Summary
Questions of fact and the opportunity to be heard on legal matters are connected, but the latter is not a mechanism by which the court drafts a party's factual assertions on its behalf.
2.1The Standard by Which the Path Opens
Notifying a party of a legal perspective must not erase the boundary of who asserted which facts. The question whether notifying a legal perspective is a matter of creating facts in place of the parties follows from the conclusion reached at the previous stage, that the court must give the parties an opportunity to state their opinions on a legal matter that is clearly recognized as having been overlooked. In the present scene, plaintiff A and defendant B have disputed only the performance of a contract, while the court intends to treat another legal matter, overlooked by both sides, as a basis for its decision. This section examines what the standard for notification is in this situation.
With this question, the place to begin is with the applicable wording. Article 136 (1) of the Civil Procedure Act provides that "the presiding judge may, in order to clarify the matters at issue in the lawsuit, question the parties on matters of fact or law." Here the actor is the presiding judge, the act is questioning and urging the production of proof, and the condition is clarifying the matters at issue in the lawsuit. The objects encompass both matters of fact and matters of law.
Paragraph (4) of the same Article provides that an opportunity to state opinions must be given with respect to a legal matter that has been overlooked (Civil Procedure Act, Article 136). Read together, the two provisions link questioning on matters of fact with the opportunity to state opinions on matters of law, but they do not constitute a system under which the court drafts the parties' factual assertions on their behalf. Here, clarification concerns an unclear matter at issue in the lawsuit or an overlooked legal matter. Where an opportunity to state opinions has actually been given on a legal matter clearly recognized as having been overlooked, the entrance to this relief is opened. This is why the point at which the opportunity opens and the point at which facts are filled in must be kept apart.
The counterargument that, even if only the perspective is disclosed, a party may fail to grasp the necessary facts is superficially persuasive. Knowing a legal perspective and asserting facts are activities that make different demands, and if the notification is vague, the party will have difficulty knowing what to submit. The inconvenience of delay in the trial is also great. If opinions are heard anew for every new legal perspective, the trial may never end. Even so, a notification on a legal matter cannot be converted into ex officio recognition of new facts. The way to reduce the difficulty lies not in narrowing the opportunity but in holding fast to the boundary that notification does not create facts in place of the parties.
Placing this condition in the present scene brings the contrast into view. Plaintiff A and defendant B disputed only the performance of a contract, and the other legal matter the court intends to consider was overlooked by both sides. Where the requested performance, the parties, and the conditions are specified in the claim statement, and the parties are in a position to defend against the right asserted in the chosen action, the standard at the entrance is satisfied. Conversely, where it is unclear when the legal matter in question was disclosed and what opportunity to respond was given, nothing can be determined. Even if the outcome is unfavorable, once it is confirmed that there was an opportunity to respond to that perspective, the finding of deprivation of opportunity is corrected.
Accordingly, the conclusion permitted by this section is narrow. If an opportunity to state opinions was actually given on a legal matter clearly recognized as having been overlooked, and if the requested performance, parties, and conditions are specified in the claim statement so that the right asserted in the chosen action can be defended, the channel for this relief is opened. Even then, it does not follow that the court is permitted to create facts itself and use them as the basis of the judgment. If the court decided without giving an opportunity to state opinions on a legal matter it recognized as clearly having been overlooked, the matter must be viewed differently, and the present scene alone is not sufficient to determine that point.
2.2The Conditions That Block Relief
At the previous stage, it was confirmed that the court must notify the parties of a legal matter they have overlooked; now the conditions under which such notification is barred must be considered. Specifically, the question is where the line lies that gives an opportunity without creating facts in place of the parties.
This section begins by confirming the applicable wording. Article 136 (4) of the Civil Procedure Act provides that "the court must give the parties an opportunity to state their opinions with respect to a legal matter that is clearly recognized as having been overlooked by the parties" (Civil Procedure Act, Article 136). Here the actor indicated by the wording is the court, the act is the granting of an opportunity to state opinions, and the condition is the case in which a legal matter that has been overlooked is clearly recognized as having been overlooked.
Paragraph (1) of the same Article reads: "The presiding judge may, in order to clarify the matters at issue in the lawsuit, question the parties on matters of fact or law, and may urge them to produce proof" (Civil Procedure Act, Article 136). The questioning in paragraph (1) and the opportunity to state opinions in paragraph (4) are connected but perform different functions. Paragraph (1) is the provision enabling questions that clarify the matters at issue in the lawsuit; paragraph (4) is the provision guaranteeing an opportunity to hear opinions on an overlooked legal matter. The reason for separating the two is plain: clarification concerns an unclear matter at issue in the lawsuit or an overlooked legal matter, and depending on which of the two is its object, the required procedure and its limits differ. The court's drafting of the parties' factual assertions on their behalf falls within neither scope.
