Summary
The scope of the application must be separated from the determination within that scope so that a procedural limitation is not read as a complete denial of the substantive right.
6.1The Standard by Which the Path Opens
The reasoning explains the propriety of the dispositive part, while the content of the relief must be confirmed from the dispositive part. The plaintiff sought delivery of goods, and the question arises whether a different performance may be ordered on the ground that it would help resolve the dispute. If the meaning of a loss is enlarged to reach the portions this trial did not touch, the next relief will also disappear. Only after confirming this concern does the need for relief remain, and if that need is restricted because of the application, one must examine what must be left and by what standard the passage to this relief is opened.
The provision corresponding to this question is Article 203 of the Civil Procedure Act. That provision draws the line by stating that the court shall not render a judgment on a matter that a party has not applied for (Article 203 of the Civil Procedure Act). Here the court is the adjudicating body, a matter not applied for is an object beyond the scope demanded by the party, and that the court shall not render a judgment means that any determination as to matters outside that scope simply cannot be contained in this judgment. This provision sets the limits of adjudication not by whether an application exists, but by its scope.
Only after receiving this provision must the scope of the application be distinguished from the determination within that scope. Where the necessary performance lies within the lawful scope of the application and has been adjudicated within that scope by the dispositive part, the entrance to this relief is opened (Article 203 of the Civil Procedure Act). Only with a division that, if within the scope the court may determine, and if outside it the court may not, will a procedural restriction not be read as a wholesale denial of substantive rights. Article 208 of the Civil Procedure Act requires that the reasoning of the written judgment indicate the parties' assertions and determinations on other means of attack and defense to the extent necessary to recognize that the dispositive part is proper (Article 208 of the Civil Procedure Act).
Explaining the boundary may in fact encourage new litigation. If the unadjudicated portion to which this judgment does not reach, that is, the portion not included in the application and the dispositive part, is left open, the party must bring that portion up again, and the inconvenience arises that additional procedures may be invited even where words and expression fall out of step. Even if such loss is clear, a matter outside the application cannot be recorded as a finally determined loss. If the scope of the refusal is exceeded and made final, the door to the next relief is closed along with the unadjudicated portion.
In the synthetic scene, all that is stated is that the plaintiff sought delivery of goods, and the question arises whether a different performance may be ordered on the ground that it would help resolve the dispute. Measuring this scene against the standard above, if the claim for delivery lies within the scope of the application and the other performance remains outside that scope, so that the court cannot add it to the dispositive part at its discretion, the passage to this relief is not opened. Conversely, if the performance enters the scope of the application by way of a lawful amendment, the previous bar of its being outside the application must be reexamined. Because the correspondence among the statement of claim and amendment application, and the service, the dispositive part, and the reasoning of the judgment has not yet been confirmed, so long as that correspondence cannot be confirmed, no final answer remains.
What this section permits is a determination that opens that entrance where specific performances, parties, and conditions within the scope of the application have been adjudicated by the dispositive part; what it does not permit is a determination that adds performances outside the application at discretion or records other matters as finally determined losses. Accordingly, the unadjudicated portion must be left in place, yet its meaning cannot be inflated into a final refusal, nor can it be said that a new lawsuit has arisen merely because the boundary has become clear.
6.2The Conditions That Block Relief
As the preceding section confirmed, this relief operates where the necessary performance lies within the lawful scope of the application and has been adjudicated within that scope by the dispositive part. Reversing that condition, if the need for relief remains but is restricted because of the application, the question of what must be left arises. Only by dividing the scope of the application from the determination within that scope will a procedural restriction not be read as a wholesale denial of substantive rights. If this distinction is not maintained, the result is that even the remaining need for relief is included within the scope of the loss.
The basis for answering this question is laid by Article 203 of the Civil Procedure Act. That provision marks the outer boundary of adjudication with the expression "a matter that a party has not applied for" (Article 203 of the Civil Procedure Act). Here the subject is the court, the prohibited act is a judgment on a matter that a party has not applied for, and the condition is the absence of an application by the party. The court cannot add the necessary performance to the dispositive part according to its own judgment, and renders judgment only within the scope of the application as confirmed by the statement of claim and amendment application.
Applying that language yields the conclusion of this section. The plaintiff sought delivery of goods, and the question arises whether a different performance may be ordered on the ground that it would help resolve the dispute; if the other performance remains outside the scope of the application, then since the court cannot add it to the dispositive part at its discretion, this relief is barred. This determination is accurate only when the two stages of the scope of the application and the determination within that scope are distinguished. The former stage determines what the object of adjudication is, and the latter determines what the court may say about that object; the scope of the former stage cannot be widened by a determination at the latter stage.
