Summary
The duty to hear the parties' views on legal matters is not a duty to guarantee a particular conclusion.
4.1The Standard by Which the Path Opens
If the right to respond is read as a promise of victory, the determination made after the rebuttal cannot be explained. Does asking for an opinion promise the outcome of the trial? The preceding section accepted the interpretation that the mere fact that the name of a statute had already been mentioned cannot be taken to mean that there was an opportunity to respond to that perspective. The question remaining under this interpretation is the standard by which the channel of this remedy opens. In this scene, Plaintiff A and Defendant B contested only the performance of the contract, yet the court seeks to take up another matter of law, overlooked by both sides alike, as a basis for judgment. When the court raised this perspective, and what opportunity to respond it gave the parties, is not contained in the facts presently given. The procedure whereby the court presents the perspective it has identified before the parties, requests a response, and then renders judgment is confirmed at this point.
On this question, Article 136, paragraph (4) of the Civil Procedure Act provides for the opportunity to state opinions on matters of law overlooked by the parties. While making clear that the persons whose opinions are to be heard are the parties, this provision at the same time establishes that the conditions are that the matter be one of law, that the parties be in a state of having overlooked that matter, and that the court recognize the oversight as manifest. The court's act appearing in this wording is not to order an opinion or to direct a conclusion, but to give the parties an opportunity to state their opinions on a particular matter of law. This wording does not determine when, and by what method, that matter is to be notified, or for how long a response is to be allowed, and this remains a question to be dealt with in another section.
Where an opportunity to state opinions has actually been given on a matter of law recognized by the court as having manifestly been overlooked, the entrance to this remedy should be regarded as open. The reason this determination is confined to the case where the relief demanded, the parties, and the conditions are specified in the claim and the right of the chosen action can be defended, is that unless it is specified which claim the perspective in question concerns and whose right it concerns, the content of the response cannot be determined. Distinguishing the giving of the opportunity to opine from the conclusion reached on that basis is the whole of the matter. What is called a provisional perspective refers to a legal issue presented in the proceedings before the parties' response is received, and accepting it means only that a place for the response has been arranged, not that the conclusion has already been settled.
The parties may take the direction of the clarification as a provisional conclusion. If, following the legal perspective noted above, the court sets out the opinions submitted by the parties and then records in the reasons for judgment the reasons for not accepting those opinions, it will be difficult for the party to say that the impression received at the point of being asked for an opinion was not read as an advance notice of the result. There is also a considerable inconvenience in that if opinions are heard anew for every new legal perspective, the trial never ends, and while the hearing drags on, the interests at stake remain where they are. Even so, the hearing of opinions cannot be turned into a prior commitment to a particular conclusion. The court places the duty to hear opinions alongside the freedom to determine under Article 202 of the Civil Procedure Act because, even after receiving a response, the court may determine its judgment in consideration of the entire tenor of oral argument and the result of the examination of evidence, and the fact that the path of that determination does not coincide with the granting of the opportunity does not eliminate the loss pointed out by the counterargument.
Plaintiff A and Defendant B contested only the performance of the contract, and the positions of the two parties on the other matter of law that the court seeks to make a basis of judgment are not revealed. In this situation, even whether the relief demanded and the parties, and the conditions, are specified in the claim and whether the right of the chosen action can be defended has not yet been determined; accordingly, what this section can determine is limited to whether the entrance to this remedy exists. The actual record is left in the form of clarification and notice of issues, the course of the submission of opinions, and the reasons for judgment. Where it is unclear when the matter of law in question was notified and what opportunity to respond was given, the determination remains undetermined, and this does not mean that relief is immediately unavailable. Even if the outcome is unfavorable, if it is confirmed that there was an opportunity to respond to that perspective, the determination of deprivation of opportunity is corrected.
The conclusion of this section is that where an opportunity to state opinions has actually been given on a matter of law recognized by the court as having manifestly been overlooked, the entrance to this remedy is open. What is not permitted is the reading of that opportunity as a promise of victory, the view that turns even the determination the court makes in the remaining proceedings into a foregone conclusion. To hold that the content of the judgment is fixed by the single fact that opinions were heard, and to hold that deprivation of opportunity is immediately established by the single fact that this is absent, are both determinations that go beyond this distinction.
4.2The Conditions That Block Relief
Where an opportunity to state opinions has actually been given on a matter of law manifestly overlooked, this remedy operates. What, then, are the conditions under which it is blocked? Plaintiff A and Defendant B contested only the performance of the contract, yet the court seeks to regard another matter of law, overlooked by both sides, as a basis of judgment. In this scene the question is whether asking for an opinion promises the outcome of the trial.