The strongest counterargument is aimed at practical inconvenience. Its criticism is that, if only the perspective is disclosed, the party may fail to grasp the necessary facts flowing from that perspective, and the notification becomes a mere formality. Added to this is the concern that, if opinions are heard anew for every new legal perspective, the trial will never end. Yet the conclusion of this section is unshaken. A notification on a legal matter cannot be converted into ex officio recognition of new facts, and the duty to give an opportunity remains within the bounds of an opportunity to hear opinions on an overlooked legal matter. The disadvantage pointed out by the counterargument remains. But it cannot be resolved in the manner of opening first a channel for manufacturing facts.
Contrasted with the foregoing conditions, the channel of relief is bound to the procedure of an opportunity to respond to an overlooked legal perspective. Where the court has decided without giving an opportunity to state opinions on a legal matter it recognized as clearly having been overlooked, the channel of relief is closed if any one of the statutory requirements is unmet. In the synthetic scene, plaintiff A and defendant B disputed only the performance of a contract, and the court intends to treat another legal matter, overlooked by both sides, as a basis for its decision. On this scene alone, when the legal matter in question was disclosed and what opportunity to respond was given are unclear; accordingly, the matters that cannot be determined remain undetermined.
The conclusion permitted by this section is narrow. If the court actually gave an opportunity to state opinions on a legal matter it recognized as clearly having been overlooked, there can be no deprivation of opportunity; conversely, if it decided without giving such an opportunity, relief is not opened unless the statutory requirements are met. Whether the outcome of the trial should be changed, whether new facts may be recognized, and whether the relief has actually been carried out lie outside what this section answers.
2.3The Boundary That Remains When There Is No Data
At the previous stage, the procedural standard was confirmed: the court must give an opportunity to state opinions on a legal matter clearly recognized as having been overlooked by the parties. Yet to apply that standard to the actual record, it must be established when the court disclosed which matter and what opportunity to respond it gave the parties. In the scene where plaintiff A and defendant B disputed only the performance of a contract while the court intends to treat another legal matter, overlooked by both sides, as a basis for its decision, how is that procedure to be evaluated if the timing of the disclosure and the content of the opportunity have not been left in the record?
This question begins with the wording of the provision already confirmed. Article 136 of the Civil Procedure Act declares in paragraph (1): "(1) The presiding judge may, in order to clarify the matters at issue in the lawsuit, question the parties on matters of fact or law, and may urge them to produce proof." In the same Article, paragraph (4) simultaneously imposes the duty that "(4) The court must give the parties an opportunity to state their opinions with respect to a legal matter that is clearly recognized as having been overlooked by the parties." The actors addressed by these two provisions are respectively the presiding judge and the court; the objects are matters of fact or matters of law; and the conditions are clarity of the matters at issue in the lawsuit and clarity of the fact of having been overlooked.
The reason the actor, object, and condition prescribed by the two provisions above must be read as distinct from one another is that the two do not form the same stage of decision. The questioning and urging of proof in paragraph (1) are means of clarifying the matters at issue in the lawsuit, while the opportunity to state opinions in paragraph (4) is a device securing the power to respond to an overlooked legal matter. Blurring the boundary between these two objects leads to the misapprehension that a question the court put in order to organize the facts is itself an act of creating a new factual assertion. Yet the material for findings of fact remains within the scope presented by the parties, and the court's notification is limited to an act that indicates only the direction of legal evaluation upon that material.
This distinction, of course, carries practical costs. Even if only the perspective is disclosed, a party may fail to grasp the necessary facts. A party lacking legal knowledge in particular may miss the chance to respond, unable to perceive the connection between the perspective the court has raised and his or her own assertions. But for that disadvantage, a notification on a legal matter cannot be converted into ex officio recognition of new facts. The loss at that point is the possibility that the party was unable to prepare adequately; yet it does not follow that it is necessarily more favorable to the party for the court to craft the factual assertions instead, and it runs headlong into the principle of leaving in the record how each side asserted the facts in the lawsuit. Even if an adverse possibility is left open, changing the subject who drafts the facts is not permitted.
Contrasting the facts established in this scene with the foregoing conditions clarifies that boundary. The synthetic scene sets up only the contract-performance dispute between plaintiff A and defendant B, the legal matter overlooked by both sides, and the fact that the court intends to treat that matter as a basis for decision. Beyond that, when the legal matter in question was disclosed and what opportunity to respond was given do not appear in the record. In this state, where the clarification, the notice of issues, the route of opinion submission, and the course of the reasons for judgment that constitute the material of decision are unconfirmed, one cannot assert that the procedure was lawful or unlawful. This matter, whose material of decision is unspecified, is rather distinguished from an inability to reach a conclusion and remains undetermined. For the very absence of material does not mean that relief is impossible.
