Summary
The court must give the parties an opportunity to be heard on a legal matter that it recognizes the parties have evidently overlooked.
1.1The Standard by Which the Path Opens
If the legal perspective that would change the conclusion is concealed to the very end, the right to answer also disappears. The scope of the application must be separated from the determination within that scope, lest a procedural limitation be read as a wholesale denial of substantive rights. Taking up this conclusion, it now narrows the question of when a legal matter not raised by the parties must be disclosed by one further step. Plaintiff A and Defendant B disputed only the performance of a contract, yet the court means to treat another legal matter overlooked by both sides as the ground of its determination. In this scene, what is the standard by which the gateway to this relief opens?
The basis for answering this question lies in Article 136 of the Civil Procedure Act. That Article provides: “The court shall give a party an opportunity to state an opinion on a legal matter that is clearly recognized as having been overlooked by that party.” The subject indicated by this text is the court, the object is the legal matter, and the condition is the case in which it is clearly recognized that the party has overlooked that matter. The conduct required is that of giving the party an opportunity to state an opinion, and this opportunity is called legal clarification.
Read together with the conclusion confirmed above, this text divides the standard of decision into two layers. First, an opportunity to state an opinion on a legal matter that has clearly been overlooked must actually be given. Second, the demanded performance, parties, and conditions must be specified in the prayer for relief and must permit a defense of the right asserted in the selected action. The two layers do different work. The former guarantees the opportunity to answer; the latter connects that opportunity to the entrance of relief. If the demanded performance, parties, and conditions are not specified in the prayer for relief, or if they cannot permit a defense of the right asserted in the selected action, the entrance does not open.
The strongest counterargument is that a bench cannot disclose every legal review in advance. If opinions are heard anew for each legal perspective, the trial will never end, and an inconvenience arises in that every layer of interpretation handled internally by the judge would have to come to the outside. The value aimed at by this counterargument is therefore a speedy conclusion of the action and control of the proceedings. Even so, it cannot be extended into a duty to disclose in advance all internal legal review. What this text demands is not the disclosure of all review, but an opportunity to state an opinion on a legal matter that has clearly been overlooked.
In the synthetic scene, what the court meant to treat as the ground of its determination was a legal matter overlooked by both sides, and the parties disputed only the performance of a contract. Here, if the court recognized that the matter had clearly been overlooked yet rendered its determination without giving an opportunity to state an opinion, the requirement was not met. Conversely, if the opportunity was actually given, and the demanded performance, parties, and conditions were specified in the prayer for relief so that the right asserted in the selected action could be defended, the entrance of relief opens. However, if it is unknown when the legal matter in question was disclosed and what opportunity to respond was given, the determination remains undetermined. Even if the outcome is unfavorable, if an opportunity to answer that perspective is confirmed, the determination of deprivation of opportunity must be corrected.
The conclusion permitted by this section is narrow. Where an opportunity to state an opinion on a legal matter that has clearly been overlooked was actually given, the entrance of this relief must be regarded as open. This conclusion does not mean a duty to disclose in advance all internal legal review, nor does it promise in advance the court's direction of proceedings or the result of its interpretation. Where the court rendered a determination on a legal matter it recognized as having clearly been overlooked without giving an opportunity to state an opinion, the entrance of this relief does not open.
1.2The Conditions That Block Relief
The conclusion reached up to the preceding step is carried over in a single sentence: the scope of the application must be separated from the determination within that scope, lest a procedural limitation be read as a wholesale denial of substantive rights. The question remaining here is when the court must disclose that perspective to the parties. Unless one also asks under what conditions that notice and the opportunity to answer are foreclosed, one cannot ascertain the substance of the procedural channel. This issue is not a matter of the speed of trial; it asks when the place of answer left to the party is opened.
On this question, Article 136 of the Civil Procedure Act provides that “the court shall give a party an opportunity to state an opinion on a legal matter that is clearly recognized as having been overlooked by that party” (Article 136 of the Civil Procedure Act). This text designates the court as the subject and the giving of an opportunity to state an opinion as the act. The object is limited to a legal matter that is clearly recognized as having been overlooked by the party, and that matter belongs to the ground of legal determination, distinct from issues of fact. Whether overlooking is clearly recognized takes the court's assessment as a requirement, but an opportunity to answer must follow at the point that assessment is opened. The provision requires only that an opportunity to be heard be given; it does not specify any particular form or method.