This duty of the court is written into the statute as it stands. Article 136, paragraph (4) of the Civil Procedure Act provides that "the court shall give the parties an opportunity to state their opinions on matters of law which it recognizes as having manifestly been overlooked by the parties" (Civil Procedure Act, Article 136). This wording specifies the subject as the court, the object as the matters of law that the court recognizes as having manifestly been overlooked by the parties, and the act as giving the parties an opportunity to state their opinions. What is spoken of here is the case where the perspective that the court seeks to make a basis of judgment lies outside the arguments of both sides, and yet that neglect is manifest.
What the wording compels is the act of giving an opportunity, not the predetermination of a conclusion. The Civil Procedure Act establishes the principle of free evaluation of evidence, providing that the court determines the truth of factual assertions according to its free evaluation of evidence (Civil Procedure Act, Article 202). Accordingly, the first step of the determination is whether one could respond to the perspective in question, and the second step is what the court determined after receiving that response. Only by distinguishing the former from the latter can it be explained that one may lose even after passing through the opportunity to state opinions. In the preceding section, the condition on which this remedy operated was precisely the case where the former was confirmed.
The strongest counterargument is directed at the unease that arises after entering the procedure. If the court discloses the direction of the clarification, the parties may take that direction as a provisional conclusion, that is, as an announcement that its mind is already made up. They then think that responding is of no use and reduce their objections. Further, if opinions are heard anew for every new legal perspective, there also arises the loss caused by delay of the trial, in that the trial never ends. These disadvantages are left in place, yet the answer is the same.
What is confirmed in this scene is the fact that A and B dealt only with the performance of the contract, and that the court seeks to regard another matter of law as a basis. If the court renders judgment on that matter, which it recognized as having manifestly been overlooked, without giving an opportunity to state opinions, this remedy is blocked. Conversely, where an opportunity has actually been given, it operates. However, if it is unclear from the record when the matter in question was notified and what opportunity to respond was given, this section does not determine and leaves the matter undetermined. The record used for confirmation is the clarification, the notice of issues, the course of the submission of opinions, and the reasons for judgment. Such an arrangement of the record does not itself mean that collection has been completed in an actual case.
This remedy is a procedural determination asking whether one could respond to the legal perspective, and it neither compels the court to accept that response nor to reach a favorable conclusion. It neither guarantees nor announces the win or loss of the trial's outcome. Therefore, this remedy opens on the premise of deprivation of opportunity, and conversely, where the granting of the opportunity is confirmed, the conclusion is maintained only within the compass in which nothing changes even if the outcome is unfavorable.
4.3The Boundary That Remains When There Is No Data
The doubt that arises here at once is whether asking for an opinion promises the outcome of the trial. In particular, where the materials of determination remain in the end unspecified and there are no materials, the question of where to place that boundary remains.
The provision in question determines both the subject and the method of hearing opinions. Article 136, paragraph (4) of the Civil Procedure Act provides: "The court shall give the parties an opportunity to state their opinions on matters of law which it recognizes as having manifestly been overlooked by the parties." This wording attaches the condition of matters of law recognized as having manifestly been overlooked, makes the court the subject, and directs the act of giving the parties an opportunity to state their opinions. Accordingly, the place on which that duty falls is the step of enabling the parties to respond to the perspective the court seeks to make a basis of judgment, and not the content of the determination itself to be completed upon receiving that response.
The reason these two must be distinguished is that the basis and the conclusion form separate steps. Article 202 of the Civil Procedure Act provides: "The court shall determine whether a factual assertion is true or not by taking into consideration the entire tenor of oral argument and the result of the examination of evidence, by its free evaluation of evidence, on the basis of the ideals of social justice and equity, and in accordance with the rules of logic and experience." It prescribes only the subject and standard of determination, and does not presuppose the content of the opinion. Even after the procedural requirement of an opportunity to state opinions has been met, the determination that the court must make according to its free evaluation of evidence remains separately. Therefore, the duty to hear legal opinions is not a duty guaranteeing a particular conclusion, and the fact that an opportunity to respond was given and the conclusion of accepting that perspective belong to different stages of determination.
The counterargument is directed at the side that is emotionally drawn to the direction the procedure implies. A party called upon to substantiate a perspective raised by the court may read that direction as an immediate signal of losing, and may lessen or increase the burden of defense according to whether it may let the rebuttal pass or must gather further materials. This disadvantage is not erased. The opportunity to respond is to be determined by whether one could answer the perspective, and the room for determination remaining after the rebuttal must be left as something separate.
