Summary
Only if the content of the notice of issues and the parties' avenues of response are recorded can mere dissatisfaction with the outcome be distinguished from a procedural lack of opportunity.
6.1The Standard by Which the Path Opens
Even where the legal explanation changes, the limit remains that matters not applied for may not be adjudicated. The mere fact that the judgment was unfavorable cannot establish that there was no opportunity to be heard. The question, therefore, is what may be used to determine whether the opportunity to be heard was taken away, rather than the defeat itself. Even while accepting the limit left by the preceding section, the issue is what basis must converge before one can say that the entrance to this remedy has been reached in the scene where Plaintiff A and Defendant B disputed only performance of the contract, while the court seeks to treat as a ground of decision another legal matter that both sides overlooked. That question asks after the first threshold that separates the unfairness of the outcome from the absence of procedure.
Article 136 of the Civil Procedure Act provides that "the court shall give the parties an opportunity to state their opinions on legal matters that it recognizes as having clearly been overlooked by the parties." Here, the court is the actor that must arrange for the parties an opportunity to state their opinions when it seeks of its own accord to locate a legal matter clearly overlooked by the parties and to take it as a ground of decision. An opportunity to state opinions means the channel through which a party may put forward its own arguments on that legal matter, and it is a procedure distinct from the favorableness or unfavorableness of the outcome of the trial. What this text prescribes is the granting of that opportunity, not a guarantee of victory.
This text leads one to regard the matter as forming the basis for discussion only when both the content of the notice of issues and the party's channel of response are made known together. The entrance to this remedy opens where an opportunity to state opinions on a legal matter clearly overlooked has in fact been granted. The reason for distinguishing the two elements—the content of the legal matter noticed and the channel of response to it—is that the former determines what could have been said and the latter determines whether it was in fact said. Neither alone identifies who had an opportunity as to which matter. When this distinction holds, outcome and procedure are assessed separately.
The inconvenience attending a strict standard of this kind is considerable. Where the procedural record is meager, actual exclusion is difficult to prove, and if even a minor omission of notice is made an issue, lawsuits will lengthen endlessly. In particular, the concern that trials will never end if opinions are sought anew with each fresh legal perspective points to the loss of being made to revisit a procedural violation even where the court considers that it has already afforded a sufficient opportunity to be heard. Nevertheless, the fact of defeat alone cannot establish deprivation of the opportunity to state a legal opinion. A standard requiring traces of the granting of opportunity operates as a device for filtering out dissatisfaction with the outcome, and it is a choice made so as not to lose sight of procedural absence as a separate ground while bearing that unfavorable aspect.
What can be confirmed in this scene is the fact that Plaintiff A and Defendant B disputed only performance of the contract, while the court seeks to treat as a ground of decision another legal matter that both sides overlooked. This scene overlaps with the condition that the court seeks to take as a ground of decision a legal matter clearly overlooked by the parties, and in that neither side contested that matter, it creates a situation in which an opportunity to state opinions is required. Yet this scene does not determine when and how that legal matter was notified, or what opportunity to respond was given. Since whether opportunity was granted varies with what content the procedural record—clarification, notice of issues, the course of submission of opinions, and the reasons for the judgment—shows, the scene alone can establish neither the existence nor the non-existence of deprivation of opportunity.
What this section permits is a determination that, by examining the procedural record, an opportunity to state opinions on a legal matter clearly overlooked was in fact granted, thereby opening the entrance to this remedy; and the distinction that, once that opportunity is confirmed, the mere fact that the outcome was unfavorable cannot be called procedural deprivation. What this section does not permit is the conclusion of establishing deprivation on the sole ground of defeat without confirming the channel through which the opportunity was granted. Where no material remains and it is unclear when notice was given and what opportunity was afforded, the matter remains undetermined rather than proceeding at once to the existence or non-existence of deprivation.
6.2The Conditions That Block Relief
The preceding section confirmed the procedural standard that this remedy operates where an opportunity to state opinions on a legal matter clearly overlooked has in fact been granted. This time the question is posed as the conditions under which the remedy is barred. In this scene, Plaintiff A and Defendant B disputed only performance of the contract, while the court seeks to treat as a ground of decision another legal matter that both sides overlooked. In this scene, one cannot assert merely from the fact that a party was dissatisfied with the result that the opportunity to be heard was taken away. Accordingly, a standard is established for what must be present before deprivation of opportunity can be discussed. To answer this question, one must separate the procedural requirement prescribed by the provision from the determination where that requirement is not satisfied. The following paragraph examines the text upon which the court's duty turns.
The procedural record means the material that reveals the notice and the channel for submitting opinions. The reason this material becomes the standard for confirming the court's duty is that the text of Article 136 of the Civil Procedure Act directly prescribes the condition for giving the parties an opportunity to state their opinions. The provision reads as follows: "(4) The court shall give the parties an opportunity to state their opinions on legal matters that it recognizes as having clearly been overlooked by the parties" (Article 136 of the Civil Procedure Act). The subject of this text is the court; the object is a legal matter recognized as having clearly been overlooked by the parties; and the act is that of giving the parties an opportunity to state their opinions. The condition is limited to the case where the court recognizes that the matter has clearly been overlooked. This text does not govern the issues of other provisions, and only paragraph (4) of Article 136 is taken here as the standard.