Read together with this text and the conclusion of this section, it is to be understood as a structure in which the duty to give the opportunity operates only after the antecedent requirement has been confirmed. That is, whether the court recognized a legal matter clearly overlooked, and whether an opportunity to state an opinion on that matter was actually given, form respective stages of determination. The separation of the scope of the application from the determination within that scope at the preceding step presupposes this distinction. The question of allowing relief beyond the scope of the application is not addressed, while the handling of an overlooked legal perspective within that scope is placed as a distinct procedural stage. What is required here, then, is the opportunity to answer that perspective, and if any one of the statutory requirements is not met, the channel of relief closes.
That a bench cannot disclose all legal review in advance shows the burden borne by the actual conduct of trial. If a judge were to reveal immediately every perspective arising in the course of legal review and hear opinions on each one, it would be difficult to fix the point at which the trial ends, and the parties too would find it hard to anticipate the scope of what they must answer. A legal perspective is sorted out by the presiding judge through the proceedings, and so a demand to expose every intermediate stage of review fundamentally chills the conduct of the trial. Even so, no such inconvenience can be invoked to expand this into a duty to disclose in advance all internal legal review. What this section requires is not the disclosure of all review, but that an opportunity to answer the matter be given when a legal matter clearly overlooked is to be made a ground of determination. A reading that expands the duty to give the opportunity so as to bind the court's legal review of the case itself goes beyond the scope indicated by the text.
Placing this standard upon the synthetic scene, what Plaintiff A and Defendant B disputed was the performance of a contract, and the other legal matter that the court means to treat as the ground of its determination is premised to have been overlooked by both parties. In that case, the matter stands in a position to which the requirement of a legal matter clearly overlooked may be applied. Whether an opportunity was actually given, or whether the determination was reached without giving one, is not an ascertained fact and must be confirmed through clarification, notice of issues, the course of submission of opinions, and the reasons for judgment. So long as it is unclear when the legal matter in question was disclosed and what opportunity to respond was given, the determination remains undetermined. Since the mere scene cannot establish the presence or absence of the giving of an opportunity, whether the statutory requirements are met also cannot be conclusively decided. If, even so, the outcome is unfavorable, then once an opportunity to answer that perspective is confirmed, the determination of deprivation of opportunity must be corrected.
Accordingly, the conclusion permitted by this section is narrow. Where the court actually gave an opportunity to state an opinion on a legal matter it recognized as having clearly been overlooked, the channel of this relief opens; conversely, if any one of the statutory requirements is not met, it closes. What is not permitted is the expansive reading that all internal legal review must be disclosed in advance. Matters that are unconfirmed for want of records are left undetermined, and a shortage of materials is not immediately read as an inability to grant relief.
1.3The Boundary That Remains When There Is No Data
Up to the preceding step there remains the premise that the scope of the application must be separated from the determination within that scope, lest a procedural limitation be read as a wholesale denial of substantive rights. At that point, when must a legal matter not raised by the parties be disclosed? To this is added the question of where the boundary lies that cannot be fixed for want of materials.
The provision corresponding to this question is Article 136 of the Civil Procedure Act. Article 136, paragraph (4) thereof provides: “④ The court shall give a party an opportunity to state an opinion on a legal matter that is clearly recognized as having been overlooked by that party.” This text first places the court as the subject, imposing the duty upon the side that leads the determination. The object is a legal matter not addressed by the parties, and it is further limited to one that the court has recognized as having clearly been overlooked. The conduct required is that of giving the party an opportunity to state an opinion. Not a duty to fix or a compulsion of a definitive adjudication, but the giving of an opportunity stands at the center of the text.
The foregoing provision is joined to the settled conclusion. Where it is unknown when the legal matter in question was disclosed and what opportunity to respond was given, a matter that cannot be specified as material of determination is left undetermined, distinguished from impossibility. This distinction reveals that the two stages of determination are different. One is the procedural stage that asks whether an opportunity was given; the other is the stage of materials that asks whether what the material to be determined is can be specified. That the course of the opportunity to respond is not confirmed in the record does not permit one to settle immediately that the materials too were absent. To bundle the two without distinguishing which side is empty and pronounce it “impossible” would be to fix a fact never confirmed, and would also erase the requirement of opportunity demanded by the provision.