The strongest counterargument targets the point that explaining this boundary in fact encourages new litigation. Because of a party's error of expression, the result is that an obvious remedial relief is refused, and a party with a remaining need for relief can do nothing but bring the same dispute again. Such loss and inconvenience do not disappear; yet for that reason a matter outside the application cannot be recorded as a finally determined loss. The scope of the loss is set only as to the matters applied for, and therefore a matter not applied for cannot carry the meaning of a loss in that judgment.
The facts that can be confirmed in the synthetic scene contrast with that boundary. The plaintiff sought delivery of goods, and the other performance was proposed only on the ground that it would help resolve the dispute; it was not applied for by way of a lawful amendment. Because the presence or absence of that amendment and of service, and the correspondence between the final statement of claim and the judgment, are not settled in the scene, that portion remains in an undeterminable state.
The conclusion this section permits is that a performance outside the scope of the application cannot be ordered by the dispositive part of this relief; what it does not permit is that a loss has become final as to that performance. The unadjudicated portion is the portion not included in the application and the dispositive part, and leaving that portion as a record of loss exceeds the boundary of this relief. This determination is not completed before reaching the stage of confirming the correspondence in the records among the statement of claim and amendment application, and the service, the dispositive part, and the reasoning of the judgment.
6.3The Boundary That Remains When There Is No Data
In the position where the plaintiff sought delivery of goods and the question arises whether a different performance may be ordered on the ground that it would help resolve the dispute, if the necessary performance remains outside the scope of the application so that the court cannot add it to the dispositive part at its discretion, this relief is barred. Yet how far this bar reaches, and by what that boundary is to be judged, remain. This question is the first place that separates the case where relief is barred from the case where, for lack of materials, even what has been barred cannot be judged.
This division starts from the provision setting the scope of the application. Article 203 of the Civil Procedure Act provides that "the court shall not render a judgment on a matter that a party has not applied for" (Article 203 of the Civil Procedure Act). What this language bars is placing upon the dispositive part a matter the party has not applied for. The subject spoken of here is the court, and the prohibited act is rendering a judgment beyond the matters applied for. The provision therefore does not address the question of what lies outside the application.
In setting that boundary, what determinations were made within the matters applied for must also be taken into account. Article 208 paragraph (2) of the Civil Procedure Act provides that the reasoning of the written judgment shall contain "the parties' assertions and determinations on other means of attack and defense to the extent necessary to recognize that the dispositive part is proper" (Article 208 of the Civil Procedure Act). Here two stages diverge. The first is what performance came within the scope of the application and could be adjudicated by the dispositive part; the second is what was actually determined within that scope. Only by combining the two is the correspondence between the final statement of claim and the judgment confirmed. If it is not confirmed, the author leaves the determination undetermined.
The reason for framing it this way is that the loss recorded as finally determined differs. The counterargument that explaining the boundary may encourage new litigation targets the point that, in the gap left by absent materials, claims asking that remaining rights be examined again may follow one after another. The author's answer is that a matter outside the application cannot be recorded as a finally determined loss. Leaving it undetermined does not mean refusing remedial relief; it means declining to bury that portion as a finalized loss. Unless the meaning of finality is bound within the scope of the application, the next relief disappears on account of a mere error of expression.
In this scene, the reach of this distinction is narrow. In the very position where the plaintiff sought delivery of goods and the problem of ordering a different performance arose, what the statement of claim and amendment application contained, and what was contained in the dispositive part and the reasoning of the served judgment, cannot be confirmed from this scene alone. Whether the desired performance remained outside the final scope of the application, or was adjudicated within the scope by the dispositive part, is therefore left undetermined. Yet it cannot be asserted simply because materials are lacking that the relief is barred. What can be confirmed in this section is the definition that the unadjudicated portion is the portion not included in the application and the dispositive part, and the boundary that that portion is not left as a finalized loss.
Accordingly, this section permits a single conclusion. Where the scope of the application and the determination within it cannot be confirmed, the determination is left undetermined and distinguished from the case where relief is barred. Conversely, the unadjudicated portion must not be handled by recording a matter outside the application as a finally determined loss. This is the boundary set by this section, and the question of what materials are to be used for confirmation remains open.
6.4The Records Needed for Determination
As set out in the preceding section, where the correspondence between the final statement of claim and the judgment cannot be confirmed, the determination is left undetermined, and it is to be distinguished from the case where relief is barred. Then, if the need for relief remains but is restricted because of the application, what must be left? This question concerns how the range the judgment could not address is to be left as a record. What must first be confirmed here is by what that range should be marked.
