Summary
Even when the legal explanation changes, the limit that the court may not render judgment on matters not sought remains in place.
5.1The Standard by Which the Path Opens
Applying a different law and awarding a different performance must be distinguished. The preceding section concluded that the duty to hear a legal opinion is not a duty to guarantee a particular conclusion; what, then, are the conditions under which this remedy operates? In the synthetic scene, Plaintiff A and Defendant B contested only the performance of a contract, and the court intends to take as a ground for its decision another matter of law that both sides overlooked. With this scene in view, one must determine the conditions for a determination where an opportunity to state an opinion was in fact given.
First, read the text itself. Article 136, paragraph (4) of the Civil Procedure Act provides: "The court shall give the party an opportunity to state an opinion on a matter of law that it finds has clearly been overlooked by the party" (Civil Procedure Act, Article 136). The actor referred to by this text is the court; the object is a matter of law that is found to have been clearly overlooked by a party; and the conduct required is to give the party an opportunity to state an opinion on that matter. The provision does not itself fix that matter, nor does it set the ground for the decision.
Connecting this text with the conclusion of this section, the point at which this remedy operates lies in the actual provision of the opportunity. Where an opportunity to state an opinion on a matter of law that has clearly been overlooked has actually been given, this remedy operates. Here, the applicable law and the request denote the axis that distinguishes the ground of decision from the content of the adjudication demanded. A shift in legal explanation that changes the ground of decision is not the same as an amendment to the statement of claim that broadens the content of the adjudication demanded. Only by separating these two does it become clear why the notice of a new perspective does not lead to relief beyond the request.
The strongest counterargument targets the modification of the content of the performance. A shift in legal perspective may require modification of the content of the performance, and hearing opinions afresh for each new legal perspective carries the inconvenience and burden of delay, since the trial would never end. Nevertheless, a change in legal perspective cannot be automatically converted into an amendment of the statement of claim. Even without erasing the trouble the counterargument points out, the conclusion viewed on the axis of the applicable law and the request stands. To render, after giving an opportunity to be heard, a judgment going beyond the content of the adjudication demanded lies outside the scope this remedy permits.
Placing these conditions on the synthetic scene, the fact that the court intends to take as a ground for its decision another matter of law that both sides overlooked is the starting line of the problem, and the clarification, the notice of the issues, the course of submissions of opinion, and the reasons for the judgment are the records by which to see how that opportunity was given. Even where the outcome is unfavorable, if it is confirmed that an opportunity to respond to the perspective in question was given, the determination of deprivation of opportunity is corrected. However, in this scene no year, amount, or starting date of a period is fixed, so it cannot be determined here when the matter of law at issue was communicated and what opportunity to respond was given. That point remains undetermined.
What this section permits is the determination that this remedy operates where an opportunity to state an opinion on a matter of law that has clearly been overlooked was in fact given; what it does not permit is the interpretation that a new legal explanation immediately leads to an amendment of the statement of claim. Article 203 of the Civil Procedure Act provides: "The court may not render a judgment on a matter that has not been requested by a party" (Civil Procedure Act, Article 203); accordingly, the limitation that, even if the legal explanation changes, a matter not requested cannot be adjudicated remains in force.
5.2The Conditions That Block Relief
In the same scene, what are the conditions under which this remedy is foreclosed? Plaintiff A and Defendant B contested only the performance of a contract, yet the court intends to take as a ground for its decision another matter of law that both sides overlooked.
The text that answers this question is found in Article 136 of the Civil Procedure Act. Its paragraph (4) provides that the court "shall give the party an opportunity to state an opinion" (Civil Procedure Act, Article 136). The object is "a matter of law that is found to have been clearly overlooked by a party" (Civil Procedure Act, Article 136). Here, a matter of law refers not to a subject of proof of fact but to a dispute concerning the applicable law; the actor is the party who overlooked it; and the conduct is the court's granting of an opportunity to state an opinion. This discussion does not undertake to explain here the other matters dealt with in the remaining paragraphs of the same Article.
The conditions set by that text meet the conclusion of this section exactly. Where the court decided the case without giving an opportunity to state an opinion on a matter of law it found to have been clearly overlooked, this remedy is foreclosed. The opportunity to state an opinion is a procedural condition given prior to the decision, and whether that opportunity was actually received is a course of events verified by the records. Unless these two are separated, one will assess the opportunity from the outcome alone, and that assessment will in turn shake the operating conditions confirmed above.