A provisional perspective means the legal issue presented in the proceedings before the parties' response is received. Where, in the preceding scene, it does not appear from the record when the other matter of law the court sought to raise was notified and what opportunity to respond was given, it cannot be confirmed either that the opportunity to answer that perspective was actually given or that it was refused. Rather than driving such a point without materials into unavailability and abandoning the determination itself, matters whose materials of determination are unspecified are left undetermined, distinct from unavailability. For the parts that cannot be determined from the scene alone, it is more accurate to leave them empty in that way.
In sum, the procedure of asking for an opinion merely opens the channel for confirming whether one could respond to the perspective; it does not become a promise that one will win or lose with that perspective. Conversely, the mere fact that the channel has opened cannot justify an unfavorable determination. If materials that cannot be confirmed are in the end treated as unavailable, both the determination of confirmed deprivation of opportunity and the unconfirmed boundary collapse at once.
4.4The Records Needed for Determination
At this point the provisional perspective that the court first presents is not a conclusion, but goes no further than marking the issue. However, if the provisional perspective, which denotes the legal issue presented in the proceedings before the response is received, is confused with the actual determination, the character of the hearing of opinions is distorted. Taking over the boundary left undetermined in the preceding section, the remaining question is: on what record does that determination rely?
In answering this question, one first examines the wording of Article 136, paragraph (4). Here the subject is the court, the object is the matters of law recognized as having manifestly been overlooked by the parties, and the act is giving an opportunity to state opinions. If the conditions are met, what the court may undertake is the granting of the opportunity, not an act fixing the answer the parties desire. This section does not address the other requirements of that paragraph, and reads only what this wording demands and what it does not promise.
That difference between demand and promise leads to the list of records. This determination rests on the clarification, the notice of issues, the course of the submission of opinions, and the reasons for judgment. The clarification and the notice of issues show when and in what form the provisional perspective was presented; the course of the submission of opinions shows whether the parties could respond to that perspective; and the reasons for judgment show what place that response occupied in the determination. If these four are crushed into one, the presentation of a perspective and the announcement of a conclusion look like the same event. The reason a distinction is needed is simple: the former is the fact that an opportunity was arranged, and the latter is the fact that the opportunity was fixed into a particular determination, and the two point to different scenes. Accordingly, the duty imposed by this paragraph and the conclusion of the judgment must be read side by side.
In a lawsuit, when the court presents a perspective, from the party's standpoint it is easily read as a sign that matters will be settled this way in the end, and if the judgment changes after effort is poured into the rebuttal, the party becomes disheartened or feels betrayed. Such inconvenience and disappointment are real, and may also leave the impression that the efforts of the side that submitted an opinion were ignored. If the court, having furnished the frame of the answer, were bound to determine only within that frame, there would be no room to examine circumstances newly revealed after the rebuttal or more accurate legal principles. What was demanded was an opportunity to respond, not a promise of victory; therefore, the mere fact that the result changed does not mean that the opportunity was deprived.
This distinction applies just as it stands to a synthetic scene. The provisional perspective presented by the court in the course of A and B's contest over the performance of the contract alone is no more than a legal issue placed before the response is received. If the record still shows when the opinions submitted by A and B on that perspective came in, and in what form the court notified them, the basis of this determination is complete. However, in this scene no year, amount, or judgment result is fixed, so what the content of the actual record is, and which side the outcome favored, cannot be determined here. Other matters also cannot be determined from the scene alone. Whether, if certain circumstances change, the determination would be overturned is a question to be examined separately within the boundary of the undetermined that was left open earlier.
The conclusions permitted by this section narrow to two. This determination rests on the clarification, the notice of issues, the course of the submission of opinions, and the reasons for judgment, and if that record is absent, the conclusion remains undetermined; and where all that is confirmed is such a list of records, one cannot go so far as to say that the remedy was blocked. Conversely, the mere fact of having heard the court's explanation cannot be made the basis for demanding the desired determination, and the mere circumstance of an unfavorable outcome cannot establish deprivation of opportunity. The reading that turns the requirement of hearing opinions into a promise of a conclusion is not accepted by this section.
4.5Circumstances That Change the Decision
Without that record, the conclusion remains undetermined. What circumstance must be confirmed after the finding of deprivation of opportunity has been established in order to correct that finding? Does the very act of asking for an opinion promise the outcome of the litigation?
Article 136, paragraph (4) of the Civil Procedure Act provides that the court "shall give a party an opportunity to state an opinion" (Civil Procedure Act, Article 136). The subject required by this language is the court, the counterpart is the party who has overlooked a legal matter, and the act is the granting of an opportunity to state an opinion. The condition is with respect to a legal matter that is evidently deemed to have been overlooked. Here, the duty to hear an opinion as a matter of law is not a duty to guarantee a particular conclusion. The opportunity directs a procedure for receiving a response; it does not direct the content of the adjudication.