The language serving as the standard of this section is Article 203 of the Civil Procedure Act, which provides that "the court shall not render a judgment on a matter that a party has not applied for" (Article 203 of the Civil Procedure Act). As against the court, the subject of the judgment, this language limits the object on which no judgment may be rendered to a matter the party has not applied for. The application spoken of here means a claim submitted with specified content that the party wishes to obtain through adjudication, and the matters contained in that claim constitute the limits of the judgment. The provision is therefore one that bars arbitrarily hearing matters outside the application and placing them on the dispositive part; it is not a provision whereby the court excludes matters within the application from adjudication. This division is the starting point of the present question.
What Article 203 bars is a judgment on matters outside the application, and when the dispositive part is pronounced within that scope, the determination is concluded as to that portion. Alongside this, Article 208 of the Civil Procedure Act provides that "the reasoning of the written judgment shall indicate the parties' assertions and determinations on other means of attack and defense to the extent necessary to recognize that the dispositive part is proper" (Article 208 of the Civil Procedure Act). The standard that the reasoning explains the propriety of the dispositive part and that the content of the relief must be confirmed from the dispositive part falls here. Accordingly, this determination rests on the statement of claim and amendment application, and the service, the dispositive part, and the reasoning of the judgment. Without those records, the conclusion remains undetermined. This unadjudicated portion means the portion not included in the application and the dispositive part. The reason the unadjudicated portion must be distinguished from the portion as to which a loss has become final is that, in the former case, a range that has not yet been adjudicated remains, whereas in the latter case the matter has been adjudicated and its conclusion is settled as rejecting the claim. Both point to traces of the same judgment, but their legal meaning differs.
If the remaining range were separately marked, the result could be that the claimant, relying on it, files the claim again, or that a new dispute over that range is imposed on the respondent. For that reason, the counterargument may also be raised that the result is the refusal of an obvious remedial relief on account of a party's error of expression. Even so, a matter outside the application cannot be recorded as a finally determined loss. The meaning of the loss must be limited to what rests on the determination already given; if it is extended even to the portions the judgment did not touch, the opportunity to dispute those portions later is closed from the outset. This answer, however, does not recommend a new lawsuit or support its possibility; it merely confirms what cannot be contained in the present record.
Looking at the scene in which the plaintiff sought delivery of goods and the question arises whether a different performance may be ordered on the ground that it would help resolve the dispute, a determination can be established where the necessary performance lies within the lawful scope of the application and has been adjudicated within that scope by the dispositive part. Conversely, where the desired performance remains outside the scope of the application and the court cannot add it to the dispositive part at its discretion, there is no dispositive part on which to base the determination. This case should be regarded not as the court refusing to make a determination, but as no object to be determined having been settled within the scope of that dispositive part. However, where the correspondence between the final statement of claim and the judgment cannot be confirmed, the determination is left undetermined, and is distinguished from the case where relief is barred. What records were actually submitted in what form is not settled in this scene and therefore cannot be determined.
Accordingly, this determination is established only where the matter has been adjudicated within the scope of the application by the dispositive part, and the remaining portion stays as the unadjudicated portion. Even if a range remains outside the application, it cannot be transcribed as a finally determined loss, and this means not a state in which relief is barred but a state in which nothing has been determined on the records. Those records are the statement of claim and amendment application, and the service, the dispositive part, and the reasoning of the judgment. This determination does not permit adding a new performance beyond the scope of the application to the dispositive part, or declaring the unadjudicated portion a loss. This, however—under what change of circumstances would the determination be overturned?
6.5Circumstances That Change the Decision
Under the premise that the reasons explain the propriety of the dispositive part and that the content of the relief must be ascertained from the dispositive part, the question arises whether, where Plaintiff A claimed delivery of a thing, the court may order a different performance on the ground that it would assist in resolving the dispute. The question then is which change overturns the stage determination already reached. It is precisely the case where the performance enters the scope of the claim as a proper amendment.
The basis for answering this question is the text of Article 203 of the Civil Procedure Act. That text provides that the court shall not render a judgment on a matter on which a party has not made a claim (Civil Procedure Act Article 203). Here the subject is the court, the prohibited act is rendering a judgment on a matter outside the claim, and the condition is that a party has not made a claim as to that matter. This provision is a rule that determines the scope of the claim, not a rule that determines what content a performance falling within the claim shall have.
Connecting that text with the conclusion of this section reveals that determining the scope of the claim and determining within that scope are distinct stages. Article 208 paragraph (2) of the Civil Procedure Act provides that in the reasons of the written judgment the court shall state its determinations on the parties' assertions and other means of attack and defense to the extent that the propriety of the dispositive part can be recognized (Civil Procedure Act Article 208), thereby showing that what the reasons undertake is the explanation of the propriety of the dispositive part. Accordingly, the procedural limitation of being outside the claim is not a wholesale denial of substantive rights. Where a performance enters the scope of the claim as a proper amendment, the prior bar of being outside the claim is reconsidered.