This text and the conclusion of this section are joined by making the presence or absence of the opportunity to state opinions the axis of determination. Where the opportunity has in fact been given on a legal matter clearly overlooked and its channel of response is revealed, the procedural requirement is deemed observed. By contrast, where the court decided on a legal matter that it recognized as having clearly been overlooked without giving an opportunity, this remedy is barred. Two things must be distinguished here. One is whether the outcome of the case was unfavorable; the other is whether there was a procedural opportunity to state opinions. Article 208(2) of the Civil Procedure Act provides that "(2) The reasons for a judgment shall state the parties' claims and the determinations on other means of attack and defense to the extent sufficient to recognize the propriety of the disposition" (Article 208 of the Civil Procedure Act), requiring that the reasons for the judgment state determinations on the parties' claims and means of attack and defense. This requirement, however, concerns the statement of reasons and therefore lies at a different stage from the determination of whether an opportunity was granted. The fact that the opposing party's opinions were recorded in the reasons does not at once establish that a procedural opportunity existed. The two stages answer different questions.
The strongest counterargument points out that where the procedural record is meager, actual exclusion is difficult to prove. The loss this counterargument targets is concrete. If the content of the noticed issues or the channel for submitting opinions is not preserved, it is difficult to reveal the disadvantage the party suffered and the cause of that disadvantage, with the result that even in cases requiring relief the path to arguing a lack of opportunity narrows. Where the procedural record is deficient, the value of preventing delay in litigation and preserving speedy disposition is also threatened. Another aspect of the same counterargument is that trials will not end if opinions are sought anew with each fresh legal perspective. Thus the inconvenience of trial efficiency being impaired by delay is raised together with the loss of actual lack of opportunity. Even so, the fact of defeat alone cannot establish deprivation of the opportunity to state a legal opinion. This answer does not erase the disadvantages noted by the counterargument, yet it distinguishes the requirements for deprivation of opportunity from dissatisfaction with the outcome.
This fact alone does not reveal what procedure was actually carried out. The preceding condition is whether the court gave an opportunity on a legal matter it recognized as having clearly been overlooked, and the materials to be compared against it are clarification, notice of issues, the course of submission of opinions, and the reasons for the judgment. Among these materials, those that reveal the notice and the channel for submitting opinions constitute the procedural record. The time of service or the result of performance, and whether the judgment became final and conclusive, do not appear in the scene and have not been established, and therefore are not taken as grounds of decision. Where the record does not reveal when the court notified which legal matter and what opportunity to respond it gave, that portion cannot be adjudicated. It is added that this state of non-adjudicability is not converted at once into unavailability of relief.
The conclusion permitted by this section is as follows. Where the court decided on a legal matter it recognized as having clearly been overlooked without giving the parties an opportunity to state their opinions, this remedy is barred. The core of this determination is the presence or absence of opportunity, and the fact that the outcome of the judgment was unfavorable cannot itself constitute a requirement for deprivation of opportunity. Accordingly, to assert solely from the unfavorableness of the judgment that the opportunity to state a legal opinion was taken away departs from this standard. Even if the outcome was unfavorable, once an opportunity to respond to that perspective is confirmed, the determination of deprivation of opportunity is corrected. However, one cannot assert flatly that cases in which it is unclear whether an opportunity was given are not instances of deprivation of opportunity. That boundary remains where it cannot be adjudicated for lack of material.
6.3The Boundary That Remains When There Is No Data
In the preceding stage of analysis it was concluded that, even where the legal explanation changes, the limit remains that matters not applied for may not be adjudicated. Within that limit, the questions remaining now are what must be present before deprivation of opportunity can be discussed, and where the boundary lies that cannot be settled for lack of material. In this scene it must be revealed when the legal matter that would serve as a ground of decision was made known to the parties and what channel of response was opened. If it is not revealed, one must first fix what standard can be spoken from.
The first text corresponding to this question is Article 136(4) of the Civil Procedure Act. It provides that "the court shall give the parties an opportunity to state their opinions on legal matters that it recognizes as having clearly been overlooked by the parties" (Article 136 of the Civil Procedure Act). The subject indicated by this text is the court; the object is a legal matter recognized as having clearly been overlooked by the parties; and the required act is giving the parties an opportunity to state their opinions. Here, a legal matter is an object of legal assessment, distinguished from the proof of facts, and the recognition that the matter was clearly overlooked is the point at which the court takes up the matter as an issue. This Article does not determine how the matter is to be decided; it requires the opportunity to be heard before the decision.
Accordingly, to discuss deprivation of opportunity, it must remain in the procedural record whether that opportunity was in fact given and, if given, by what channel a response could have been made. This material includes clarification, notice of issues, the course of submission of opinions, and the reasons for the judgment. Once this record is confirmed, the time at which the legal matter was notified and the opportunity to respond can be ascertained; if it cannot be confirmed, neither of the two can be determined. At this point, however, two things must be distinguished. One concerns a matter on which a decision was rendered without actually giving an opportunity; the other concerns a matter on which it is unknown whether an opportunity was given and what opportunity to respond was afforded. The former can be judged as a lack of opportunity, whereas the latter must be distinguished from non-adjudicability and left undetermined, on the ground that the materials for decision have not been specified.