A determination that this remedy is foreclosed brings difficulties. A shift in legal perspective may require modification of the content of the performance. Nor is it a light loss that hearing opinions afresh for each new legal perspective would prevent the trial from ending. Even so, a change in legal perspective cannot be automatically converted into an amendment of the statement of claim. The limitation against rendering a judgment on a matter not requested remains intact, and here the applicable law and the request denote the axis that distinguishes the ground of decision from the content of the adjudication demanded.
Comparing the conditions posed in the synthetic scene makes this distinction clear. What A and B contested was the performance of a contract, and what the court intends to consider is another matter of law that both sides overlooked. A shift in the applicable law is a matter concerning the ground of decision, but it is not an act of changing the content of the performance requested. However, in this scene whether and when an opportunity to state an opinion was given is not fixed, and that part cannot be determined here.
Accordingly, the conclusion of this section is narrow. To the question whether a new legal perspective permits relief beyond the request, it stops at answering that the limitation remains in force that, even if the legal explanation changes, a matter not requested cannot be adjudicated. Conversely, on materials alone in which the giving of the opportunity is not confirmed, that conclusion cannot be erased either, nor can it be categorically asserted that the remedy is unavailable on those materials alone.
5.3The Boundary That Remains When There Is No Data
In this situation the question is whether a judgment can newly determine even a performance that neither party requested. The duty to hear a legal opinion is not a duty to guarantee a particular conclusion. On this premise, there remains the question of where to place the boundary at which materials are lacking and the materials for decision cannot be specified.
The relevant text first pins down the limit of the request. Article 203 of the Civil Procedure Act declares: "The court may not render a judgment on a matter that has not been requested by a party" (Civil Procedure Act, Article 203). Here, a request refers to the content of the adjudication demanded by a party and is distinguished from the legal perspective the court seeks to apply. In the same vein, Article 136, paragraph (4) of the Civil Procedure Act provides: "The court shall give the party an opportunity to state an opinion on a matter of law that it finds has clearly been overlooked by the party" (Civil Procedure Act, Article 136). A matter of law that has clearly been overlooked means a legal ground of decision the party did not address; it is not the performance demanded itself.
Because the two texts deal with different objects, they are judgments at different stages. What Article 136, paragraph (4) opens up is an opportunity to state an opinion on the applicable law; what Article 203 blocks is a judgment on a performance beyond the request. The mere circumstance that opinions were heard does not enable the court to determine adjudicatory content that was not demanded. Conversely, the fact that the request stands does not mean that a matter of law that was overlooked may be made a ground of decision without an opinion. This distinction is called the axis of the applicable law and the request. This axis separates the ground of decision from the content of the adjudication demanded.
The counterargument that a shift in legal perspective may require modification of the content of the performance aims at the gap in this distinction. Applying a new law may require drawing into the decision circumstances the parties did not contest, and the result may sometimes be that no conclusion can be reached without touching the scope or content of the performance. In such a case, setting up a separate procedure for hearing opinions prolongs the trial, while amending the performance at once brings the inconvenience of disregarding the request. Yet even if such inconvenience is confirmed, a change in legal perspective cannot be automatically converted into an amendment of the statement of claim. An amendment of the statement of claim requires an act of request by a party, and the court's notice of its perspective produces no such act of request. The procedural delay and the need for modification pointed out by the counterargument are fully acknowledged, but they do not furnish a ground for adjudicating a performance beyond the request.
The facts confirmed in this scene are limited. Plaintiff A and Defendant B made only the performance of a contract the issue, and the court intends to take as a ground for its decision another matter of law that both sides overlooked. This scene does not contain when the opportunity to state an opinion was given, in what manner it was communicated, or what the parties answered. These are to be seen through the clarification, the notice of the issues, the course of submissions of opinion, and the reasons for the judgment, but their content is not confirmed. As a result, whether an opportunity to state an opinion on the matter of law in question was granted cannot be determined from this scene alone.