The strongest counterargument is that the act of explaining the boundary may in fact encourage new lawsuits. Because of a party's error of expression, the result is a refusal of plainly warranted relief, and ultimately that loss falls upon the person who could have been relieved from the very beginning. This disadvantage cannot be erased. Explaining the boundary of the scope of the claim is the work of separating the unadjudicated portion within the claim from matters outside it, not the work of giving matters outside it the meaning of a loss on the merits.
What can be confirmed in the synthetic scene is only the fact that Plaintiff A claimed delivery of a thing and that the ordering of a different performance was placed in issue. The stage determination diverges according to whether this other performance, on the record of the statement of claim and amendment application and of service, the dispositive part, and the reasons, enters the scope of the claim as a proper amendment, or remains outside the scope so that the court cannot add it to the dispositive part at its discretion. However, where the correspondence between the final statement of claim and the judgment cannot be confirmed, the scope of the unadjudicated portion is also undetermined.
What this section permits is to re-determine from the stage as to the performance adjudicated by the dispositive part within the scope of the claim, and what it does not permit is to finalize by judgment a matter outside the claim or to record that matter as a finally determined loss. Here the unadjudicated portion means the portion not included in the relevant claim and dispositive part, and the determination of rights as to that portion is not confirmed in this dispositive part. What remains next is the handling of matters to which no expression has been given.
6.6The Strongest Counterargument and the Answer
In the scene where Plaintiff A claimed delivery of a thing and the question arises whether a different performance may be ordered on the ground that it would assist in resolving the dispute, it becomes clear whether the court must include in the dispositive part even a performance not found in the claim. As set out in the preceding section, where a performance enters the scope of the claim as a proper amendment, the prior bar of being outside the claim is reconsidered. What remains as a question is how to record the remaining need for relief without bringing down that bar. Unless the scope of the claim and the determination within it are dealt with together, it would come to mean that the party had already lost on the parts that the present judgment does not address.
Article 203 of the Civil Procedure Act provides: "The court shall not render a judgment on a matter on which a party has not made a claim." This text binds the court, which is the subject of the judgment, and its act of judgment to the limits of the scope of the claim, and prevents a matter on which no claim has been made from being made the object of a judgment. The claim denotes the range of performance a party seeks from the court, and a claimed matter means one that falls within that range. The condition on the face of the text is whether a claim has been made, and it is a limitation treated separately from whether a performance not found in the claim is substantively justified. This provision regulates only how the scope of the claim and the object of the dispositive part interlock.
The above text calls for a distinction between the case where a performance within the scope of the claim is adjudicated by the dispositive part and the case where a performance remaining outside cannot be added by the court at its discretion. In the former, the propriety of the judgment is confirmed from the dispositive part, and the reasons explain that the dispositive part is proper. Article 208 paragraph (2) of the Civil Procedure Act requires the reasons to state determinations to the extent of supporting the propriety of the dispositive part. The distinction is needed in order not to read a procedural limitation as a wholesale denial of substantive rights. The unadjudicated portion—that is, the portion not included in the relevant claim and dispositive part—must remain as something the judgment did not reach, and cannot be recorded as a final determination that no right exists.
There is the counterargument that explaining the boundary may in fact encourage new lawsuits. If it is made clear that an unadjudicated portion remains in the judgment, the party must claim that portion separately, the dispute is not concluded at once, and as a result the lawsuit and the costs increase. Where a party's expression is mistaken so that the statement of claim and the performance actually desired diverge, there also arise cases in which, because of the procedural limitation that the court cannot grant relief beyond that expression, the party's rights are not sufficiently vindicated. Notwithstanding these inconveniences, matters outside the claim cannot be recorded as matters finally determined to be lost. A final determination of loss is a record that leaves even matters not included in the judgment in a state of finally having no right, and to make a matter on which no claim was made the object of such a record runs counter to the limitation on the scope of the judgment.
In this scene, Plaintiff A placed the delivery of a thing within the scope of the claim, and whether the court may adjudicate a different performance by the dispositive part must be confirmed from the correspondence between the dispositive part and the reasons of the judgment. Where the necessary performance enters the scope of the claim as a proper amendment and is adjudicated by the dispositive part within that scope, the limitation of the claim does not operate. Conversely, where the desired performance remains outside the claim and the court cannot add it to the dispositive part at its discretion, that performance remains as an unadjudicated portion. Where the correspondence between the statement of claim and amendment application and the served dispositive part and reasons of the judgment cannot be confirmed, the distinction of this section is not settled, and since in this scene the results of service and performance and whether the judgment has become final are not determined, they are left undetermined.