Connecting the above basis with the foregoing conclusion, the fact that an opportunity to respond to the overlooked legal perspective was actually granted and the fact that the court rendered some finding on that perspective are separate stages of adjudication. If the former is confirmed, the finding of deprivation of opportunity is corrected. The same is true even if the latter was unfavorable. Conversely, where the court rendered a judgment without giving an opportunity to state an opinion on a legal matter it recognized as evidently overlooked, the finding of deprivation of opportunity stands. If the two stages are mixed, the granting of an opportunity becomes a guarantee of winning the case.
For a party who spent time and effort preparing a response only to have it ultimately rejected, the fact that the court asked and then did not follow may feel like a futile gesture disguised as procedural consideration. Nor can it be ignored that, if opinions are heard afresh for every new legal perspective, the litigation will never end. Examining an answer and declining to adopt it as the ground of judgment differs from not asking for an opinion at all, and Article 202 of the Civil Procedure Act provides that the court determines the truth of an assertion of facts "on the basis of free evaluation of evidence" (Civil Procedure Act, Article 202).
In the synthetic scene, the other legal matter the court intends to consider is one that both sides overlooked, and when this legal matter at issue was communicated and what opportunity to respond was given must be confirmed from the record. If it is confirmed that the perspective at issue was identified and an opportunity to respond was given, the finding of deprivation of opportunity is corrected even if the outcome was unfavorable. By contrast, where the time of communication or the opportunity to respond is unclear, the conclusion remains undetermined. Since the scene sets no year, amount, or commencement date, the outcome or the question of recovery cannot be determined from this scene.
The conclusion this section permits is narrow. It is not to ask whether the direction in which the court sought an opinion was favorable, but to ask whether one could respond to that perspective. If the fact that an opinion was heard is confirmed, it is not treated as supporting a particular conclusion, and if the opportunity to respond is not confirmed, it remains undetermined. What this perspective includes and how far it extends, however, is dealt with in the explanation that follows.
4.6The Strongest Counterargument and the Answer
The preceding stage confirmed that the very act of asking for an opinion does not promise the outcome of the litigation. Building on that interpretation, the scene now continues: Plaintiff A and Defendant B disputed only performance of a contract, while the court seeks to treat another legal matter, overlooked by both sides, as the ground of judgment. In this scene, the court intends to seek the parties' opinion on that matter, and a party may take that direction as a provisional conclusion. The question, then, is what that provisional perspective should be taken to be.
The provision of law corresponding to this question is Article 136, paragraph (4) of the Civil Procedure Act. Its language provides that "the court shall give a party an opportunity to state an opinion on a legal matter that is evidently deemed to have been overlooked by the party" (Civil Procedure Act, Article 136). Here the subject of the duty is the court, its object is the legal matter evidently deemed to have been overlooked by the party, and the act required is the granting of an opportunity to state an opinion. This language speaks only of the granting of an opportunity; it does not address what conclusion the court must adopt in light of the opinion contained in that opportunity.
Article 202 of the Civil Procedure Act provides that "the court shall determine whether or not an assertion of facts is true by taking into consideration the entire purport of oral argument and the result of the examination of evidence, on the basis of free evaluation of evidence, grounded in the ideals of social justice and equity, and in accordance with the rules of logic and experience" (Civil Procedure Act, Article 202). Setting this provision side by side with Article 136, paragraph (4), two stages are distinguished. First the court goes through the stage of identifying the overlooked legal matter and giving an opportunity to respond. Only thereafter does the court render a judgment on the basis of the entire hearing. Hearing opinions is a procedural stage that precedes the judgment, and the judgment is separately established after it. The moment the former is converted into the latter, opportunity and conclusion are merged into one, and the device becomes one that guarantees in advance a conclusion to be confirmed.
The strongest counterargument that undermines this distinction takes aim at the burden on practice. If the parties' opinions are heard again every time a new legal perspective arises, the litigation will never end, and the parties will be left with the inconvenience of preparing written submissions repeatedly. This counterargument attends both to the loss that it becomes difficult to explain any judgment rendered after rebuttal, and to the value that the right to answer must be preserved so that, in actual operation, it does not become a means of delay. The author answers without erasing that unfavorable aspect. The possibility of delaying litigation is a problem to be adjusted through the manner and number of times opportunities are granted; it is not a burden to be resolved by promising in advance the content of the answer.
In the scene above, the facts relevant to this question are the same as in the previous stage. The legal matter the court intends to consider is recognized as having been overlooked by both sides, and the parties' responses have not yet arrived. Contrasting this condition with the language of Article 136, paragraph (4), what the court granted the parties at that point was no more than an opportunity to state an opinion. The record is examined in terms of clarification, notice of issues, the course of submission of opinions, and the kinds of reasons given in the judgment. However, the synthetic scene has done no more than settle this fact; it is not a collection of the record of an actual case, and the outcome of the judgment and the results of performance are not determined.
