gist is examined with the lack of explanation or non-appearance as requirements, and the dismissal on procedural grounds for late submission is examined with the violation of the preparation order, intent or gross negligence, and delay in completion as requirements. The conclusion this section does not permit is to substitute one ground for dismissal on procedural grounds for the other requirements, or to reach a conclusion of dismissal on procedural grounds for late submission on the basis of mere delay in submission.
4.8The Scope This Section Undertakes
The earlier discussion set the premise that preparatory proceedings proceed with the exchange of written pleadings and applications for evidence within set periods, and the analysis now reaches the question of when the trial closes its doors when material that will change the conclusion comes late. In this scene Defendant B produces new material near the close of oral argument, and Plaintiff A disputes that submission as intentional delay. But if it is unclear what the content of that material asserts, are delay and unclearness separate issues? This question touches upon the work of delimiting the boundary that this section addresses exclusively.
The original text answering this question is divided into two paragraphs in Article 149 of the Civil Procedure Act. Paragraph (1) addresses the case where a party, in violation of the provisions of Article 146, late submits a means of attack or defense by intent or gross negligence, thereby delaying the completion of the lawsuit (Civil Procedure Act, Article 149). The subject spoken of here is the party who submitted the means of attack or defense, the act is the late submission, and the conditions are the violation of Article 146, intent or gross negligence, and delay in completion. Paragraph (2), by contrast, addresses the case where the gist of a submitted means of attack or defense is unclear and the party fails to make the necessary explanation or fails to appear on the date set for explanation (Civil Procedure Act, Article 149). The subject of this paragraph is the same submitting party, but the problem it addresses is not timing but the lack of explanation.
This contrast of language bears directly on the conclusion of this section. Whereas the conditions of dismissal on procedural grounds for late submission set by paragraph (1) require, in addition to the violation of Article 146, intent or gross negligence and delay in completion, paragraph (2) makes the unclearness of the gist and the lack of explanation or appearance separate requirements. That is, the conditions each paragraph advances vary according to what procedural exclusion that paragraph justifies. Herein lies the reason why the conditions for sanctioning a late submission and the conditions for sanctioning an unexplained submission differ from each other. It is for this reason that the requirements for dismissal on procedural grounds of a means of attack or defense whose gist is unclear and the requirements for dismissal on procedural grounds for late submission must be applied separately.
Of course, one may offer the counterargument that since both cases delay the trial, applying the same sanction is simpler. Whether the timing is late or the explanation is absent, in the end both call for additional hearings and changes of hearing dates, and consume the time of the court and the opposing party together. But this simplicity is obtained in a way that sacrifices accuracy. The foregoing answer is clear. If an unclear submission is treated as though it were a late submission, the intent or gross negligence required by paragraph (1) is filled in with the lack of explanation, which is an entirely different problem. A late submission and an unexplained submission do not share the same ground for dismissal on procedural grounds, and the commonality of delay the counterargument points out is not sufficient to break down that distinction.
Applying this boundary to this scene brings several things to light. The submission records, the preparation order, the reasons for delay, the anticipated hearing burden, and the reasons for dismissal on procedural grounds are the determination material for inquiring into the degree and causes of delay. Plaintiff A's dispute that the delay was intentional corresponds to an attack aimed at the intent requirement of paragraph (1). But whether the gist of Defendant B's new material, in terms of what it asserts, is unclear, and whether the party failed to make the necessary explanation or to appear on the date set for explanation, are separate objects of review under paragraph (2). Just as a delayed submission does not mean unclearness of gist, unclearness of gist does not mean intent or gross negligence. To the extent that the cause of the delay or the delaying effect of additional hearing cannot be confirmed, it remains undetermined.