What this section permits is the limitation that a performance going beyond the scope of the claim cannot be contained in the dispositive part, together with the distinction that, under that limitation, the unadjudicated portion is not transferred to a final determination of loss. What this section does not permit is a judgment ordering a performance outside the scope of the claim, the handling of leaving the unadjudicated portion as a record denying rights, and an interpretation reading a procedural limitation as a wholesale denial of rights. Whether a matter the court failed to recognize and passed over can also be regarded as having been finally dismissed is likewise not addressed within this distinction, and the determined portion and the unadjudicated portion must be separated in the record.
6.7The Link to the Application and the Dispositive Part
The preceding section confirmed that matters outside the claim cannot be recorded as matters finally determined to be lost. Taking up that conclusion, the question of this section narrows. If relief is needed but the judgment cannot reach it because of the limitation of the claim, what must the judgment leave behind? This distinction is the conclusion of this section.
The basis for this question lies in Article 203 of the Civil Procedure Act. This provision declares that "the court shall not render a judgment on a matter on which a party has not made a claim." Here the court is the subject of the judgment, the party's claim is the boundary of the matters the judgment can reach, and a matter on which no claim has been made lies beyond that boundary. The provision prohibits by saying that the court shall not render a judgment; it does not declare that the matter outside the claim itself does not exist as a right. The structure of this text is the crux.
Article 203 procedurally limits the scope of the judgment, and supports the above conclusion in that the limitation does not go so far as denying the existence of substantive rights. Article 208 paragraph (2) requires the court "to state its determinations on the parties' assertions and other means of attack and defense to the extent that the propriety of the dispositive part can be recognized." The propriety of the dispositive part is explained in the reasons, and that dispositive part is declared only within the scope of the claim. Accordingly, the unadjudicated portion—that is, the portion not included in the relevant claim and dispositive part—remains in a state where no determination as such is left behind. Here lies the reason why these two stages must be distinguished.
Plaintiff A claimed delivery of a thing, and the question is whether the court may order a different performance on the ground that it would assist in resolving the dispute. If the court were to add a different performance to the dispositive part at its discretion, the party would come to expect relief beyond the claim on the next occasion as well. That portion has not been adjudicated, and giving matters not adjudicated the meaning of a loss cannot correct the disadvantage of the counterargument.
What can be confirmed in this scene is limited. Whether another performance has entered the scope of Plaintiff A's claim, or has not, cannot be determined from this scene alone. Unless the correspondence between the final statement of claim and the judgment can be confirmed, the scope of the unadjudicated portion remains undetermined.
What this section permits is the dispositive part within the scope of the claim and the determination explaining the propriety of that dispositive part. What it does not permit is adding to the dispositive part a performance outside the scope of the claim, or recording those other matters as a finally determined loss. The unadjudicated portion must be left as such, and it is not a right that has vanished but a state not yet adjudicated.
6.8The Scope This Section Undertakes
That conclusion is that the reasons explain the propriety of the dispositive part and the content of the relief must be ascertained from the dispositive part, and it takes up the premise that the reasons and the dispositive part perform different tasks within the written judgment. What now remains is the question whether the court may include in the dispositive part and order a solution that the court itself regards as correct, even if a party has not claimed it. This question must be examined by separating the scope of the claim from the determination the court renders within that scope, and if the two are not separated but read as one, the procedural limitation is misread as negating substantive rights in their entirety.
Article 203 of the Civil Procedure Act (principle of party disposition) declares that the court shall not render a judgment on a matter on which a party has not made a claim (Civil Procedure Act Article 203). In this text the court is the subject of adjudication, and a matter on which a party has not made a claim is excluded from the object of adjudication. The phrase that the court shall not render a judgment is read not as a prohibition but as a statement of the limits of competence. Therefore, however correct the court may consider a matter, if that matter does not come within the claim it cannot be ordered by the dispositive part. What this provision addresses is the correspondence between the claim and the object of the judgment; what determination is to be written within that claim is left outside the scope of this provision.
The conclusion of this section that this basis draws out is that two stages must be separated. First, the scope of the claim is examined to confirm whether the necessary performance falls within it, and next it is examined whether that performance was adjudicated by the dispositive part within that scope. The reason the two stages must be distinguished is that the limitation of being outside the claim pertains to procedure and is not a declaration that there is no substantive right as to that performance. The remaining need for relief is left as an unadjudicated portion, and here the unadjudicated portion means the portion not included in the relevant claim and dispositive part. If this portion is disposed of as a loss, the remaining need for relief is extinguished along with it.