The conclusion this section permits is narrow. Even if a party took the direction of the clarification as a provisional conclusion and responded from that perspective, that response did not determine any conclusion. What is not permitted is the reading that an opportunity to respond is a promise of success. The judgment the court renders after the answer is established at a separate stage.
4.7The Link to the Application and the Dispositive Part
Accepting the premise that hearing opinions cannot be turned into a prior commitment to a particular conclusion, this section now examines whether the act of asking for an opinion promises the outcome of the litigation. In this scene, the court arranges an occasion for the parties to speak, but the fact that it arranged that occasion does not itself mean that it has settled upon some conclusion. What the court asks and what the court judges are located at different stages. When the distance between the two is narrowed in reading, it becomes impossible to explain a case in which the court reaches a different conclusion after rebuttal. The meaning of the question must therefore be examined anew through the relationship between question and judgment.
The language fitting this question is Article 136 of the Civil Procedure Act. Article 136, paragraph (4) provides: "Where a legal matter that is evidently deemed to have been overlooked by a party is concerned, the court shall give the party an opportunity to state an opinion thereon." The subject indicated by this Article is the court, and the act is giving a party an opportunity to state an opinion. The condition is where a legal matter evidently deemed to have been overlooked by the party is concerned. What the Article requires is the granting of an opportunity, not the content of the answer to be contained in that opportunity, nor the conclusion to follow the answer. It is also to be read together that the duty to give an opportunity arises only after the court recognizes a legal matter as evidently overlooked. If the meaning of the language is determined with this paragraph alone as the scope, the object of the duty is the arranging of an occasion to be heard.
Connecting that language with the conclusion of this section, the duty to hear an opinion and the duty to guarantee a particular conclusion are different things. If the former is a procedural duty to arrange for a party an occasion to respond, the latter is a substantive promise that some judgment must be produced in conformity with that response. This definition is necessary in order to distinguish the point at which a perspective was presented from the point at which the party answered. The fact that a perspective was presented means that something to answer was announced, and the fact that an answer was presented means that the court heard that answer. Yet neither of the two is an instruction to accept the answer. The fact that Article 202 of the Civil Procedure Act provides that "the court shall determine whether or not an assertion of facts is true by taking into consideration the entire purport of oral argument and the result of the examination of evidence, on the basis of free evaluation of evidence, grounded in the ideals of social justice and equity, and in accordance with the rules of logic and experience" likewise shows that the materials and method of judgment are determined separately. Accordingly, the granting of an opportunity cannot be read as the fixing of a conclusion.
The strongest counterargument lies in the fact that a party may take the direction of the clarification as a provisional conclusion. If the court raises a legal matter it has overlooked and asks for an opinion on it, the party may think that the court intends to view the problem from that perspective. A party who understands it that way devotes effort to the answer, and if that answer is not accepted, feels that the procedure failed to keep what it promised. This distrust leaves the impression that the direction of the litigation was announced in advance and then reversed, lowering trust in the system as a whole. Yet even taking on board the demand of this counterargument, hearing opinions cannot be turned into a prior commitment to a particular conclusion. If hearing opinions becomes a prior commitment, the conclusion is already fixed the moment the court asks, and there is no room left to assess the materials anew after hearing the rebuttal. The distrust identified by the counterargument remains, but that distrust is not the result of separating opportunity from conclusion; it grows greater when the two are mixed together.
The facts fitting this question in this scene are as follows. The court in this scene has only presented the legal matter it intends to take as the ground of judgment, and it has not been settled whether the parties have answered it. The court's recognition that the matter is a legal matter evidently overlooked cannot be known from the scene alone either. Accordingly, from the scene alone it cannot be determined whether an opportunity to state an opinion was actually given, and if it was given, what response there was. This examination does not add facts that actually occurred in the scene; it is a statement that clarifies the conditions upon whose confirmation the judgment would change. Items remaining undetermined are left undetermined, and no conclusion is added on the basis of facts that have not been determined.
The conclusion this section permits is that the duty of the court to give a party an opportunity to state an opinion on a legal matter evidently deemed to have been overlooked does not become a promise that the court must accept the answer contained in that opportunity and reach a particular conclusion. Conclusions not permitted are that, because the court sought an opinion, the court must recognize that legal matter in favor of the party, or, conversely, that even though it asked, the court need not reverse a conclusion it has already settled upon. Either way, it is a reading that converts the act of asking itself into a predetermined value for the outcome of the judgment. The judgment after hearing the opinion remains a separate stage, and the grounds and method of that stage are determined separately.