The conclusion permitted by this section is thus narrow: where it is unknown when the legal matter in question was disclosed and what opportunity to respond was given, a matter whose material of decision is unspecified is distinguished from an inability to reach a conclusion and remains undetermined; and this determination is limited to the distinction addressed in this section, that notification on a legal matter is not an act of creating facts in place of the parties. If material is confirmed, the state of undetermination is then reassessed. What is not addressed here is the case in which the recognition of new facts arises independently of the notification of a legal perspective; that question lies outside the scope of this section.
2.4The Records Needed for Determination
Accepting the premise that, where it is unknown when the legal matter in question was disclosed and what opportunity to respond was given, the determination is left undetermined and is distinguished from cases where relief is barred, the question arises of what should be left as the ground of that notification in the scene where plaintiff A and defendant B disputed only the performance of a contract while the court intends to treat another legal matter, overlooked by both sides, as a basis for its decision. This question proceeds from the premise that clarification is a procedural tool whose object is an unclear matter at issue in the lawsuit or an overlooked legal matter. What record this tool requires is the material of the main text.
The applicable wording divides into two phrases. Article 136 (1) of the Civil Procedure Act provides: "(1) The presiding judge may, in order to clarify the matters at issue in the lawsuit, question the parties on matters of fact or law, and may urge them to produce proof" (Civil Procedure Act, Article 136). Paragraph (4) provides: "(4) The court must give the parties an opportunity to state their opinions with respect to a legal matter that is clearly recognized as having been overlooked by the parties" (Civil Procedure Act, Article 136). The actor spoken of in paragraph (1) is the presiding judge, the act is questioning and urging the production of proof, and the object is matters of fact or matters of law. The actor spoken of in paragraph (4) is the court, the act is the granting of an opportunity to state opinions, and the condition is a legal matter clearly recognized as having been overlooked by the parties.
The two points the wording keeps apart serve as the criteria of determination for this question. The questioning in paragraph (1) broadly encompasses activities that clarify the matters at issue in the lawsuit, while paragraph (4) separately requires the narrower step, among those, of an opportunity to state opinions on an overlooked legal matter. These two are not different names for the same activity but are procedural steps with different objects and conditions, and must therefore be distinguished. Whether the opportunity was actually given, and when, in what form, notice was given and what response came in, cannot be confirmed by abstract declaration alone. The author therefore takes this determination to rest on the clarification, the notice of issues, the course of opinion submission, and the reasons for judgment. Without that record the conclusion remains undetermined, which differs from confirming that there was no opportunity.
The strongest counterargument is directed at the point that, even if only the perspective is disclosed, a party may fail to grasp the necessary facts. Even after hearing what legal perspective the court takes issue with, the party may be unable to identify what facts support that perspective and what material must be submitted. The loss in that case is that the party's defense may become substantially deficient. But such difficulty is not a ground for the court to create in the party's place the facts that ought to be confirmed. The notification of a legal perspective and the formation of facts are different matters, and a notification on a legal matter cannot be converted into ex officio recognition of new facts. A finding of deprivation of opportunity stands only after the course of notification and response has been confirmed in the record; it does not presuppose that facts are secured by a perspective alone.
This scene alone does not reveal when that legal matter was disclosed and what opportunity to respond was given. The years, amounts, accrual dates, and judgment outcomes absent from the scene have not been set, and the service and enforcement results of an actual case are likewise unknown. Accordingly, without a course of events confirmed by the record, the determination of this question remains undetermined. This, however, is distinguished from a state in which relief is barred. Undetermination is a judgment about a state without material, whereas a case in which deprivation of opportunity is confirmed is a separate determination.
What this section permits is the procedural step of an opportunity to state opinions on an overlooked legal matter and the need for the record showing that step: the clarification, the notice of issues, the course of opinion submission, and the reasons for judgment. What this section does not permit is the view that the court's notification of a perspective drafts the parties' factual assertions in their place, or that facts are formed from a perspective alone. The determination varies according to what record was left behind.
2.5Circumstances That Change the Decision
In this scene, the author holds that one must ask separately whether the court should arrange an occasion for the parties to express their views on the legal perspective it takes, and what the outcome was when judgment was rendered after no such occasion had been arranged. The question at issue is whether notice of the legal perspective serves to create facts in the parties' place, and further, what kind of change overturns the existing stage determination. The boundary of whose allegations the facts are left to is the first condition of this question.
The basis addressed in this section is the two paragraphs of Article 136 of the Civil Procedure Act. Paragraph (1) provides: "① The presiding judge may, in order to clarify the relationship of the action, question the parties on matters of fact or law and urge them to produce proof." (Civil Procedure Act, Article 136). In this text, the subject is the presiding judge, the acts are questioning and urging proof, and the condition is the purpose of clarifying the relationship of the action. The objects encompass matters of fact and matters of law together. Paragraph (4) provides: "④ The court shall, with regard to a matter of law that it recognizes a party has evidently overlooked, afford the party an opportunity to state an opinion." (Civil Procedure Act, Article 136). Here the subject is the court, the act is affording an opportunity to state an opinion, and the object is a matter of law recognized as having been evidently overlooked by a party.