The strongest counterargument holds that such an explanation of the boundary rather encourages new lawsuits. That is, it is pointed out that because of a party's error of expression or lack of legal knowledge the result is a refusal of plainly warranted relief, and that leaving an unadjudicated portion behind becomes an inconvenience that in fact encourages the next round of litigation. Without erasing this disadvantage, the answer remains the same. A final determination of loss carries the meaning of a determination of substantive rights, and to place a matter on which no claim was made within it produces the result of creating, in the record, the very judgment that Article 203 forbids. Therefore, so long as a need for relief remains, it is left as an unadjudicated portion.
In the synthetic scene, Plaintiff A claims delivery of a thing, and the question is whether the court may order a different performance on the ground that it would assist in resolving the dispute. In this scene the foregoing conditions are only the record of the statement of claim and amendment application and of service, the dispositive part, and the reasons; where the necessary performance falls within the proper scope of the claim and was adjudicated by the dispositive part within that scope, a dispositive part within the scope of the claim stands. Conversely, if the desired performance remains outside the scope of the claim and the court cannot add it to the dispositive part at its discretion, it is barred. Since the results of service and performance in the actual case could not be confirmed, the portion on which no determination can be made remains undetermined.
The conclusion this section permits is the narrow conclusion that, after separating the scope of the claim from the determination within that scope, what remains outside the claim is not recorded as a loss but is left as an unadjudicated portion. What this section does not permit is the court's including in the dispositive part and ordering a matter on which no claim was made, or disposing of the unadjudicated portion as a matter already finally determined to be lost. Where the correspondence between the final statement of claim and the judgment cannot be confirmed, the scope of the unadjudicated portion cannot be determined either.
6.9Application of the Text of the Provisions and the Holdings of Precedents
The previous step left the point that the reasoning explains the justification of the dispositive part, and that the content of the remedy must be confirmed from the dispositive part. The question of what must be preserved when the need for a remedy remains but is limited because of the application begins precisely at this line.
The first text that answers this question is found in Article 203 of the Civil Procedure Act. That Article provides that the court shall not render a judgment on a matter for which a party has made no application. The subject spoken of here is the court, the prohibited act is rendering a judgment on a matter for which no application has been made, and the condition is the absence of a party's application. Article 203 of the Civil Procedure Act takes only the presence or absence of an application as its criterion; whether the matter applied for is well-founded is not dealt with within this text.
Linking the text of Article 203 of the Civil Procedure Act with the conclusion of this section yields the criterion that only the relevant source text may be used as the basis for adjudging the dispositive part within the scope of the application. This criterion distinguishes the determination that sets the scope of the application from the determination that renders the dispositive part within that scope. The former establishes the boundary of what the court may deal with; the latter determines what performance shall be ordered within that boundary. What Article 208 (2) of the Civil Procedure Act requires of the reasoning is to state the parties' assertions and other means of attack and defense to an extent sufficient to recognize that the dispositive part is just. This text stops at explaining the justification of the dispositive part and does not serve as a basis for extending that explanation to performances outside the application. Accordingly, it must not be extended in the reasons for the judgment.
The strongest counterargument lies in the point that this explanation of the boundary itself may in fact encourage a new lawsuit. That is, if the court leaves the portion it does not dispose of this time as unadjudicated, the party must bring that portion again as a suit, and the dispute does not end in a single procedure. Going further, the result is that an obvious remedy is refused because of a party's error of expression. Notwithstanding such inconvenience and loss, the preceding answer does not shake. If the unadjudicated portion is written up as a defeat, that in itself closes off the path to the next remedy; therefore, even though the trouble pointed out by the counterargument remains, the direction of the record is maintained on the side that has been settled.
The facts ascertainable in the synthetic scene are that the plaintiff sought delivery of a thing, and that another performance was called into question on the ground that it would help resolve the dispute. Setting this against the foregoing conditions, the pivot of the determination becomes whether the performance of delivery of a thing is a matter within the scope of the application contained in the prayer for relief, and whether the other performance lies outside that scope. However, since the correspondence between the final prayer for relief and the judgment cannot be confirmed at present, which performance entered the range adjudicated by the dispositive part remains undetermined. Nor are the service or performance outcomes of the actual case settled, and so no determination is made here.
What this section permits is a determination that supports the dispositive part within the scope of the application by the relevant source text; what it does not permit is a determination that joins that text onto a performance outside the application or confirms the unadjudicated portion as a defeat. Where the necessary performance falls within a lawful scope of application and is adjudicated within that scope by a dispositive part, it becomes an object of determination; where the desired performance remains outside the scope of the application and the court cannot add it to the dispositive part at its discretion, it does not. The unadjudicated portion means the portion not included in the relevant application and dispositive part, and this definition must be read separately from the meaning of a final determination of defeat.