Accordingly, matters that cannot be determined for lack of materials must not be treated at once as unavailable for relief. Where it is unknown when the matter of law at issue was communicated and what opportunity to respond was given, the case must not be categorically deemed unavailable on the ground that the materials for decision have not been specified; it must be left undetermined. Undetermined refers to a state in which the materials forming the ground of decision have not been filled in, a state in which neither the conclusion that the duty was violated nor the contrary conclusion can be fixed. So long as there are no fixed materials, the state of being undetermined persists, and whether relief beyond the request is permissible likewise remains open.
5.4The Records Needed for Determination
Although it was confirmed earlier that the duty to hear a legal opinion is not a duty to guarantee a particular conclusion, the scope of the records needed to assess in which procedures and to what extent that duty was observed must now be determined. The question whether a new legal perspective permits relief beyond the request remains a problem of the ground of decision going beyond the content of the performance, and in order to assess that stage, what must remain in the record is also at issue.
The statutes addressed in this section divide into two texts. Article 203 of the Civil Procedure Act declares that "the court may not render a judgment on a matter that has not been requested by a party," and Article 136, paragraph (4) of the Civil Procedure Act provides that "the court shall give the party an opportunity to state an opinion on a matter of law that it finds has clearly been overlooked by the party." The former text indicates the subject and object on which no judgment may be rendered; the latter indicates the subject obliged to give the opportunity and the object, namely the overlooked matter of law.
What the two texts fix together is the distinction between the applicable law and the request. Here the applicable law means the legal perspective serving as the ground of decision, and the request means the content of the adjudication demanded by a party. Where there is a record that the court granted an opportunity to state an opinion on a matter of law it found to have been clearly overlooked, that stage is regarded as observed; conversely, where there is a record that no opportunity was given, it is regarded as not observed. That determination is made only on the material left in the clarification, the notice of the issues, the course of submissions of opinion, and the reasons for the judgment, and the stage is not filled in by presuming facts not in the record.
The strongest counterargument targets the fact that a shift in legal perspective may require modification of the content of the performance, and the fact that hearing opinions afresh for each new legal perspective would prevent the trial from ending. This inconvenience is real. If the procedure for hearing opinions is extended, the examination lengthens, and if the content of the performance must be touched as well, the very boundary of the request may be shaken. Since the replacement of the ground of decision does not mean the replacement of the adjudicatory content demanded, the need for modification of the performance does not automatically change the scope of the duty to hear opinions.
In the synthetic scene, it is confirmed only that Plaintiff A and Defendant B contested only the performance of a contract, and that the court intends to take as a ground for its decision another matter of law that both sides overlooked. From this scene alone, one cannot determine whether an opportunity to state an opinion was actually given, when it was communicated and what opportunity to respond was given, or what was recorded in the reasons for the judgment. Accordingly, it remains undetermined at present. Nor is it permitted to add outcomes or wins and losses assumed outside the scene. What remains is only the scope of the record as fixed.
What this section permits is a conclusion within the range of assessing the stage on the fixed records alone and not filling in missing records by inference. In other words, the limitation remains in force that, even if the legal explanation changes, a matter not requested cannot be adjudicated; and within that limitation, the replacement of the ground of decision does not mean the replacement of the content of the performance. Conversely, it is not permitted to assert categorically that a certain stage was passed despite an empty record, or to fill in the fact that no opportunity was given by conjecture.
5.5Circumstances That Change the Decision
Does a new legal perspective in this scene permit relief outside the claim? It is asked together with the question of what change overturns the existing stage determination. As the previous section confirmed, the duty to hear legal opinions is not a duty to guarantee a particular conclusion. What remains, then, is what facts must be confirmed before it is proper to withdraw the existing blocking determination or effectiveness determination and re-weigh the same procedure from the beginning.
The wording that answers this question is found in Article 203 of the Civil Procedure Act. That Article declares: "The court may not render a judgment on a matter for which the parties have not made a claim." Here the subject is the court, the prohibited act is rendering a judgment on a matter for which no claim has been made, and the condition is that the parties have not made a claim. However appropriate a newly conceived legal perspective may appear as a basis of judgment, that perspective itself cannot lead to broadening the content of the adjudication demanded. The axis that distinguishes the applicable statute from the claim—that is, the basis of judgment from the content of adjudication demanded—is drawn in this wording.