Accordingly, the conclusion this section permits is limited to applying the requirements of the two grounds for dismissal on procedural grounds separately according to their respective language, and to not replacing unclearness with the intent or gross negligence of late submission. On the facts of the synthetic scene alone, one cannot assert without more that dismissal on procedural grounds for late submission is justified at once; whether the conditions each paragraph requires are satisfied must be examined separately on the basis of the determination material set out above. Conversely, the two sanctions cannot be merged into one on the basis of the common effect of delaying the trial alone. Under the period management of preparatory proceedings, what conditions justify a procedural exclusion is precisely the content of the grounds for dismissal on procedural grounds.
4.9Application of the Text of the Provisions and the Holdings of Precedents
In this scene, what is the language that divides whether the court will admit the matter into the hearing? The plaintiff's assertion of delay targets the timing of submission, but lateness and ambiguity are different states.
Paragraph (2) of the same Article continues: "②Where the gist of a means of attack or defense submitted by a party is unclear, and the party fails to make the necessary explanation or fails to appear on the date set for explanation, the court may, ex officio or upon the application of the opposing party, dismiss it by DECISION." (Civil Procedure Act, Article 149) The former addresses the timing and attitude of submission; the latter addresses the gist of the submitted assertion and the lack of explanation.
The grounds for dismissal on procedural grounds, set side by side in these two passages of language, each ask different conditions. What paragraph (1) requires is the combination of three elements: violation of Article 146, intent or gross negligence, and delay in the completion of the lawsuit. What paragraph (2) requires is the unclearness of the gist and the lack of the necessary explanation or of appearance on the date set for explanation. This is limited to applying the requirements of this language as they stand to the determination of the admission of late assertions and evidence into the hearing, and does not extend them to the reasons for judgment or to other paragraphs.
The counterargument that the more a material is delayed, the more it should be accepted late rather than not at all emphasizes the importance of the material. The thought that a single sanction is simpler since both delay the trial comes from the same direction. But that simplicity cannot be a reason to disregard the requirements the language has already distinguished. The circumstance that the material is important cannot replace the conditions adopted as grounds for dismissal on procedural grounds, and the weight of the material the counterargument emphasizes cannot be exchanged for the duty to explain in paragraph (2) either.
In the synthetic scene, Defendant B produces new material near the close of oral argument, and Plaintiff A disputes that timing as intentional delay. On this fact alone, one cannot determine whether intent or gross negligence under paragraph (1) and delay in the completion of the lawsuit are recognized. So long as the cause of the delay and the delaying effect of additional hearing cannot be known, whether the requirements for dismissal on procedural grounds for late submission are satisfied is undetermined. Nor has whether the gist of the new material is clear been settled in this scene, so the ground for dismissal on procedural grounds under paragraph (2) cannot be asserted without more.
What this section permits is to apply the requirements of dismissal on procedural grounds for late submission and dismissal on procedural grounds for unclearness separately within the scope of the language of paragraphs (1) and (2) of Article 149 of the Civil Procedure Act, and not to extend them on other grounds. Paragraph (1) requires the combination of violation of Article 146, intent or gross negligence, and delay in completion, while paragraph (2) separately requires the unclearness of the gist and the lack of explanation. Only when this distinction is maintained can one determine whether Defendant B's submission falls under which ground for dismissal on procedural grounds, or under neither.
4.10Fine Distinctions Within the Stage
Within those preparatory proceedings, are late assertions and unexplained assertions the same? That a material arrives late and that the gist of the material is ambiguous are each raised as separate procedural problems. If the two problems are bundled into one and handled together, what defect must be remedied disappears. This question is limited to deciding which part within the stage of admission into hearing is to be determined separately.
Article 149, paragraph (2) provides: "Where the gist of a means of attack or defense submitted by a party is unclear, and the party fails to make the necessary explanation or fails to appear on the date set for explanation, the court may, ex officio or upon the application of the opposing party, dismiss it without prejudice by decision." The subject indicated by this language is the party who submitted a means of attack or defense whose gist is unclear. The corresponding act is failing to make the necessary explanation or failing to appear on the date set for explanation. The condition is that, in the case where the gist of the means of attack or defense is unclear, the party in question has failed to perform the duty to explain. Paragraph (1) of the same Article sets out a different subject, act, and condition. What paragraph (1) addresses is the case where a party, in violation of the provisions of Article 146, submits late by intent or gross negligence, thereby delaying the completion of the lawsuit.