6.10Fine Distinctions Within the Stage
Article 203 draws the line, stating that "the court shall not render a judgment on a matter for which a party has made no application." Taking on board only the points, established earlier, that the reasoning explains the justification of the dispositive part and that the content of the remedy must be confirmed from the dispositive part, it asks what portion is to be separately adjudged within the dispositive part in the scope of the application. In the scene where the plaintiff sought delivery of a thing but the question arises whether another performance can be ordered on the ground that it would help resolve the dispute, the question converges on distinguishing the range opened by the application from the portion actually adjudged within it by a dispositive part.
This distinction can be read directly from the text of Article 203 of the Civil Procedure Act. The subject whose act the text prohibits is the court, the prohibited act is the judgment, and its object is a matter for which the party has made no application. In other words, the material for adjudication that the court may place in the dispositive part remains within the range set by the application. The author places this text as the basis for a procedural limitation, while explaining that it does not mean that the text even denies the existence or non-existence of substantive rights. In addition, Article 208 (2) of the Civil Procedure Act provides that the reasons of a written judgment "state the parties' assertions and other means of attack and defense to an extent sufficient to recognize that the dispositive part is just," making clear that the reasoning occupies the place of supporting the justification of the dispositive part.
Between this basis and the conclusion of this section lies one step. Even within the same scope of application, there may remain a portion actually tried by the dispositive part and a portion that is not; hence the term "unadjudicated portion" is used here. The conditions under which this section draws its detailed distinctions are limited to the operating case, the blocked case, and the undetermined case. Adjudication is established only where the necessary performance falls within a lawful scope of application and is tried within that scope by a dispositive part; it is blocked where the desired performance remains outside the scope of the application and the court cannot add it to the dispositive part at its discretion; and it remains undetermined where the correspondence between the final prayer for relief and the judgment cannot be confirmed.
The strongest counterargument starts from the point that explaining the boundary may in fact encourage a new lawsuit. If the written judgment separately marks the portion outside the application, the party may see that marking and feel obliged to bring the remaining claim again, so that in the end the dispute is not resolved at once. A party who misstated the matter may also suffer the disadvantage of being refused an obvious remedy. The author answers that, without erasing this disadvantage, matters outside the application nevertheless cannot be recorded as matters finally determined against the party. This is because, if the unadjudicated portion is recorded as a defeat, the door to the next remedy closes; and this runs in the same direction as the loss previously feared.
Contrasting the adjudicative conditions with the facts of this scene alone, the crux becomes whether the delivery of a thing sought by the plaintiff is the performance applied for, and whether the other performance is included in the scope of the application. If the other performance enters the scope of the application by a lawful amendment and is tried within that scope by a dispositive part, the blockage is lifted; but on the strength of this scene alone it is not confirmed how the final form of the prayer for relief corresponded to the dispositive part of the judgment. Accordingly, nothing can be asserted before the actual records—the prayer for relief, the amendment application, service, and the dispositive part and reasoning of the judgment—are compared; and if that correspondence should be confirmed, the conclusion may change, so the unadjudicated portion remains undetermined. Judgment outcomes or performance results not present in the scene cannot be inserted to hasten the determination.
Matters outside the application must not be recorded as matters finally determined against the party. Even though the concern remains that separately marking the unadjudicated portion may encourage the next lawsuit, the boundary is maintained that explaining the limits of the application is not the same thing as substantively denying a right.
6.11Synthesis of Effectiveness, Blockage, and Undetermination
Building on the conclusion that the reasoning explains the justification of the dispositive part and that the content of the remedy must be confirmed from the dispositive part, the first point laid down is that, if the meaning of defeat is extended to parts this trial did not reach, the next remedy too will vanish. The question of what must be preserved when the need for a remedy remains but is limited because of the application is a question of the manner of preserving the remaining remedy. In the scene, the plaintiff sought delivery of a thing, but the question arises whether another performance can be ordered on the ground that it would help resolve the dispute, and this question divides at the boundary between the performance applied for and the other performances. The doubt left by the preceding step must be narrowed and read here as the distinction between procedural limitation and substantive right.
The provision corresponding to this question is Article 203 of the Civil Procedure Act. Here the text itself is inscribed with the point that the subject is the court, the act is the judgment, and the condition is a matter for which a party has made no application. In other words, the court cannot place a determination on a matter not applied for in the dispositive part, and this is why the scope of the application becomes the outer contour of the object of adjudication. This text does not address the form required by other provisions or the length of the written judgment; it limits only the range of matters on which judgment can be rendered.
It connects the conditions of Article 203 to the same conclusion. Where the necessary performance falls within a lawful scope of application and is tried within that scope by a dispositive part, the efficacy of that dispositive part opens; where the desired performance remains outside the scope of the application and the court cannot add it to the dispositive part at its discretion, it is blocked. What divides the two states is a single line: was it within the scope of the application and tried by a dispositive part, or did it remain outside the scope and wait at the door of the trial? Where the correspondence between the final prayer for relief and the judgment cannot be confirmed, it remains undetermined between the two. If these three are mixed together, it reads as though substantive rights were denied, but a procedural limitation stops at not going beyond the matters applied for.