Accordingly, the mere emergence of a new perspective does not permit relief outside the claim. Even where the court newly recognizes a legal matter that it clearly overlooked, that recognition merely calls forth the duty stated in Article 136 (4) of the Civil Procedure Act: "The court must give the parties an opportunity to state their opinions on a legal matter that is recognized to have clearly been overlooked by the parties." The stage of hearing opinions and the stage of fixing the scope of judgment are different, because the former cannot displace the latter. That is to say, the duty to hear legal opinions is not a duty to guarantee a particular conclusion, and if the two are mixed, even the scope of the claim as filed is shaken.
The strongest counterargument to this distinction is that a shift in legal perspective may require amendment of the content of the performance demanded. The inconvenience also follows that, if opinions are heard anew for each new legal perspective, the trial will never end. The court's intention to change the basis of judgment and the intention to rewrite the performance demanded by the parties are not the same thing, and if the latter is required, it remains a matter of a separate claim and determination. Nor does the mere fact that opinions were heard open the way to relief outside the claim, and the inconvenience of delay pointed out by the counterargument cannot serve as a ground for dissolving this boundary.
The facts confirmed in the synthetic scene are that the two sides disputed only performance of the contract, and that the court seeks to take as a basis of judgment another legal matter that the court itself overlooked. From this fact alone one can neither say that there was a deprivation of opportunity nor that there was not. What must be confirmed is when the legal matter in question was notified and what opportunity to respond was given, and that record is found in the clarification, notice of issues, the course of submission of opinions, and the reasons for judgment. If it is confirmed in that record that the opportunity to state opinions was actually granted—if, that is, an opportunity to respond to the perspective in question is confirmed—then, even though the result was unfavorable, the judgment of deprivation of opportunity is corrected. Conversely, if it is confirmed that the court adjudicated without notifying, the case is one of adjudicating without granting an opportunity, and if it is unclear when notice was given and what opportunity was granted, the matter remains undetermined.
The conclusion this section permits is narrow. Even if the legal explanation changes, the limitation that a matter for which no claim was made cannot be adjudicated remains in place, and once the specified change is confirmed, the existing blocking and effectiveness determinations are discarded and the determination is re-weighed from that stage onward. One cannot speak of deprivation of opportunity from the mere circumstance that the outcome worsened; conversely, neither can a new performance be granted from the mere circumstance that opinions were heard. What must be present before deprivation of opportunity can be argued has not been settled.
5.6The Strongest Counterargument and the Answer
Starting from the point that applying a different statute and granting a different performance must be distinguished, Plaintiff A and Defendant B disputed only performance of the contract, while the court seeks to treat as a basis of judgment another legal matter that both sides overlooked. Whether the new perspective the court has chosen in this scene immediately means a change in the content of the claim is the question of this stage.
Article 203 of the Civil Procedure Act provides: "The court may not render a judgment on a matter for which the parties have not made a claim." In this wording the subject is the court, the prohibited act is a judgment on a matter outside the claim, and the condition is the fact that the parties have not made a claim. Here the claim refers to the content of adjudication demanded, while the applicable statute remains a separate matter. Article 136 of the Civil Procedure Act provides: "The court must give the parties an opportunity to state their opinions on a legal matter that is recognized to have clearly been overlooked by the parties." The subject of this wording is again the court, the act is the granting of an opportunity to state opinions, and the condition is the case where a legal matter overlooked by the parties is recognized to be clearly so.
Because the two provisions address different objects, they must be read together. One prevents a judgment on a matter for which no claim was made; the other opens the way to speak to an overlooked legal matter. Accordingly, even if the legal explanation changes, the limitation that a matter for which no claim was made cannot be adjudicated remains in place. Within this limitation, even if the court presents a new perspective, that perspective is only a replacement of the applicable statute, and by that alone it cannot be regarded that the content of the performance demanded has changed. The axis that distinguishes the basis of judgment from the content of adjudication demanded operates here.
The view most strongly opposed to this distinction targets the point that the trial will never end. If opinions are heard anew for each new legal perspective, so the argument runs, the court must put the same issue repeatedly, and the lawsuit continues without end. Yet because the duty to hear opinions is not a duty to guarantee a particular conclusion, that answer is required only insofar as the procedure of hearing is observed. Since a change in legal perspective cannot be automatically substituted by an amendment of the claim, the view is that, while recognizing the burden of this counterargument, the counterargument does not justify automatic substitution.