On the basis of the two passages of language above, the conclusion of this section is that the detailed distinctions within the stage are limited to the conditions of the case where they operate, the case where they are blocked, and the undetermined case. The ground for dismissal on procedural grounds under Article 149, paragraph (2) is the dismissal on procedural grounds of a means of attack or defense whose gist is unclear, and the ground for dismissal on procedural grounds under Article 149, paragraph (1) is the dismissal on procedural grounds for late submission. Since the composition of the justifying conditions of the two grounds for dismissal on procedural grounds differs, they cannot be determined together as one. For dismissal on procedural grounds for late submission to be established, it must not be a case falling within the operating case or a case where the relevant method was lawfully admitted, and it must be a case where the statutory conditions of delayed submission by intent or gross negligence delaying the completion of the lawsuit are recognized and the relevant means of attack or defense has been dismissed without prejudice. The determination inquiring into the timing and effect of the delayed submission is limited to this condition. A demand for explanation of an assertion whose gist is unclear and the effect of non-compliance with it are determined under a separate condition.
The strongest counterargument is that both delay the trial, so that a single sanction is simpler. It is emphasized in the same direction that if the material is important, it should be received regardless of timing so as to prevent a wrong judgment. The loss the counterargument targets is the departure from the discovery of substantive truth; the inconvenience is the trouble of hearing delayed submissions and unclear submissions separately each; and the value lies in safeguarding the speed and accuracy of the trial together. As the counterargument would have it, bundling delay and unclearness into a single sanction is easier to handle. The statutory conditions of dismissal on procedural grounds for late submission are a late submission by intent or gross negligence and the consequent delay in the completion of the lawsuit; the statutory conditions of dismissal on procedural grounds for unclearness of gist are non-performance of the necessary explanation or non-appearance on the date set for explanation. If one draws the non-performance of the duty to explain, which Article 149, paragraph (2) requires as a ground for dismissal on procedural grounds, into the intent or gross negligence requirement of paragraph (1), one loses the conditions set by the language. The loss from delay of trial the counterargument points out is acknowledged, but that loss remains a problem to be resolved by inquiring into whether the foregoing conditions are satisfied in each respective text of the provisions, rather than by replacing unclearness with the requirements of late submission.
In the synthetic scene, the fact relevant to this question is that Defendant B produces new material near the close of oral argument and Plaintiff A disputes it as intentional delay. This material was submitted together with the accusation that its submission was late, and thus relates to the conditions of dismissal on procedural grounds for late submission. For dismissal on procedural grounds for late submission to be established, it must be recognized that a party, in violation of the provisions of Article 146, belatedly submitted a means of attack or defense by intent or gross negligence, thereby delaying the completion of the lawsuit. From the scene alone, the cause of the delay and the delaying effect of additional hearing cannot be known, so whether the statutory conditions of delayed submission by intent or gross negligence and delay in completion are recognized remains the undetermined case. Whether the gist of the new material is unclear, whether Plaintiff A made a demand for explanation, and whether Defendant B failed to make the necessary explanation or to appear on the date set for explanation likewise do not appear in the scene, so the ground for dismissal on procedural grounds under Article 149, paragraph (2) cannot be determined on this scene alone. The contents of the reasons for delay, the submission records, the preparation order, the anticipated hearing burden, and the reasons for dismissal on procedural grounds are not settled. If it is confirmed that nothing but simple tardiness remains and that intent or gross negligence, or delay in completion, is negated, the conclusion of dismissal on procedural grounds for late submission is to be reconsidered.