The counterargument that explaining the boundary may in fact encourage a new lawsuit carries weight. If a right becomes difficult to recognize because of an error of expression, irremediable inconvenience and loss remain with the party, and attributing that responsibility solely to the party's words leads to harsh results. The values aimed at by the counterargument are two axes: the effectiveness of remedies and the single settlement of disputes. Yet matters outside the application cannot be recorded as matters finally determined against the party. It is preferable to leave open the path the party may seek next once the reasons are known, rather than recording as a defeat what lies beyond the range confirmed in this trial and thereby closing that door.
The record of determination remains as the prayer for relief and amendment application, and service, the dispositive part of the judgment, and the reasoning. In the scene, if, unlike the application seeking delivery of a thing, the other performance expected on the ground that it would help resolve the dispute remains in the unadjudicated portion, then it is not something this dispositive part has confirmed. However, if a performance enters the scope of application lawfully by an amendment application, the previous blockage of being outside the application is re-determined. Outcomes of victory or defeat, performance results, or the finalized content of the judgment not present in the scene are not determined here and remain undetermined.
The conclusion this section permits is that a performance tried by a dispositive part within the scope of the application opens in efficacy; what it does not permit is recording a performance outside that scope as something confirmed by this dispositive part. The moment the unadjudicated portion is written as a final determination of defeat, the next remedy has its door closed; therefore the unadjudicated portion must be left in place. What must be clarified in moving on is the question corresponding to that boundary line.
6.12이 권의 결론과 남는 물음
The preceding section summarized that, where the necessary performance falls within a lawful scope of application and is tried within that scope by a dispositive part, it operates; where the desired performance remains outside the scope of the application and the court cannot add it to the dispositive part at its discretion, it is blocked; and where the correspondence between the final prayer for relief and the judgment cannot be confirmed, it remains undetermined. The operation and blockage spoken of by this summary point to different places within the same judgment. What must be confirmed is what conclusion such a distinction leads to in this section.
As the starting point for answering this question, the author places Article 203 of the Civil Procedure Act. According to its text, the court shall not render a judgment on a matter for which a party has made no application (Article 203 of the Civil Procedure Act). In this sentence, the subject is the court, the act is the judgment, and the condition concerns a matter for which a party has made no application. In other words, the place where the court can render judgment is limited to the matters applied for, and other matters are set apart from that application. This is a provision that fixes the places of the application and the judgment, and it does not address other issues.
Between that text and the author's conclusion lies one further step. The fact that the court cannot place a matter in the dispositive part because it lies outside the application is different from a determination that there is no right concerning that matter. Of the two categories the author distinguishes, one is the scope of the application, and the other is the determination made within that scope. If the former sets the place of the judgment, the latter shows what was recognized at that place. What the author takes here as the conclusion of this section is that the scope of the application and the determination within that scope must be separated, so that the procedural limitation is not read as a wholesale denial of substantive rights.
Those who oppose this distinction point out that explaining the boundary of the application may in fact encourage a new lawsuit. To leave in place, as an unadjudicated portion, the place not reached this time is to open the way to contest that place again. If, because the expression fell somewhat short, a party sought the wrong performance and the court rendered judgment solely for delivery of a thing as requested, the party would have to assemble the same dispute anew. The author answers that, without erasing this inconvenience and cost, matters outside the application nevertheless cannot be recorded as matters finally determined against the party. What may be recorded as a final determination of defeat must be limited to the places where a determination has been rendered.
In this scene, the delivery of a thing is the performance applied for, and the other performance may correspond to the unadjudicated portion not included in that application and dispositive part. If the court cannot add it to the dispositive part at its discretion, that performance remains unadjudged in this judgment. However, where the scene does not settle everything and the correspondence between the final prayer for relief and the judgment cannot be confirmed, it remains undetermined.
What this section permits is leaving the unadjudicated portion as an unadjudicated portion; what it does not permit is recording that portion as a matter finally determined against the party, thereby eliminating the next remedy as well. Preserving the scope of the application is not itself a denial of substantive rights, and determinations rendered within that scope must be read as they stand. Conversely, if the place outside the application is filled with a final determination of defeat, the distinction established by this section collapses. How to handle the remaining place is the next question: when must a legal matter the party has not raised be made known?
Statutes referred to
Questions left open
- How far may the interpretation of the prayer for relief supplement the parties' intent?
- How should a partial grant of a performance be distinguished from a grant of another performance?
- In claims that are difficult to standardize, upon whom does the burden of specificity fall?