What is confirmed in the synthetic scene is the fact that Plaintiff A and Defendant B disputed only performance of the contract, and the fact that the court seeks to treat as a basis of judgment another legal matter that both sides overlooked. From these two facts alone it is not determined what content of performance the new perspective will demand, or when and what opportunity to respond was given to the parties. Where it is unclear when the legal matter in question was notified and what opportunity to respond was given, that judgment remains undetermined.
The conclusion this section permits is narrow. New perspective and new claim must be distinguished, in that when the court seeks to deal with a legal matter that it clearly overlooked, the perspective itself cannot be recharacterized as an amendment of the claim. Conversely, what this conclusion does not permit is a judgment on relief outside the claim, and this limitation remains in place whatever legal explanation is adopted.
5.7The Link to the Application and the Dispositive Part
Accepting the premise, received from the previous section, that a change in legal perspective cannot be automatically substituted by an amendment of the claim, what must now be asked is whether, where Plaintiff A and Defendant B disputed only performance of the contract and the court seeks to take as a basis of judgment another legal matter overlooked by both sides, that new perspective opens the way even to relief for which no claim was made. The applicable statute and the claim form the axis that distinguishes the basis of judgment from the content of adjudication demanded, and this axis serves as the criterion that draws the limits of what the new perspective may permit.
As the wording that answers this question, Article 136 of the Civil Procedure Act provides: "The court must give the parties an opportunity to state their opinions on a legal matter that is recognized to have clearly been overlooked by the parties." The subject this provision addresses is the court, its act is giving an opportunity to state opinions, and the condition is a legal matter that is recognized to have clearly been overlooked by the parties. The provision concerns a legal perspective to be taken as a basis of judgment; it does not concern a matter that newly extends the demanded content of adjudication.
Where the court actually grants an opportunity to state opinions on a legal matter that was clearly overlooked, Article 203 of the Civil Procedure Act provides: "The court may not render a judgment on a matter for which the parties have not made a claim." These two distinctions form the conclusion of this section. Changing the applicable statute is the work of explaining the basis of judgment differently, and the claim is the work of delimiting the content of adjudication demanded; accordingly, the limitation that a matter for which no claim was made cannot be adjudicated remains in place even if the legal explanation changes. The stage of notifying the new perspective and hearing opinions on it, and the stage of rendering judgment within the scope claimed, demand two different things.
The contention is that the new perspective discloses a legal character other than performance of the contract, and that accordingly the case cannot be resolved unless the wording or scope of the performance demanded is corrected. Yet however much a new legal perspective may appear to require amendment of the content of the performance, the court cannot automatically substitute it as an amendment of the claim. An amendment of the claim is an act by which a party demands that the content of the adjudication be corrected, and this follows an axis distinct from a change in applicable statute. The inconvenience pointed out by the counterargument—in other words, the burden that relief is delayed or that the procedure must be traversed again—remains. Nevertheless, that inconvenience cannot serve as a ground for converting a change in legal perspective into an amendment of the claim and thereby permitting relief outside the claim.
By contrast with the foregoing condition that Plaintiff A and Defendant B disputed only performance of the contract, where the court actually grants an opportunity to state opinions on another legal matter that the court overlooked, that perspective may be used as a basis of judgment. Yet if that matter concerns relief beyond the performance demanded, the court still may not render judgment. How to deal with the case where the court adjudicated on a legal matter that was clearly overlooked without giving an opportunity to state opinions, and how to deal with the case where it is unclear when the legal matter in question was notified and what opportunity to respond was given, are matters to be verified from the clarification, notice of issues, the course of submission of opinions, and the reasons for judgment; they cannot be settled on this scene alone. Even if the result was unfavorable, if an opportunity to respond to the perspective in question is confirmed, the judgment of deprivation of opportunity must be corrected. This means only that the judgment changes when the conditions change, and it cannot be added as a fact of an actual case.
Accordingly, the permissible conclusion is that even where a perspective viewing the applicable statute differently corresponds to a legal matter that was clearly overlooked and the procedure for hearing opinions thereon has been traversed, the limitation that a matter for which no claim was made cannot be adjudicated remains in place. The impermissible conclusion is that a court that has discovered a new legal perspective may, on the basis of that perspective alone, modify or supplement of its own accord the content and scope of the relief demanded.