The questioning under paragraph (1) and the opportunity to state an opinion under paragraph (4) are connected in that the court must move first, but since their objects and results are not the same, they must be judged in two separate stages. The questioning on matters of fact and matters of law under paragraph (1) is a means of making the relationship of the action clear, while paragraph (4) requires that an overlooked matter of law be separately designated and opinions be heard on it. Read together as one, the two would become a device by which the court could organize even the facts itself, but the text of the provisions is limited to affording an opportunity to be heard. Accordingly, the author's conclusion is clear. Even if the outcome is unfavorable, once it is confirmed that an opportunity to respond to that perspective was afforded, the finding of deprivation of opportunity must be corrected; and once the specified change is confirmed, the existing blocking and effectiveness determination must be discarded and the determination restarted from the next stage. That is, one first looks at whether the opportunity was afforded, and on the basis of that confirmation begins the next stage of determination anew.
The strongest counterargument targets the point that the perspective alone may fail to alert the parties to the facts they need. The parties may find it difficult to guess what allegations and proof the perspective stated by the court calls for, and in the end they are subjected to judgment without being able to respond at that juncture. The counterargument goes further here, pointing out that if opinions were heard anew for every new legal perspective, the trial would never end. These burdens of inconvenience and delay must not be concealed. Even so, the answer the author sets does not waver. Notice of the perspective must not become a means of creating facts in the parties' place, and the omission of facts spoken of by the counterargument is handled not by newly creating them in that passage but by leaving the facts within the parties' sphere of allegations.
Contrasting the synthetic scene and the conditions in this section, Plaintiff A and Defendant B disputed only the performance of a contract, and the court intends to regard another matter of law overlooked by both sides as the basis of its determination. From this scene alone, it cannot be confirmed when that matter of law was communicated and what opportunity to respond was afforded, or whether it was not afforded. It must be confirmed through clarification, notice of the issues, the course of submission of opinions, and the reasons for judgment, but its content is unconfirmed. Accordingly, there is as yet no basis for distinguishing the case in which the opportunity was afforded from the case in which it was not, and that fact remains undetermined. If the outcome is unfavorable, still, once it is confirmed that an opportunity to respond to that perspective was afforded, the finding of deprivation of opportunity must be corrected. The year, amount, commencement date, and judgment result not present in the scene are values that have not been set.
The conclusion permitted in this section is narrow. One first examines whether the court, having designated an overlooked matter of law, afforded the parties an opportunity to state their opinions, and if that opportunity is confirmed, the conclusion is limited to correcting the finding of deprivation of opportunity even though the outcome is unfavorable. If the opportunity is unconfirmed, or if it is unknown when and what kind of response opportunity was afforded, the matter is left undetermined, and this is not immediately converted into the unavailability of relief. Conversely, this section does not permit the conclusion of converting legal notice into an ex officio finding of new facts.
2.6The Strongest Counterargument and the Answer
The preceding stage confirmed that notice of a legal perspective cannot create factual allegations in the parties' place, and here the next question is appended. If even being told the perspective alone may fail to alert the parties to the facts they need, has the opportunity to state an opinion been fully afforded merely by that manner of notification? Or does that degree of guidance rather produce the result of drawing the fact-finding inquiry over to the court's side?
The text capable of answering this question is found in Article 136 of the Civil Procedure Act. Paragraph (1) of the same Article provides that, in order to clarify the relationship of the action, the presiding judge "may question the parties on matters of fact or law" and may urge proof, and paragraph (4) provides that the court "shall afford the party an opportunity to state its opinion" with regard to a matter of law that it recognizes a party has evidently overlooked (Civil Procedure Act, Article 136). The former opens the manner in which the presiding judge may question, and the latter imposes the duty to afford an opportunity to state an opinion on a matter of law overlooked by a party. The subjects of the two are divided into the presiding judge and the court, and the object of the former covers matters of fact and matters of law together, whereas the object of the latter narrows to matters of law.
That paragraph (4) says an opportunity shall be afforded means that the procedure for hearing the opinion must be opened, not that the court is to create that opinion in the parties' place. That paragraphs (1) and (4) place matters of fact and matters of law side by side while writing the person in charge as the presiding judge and the court, respectively, shows that the act of questioning and the act of establishing facts are stages distinct from one another. Accordingly, even if the court has communicated an overlooked legal perspective, the facts that are to be placed under that perspective remain the parties' share to allege and prove. The disclosure of a perspective and the creation of facts must be distinguished, and the moment the former is converted into the latter, the questioning under paragraph (1) and the opportunity afforded under paragraph (4) are mashed into one and the same thing.