The conclusion this section permits is to limit, within the admission of late assertions and evidence into hearing, the parts to be further divided and determined to the stated conditions of the case where they operate, the case where they are blocked, and the undetermined case. The requirements of the dismissal on procedural grounds of a means of attack or defense whose gist is unclear under Article 149, paragraph (2) and of the dismissal on procedural grounds for late submission under Article 149, paragraph (1) are applied separately. Where, upon inquiring into the timing of submission and the effect of delay, the requirements for dismissal on procedural grounds for late submission are not met, or where the relevant method was lawfully admitted, a late submission is not excluded by dismissal on procedural grounds for late submission. Conversely, where the statutory conditions of delayed submission by intent or gross negligence delaying the completion of the lawsuit are recognized and the relevant means of attack or defense has been dismissed, the effect of dismissal on procedural grounds for late submission arises. Where the cause of the delay or the delaying effect of additional hearing cannot be known, it is left undetermined. The conclusion this section does not permit is bundling the two into a single sanction by replacing unclearness of gist with the intent or gross negligence requirement of late submission, on the ground that both delay the trial.
4.11Synthesis of Effectiveness, Blockage, and Undetermination
Preparatory proceedings set a period for the exchange of pleadings and the filing of evidence applications, and within that flow the defendant B, near the close of oral argument, submits new material, while plaintiff A contends that this is a deliberate delay. What the court must first decide in this scene is whether to admit that material into the examination, and the question regarding that determination is framed as how to distinguish the effective admission, the exclusion, and the undetermined status of the entry of late claims and evidence into the examination.
Here the actor is a party who has submitted an attack or defense method; the act is a late submission made in violation of the preparatory proceedings; and the conditions are that intent or gross negligence and a delay in the completion of the lawsuit are both found.
Within the same provision, the ground of unclarity is set out separately. Article 149(2) provides that "where the purport of an attack or defense method submitted by a party is unclear, and the party has failed to make the necessary explanation or has failed to appear on the date set for explanation, the court may, ex officio or upon the application of the opposing party, dismiss it by a decision" (Civil Procedure Act, Article 149), and its requirement is the absence of an explanation or nonappearance on the date set for explanation. Unlike dismissal for untimeliness, it does not inquire into intent or gross negligence in the delayed submission; the two are therefore distinct grounds for dismissal on procedural grounds, that is, conditions justifying the relevant procedural exclusion.
A strong counterargument targets the difficulty of adjudication. Since both unclear material and late material delay the trial, if late material is admitted the trial becomes entangled, and if it is excluded the conclusion may go wrong. To this is added the concern that, if the material is important, it should be admitted regardless of timing so as to prevent an erroneous judgment. Nevertheless, the consequence of delay alone does not satisfy the requirements of dismissal for untimeliness; only when intent or gross negligence and a delay in the completion of the lawsuit are found together can dismissal on procedural grounds follow.
What is to be confirmed in this scene is the time of submission, the effect of the delay, and the basis of the deliberate delay asserted by plaintiff A. The submission record, the preparatory order, the reason for the delay, the anticipated burden of examination, and the reason for dismissal on procedural grounds are the materials for that comparison, and these records determine whether the preparatory proceedings were complied with and whether the completion of the lawsuit was delayed.
Accordingly, even if the material is late, where the statutory requirements of dismissal for untimeliness are not found, or where the method has been lawfully accepted, entry into the examination is not closed; where the conditions are found that a delayed submission made with intent or gross negligence has postponed the completion of the lawsuit and dismissal on procedural grounds is ordered, entry is barred. Where the cause of the delay or the delaying effect of additional examination cannot be ascertained, the matter remains undetermined.