If opinions are heard anew for each legal perspective, the trial will never end. The loss aimed at by this counterargument is that of placing the proceedings in an endless circle and drawing out the lawsuit over a long period, thereby increasing the parties' inconvenience and delaying the dispute. This disadvantage, however, must not be erased. The author's answer is that it cannot be expanded into a duty to disclose in advance all internal legal review. It cannot be extended into a duty to reveal in advance, one by one, what issue the court will disclose, at what point, and in what form. Yet the fact that this extension is refused does not make disappear the textual requirement, already in place, of an opportunity to be heard on a legal matter that has clearly been overlooked.
The facts fixed in this scene are that only the performance of a contract was disputed and that the court means to treat another legal matter overlooked by both sides as the ground of its determination. Setting these facts against the foregoing conditions, whether the matter in question falls under “a legal matter that is clearly recognized as having been overlooked by the parties,” and when and what opportunity to state an opinion the court gave, cannot be confirmed from the materials. What has been designated as the record for the procedural stage consists of clarification, notice of issues, the course of submission of opinions, and the reasons for judgment, whereas the facts, service, and performance results of actual cases were not collected, and no year, amount, commencement date, or judgment outcome absent from the scene has been set. Accordingly, the giving of the opportunity to respond and the specification of materials cannot be adjudged on the scene alone and remain undetermined. This state of being undetermined is a shortage of materials and does not immediately mean an inability to grant relief.
What this section permits is the textual proposition that an opportunity to be heard must be given on a legal matter that has clearly been overlooked, together with the narrow distinction that matters whose course of opportunity is unknown are not pronounced impossible but are left undetermined. Conversely, what it does not permit is the extension requiring that all internal legal review be disclosed in advance, and the conclusiveness that fixes even the material of determination as absent on the sole ground that it is not confirmed in the record. The point that a determination of deprivation of opportunity can be corrected even where the outcome becomes unfavorable by reason of a confirmed opportunity to answer also falls within this scope. Conversely, if there is no material by which to fix the timing of notice of, and the opportunity to respond to, the legal matter at issue, that matter is not impossible but undetermined.
1.4The Records Needed for Determination
In this scene, the legal matter that the court seeks to make a ground of determination is one raised by neither side. In that case, the questions are when that perspective must be disclosed and what record is needed in order to judge that point in time.
Article 136, paragraph (4) of the Civil Procedure Act provides as follows: “The court shall give a party an opportunity to state an opinion on a legal matter that is clearly recognized as having been overlooked by that party.” This text first fixes the subject as the court, and limits the legal matter serving as the object to one that is clearly recognized as having been overlooked by the party. It provides that the party must be given an opportunity to state an opinion on that legal matter. The legal matter spoken of here means a legal perspective not raised by the parties, and the opportunity to state an opinion means the place at which an answer can be given on that perspective.
And on the basis of this text, the determination of the stage is made only on the settled record. In judging the stage, only materials recorded in clarification, notice of issues, the course of submission of opinions, and the reasons for judgment are used. The stage here means the point in time at which the legal matter at issue was disclosed and an answer received, together with that course of events. The determination of the stage must be distinguished from the fixing of the object. The former is the temporal inquiry into when a particular legal matter was disclosed and what opportunity to respond there was; the latter is the determination of whether that matter is a legal matter that has clearly been overlooked. The two are therefore not mixed; each demands the materials it requires, and absent records are not filled in by conjecture.
Such a record requirement draws a counterargument. A bench cannot disclose all legal review in advance. If opinions are heard anew for each legal perspective, the trial will never end; accordingly, this counterargument directly aims at the cost of delay of the lawsuit and the value of the court's latitude in conducting proceedings. However great that cost and value may be, the conclusion of this section does not go beyond the record requirement. That is, the answer is one that acknowledges the burden pointed out by the counterargument yet does not extend outside the scope of judging the stage solely on materials left in the record.
Within the synthetic scene of this section, several facts are settled. It is fixed that A and B disputed only the performance of a contract, and that the court sought to treat another legal matter overlooked by both sides as a ground of determination. However, when that legal matter was disclosed and what opportunity to respond was given remain unclear. Accordingly, the stage must be determined solely on the materials recorded in clarification, notice of issues, the course of submission of opinions, and the reasons for judgment, and absent records are not filled in by conjecture. Only the outcome of the case and the question of who prevailed or lost, which are not specified in the scene, are left undetermined.