5.8The Scope This Section Undertakes
Does a new legal perspective permit relief outside the claim? This question asks after the boundary between the replacement of the applicable statute and the expansion of the content of judgment.
As the wording that answers this question, Article 203 of the Civil Procedure Act draws the line: “The court may not render a judgment on a matter for which the parties have not made a claim.” Here, ‘the parties’ refers to Plaintiff A and Defendant B, who sought the judgment of the court below, and ‘claim’ means the content they demanded by that judgment. The wording “may not render a judgment” at once defines the subject, the act, and the condition: matters not demanded cannot be placed in the judgment. This provision does not itself prohibit the selection of the applicable statute.
Linking the limitation set by that wording with the conclusion of this section, one sees that the court's taking as a basis of judgment a legal matter overlooked by both sides is left intact, while granting by judgment relief outside the claim, rooted in that perspective, is prohibited. The former is the framework by which the court explains and determines the dispute; the latter is the content of adjudication the parties demanded. If the two concepts are not kept apart, a replacement of the basis is read as an expansion of the content.
The position opposing this distinction points out that when the legal perspective changes, the content of the performance may also require amendment. If the basis for performance of the contract is shifted to another statute, the scope or manner of performance may also change; hence, it is difficult to accept the new perspective without structural amendment. That the trial lengthens is also the inconvenience that position fears. Yet the answer is plain. A revision of perspective does not mean a revision of the demanded content, and the limitation of not filling a place where there is no claim remains in place.
If actual records are set against this scene, the presence or absence of clarification, notice of issues, the course of submission of opinions, and the reasons for judgment is decisive. Article 136 (4) of the Civil Procedure Act requires that the court “give the parties an opportunity to state their opinions” on a legal matter the parties clearly overlooked. Whether that opportunity was actually given cannot be determined from this material alone. Because the granting of an opportunity under Article 136 (4) of the Civil Procedure Act is a matter separate from whether relief outside the claim is permitted, the inquiry into whether an opportunity was given and the inquiry into whether content not demanded may be granted by judgment are examined separately.
The conclusion this section permits stops at the line that even if the court may change the basis of judgment, it may not render a judgment on a matter for which no claim was made. Inserting a new relief on the sole ground that the content of the performance must change, beyond that line, is a conclusion this section does not establish. Conversely, treating the claim as expanded merely because the perspective alone changed also falls outside the scope of this section.
5.9Application of the Text of the Provisions and the Holdings of Precedents
In the scene where Plaintiff A and Defendant B disputed only performance of the contract and the court seeks to take as a basis of judgment another legal matter overlooked by both sides, what has newly become an issue is the distinction between the applicable statute and the claim. The question placed here is whether the work of changing the basis of judgment is the same as the work of changing the content of adjudication demanded. Before this question, what must be confirmed is whether the limitation that a matter for which no claim was made cannot be adjudicated stands unchanged even before the new perspective.
Among the source texts, Article 136 of the Civil Procedure Act provides as follows: “The court must give the parties an opportunity to state their opinions on a legal matter that is recognized to have clearly been overlooked by the parties.” The subject indicated by this wording is the court, its act is the granting of an opportunity to state opinions on a legal matter recognized to have clearly been overlooked, and the condition is that the matter is recognized to have clearly been overlooked. Issues under other provisions are not addressed here.
Another source text, Article 203 of the Civil Procedure Act, provides as follows: “The court may not render a judgment on a matter for which the parties have not made a claim.” Because this wording limits the object of judgment to matters for which the parties have made a claim, the opportunity to state opinions required by the foregoing provision and that limitation of judgment aim at different stages. The former concerns giving an opportunity with respect to a legal matter that will serve as a basis of judgment; the latter is a limitation as to what content may be fixed by judgment. Only when the two stages are distinguished can one describe a state in which the court may hear opinions on a legal matter it overlooked while not adjudicating a matter for which no claim was made.