The counterargument that pierces this distinction most painfully is this. If only the perspective is communicated to a party, the party may not be able to work out for itself what facts are needed for that perspective, and a side unfamiliar with practice may simply let it pass. Hence, unless the court at least points to the necessary facts, even as a hint, the opportunity is an empty shell. But one cannot choose the method of having the court fill in the facts to make up for this loss. If it does so, that fact takes its place as the basis of the overlooked matter of law, and the boundary of what facts were alleged is erased. The difficulty of recognition pointed out by the strongest counterargument is acknowledged, but it is not permitted to drag in an ex officio finding of facts under the excuse of that difficulty.
Looking at this scene, Plaintiff A and Defendant B disputed only the performance of a contract, while the court intends to regard another matter of law overlooked by both sides as the basis of its determination. What the court can do in this scene is limited to communicating that other matter of law and affording both sides an opportunity to state their opinions. If both sides newly put forward the facts to be placed under that perspective, those facts remain in the records as the parties' allegations, and if both sides say nothing, those facts are not in the records. Clarification operates with reference to its object, namely an unclear relationship of action or an overlooked matter of law, and even as it is directed to that object, facts are not thereby newly created. Unless the point in time at which the court communicated it in this scene, or what opportunity to respond was afforded, can be confirmed from the records, whether the opportunity was actually afforded cannot be determined from this scene alone.
What can be confirmed in this section is narrow. Where the court communicated an overlooked legal perspective and afforded an opportunity to state an opinion on it, the mere circumstance that the party failed to allege the facts needed for that perspective cannot be taken to mean that no opportunity was afforded; nor, on the other hand, did the court find facts in the party's place. By contrast, if, in lieu of communicating the perspective, the court fabricated even the facts and adopted them as the basis of judgment, that is a direction this section does not permit. And the problem of when the perspective was communicated and what opportunity was afforded is not judged here but is left as it stands.
2.7The Link to the Application and the Dispositive Part
The preceding section concluded that legal notice cannot be converted into an ex officio finding of new facts. The question that remains upon accepting the conclusion of the preceding section is whether the act of the court in informing the parties of its legal perspective can lead to the court writing out the party's factual allegations in that party's place. Until this is confirmed, one cannot determine where the boundary between clarification and the extraction of facts lies.
The text corresponding to this question is in Article 136 of the Civil Procedure Act. Paragraph (1) of the same Article provides: "① The presiding judge may, in order to clarify the relationship of the action, question the parties on matters of fact or law and urge them to produce proof." This text lists matters of fact and matters of law together as the objects on which the presiding judge may question and urge proof under the purpose of clarifying the relationship of the action. That is, the subject is the presiding judge, the acts are questioning and urging proof, and the condition is that it be for the purpose of clarifying the relationship of the action.
The reason this provision places matters of fact and matters of law side by side is to reveal that the two matters cannot be lumped together and handled as one. Matters of fact are the objects which the parties are to allege and prove, and matters of law belong to the perspective that becomes the basis of judgment. Accordingly, the presiding judge's questioning or urging proof of a party on matters of fact and the court's affording an opportunity to be heard on matters of law are connected to each other but are not acts of the same stage. The court's act of communicating a legal perspective does not extend to the court's gathering and writing down facts that a party has not presented.
The strongest counterargument targets the point that by communicating only the legal perspective, the parties may fail to recognize the facts they must follow up on. This contention clearly indicates the point of the loss. The perspective alone may not reveal what further facts to allege and what to prove, and as a result, the parties are subjected to adjudication without having completed their own allegations—an inconvenience. Yet one cannot convert legal notice into an ex officio finding of new facts while erasing this disadvantageous aspect. The scope of communicating a perspective and the scope of writing facts in the parties' place are distinct.
What is confirmed in this scene is that the two parties disputed only over the performance of a contract, and that the other matter of law the court intends to consider is one recognized as evidently having been overlooked by both sides. In this case, the requirement that the court afford the parties an opportunity to state opinions on that matter is placed in a state where its satisfaction can be examined. By contrast, what new facts a party alleged, and when and how those facts were submitted, are not fixed by the scene and therefore cannot be determined in this section. Whether the opportunity was actually afforded is also a matter to be confirmed through clarification, notice of the issues, the course of submission of opinions, and the reasons for judgment.
The notice of a legal perspective is a procedure that clarifies the object of clarification, namely an unclear relationship of action or an overlooked matter of law; it is not a device that creates facts in the parties' place. Accordingly, the conclusion permitted in this section extends only to the range in which questions on matters of fact and opportunities to state opinions on matters of law are connected, and in which the court must afford an opportunity to state an opinion on an overlooked matter of law. Beyond that, the conclusion that the court must fill in the parties' factual allegations is not drawn from this section.