The conclusion permitted by this section remains within the limited scope of determining the stage solely on recorded materials and not filling in absent records by conjecture. Accordingly, one can distinguish the case in which an opportunity to state an opinion on a legal matter that has clearly been overlooked was actually given, from the case in which the court rendered its determination on a matter it recognized as having clearly been overlooked without giving an opportunity. Conversely, this section permits no conclusion to the effect that every internal legal review must be disclosed in advance, or that facts not in the record may be conjectured and fixed.
1.5Circumstances That Change the Decision
Having separated the scope of the application from the judgment within that scope, this time I examine the conditions under which that judgment is overturned. Before what kind of change must the existing blocking judgment and effectiveness judgment be discarded?
"The court shall give the parties an opportunity to state their opinions on legal matters that it finds have clearly been overlooked." This wording first fixes the subject as the court, and narrows the object to 'legal matters that it finds have clearly been overlooked.' The act is 'giving an opportunity to state opinions,' and even if the parties have not spoken to the matter, this obligation is at issue when the court seeks to make it a basis for judgment. Here, legal clarification means the act of giving an opportunity to be heard on overlooked legal matters.
The point where this wording meets the foregoing conclusion is the confirmation of opportunity. Even if the outcome is unfavorable, once it is confirmed that an opportunity to respond to that perspective was given, the judgment of deprivation of opportunity is corrected. Here two things must be distinguished. One is whether an opportunity to express views on that perspective was actually given; the other is what judgment was rendered thereafter. Where the specified change—namely, the course of clarification, notice of issues, and submission of opinions—confirms that the opportunity was afforded, the existing blocking and effectiveness judgments are discarded and the assessment is redone from the step onward. Conversely, if it is confirmed that no opportunity was given, the blocking stands.
The strongest counterargument comes from the concern about delay in the trial. The bench cannot disclose every legal review in advance, and if opinions are sought anew for each new legal perspective, the trial will never end. This concern is realistic, and however much it gives the parties additional time to prepare against perspectives they did not anticipate, it does not remove the inconvenience that the procedure is stretched out in proportion. Still, this cannot be extended into a duty to disclose in advance all of the court's internal legal review. What the provision requires is affording an opportunity with respect to legal matters that clearly have been overlooked, not a wholesale disclosure of the entire course of the court's internal deliberations.
In this scene, the parties contested only performance of the contract, and the court seeks to treat a different legal matter overlooked by both sides as a basis for judgment. If it is confirmed in the records when this matter was notified and what opportunity to respond was given, the affording of the opportunity is settled. However, since the scene contains no actual record figures, where that course is unknown, it is a case in which it is unknown when the legal matter in question was notified and what opportunity to respond was given. In that case, whether deprivation of opportunity is established remains undetermined. From the synthetic scene alone, one cannot determine even victory or defeat, or the result of performance.
The conclusion permitted in this section is narrow. If an opportunity to state opinions on the overlooked legal matter is confirmed, the circumstance that the outcome was unfavorable alone cannot sustain a judgment of deprivation of opportunity. If the specified change is confirmed, the existing blocking and effectiveness judgments are discarded and the assessment is redone from the step onward. The conclusion not permitted is the assertion that all of the court's internal legal review must be disclosed in advance, and whether that circumstance substitutes for facts is not settled here.
1.6The Strongest Counterargument and the Answer
The preceding step confirmed that only by separating the scope of the application from the judgment within that scope can a procedural limitation avoid being read as a wholesale denial of substantive rights. On that basis, the analysis now confronts the strongest form of the counterargument. In this scene, what force does the observation carry that the bench cannot disclose all of its legal review in advance?
"The court shall give the parties an opportunity to state their opinions on legal matters that it finds have clearly been overlooked." In this wording, the subject is the court, and the object is legal matters that it finds have clearly been overlooked by the parties. The act required is giving an opportunity to state opinions. The wording merely records the obligation that attaches where it is found that the matter has clearly been overlooked; it does not flow into a demand that the court lay bare every legal review it has conceived.
The above wording, while requiring that an opportunity to state opinions be afforded, limits its object to legal matters that are found to have clearly been overlooked. This limitation connects with the conclusion confirmed above. The wording of the provision and the evaluation applying it must be distinguished. The wording sets the condition of the obligation to give an opportunity; the judgment in application asks how one discerns the matters falling within that condition. Just as the step of giving the opportunity and the step of accepting the content of the response are different, so too the matters that are the object of the notice and the whole course of the court's thinking are not the same.