4.8The Scope This Section Undertakes
In this scene, the question is whether asking for an opinion promises the outcome of the litigation. The provision in point is Article 136, paragraph (4) of the Civil Procedure Act. Under it, "the court shall give a party an opportunity to state an opinion on a legal matter that is evidently deemed to have been overlooked by the party." The subject this language addresses is the court, and the act is giving an opportunity to state an opinion. The condition is with respect to a legal matter evidently deemed to have been overlooked by the party.
This basis and the conclusion of this section connect as follows. The duty to hear an opinion as a matter of law is not a duty to guarantee a particular conclusion. Here the two stages part. One is whether an opportunity to respond on the overlooked legal matter was given; the other is what judgment was rendered after receiving that response. The former stage is a procedural guarantee, and the latter stage is the result of the hearing.
The counterargument begins at this point. A trial does not end with notifying a legal perspective but includes waiting for the parties' responses and rendering a judgment, and across that whole process the finding that opportunity was deprived reads as though the written judgment had already been decided. The perspective communicated is the legal issue presented in the hearing before the parties' responses are received, that is, a provisional perspective.
What is confirmed in this scene is only that Plaintiff A and Defendant B disputed only performance of a contract and that the court seeks to treat another legal matter, overlooked by both sides, as the ground of judgment. Which legal matter it is, when it was communicated, and what opportunity to respond was given are not determined. Accordingly, whether an opportunity to state an opinion was actually granted with respect to the matter intended as the ground of judgment remains undetermined.
What this section permits is the narrow distinction that asking for an opinion does not promise success, and the task of fixing the meaning of a provisional perspective. What it does not permit is establishing only the party's right to know, without giving the force of law to the delay of litigation or the preemption of direction that the counterargument identifies. Whether relief outside the application is permitted is not the question of this section.
4.9Application of the Text of the Provisions and the Holdings of Precedents
This is the interpretation that the opportunity to state opinions must be judged not by the fact that the name of a statute was mentioned, but by whether one was able to respond to the relevant perspective. On the foundation of this interpretation, the question now is how the text of the provision itself handles the opportunity to respond to an overlooked legal perspective. In this situation, the heart of the question is what the court guarantees to the parties and what it does not.
Civil Procedure Act Article 136 paragraph (4) reads as follows. "The court shall give the party an opportunity to state opinions on a legal matter that the court recognizes the party has evidently overlooked." (Civil Procedure Act Article 136) In this text, the actor is the court, the person protected is the party, and the subject matter is a legal matter recognized to have been evidently overlooked. What the court must grant is the opportunity for the party to speak on that matter, and the text does not separately prescribe the form or timing of that opportunity. However, this is paragraph (4), and the contents of the other paragraphs are not addressed here.
The granting of the opportunity spoken of in this text and the subsequent choice of a conclusion are distinct stages. Giving the opportunity to respond to an overlooked legal perspective is a procedural assurance that the perspective will not be ignored altogether, and which judgment the court adopts after the party has rebutted it is a separate question. Civil Procedure Act Article 202 provides that the court shall judge the truth of factual assertions by its free evaluation of evidence, taking into consideration the entire tenor of oral argument and the results of the examination of evidence (Civil Procedure Act Article 202). If the hearing of opinions is read as a promise to the party in advance of the outcome of judgment based on free evaluation of evidence, the meaning of the opportunity and the authority of judgment become commingled into a single step. This is why the text of the provision itself alone is used as the basis for adjudicating the opportunity to respond to an overlooked legal perspective, without extending to the reasons for the judgment or to paragraphs that do not address the matter.
The strongest counterargument moves as follows. A party may take the direction of the clarification to be a provisional conclusion, and if that provisional perspective sounded like a preview of the judgment, then even after devoting effort to rebuttal, a judgment departing from that perspective may feel like a betrayal. It also targets the practical inconvenience that if opinions are heard anew for every new legal perspective, the trial will never end. Yet even while acknowledging this loss and inconvenience, the conclusion stands. That the clarification announced a provisional perspective is only a notice of the issue presented in the examination before the party's response was received, and that notice does not anticipate the result.
Looking again at the synthetic scene with only the facts suited to this question, what the court intends to consider is a legal matter that A and B did not address, and the two contested only the issue of performance of the contract. What is confirmed from this contrast is whether the court recognizes that the matter was evidently overlooked, and, if it does, whether it actually gave the opportunity to state opinions. When the matter at issue was notified and what opportunity to respond was given, and how the rebuttal was reflected in the reasons for the judgment, are not fixed by the scene. Accordingly, whether deprivation of opportunity is established remains undetermined.