4.12Conclusion Carried Over to the Next Section
This passage summarizes the method of conducting preparation dealt with in the preceding section, and what it leaves open afterward remains undecided. In the scene, the defendant B submits new material near the close of oral argument, and plaintiff A contends that this is a deliberate delay. Since this dispute points to two things at once, it must be asked whether late claims and unexplained claims can be bundled together under the same measure. Here a late claim is an attack or defense method submitted after the period set for submission, and an unexplained claim is an attack or defense method that has been submitted but whose purport is unclear. The seat of the defect pointed out differs between the two. (Civil Procedure Act, Article 149)
Article 149 of the Civil Procedure Act places the two separately in different paragraphs. (Civil Procedure Act, Article 149) This wording, on the side that takes tardiness as its ground, requires together the conditions of intent or gross negligence and a delay in the completion of the lawsuit. (Civil Procedure Act, Article 149) This paragraph takes not the point in time but the lack of explanation and the omission as its ground.
The reason for placing Article 149(1) and (2) side by side is that the ground for dismissal on procedural grounds that each requires is different. The ground for dismissal for untimeliness is that the tardiness in violation of Article 146 arose from intent or gross negligence and, as a result, delayed the completion of the lawsuit. The ground for dismissal for unclear statements is that, while the purport of the submitted attack or defense method was unclear, the necessary explanation was not made. The former looks to the time of submission and the effect of the delay; the latter looks to the clarity of what was submitted and the presence or absence of a supplementary explanation. Since the axis of adjudication differs, if the requirements of one are inserted into the other, the scope of justifying exclusion that each paragraph prescribes collapses.
If one considers together the points that late material delays the trial and that unclear claims dislocate the examination, a counterargument arises that it is simpler to bundle the two and impose the same sanction. That counterargument adds the point that, if the material is important, it should be admitted regardless of timing so as to prevent an erroneous judgment. The loss feared here is the unjust exclusion that occurs when material whose seat of defect differs is pushed out under the same measure, and the inconvenience is that the court and the opposing party must wage contest over confused grounds. Even so, this counterargument cannot substitute unclarity for the intent or gross negligence of tardiness. The conditions of intent or gross negligence in the tardiness and the delay in the completion of the lawsuit are the basis of exclusion prescribed by paragraph (1), and they are not automatically transferred to serve as the basis for cases where the purport is unclear. The harm of delay that the counterargument points out remains as it is, but it cannot serve as a ground for applying the two requirements interchangeably.
What can be confirmed in this scene is the fact that the defendant B submits new material near the close of oral argument and that plaintiff A contends it is a deliberate delay. Even if the plaintiff's assertion is read as aimed at dismissal for untimeliness, the ground for dismissal on procedural grounds under paragraph (1) arises only where the conditions of a violation of Article 146, intent or gross negligence, and a delay in the completion of the lawsuit are all found together. It has only been determined where, in the scene, the submission record, the preparatory order, the reason for the delay, the anticipated burden of examination, and the reason for dismissal on procedural grounds are to be entered; the fact that these records have been filled in is not established. Since the cause of the delay or the delaying effect of additional examination cannot be ascertained, whether the requirements for dismissal for untimeliness are satisfied remains undetermined. Meanwhile, whether the purport of the material is unclear and whether the necessary explanation was made are questions under paragraph (2) that must be dealt with separately, and that determination, too, cannot be made from the scene alone.
What this section has confirmed is the narrow conclusion that late claims and unexplained claims must be separated and the ground for dismissal on procedural grounds applied to each, and the transitional passage summarizing the method of conducting preparatory proceedings is read only as the background to that distinction. Even if the counterargument that bundling them under the same measure is simpler carries persuasive force, the conclusion of applying the requirements of paragraph (1) to the matter of paragraph (2) in its stead does not follow. The evaluation, in a concrete case, of the time of submission, the effect of the delay, and the clarity of the material cannot be hastily fixed outside the conditions set by this sentence. The remaining question is how this distinction is reflected in amendment of claim as a different procedural act. The question to pass on next is the application of this distinction to the timing of amendment of claim, not a recounting of the grounds of unclarity. Is amendment of claim possible at any time before the closing of proceedings?