2.8The Scope This Section Undertakes
In this scene, if the court seeks to adopt a new legal perspective as the basis of judgment, the question is whether it may change the judgment without affording an opportunity to respond to that perspective. And together therewith it is determined whether that determination may lead to creating facts in the parties' place, and where the boundary of the scope of the present question lies.
The text responsive to this question is divided into two paragraphs. Article 136, paragraph (1) of the Civil Procedure Act provides: "① The presiding judge may, in order to clarify the relationship of the action, question the parties on matters of fact or law," and Article 136, paragraph (4) of the Civil Procedure Act provides that "④ with regard to a matter of law that the court recognizes a party has evidently overlooked," it shall afford the party an opportunity to state its opinion. Here the objects on which the presiding judge may question encompass matters of fact and matters of law together, while the opportunity to state an opinion under paragraph (4) is limited to matters of law overlooked by a party.
Placing the two texts above side by side explains the distinction that the object of clarification means an unclear relationship of action or an overlooked matter of law. The questioning under paragraph (1) covers even matters of fact as a means of clarifying the relationship of the action, but the opportunity to state an opinion under paragraph (4) is limited to the narrow scope of overlooked matters of law. Accordingly, questions on matters of fact and opportunities to state opinions on matters of law are connected yet are not the same thing. Since it is not a system in which the court writes the parties' factual allegations in their place, the notice of a legal perspective operates only within a range that does not erase the boundary of who alleged what facts. The conclusion that legal notice cannot be converted into an ex officio finding of new facts is established here.
Nevertheless, the counterargument focuses on the loss. Even if the court mentions an overlooked matter of law, if the party cannot reckon what evidence or allegations it must prepare to respond there, then even though an opportunity is formally afforded, a substantive defense is not achieved. This disadvantage is not erased and remains. Only, the answer does not lie in the direction of the court creating facts in the party's place, but stays with actually affording an opportunity to state an opinion on a matter of law evidently overlooked. Whether the opportunity can be confirmed is the axis of the determination.
In the scene where Plaintiff A and Defendant B disputed only the performance of a contract while the court intends to regard another matter of law overlooked by both sides as the basis of judgment, the facts relevant to this question are that the two parties disputed only over the performance of a contract, and that the matter of law the court intends to consider was overlooked by both sides. If it is unknown when the court communicated that matter and what opportunity to respond was afforded, the finding of deprivation of opportunity remains undetermined. It can only be confirmed through clarification, notice of the issues, the course of submission of opinions, and the reasons for judgment; it cannot be adjudicated from the scene alone.
The conclusion this section permits extends to the range in which, on the question whether a new legal perspective may change the judgment without an opportunity for the party's rebuttal, once an opportunity to respond to that perspective is confirmed, the finding of deprivation of opportunity is corrected; the conclusion it does not permit is the one that notice of a legal perspective creates facts in the parties' place. Questions on matters of fact and opportunities to state opinions on matters of law are connected, but they are not a system by which the court writes the parties' factual allegations in their place. Therefore, the scope of this section remains confined to asking whether an opportunity regarding an overlooked matter of law was afforded or not, and does not extend to an ex officio finding of facts.
2.9Application of the Text of the Provisions and the Holdings of Precedents
In this scene, the object of the parties' contentions and the legal perspective that the court seeks to take into account differ from each other. Depending on which side the court draws its judgment criteria from, the boundary of the fact-finding inquiry changes. What must be asked now is what role the wording of the source text in question plays upon that boundary.
The wording in question consists of the two paragraphs of Article 136 of the Civil Procedure Act. The subject of this wording is the court; the act is granting an opportunity to state an opinion; and the object is a legal matter that has clearly been overlooked. Meanwhile, paragraph (1) provides that the presiding judge may, in order to clarify the relationship in the lawsuit, put questions to the parties on factual or legal matters (Civil Procedure Act Article 136). The fact that the objects of questioning are divided into two kinds is the starting point of this question.
Placing the two paragraphs side by side, one can clearly see that the object of the judicial explanation is either an unclear relationship in the lawsuit or an overlooked legal matter. Why must these two be distinguished? Because the question directed at an unclear relationship in the lawsuit gives direction to organizing the materials of the lawsuit, whereas the opportunity to state an opinion on an overlooked legal matter is a device that calls for hearing the parties' words before making that matter a basis for judgment. The former is an auxiliary means of ascertaining facts; the latter is a procedure that gives advance notice of the place where the court's legal judgment is newly to enter. Accordingly, what is confirmed within that wording is the distinction between these two points, and that wording does not extend into an authority to draft the parties' factual contentions on their behalf.
The strongest counterargument lies in the contention that "even if only the perspective is indicated, the parties may fail to notice the facts they need." Even if the court sets out a different legal perspective in a dispute over a contract, the party may not know what factual material fits that perspective and may simply let the matter pass; this is the point of loss of this counterargument. It remains a question of practical inconvenience and cost. Put differently, the court's act of indicating the perspective cannot serve as a basis for directly selecting and adopting which facts to take into consideration, and even if the gap pointed out by the counterargument remains, this conclusion is not shaken.