The conclusion this section permits is the narrow distinction that, where the opportunity to state opinions on a legal matter evidently overlooked is confirmed, one was able to respond to that perspective, and therefore the finding of deprivation of opportunity is reversed. Conversely, where the court adjudicated without giving the opportunity on a matter it recognized to have been evidently overlooked, room remains to argue deprivation of opportunity. However, the content of the reply, the prospects of success, or the allowance of remedies outside the application cannot be determined on the basis of this text alone.
4.10Fine Distinctions Within the Stage
In this scene, the questions are whether, even if the court asks the party for opinions, that question does not reserve a win, and which parts must be further subdivided and adjudicated within that opportunity.
This text limits the subject matter to legal matters, attaches the condition that the court has recognized that the matter was evidently overlooked by the party, and places the content of the obligation in the granting of the opportunity to state opinions. What the court must do is open a window for responding to that perspective; whether the result will vary according to what the response contained is not determined here.
The opportunity to state opinions spoken of in the above provision and the conclusion of the judgment are distinct stages. Civil Procedure Act Article 202 provides that the court shall judge the truth or falsity of factual assertions by its free evaluation of evidence, and judgment remains something the court does even after hearing opinions. The criterion dividing these is whether the opportunity was actually granted, whether the court adjudicated without giving the opportunity, and whether the time of notification and the opportunity to respond are unclear. The criteria that divide are whether the opportunity was actually granted, whether the court adjudicated without giving the opportunity on a matter evidently overlooked, and whether it is unclear when the matter was notified and what opportunity to respond was given.
The moment the court raises that legal perspective and asks for opinions, the party may expect the trial to be fixed in that direction and may find the breadth of its answer or the preparation of its rebuttal constrained. The counterargument in particular also targets the inconvenience and delay costs of hearing opinions anew for every new legal perspective, so that the trial never ends. What has been presented is the discovery of an issue during the examination, that presentation is not the announcement of a conclusion, and the constraint on answers that the counterargument points out remains a share to be addressed in assessing the substance of the opportunity.
What can be entered in the record of this scene is only the clarification, the issue notification, the course of the submission of opinions, and the reasons for the judgment. If, from the course of this record, it emerges when the legal matter at issue was notified and what opportunity to respond was given, then this is the case in which it operates, that is, the case where the opportunity to state opinions on a legal matter evidently overlooked was actually granted. Conversely, the case where the court adjudicated without giving the opportunity to state opinions on a legal matter it recognized to have been evidently overlooked is the case in which it is blocked. If the time of notification and the scope of the opportunity to respond are unclear on the record, it remains undetermined, and no determination is made of facts that cannot be adjudicated on the scene alone, or of victory or defeat.
What this section permits is the distinction within the three conditions above; what it does not permit is the establishment of a new adjudicative criterion beyond them. This examination, however, gives rise to no new disposition or effect, and does not go beyond the understanding that the provisional perspective and the response to it stand at different stages.
4.11Synthesis of Effectiveness, Blockage, and Undetermination
Following this question, the criterion distinguishing the three possibilities—whether the opportunity was actually opened, whether it was blocked, or whether confirmation is impossible—is now set out. Premised on the preceding interpretation that the duty to hear legal opinions is not a duty to guarantee a particular conclusion, the question posed is how to distinguish the effect, the blocking, and the undetermined state of the opportunity to answer to an overlooked legal perspective.
Here the court is the actor, the granting of the opportunity to state opinions is the required conduct, and a legal matter recognized to have been evidently overlooked by the party is designated as its subject matter and condition. This text addresses the hearing of opinions on legal matters; other issues prescribed by other provisions or paragraphs are not explained together in this text. As in the preceding interpretation, this opportunity is judged not by the fact that the name of a statute was mentioned but by whether one was able to respond to the relevant perspective, and the subject matter in the text is specified as legal matters.
Connecting this text to the conclusions of this section yields a threefold distinction. Where the opportunity to state opinions on a legal matter evidently overlooked was actually granted, that is the side on which it is opened; where the court adjudicated without giving the opportunity to state opinions on a legal matter it recognized to have been evidently overlooked, that is the side on which it is blocked. The reason for dividing the two is that the former is a state confirming that one was able to respond to the perspective at issue, while the latter is a state in which judgment was rendered even though one could not respond to that perspective. Added to these, where it is unknown when the legal matter at issue was notified and what opportunity to respond was given, it remains undetermined. These three are not newly created requirements or legal effects, but a distinction that reads the existence or absence of the granting of the opportunity according to the confirmed state of the record.