The strongest counterargument aims at the exhaustion of practice. If opinions are sought anew for each new legal perspective, the trial will never end; and if every review confirmed while withholding judgment is laid out, the bench is placed in the position of having its opinions verified in advance. Meanwhile, the parties' right to respond and the expedition of the trial are squeezed together. But one should not answer by erasing the adverse aspect. This is not a remark that closes the path for asking about deprivation of opportunity; it binds the scope of the inquiry to legal matters that clearly have been overlooked.
The fact confirmed in this scene is that the court seeks to treat a different legal matter overlooked by both sides as a basis for its judgment. In this case the assessment must pass through clarification, notice of issues, the course of submission of opinions, and the reasons for judgment. Within that course, where an opportunity to state opinions on a legal matter found to have clearly been overlooked was actually afforded, the judgment of deprivation of opportunity is corrected. Where the court adjudicated without giving an opportunity to state opinions on a legal matter it found to have clearly been overlooked, deprivation of opportunity is at issue. If it is unclear when the matter in question was notified and what opportunity to respond was given, the assessment remains undetermined. The synthetic scene fixes neither the year nor the outcome, so no further distinction can be made.
Accordingly, the conclusion permitted in this section lies within a single boundary. While confirming the duty to afford an opportunity with respect to legal matters that clearly have been overlooked, it is not extended into a duty to disclose all internal legal review in advance. The conclusions not permitted are, on the one hand, asserting deprivation as a matter of course where the circumstances confirming the affording of the opportunity have not been confirmed, and, on the other, demanding the disclosure of every review.
1.7The Link to the Application and the Dispositive Part
The preceding section yielded the boundary that this cannot be extended into a duty to disclose all internal legal review in advance. Keeping this boundary, in a scene where plaintiff A and defendant B contested only performance of the contract and the court seeks to treat a different legal matter overlooked by both sides as a basis for judgment, there remains the question of when the court must notify the parties of that perspective. What is addressed here is not whether it must be notified, but the standard for the timing of notification.
The subject of this wording is the court, the object is a legal matter not addressed by the parties, and the condition is the time when the court finds that oversight to be clear. The act required is not a judgment but the affording of an opportunity to state opinions.
The provision says that an opportunity to state opinions must be given, yet it does not directly record the timing. Still, if one considers the condition, the standard for the timing emerges. The point at which the court finds a particular legal matter to have clearly been overlooked is precisely the point at which the threads are drawn toward that matter becoming a basis for judgment. If, having reached that finding, the court proceeds to judgment without notifying the parties, the requirement of an opportunity to state opinions remains a mere formality. That is why the two steps—the finding that the matter has clearly been overlooked and the affording of the opportunity—are read apart.
This requirement operates in a direction that burdens the bench. The bench cannot disclose all of its legal review in advance, and if opinions are sought anew for each new legal perspective, the trial lengthens. However, that burden is distinguished from the question of broadening the court's advance disclosure. When the court gives the opportunity with respect to a matter it has found to have clearly been overlooked, there is no duty to lay out every uncertain internal review. Put differently, it cannot be extended into a duty to disclose all internal legal review in advance.
The facts confirmed in this scene are only the direction of the dispute over performance of the contract and the court's wish to take as its basis a different legal matter overlooked by both sides. When that legal matter was notified, and what opportunity to respond was given, are questions to be seen in the records, and from the scene alone they remain undetermined. The standard of assessment, however, does not change. What result the response produced is not a requirement of this determination either.
Accordingly, the court shall give the parties an opportunity to state their opinions on legal matters that it finds have clearly been overlooked, and if it has reached that finding, the provision is to be read in the direction of revealing that matter and giving an opportunity to be heard before judgment. Conversely, both treating the mere fact that not all internal legal review was laid bare as a deprivation of opportunity, and defending even cases in which the court adjudicated while concealing a matter already found to have clearly been overlooked, lie outside this conclusion.
1.8The Scope This Section Undertakes
Now, at the boundary with the neighboring section, this question remains. May a new legal perspective change the judgment without giving the parties an opportunity to rebut? To answer this question, it must first be settled when a court must notify the parties of legal matters they have not raised.
The wording corresponding to this section is Article 136 paragraph (4) of the Civil Procedure Act. That Article provides: "The court shall give the parties an opportunity to state their opinions on legal matters that it finds have clearly been overlooked by the parties." Here the subject is the court; the object is legal matters that the court finds have clearly been overlooked by the parties; and the act requested is giving the parties an opportunity to state their opinions. This wording does not jointly regulate the matters of factual inquiry or submission of documents dealt with in the other paragraphs.