In the synthetic scene, if the other legal matter that the court wishes to consider is one that has clearly been overlooked by both sides, the condition of paragraph (4) is in a state of being satisfied. This scene, however, does not contain when and how that matter was notified and what response the parties gave. Accordingly, if the record of the judicial explanation, notice of issues, the course of submission of opinions, and the reasons for the judgment shows when the legal matter at issue was notified and what opportunity to respond was given, the room in which deprivation of opportunity becomes an issue is reduced. If the record contains no such content, or if it cannot be confirmed, the matter remains undetermined. Undetermined does not mean immediate inability to obtain relief; it means only that further materials are needed.
What this section permits is the conclusion that the wording of the source text in question is used as the basis for adjudging the opportunity to answer an overlooked legal perspective. Only wording within the scope of the source text is applied; it is not extended to the reasons for judgment or to paragraphs that it does not address. Conversely, what is not permitted is an interpretation that converts legal notice into an ex officio (by the court's own authority) recognition of new facts. Even if the outcome is unfavorable, once an opportunity to answer the relevant perspective is confirmed, the judgment of deprivation of opportunity must be revised.
2.10Fine Distinctions Within the Stage
Under the rule that in this scene the court must give the parties an opportunity to state their opinions on that matter, what remains as a question is what criteria distinguish the three cases of granting, refusing, and being unable to confirm that opportunity. Accepting the premise set out earlier that notice of a legal perspective does not manufacture facts in their stead, this section sets only the conditions by which to adjudicate whether, after that notice, the parties' opportunity to respond was actually opened.
Among the wording received by this section, one reads that the presiding judge may, in order to clarify the relationship in the lawsuit, put questions to the parties on factual or legal matters (Civil Procedure Act Article 136). The phrase limits the subject to the presiding judge, the act to questioning, and the condition to clarifying the relationship in the lawsuit, while the object encompasses both factual and legal matters. The object of the judicial explanation spoken of here means an unclear relationship in the lawsuit or an overlooked legal matter, and this wording only determines which of those objects may be questioned and in what manner; it does not prescribe a procedure whereby the court writes down on the parties' behalf facts that the parties did not raise.
The other reads that the court must give the parties an opportunity to state their opinions on legal matters recognized as having clearly been overlooked by the parties (Civil Procedure Act Article 136). The possibility of questioning above and this opportunity to state an opinion are linked within the same explanatory function and yet divided: the former is the opening of questions to clarify the relationship in the lawsuit, while the latter is a duty that secures the parties a place to answer as to legal matters already clearly overlooked. The reason these two stages are placed apart is that the act of indicating a perspective and the act of fixing facts each have different responsibilities; only so long as that distinction is maintained can the question whether the opportunity was granted be judged separately.
The counterargument that the parties may fail to notice the necessary facts even if only the perspective is indicated aims at substantive loss. If a court that had dealt only with performance of a contract brings out another legal matter and merely announces its name, plaintiff A and defendant B may lose time without identifying what that perspective rests upon and what answers lie within the material they have already submitted. The inconvenience is also raised that if opinions are heard anew for every new legal perspective, the trial will never end. Even so, the requirements for granting the opportunity cannot be relaxed, and the boundary to be maintained is clear. The difficulty of comprehension pointed out by the counterargument does not erase that fact; instead, it returns as the problem of determining what the opportunity granted after the notice includes and what it does not.
The facts confirmed in the synthetic scene are that both parties disputed only performance of the contract, and that the court seeks to treat a different legal matter overlooked by both sides as a basis for judgment. Measured against the foregoing condition that it is a legal matter clearly overlooked, the judgment of opportunity granted stands where an opportunity to state an opinion on that matter was actually granted to the parties. The matter must be examined through the judicial explanation, notice of issues, the route of opinion submission, and the reasons for the judgment; where it is unclear when the legal matter at issue was notified and what opportunity to respond was given, whether the opportunity was granted remains undetermined. Where the court decided upon a legal matter it recognized as clearly overlooked without giving that opportunity, the case is classified as opportunity blocked.
What this section permits is adjudication by distinction according to the conditions expressly stated for the three cases; beyond this, it does not permit adding new stages such as the depth or the order of the opportunity. Even if the outcome is unfavorable, once an opportunity to answer the relevant perspective is confirmed, the judgment of deprivation of opportunity is revised; conversely, the mere fact that the opportunity is not confirmed does not permit the immediate conclusion that relief is impossible. The state of being unconfirmed merely remains undetermined.
2.11Synthesis of Effectiveness, Blockage, and Undetermination
In this scene, this question lies in how to distinguish the effectiveness, the blockage, and the undetermined status of the opportunity to answer an overlooked legal perspective.