That a shift in legal perspective may require amendment of the content of the performance is the core of the counterargument. That the trial will not end if opinions are heard anew for each new legal perspective is also the inconvenience the counterargument targets. The court remains the subject that gives an opportunity to state opinions on overlooked legal matters, and even if that result operates to the parties' disadvantage, the switch in the basis of judgment has not thereby led to a change in the content of adjudication demanded. Whether amendment of the content of the performance is required remains a matter of the scope of the claim.
In this scene Plaintiff A and Defendant B disputed only performance of the contract, and the other legal matter the court seeks to consider was overlooked by both sides. This scene alone does not confirm when the court notified that matter or what opportunity to respond was given, so whether the opportunity was actually granted remains undetermined. Nevertheless, the records of the clarification, notice of issues, the course of submission of opinions, and the reasons for judgment are the material for reviewing whether an opportunity regarding the legal matter in question was granted.
What this section permits is to take the wording of the source text alone as the ground for determining the opportunity to respond to an overlooked legal perspective; it does not permit extending it to the reasons for judgment or to paragraphs not addressed.
5.10Fine Distinctions Within the Stage
Here, proceeding from the premise that the duty to hear opinions on questions of law is not a duty to guarantee a particular conclusion, this section examines what remains to be distinguished and adjudicated within the opportunity to answer an overlooked legal point. The question arises in a scene where plaintiff A and defendant B contest only the performance of a contract, yet the court seeks to adopt, as grounds for its decision, another question of law that both sides have overlooked.
The provision that answers this question is Article 136 of the Civil Procedure Act. Here the subject is the court, the object is a question of law recognized as clearly having been overlooked by a party, and the required act is to give the party an opportunity to state an opinion.
What this wording requires is the granting of an opportunity, not the furnishing of any particular conclusion. The distinction is therefore limited to the stated conditions. Put differently, with respect to the opportunity to answer an overlooked legal point, only three conditions are distinguished: whether an opportunity was in fact granted, whether the court decided without granting an opportunity, and whether the time of notice and the opportunity to respond are unknown. It is in the same vein that an attempt to apply a different statute does not immediately lead to the granting of a different performance.
The counterargument urging that this distinction be relaxed aims at practical benefit. Because a shift in legal point of view may require amendment of the content of the performance, it is said, unless the claim's gist is also revised while opinions are sought under the changed point of view, the parties will find it difficult to answer properly. It is also pointed out that if opinions are heard anew for each new legal point of view, the trial will never end. Yet to avoid that loss, a change in the legal point of view cannot be automatically converted into an amendment of the claim's gist, and the limitation that no matter may be judged unless it has been requested remains (Article 203 of the Civil Procedure Act).
The facts confirmed in this scene are only the dispute over performance of the contract, the other question of law the court seeks to examine, and the clarifications, issue notices, course of opinion submissions, and reasons for judgment that are entered On the records. Contrasting these facts with the operative condition — the case in which an opportunity to state an opinion was in fact granted — yields grounds to correct a deprivation of opportunity; contrasting them with the blocking condition — the case in which the court decided without granting an opportunity — unsettles that decision. If, however, it is unknown when the question of law in issue was notified and what opportunity to respond was given, the matter remains undetermined.
Accordingly, the conclusion permitted at this stage is the fine-grained distinction following the stated conditions; what is not permitted is a determination that automatically imports an amendment of the claim's gist on the premise of amending the content of the performance.
5.11Synthesis of Effectiveness, Blockage, and Undetermination
In this scene, how is it to be distinguished whether the opportunity to answer an overlooked legal point was in fact opened, was blocked, or cannot be known from the records alone?
As the wording that answers this question, Article 136(4) of the Civil Procedure Act provides Next: "An opportunity to state an opinion shall be given to the party." (Article 136 of the Civil Procedure Act) The subject handled by this provision is the court, the object is a question of law recognized as clearly having been overlooked by a party, and the required act is to grant the party an opportunity to state an opinion. The wording takes as its criterion whether that opportunity was in fact given; it does not promise that any particular conclusion will be reached.
To connect this wording with the conclusion of this section, one must distinguish the granting of an opportunity to state an opinion from its outcome. The opening condition is the case in which an opportunity to state an opinion was in fact granted with respect to a question of law clearly overlooked; the blocking condition is the case in which the court, having recognized a question of law as clearly overlooked, decided the matter without giving an opportunity to state an opinion. Undetermined remains the case in which it is unknown when the question of law in issue was notified and what opportunity to respond was given. These are three distinct stages of adjudication: the reality of the opportunity, the absence of the opportunity, and the insufficiency of the records.