The clue linking this wording to the conclusion of this section lies in the distinction of two steps. First there is the judgment by which the court recognizes a matter as an overlooked legal matter; next there is the measure of affording the parties an opportunity to state opinions on that matter. Legal clarification means giving an opportunity to be heard on overlooked legal matters, and corresponds to the second step. If that opportunity was actually given, the procedural request is satisfied, and only where, after making such a determination, the court went forward without giving the opportunity is the effectiveness of this section barred. However unfavorable the result may be, the question of procedural deprivation of opportunity is confined to this narrow range.
The strongest counterargument rests on the point that the bench cannot disclose all of its legal review in advance. If the bench were to set out in advance every legal perspective it considers, the lawsuit would not end, and there is great inconvenience in that, if opinions are sought anew for each newly arising legal perspective, the parties are placed in an unpredictable situation. The author's answer, while preserving the proper scope of this counterargument, is that it cannot be extended into a duty to disclose all internal legal review in advance. It does not go so far as to establish a duty to explain, early and in full, every legal view the court has reviewed internally.
The facts confirmed in the synthetic scene are limited. The scene shows that the scope of the application and the judgment within it have already been separated; the materials for determining whether the perspective the court seeks to take corresponds to a legal matter that neither side raised, and whether it is found to have clearly been overlooked, have not yet been given. What must be left in the records is only the course of clarification, notice of issues, submission of opinions, and the reasons for judgment. Accordingly, from this scene alone one can neither confirm deprivation of opportunity nor assert that sufficient opportunity was given.
The conclusion permitted in this section is the narrow one that, with respect to legal matters that clearly have been overlooked, the court must give the parties an opportunity to state their opinions; what is not permitted is the broad one that there is a duty to disclose all internal legal review in advance.
1.9Application of the Text of the Provisions and the Holdings of Precedents
After the position has been settled in this way, there is something else to be asked. As the basis for answering this question, only the original text corresponding to this section is used. Article 136 of the Civil Procedure Act provides: "The court shall give the parties an opportunity to state their opinions on legal matters that it finds have clearly been overlooked by the parties" (Civil Procedure Act Article 136). The subject this wording addresses is the court, and the act it requires is giving the parties an opportunity to state their opinions. Its object is limited to 'legal matters that it finds have clearly been overlooked.' It is not wording that refers to facts the parties have already stated, or to every legal point the court is separately reviewing.
Looking at this wording as it stands, one can see that 'the finding that the oversight is clear' and 'the affording of the opportunity to state opinions' are distinguished. The former is the condition that the court first determines; the latter is the procedure required when that condition is satisfied. If these two steps are mixed, one easily comes to regard the satisfaction of the condition itself as the affording of the opportunity, or to read it the other way around. The range used as the basis of assessment is also bound by the subject, act, and condition contained in this wording. If one widens the gaze to the whole of the reasons for judgment or to parts not dealt with in this paragraph, judgments of a different range, rather than an answer to this question, become mixed in. Therefore, the author's conclusion is filled out solely by the wording of the original text in question. The interpretation appended here is the author's application, not a holding that the court must necessarily derive from that wording.
Yet depending on how this wording is read, a moment may come when the trial becomes unmanageable. The fact that the bench cannot disclose all of its legal review in advance is the reason one must face squarely, rather than conceal, the inconvenience this interpretation brings. If the parties are summoned and heard one by one for every newly encountered legal perspective, the trial will not end; and if even the court's own process of review must be laid entirely bare, the very work of preparing a judgment stops. Without erasing this burden, one nonetheless does not change the conclusion into a suspension. The answer lies within the settled range. This wording deals only with the opportunity in cases where the condition of legal matters found to have clearly been overlooked attaches; it cannot be extended into a duty to disclose all internal legal review in advance.
Only the facts entrusted to this section in the settled scene are now taken out and compared with the foregoing conditions. The facts contained in this scene are only this situation. From this scene alone, it is not settled when the court notified the parties of that legal matter and what opportunity to respond was given. Nor are records concerning the course of clarification or notice of issues, whether opinions were submitted, or how that perspective figured in the reasons for judgment within the range of materials designated for this section. Accordingly, what can be confirmed from this scene is limited to the attempt to make the overlooked legal matter a basis for judgment, and the fact that its object is a legal perspective the parties did not raise. The rest remains undetermined pending confirmation.