One of the pieces of wording in question is Article 136 paragraph (1) of the Civil Procedure Act. That wording provides: "① The presiding judge may, in order to clarify the relationship in the lawsuit, put questions to the parties on factual or legal matters and may urge them to furnish proof." The subject indicated by this wording is the presiding judge; the acts are questioning and urging proof; and the condition is that it be for the purpose of clarifying the relationship in the lawsuit.
This Article places factual questioning and the opportunity to state legal opinions in a connected relation, but it is not a system in which the court drafts the parties' factual contentions on their behalf. This is why the condition that opens where an opportunity to state an opinion on a clearly overlooked legal matter was actually granted is satisfied.
Yet the loss that the parties may fail to notice the necessary facts even if only the perspective is indicated remains. The inconvenience is also present that if opinions are heard anew for every new legal perspective, the trial will not end. Where the court decided upon a legal matter it recognized as clearly overlooked without giving an opportunity to state an opinion, the condition becomes blocked.
The facts relevant to this scene are that only performance of the contract was disputed, and that the court seeks to treat a different legal matter overlooked by both sides as a basis for judgment. Where it is unclear when the legal matter at issue was notified and what opportunity to respond was given, the matter remains undetermined. What is to serve as the record is the judicial explanation, notice of issues, the course of submission of opinions, and the reasons for the judgment.
The conclusion permitted in this section is the threefold separation of the opening condition, the blocking condition, and the undetermined state; what is not permitted is the judgment that treats legal notice as manufacturing factual contentions in their place. Article 136 of the Civil Procedure Act provides the basis for the judicial explanation, but the boundary the author draws at this point is an evaluation lying outside that wording.
2.12Conclusion Carried Over to the Next Section
In this scene, what the court wishes to raise is not the facts of performance of the contract but the matter of what legal evaluation to attach to those facts. Yet is the court's act of indicating that perspective the same as filling in facts the parties did not assert? This question determines the boundary that this section addresses. Does notice of a legal perspective manufacture facts in their stead?
The starting point for answering this question is the wording concerning the presiding judge's authority to clarify the relationship in the lawsuit. Article 136 paragraph (1) of the Civil Procedure Act provides: "The presiding judge may, in order to clarify the relationship in the lawsuit, put questions to the parties on factual or legal matters and may urge them to furnish proof" (Civil Procedure Act Article 136). Here, a factual matter is the object of contentions as to who experienced what and did what, while a legal matter is the object of judgment as to what legal rule is to be applied to those facts. The presiding judge's questions are open without discrimination between these two objects, but the direction of the questioning lies in clarifying the relationship in the lawsuit.
The same Article provides a separate stage concerning legal matters. Article 136 paragraph (4) of the Civil Procedure Act provides: "The court must give the parties an opportunity to state their opinions on legal matters recognized as having clearly been overlooked by the parties" (Civil Procedure Act Article 136). The reason these two must be distinguished is that their respective objects differ. If the former is questioning to clarify the relationship in the lawsuit, the latter is arranging a place for the parties to speak as to the legal perspective the court seeks to make a basis for judgment. The mere fact that the latter procedure was followed does not bring into being on the record facts the parties did not assert.
The strongest counterargument points out that this distinction misses the loss that it signifies in actual litigation. If the court merely informs the parties that a certain legal perspective is at issue, the parties may have to state their opinions without identifying the facts corresponding to that perspective. For parties who have disputed only performance of a contract, the mere fact that the possibility of a different legal evaluation has been opened makes it difficult to perceive what further facts to assert and what evidence to submit. The inconvenience aimed at by this counterargument is substantive, because the procedure that grants an opportunity and the authority to manufacture facts in their place are different things, and if the former is broadened into the latter, the initiative that the parties possess in the realm of facts is absorbed into the court's judgment.
This boundary becomes clearer when contrasted with this scene. What can be confirmed in this scene is the scope of the issues the parties have been addressing and the nature of the legal matter that the court newly seeks to raise. In light of this, if the court gave an opportunity to state an opinion on that legal matter, that procedure may be regarded as having returned the overlooked legal matter to the parties' sphere of judgment. However, what facts the parties newly asserted in that process, and how the court handled those contentions, is not determined by this scene alone. This item remains undetermined.
The conclusion this section permits is as follows. Where the court notified the parties of an overlooked legal matter and arranged a place to hear opinions on it, that notice is not an act of drafting facts on the parties' behalf but an act of pointing out the direction of the legal evaluation of facts. Conversely, the conclusion this section does not permit is the interpretation that, merely because the court has indicated a legal perspective, facts the parties did not assert may be taken as the foundation of the judgment. The difference between the two cases lies in who is the source of the facts. Does mentioning the name of the statute once constitute granting the opportunity?