The strongest counterargument arises from the fact that a shift in legal point of view may require amendment of the content of the performance. If opinions are heard anew for every new legal point of view, the trial may never come to an end, and that inconvenience is borne by parties and court alike. Yet the answer is clear. The statute applied and the request form the axis that distinguishes the grounds of decision from the content of the adjudication demanded, and Article 203 of the Civil Procedure Act draws the line: "The court shall not render judgment on a matter that a party has not requested" (Article 203 of the Civil Procedure Act). Thus, keeping open the procedure of hearing opinions and granting a performance outside the scope of the request are separate matters.
Contrasted against the synthetic scene, it must first be confirmed whether the other question of law the court seeks to examine falls within the category of questions of law clearly overlooked, and only then does it become an issue whether A and B were in fact given an opportunity to state an opinion on that matter. On the records, only the kinds of the clarifications, issue notices, course of opinion submissions, and reasons for judgment are fixed; when and what opportunity to respond was given is not set in the synthetic scene. It therefore remains undetermined. That said, even if the outcome is unfavorable, once an opportunity to answer that point of view is confirmed, the determination of deprivation of opportunity must be corrected.
The conclusion permitted by this section is that, if it is confirmed that an opportunity to state an opinion on a question of law clearly overlooked was in fact granted, one cannot speak of deprivation of opportunity; and that, if the court recognized such a matter as clearly overlooked yet decided without granting an opportunity, the conditions for deprivation of opportunity are satisfied. By contrast, if it is unclear when notice was given and what opportunity to respond was given, the matter remains undetermined, which does not in itself render it incurable.
5.12Conclusion Carried Over to the Next Section
Having thus separated the operation, blockage, and undetermined state of the opportunity to state an opinion on a question of law clearly overlooked, what remains at that boundary is whether a new legal point of view permits relief outside the scope of the request. In this scene the court seeks only to change the grounds of its decision, and the issue is whether the changed explanation can also extend the content of the adjudication demanded by the parties. The distinction between the statute applied and the request forms the axis of this question.
The wording of Article 136 of the Civil Procedure Act, which provides that the court shall give a party an opportunity to state an opinion on a question of law recognized as clearly having been overlooked by that party, makes clear that its object is a question of law. What the court handles in this wording is the legal principle that will serve as the grounds of decision, and what is given to the party is the opportunity to state an opinion on that legal principle. At the same time, Article 203 of the Civil Procedure Act lays it down that the court shall not render judgment on a matter that a party has not requested. The limits of the content of the adjudication requested are set here.
The granting of an opportunity under Article 136 and the prohibition of judgment under Article 203 operate at different stages, and for that reason the two must be placed side by side. When the court seeks to hear opinions on a question of law overlooked by the parties, that is a substitution of the statute applied; the limitation that no matter may be judged unless requested is a device that preserves the scope of the adjudication demanded. The fact that opinions were heard does not constitute a justifiable ground for exceeding that limitation, because the opportunity confers qualification to address the legal principle and does not create a right to demand a new performance.
The counterargument that a shift in legal point of view may require amendment of the content of the performance stands foremost. In a lawsuit contesting only the performance of a contract, if a different legal principle is adopted, the scope of the performance must eventually be adjusted to accord with the result prescribed by that principle, and if this is prevented, the inconvenience arises that the just conclusion discovered by the court is foreclosed. The switching of the statute applied and the amendment of the claim's gist are separate measures, and absent the latter, the limitation of Article 203 remains as it is.
If the court in fact granted an opportunity to state an opinion on this question of law, that opportunity operated; if the court recognized it as clearly overlooked yet decided without giving an opportunity to state an opinion, the opportunity was blocked. If, however, it is unknown from the records when the question of law in issue was notified and what opportunity to respond was given, the matter remains undetermined.
What this section hands on is narrow. Even if the court may explain a new legal point of view, the limitation that no matter may be judged unless requested is preserved. Whether an opportunity regarding that point of view was given is a separate question, and this section does not set the criteria for that determination. The axis distinguishing the statute applied from the request keeps this boundary. What must exist before deprivation of opportunity can be discussed?