The boundary between the conclusion this section permits and the conclusion it does not is drawn once more. Where an opportunity to state opinions on a legal matter found to have clearly been overlooked was actually afforded, then even if the outcome turned out unfavorably, the judgment of deprivation of opportunity must be corrected. Conversely, where the court adjudicated without giving an opportunity to state opinions on a legal matter it found to have clearly been overlooked, by the standard of this section the requirement to give that opportunity is regarded as omitted. This determination is limited to the subject, act, and condition indicated by the wording of the original text in question, and does not extend to other passages of the reasons for judgment or to questions this section does not address.
1.10Fine Distinctions Within the Stage
After separating the scope of the application from the adjudication within that scope, so as to first accept the premise that a procedural limitation is not read as a wholesale denial of substantive rights, what must now be asked is, within that scope, by what criterion—opportunity to answer a legal point overlooked—to divide again and render judgment. If the preceding section dealt with when to give notice, the present inquiry stops at how to split the adjudicative unit within the opportunity given.
The provision in question is Article 136 of the Civil Procedure Act. Article 136, paragraph (4), provides: "The court shall give the parties an opportunity to state their opinions on legal matters that it finds to have evidently been overlooked by the parties." The subject of this provision is the court; its object is a legal matter that is found to have evidently been overlooked by the parties; and the conduct it demands is to give the parties an opportunity to state their opinions. This paragraph does not enumerate how the given opportunity is to be measured.
Read together with the foregoing distinction, where an opportunity to state opinions on a legal matter evidently overlooked has actually been granted, this falls within the operating case. Where the court decided without granting an opportunity to state opinions on a legal matter it found to have evidently been overlooked, this is the blocked-case condition; and where it is unknown when the legal matter in question was notified and what opportunity to respond was given, this remains the undetermined-case condition. The three divisions are limited to the conditions thus confirmed, and create no further requirements or stages. The point that an open legal channel does not convert into actual results of payment, delivery, or recovery is likewise maintained in the same context.
The counterargument that the bench cannot disclose every legal review in advance targets a practical inconvenience. If opinions are heard anew at each internal review, the issues multiply endlessly, the judgment is delayed, and the question of whether to open matters beyond the issues already disclosed arises each time. The confirmed conclusion, however, is to leave that loss as it is while not widening the scope. The delay and disclosure burden identified by the counterargument remain unremoved, and only cases meeting the conditions remain within the subject of adjudication at this stage.
In this scene, the only fact relevant to this question is the situation in which plaintiff A and defendant B have contested only the performance of a contract, while the court seeks to treat a different legal matter overlooked by both sides as a ground of adjudication. This fact alone does not clarify when the legal matter in question was notified and what opportunity to respond was given, and therefore it is left in the undetermined-case state. If an opportunity to answer that point is confirmed, the determination of deprivation of opportunity must be revised, and the judgment changes within the scope of the confirmed records. Yet since the scene contains no year, amount, commencement date, or judgment outcome, the determination is confined to the conditions expressly stated.
The conclusion permitted by this section stops at dividing the judgment among the three conditions of opportunity granted, opportunity omitted, and records unclear, and permits neither the addition of any new stage nor the creation of any fact.
1.11Synthesis of Effectiveness, Blockage, and Undetermination
If the legal point that would change the outcome is not disclosed to the last, the right to respond disappears with it. The preceding section framed legal clarification as the act of giving an opportunity to be heard on a legal matter that has been overlooked. On the basis of this definition confirmed above, the present inquiry is when that opportunity operates, when it is blocked, and when judgment must be withheld. In this scene, when must a legal matter that the parties have not raised be notified?
The textual basis for answering this question is Article 136, paragraph (4), of the Civil Procedure Act. That provision states: "The court shall give the parties an opportunity to state their opinions on legal matters that it finds to have evidently been overlooked by the parties." (Civil Procedure Act, Article 136) Here the subject is the court, and the object is a legal matter that is found to have evidently been overlooked by the parties. The conduct required is to give the parties an opportunity to state their opinions on that matter, and the trigger is not that the legal matter is unknown to the parties, but that the court finds it to have evidently been overlooked.