The most persuasive counterargument is the claim that the direction in which it was so read was itself an announcement of a particular result, in which case the trial would appear bound to a prior undertaking of a particular conclusion, producing the inconvenience of endless litigation. Yet the hearing of opinions cannot be turned into a prior undertaking of a particular conclusion. The opportunity to answer to an overlooked legal perspective asks whether one was able to respond to that perspective; it does not fix in advance the content of the response or the direction of judgment after rebuttal. Here the provisional perspective means the legal issue presented in the examination before the party's response was received, and it remains that the presentation of the provisional perspective itself promised no subsequent judgment. As for the adverse aspects, the practical inconvenience that a party may mistake that direction for a provisional conclusion is left as it is, but the line is maintained that the possibility of misunderstanding and a prior undertaking are separate matters.
Drawing out only the facts of the synthetic scene relevant to this question, it is confirmed that plaintiff A and defendant B contested only performance of the contract, and that the court intends to consider another legal matter overlooked by both sides as the basis of judgment. Contrasting this fact with the conditions above, the point that it is a legal matter overlooked by both sides bears on whether it falls within a legal matter recognized to have been evidently overlooked, and the point that the court intends to consider it as the basis of judgment constitutes a situation in which the granting of the opportunity to state opinions on that matter must be confirmed. However, if the clarification, the issue notification, the course of the submission of opinions, and the reasons for the judgment do not reveal when the legal matter at issue was notified and what opportunity to respond was given, it remains undetermined. If it is confirmed that there was an opportunity to answer to the relevant perspective, then even if the outcome is unfavorable, the finding of deprivation of opportunity must be corrected.
The conclusion this section permits is that, where the opportunity to state opinions on a legal matter evidently overlooked was actually granted, that opportunity was opened, and that where the court adjudicated without giving the opportunity to state opinions on a legal matter it recognized to have been evidently overlooked, that opportunity may be regarded as blocked. Conversely, the conclusion that the hearing of opinions was itself a promise of a particular win, or the conclusion that every state of non-confirmation is counted as deprivation of opportunity without confirming evidentness of overlooking and the granting of the opportunity, are not permitted in this section. A state of undetermination arising from insufficient materials does not immediately turn into unavailability of relief, and the narrow conclusion confirmed is maintained only within that scope.
4.12Conclusion Carried Over to the Next Section
After the preceding section confirmed where the operation, the blocking, and the undetermined state of the opportunity diverge, this section now addresses the judgment that follows after that opportunity has passed. The question here is whether the act of asking for opinions in this scene is itself a promise of the outcome of the trial.
The text on which the court's request for the party's answer is based is as follows. The actor indicated by this text is the court, the required conduct is the granting of the opportunity to state opinions to the party, and the condition concerns a legal matter recognized to have been evidently overlooked. The text speaks only of the duty to give that opportunity, and does not determine the content of the judgment to be rendered thereafter.
This text is now connected with the conclusion of this section. The opportunity to state opinions must be judged by whether one was able to respond to the relevant perspective, and the mere fact that the name of a statute was mentioned cannot be regarded as the granting of the opportunity. A provisional perspective means the legal issue presented in the examination before the party's response was received. The reason the procedure for hearing opinions and the stage of fixing the judgment must be distinguished is that the former opens the place for the party to speak, while the latter evaluates what is said and reflects it in the conclusion. If the effect of the latter is placed upon the former as well, the two stages become commingled.
The direction in which the court pointed out the overlooked legal matter gives the impression that the matter will be accepted, and if, after responding to that direction, the result is overturned, the loss or inconvenience grows. Even so, the hearing of opinions cannot be turned into a prior undertaking of a particular conclusion. So long as the granting of the opportunity and the fixing of the judgment are distinguished without erasing the inconvenience targeted by the counterargument, the party's answer is merely material to be reflected in the examination, and cannot become an undertaking that secures a win.
What can be confirmed in this scene is the fact that plaintiff A and defendant B contested only performance of the contract, and that the court intends to consider another legal matter overlooked by both sides as the basis of judgment. Contrasted with this scene, if the matter in question falls within a legal matter evidently overlooked and the opportunity to state opinions was given, the opportunity operates. If the court adjudicated without giving that opportunity on a matter it recognized to have been evidently overlooked, it is blocked. If it is not clear on the record when the legal matter at issue was notified and what opportunity to respond was given, it remains undetermined. The materials to be used as the record are the clarification, the issue notification, the course of the submission of opinions, and the reasons for the judgment.
What this section permits is the distinction that the act of asking for opinions promises no particular conclusion; what it does not permit is the conclusion that reads that hearing as an undertaking of victory. Therefore, the mere fact that the court reached a different judgment after receiving the answer does not constitute deprivation of opportunity; conversely, if judgment was rendered when there was no opportunity to answer, that opportunity remains blocked. Nor does the insufficiency of the record left undetermined immediately turn into unavailability of relief. Within these boundaries, the following passes to a new question: Does a new legal perspective allow remedies outside the application?