If the grant of the opportunity required by this provision is linked to the foregoing conclusion, that opportunity divides into three states according to whether it was actually given to the parties. Where an opportunity to state opinions on a legal matter evidently overlooked has actually been granted, the opportunity operates. Conversely, where the court decided without granting an opportunity to state opinions on a legal matter it found to have evidently been overlooked, it is blocked. And where the records leave unclear when the legal matter in question was notified and what opportunity to respond was given, the matter remains undetermined. This distinction concerns whether the procedural condition of an opportunity was properly observed, and is separated from the question of judging whether the content of the judgment was favorable to the parties.
The counterargument that presses this distinction hardest begins from the point that the bench cannot disclose every legal review in advance. It is said that if opinions are heard anew whenever a new legal point arises, the trial never ends, and the demand becomes one requiring the court's process of deliberation to be exposed in full. This inconvenience has not been removed. Yet this counterargument meets the answer that it cannot be broadened into a duty to disclose in advance every internal legal review. What is at issue is not every review of the court, but a legal matter that is found to have evidently been overlooked by the parties, and the grant of an opportunity is required only within that limited scope.
Measured against this scene, what A and B contested is the performance of a contract, and what the court seeks to treat as a ground of adjudication is a different legal matter overlooked by both sides. Whether this matter is found to have evidently been overlooked, and when and in what manner the court notified it and gave an opportunity to respond, cannot be determined from the scene alone. It can be known only by examining records such as the clarification, the notice of issues, the course of submissions of opinion, and the reasons for the judgment, and if those records are not available, the matter remains undetermined. Only one thing, however, is clear.
What this section permits is only this narrow distinction. If an opportunity to state opinions on a legal matter evidently overlooked was actually given, the opportunity operated; if the court decided on a matter it found to have evidently been overlooked without such an opportunity, it was blocked; and if it is unclear when notice was given and what opportunity to respond was allowed, the matter is undetermined. Judgments beyond that—such as the substantive validity of that point, or the possibility of relief outside the scope of the application—are not addressed by this section.
1.12Conclusion Carried Over to the Next Section
After the foregoing analysis concluded that the scope of the application and the adjudication within that scope must be read separately in order not to treat a procedural limitation as a wholesale denial of substantive rights, the present question asks about the place that remains outside it. Where plaintiff A and defendant B contested only the performance of a contract, and the court seeks to treat a different legal matter overlooked by both sides as a ground of adjudication, the question at this place is when the court must notify a legal matter that the parties have not raised.
The provision answering this question is found in Article 136 of the Civil Procedure Act. Article 136, paragraph (4), thereof provides that "the court shall give the parties an opportunity to state their opinions on legal matters that it finds to have evidently been overlooked by the parties" (Civil Procedure Act, Article 136). The subject indicated by this provision is the court, and its conduct is to give the parties an opportunity to state their opinions. The condition is tied to the matter being a legal matter that is found to have evidently been overlooked by the parties.
To link the condition of the above provision with the conclusion reached through it, one must first discern that the object of the court's notice is a legal point. Granting this opportunity is the act of reopening, at the place where the party has missed a legal matter that will serve as a ground of adjudication, the words with which to answer that matter; it is not the act of ascertaining in the party's stead the fact that fills that place. This is why the ascertainment of facts and the notice of a legal point are divided.
The counterargument that the bench cannot disclose every legal review in advance targets the place where this distinction bears its weight. If the court were required to put forth each and every legal point under its review, opinions would have to be heard again for every new legal point and the trial would never end; and where the point thus disclosed in the end does not reach adjudication, that disclosure rather gives rise to misunderstanding. Without erasing this loss and inconvenience, the conclusion remains as it is. This duty to grant an opportunity pertains to legal matters evidently overlooked, and cannot be broadened into a duty to disclose in advance every internal legal review.
Placed under this condition, the case falls within the scope of this section where what the court seeks to consider is a legal matter beyond the contentions concerning performance of a contract, and the court finds that both parties have evidently overlooked that matter. The scene, however, does not fix when or in what manner that matter was notified, and this must be confirmed through the clarification, the notice of issues, the course of submissions of opinion, and the reasons for the judgment. Unless the actual records are confirmed, when that matter was notified and what opportunity to respond was given remain unknown, and this point remains undetermined.
The conclusion permitted by this section is that the court must give the parties an opportunity to state their opinions on a legal matter evidently overlooked, and that this opportunity does not produce facts in their place; that is the limit. To read beyond this—that every internal review of the bench must be disclosed in advance, or that some fact is ascertained by notice alone—goes beyond this place. Is notice of a legal point an act of producing facts in their place?