The counterargument that actual exclusion is difficult to prove where the procedural record is meager points to the greatest inconvenience. Notices and responses not preserved in the record must be reconstructed after the fact, and in cases with a meager record the party's path for showing that it was excluded narrows. The concern that trials may be greatly prolonged also operates at the same time. That trials may not end if opinions are sought anew with each fresh legal perspective is likewise part of this counterargument. Yet regardless of the loss this counterargument targets, the fact of defeat alone cannot establish deprivation of the opportunity to state a legal opinion. The meagerness of the record remains a difficulty of proof, but that difficulty alone does not lead to a determination that there was no opportunity. Even where the outcome was unfavorable, the determination turns on what the procedural record shows.
The facts actually given in this scene are only that performance of the contract alone was disputed and that the court seeks to treat as a ground of decision another legal matter that both sides overlooked. This fact alone does not determine when that legal matter was notified or what opportunity to respond was given. Contrasted with the preceding condition, the crux is whether there is a procedural record revealing the time at which the matter at issue was notified to the parties and the channel of response. The reasons for a judgment shall state the parties' claims and the determinations on other means of attack and defense to the extent sufficient to recognize the propriety of the disposition (Article 208 of the Civil Procedure Act). One must examine whether, in that statement, the determination on the legal matter at issue and the opportunity to state opinions preceding it are revealed together. If they are not revealed, this scene alone cannot establish whether an opportunity was granted as to that matter, and the unverified state remains undetermined.
The conclusion permitted in this section is that, where it is unknown when the legal matter at issue was notified and what opportunity to respond was given, the matter whose materials for decision have not been specified is kept undetermined, distinguished from non-adjudicability. The conclusion not permitted is to establish deprivation of the opportunity to state a legal opinion solely from the fact of defeat. To say that it cannot be established means neither that there was no deprivation of opportunity nor that there is no path to relief. The boundary that cannot be settled for lack of material lies at the point where it cannot be confirmed whether an opportunity to respond to that perspective was in fact granted. To treat the unconfirmed matter as non-adjudicable would be to erase that boundary.
6.4The Records Needed for Determination
A and B disputed only the performance of a contract. When the court seeks to rely on some other legal issue that both parties overlooked as the basis of its decision, what must be in place before deprivation of opportunity can even be discussed? Since one cannot say, from the outcome alone, that the opportunity to speak was lost, the question becomes what kind of record is needed in order to make that determination.
On this question, Article 136 of the Civil Procedure Act provides that "the court shall give the parties an opportunity to state their opinions" (Article 136 of the Civil Procedure Act). By its terms, the court is the actor that grants the parties an opportunity to state their opinions; the subject matter is a legal issue that is evidently recognized to have been overlooked by the parties; and the requirement is a finding that the issue has evidently been overlooked. From this wording alone, it is not revealed through what channel notice was given and a response received.
Accordingly, the stage-by-stage determination is made solely on the basis of materials recorded in the clarification proceedings, the notice of issues, the course of submission of opinions, and the reasons for judgment. Here, procedural record means materials that reveal the channels of notice and of submission of opinions. This definition is important because the granting of opportunity and the deprivation of opportunity are distinct stages of determination. The former looks at whether an opportunity to speak on the overlooked legal issue was actually given; the latter looks at whether the decision was made without giving that opportunity. To maintain this distinction, there must remain a record of what was communicated and what opportunity to respond was given, and a record that is absent is not filled in by presumption.
It is plain that where the procedural record is thin, actual exclusion is difficult to prove. As a result, the losing party, even if it wishes to call the procedure itself into question, has difficulty finding any ground on which to do so. Even so, the fact of losing alone cannot establish a deprivation of the opportunity to state one's views on legal issues. The reason an adverse outcome cannot fill the gap in the record is that dissatisfaction with the outcome and the lack of an opportunity in the procedure are two different states. Hence Article 208 of the Civil Procedure Act requires the court to "indicate its findings on the parties' assertions and other means of attack and defense" (Article 208 of the Civil Procedure Act), and the reasons for judgment must preserve the content of the notice of issues and the party's channel of response.
Contrasting this scene with the determination conditions set out in this section, this material does not fix the stage-by-stage determination. Where an opportunity to state opinions on the overlooked legal issue was actually granted, the determination of deprivation of opportunity is corrected. The same holds even if the outcome was unfavorable: one may say that "even if the outcome is unfavorable, if it is confirmed that an opportunity to respond to the relevant perspective was given, the determination of deprivation of opportunity is corrected." Conversely, where the court decided without giving an opportunity to state opinions on a legal issue it recognized as evidently overlooked, the opposite conclusion follows. Where it is unknown when the legal issue in question was communicated and what opportunity to respond was given, the matter remains undetermined, and it is not made certain by adding the facts of the actual case or the result of performance.
What this section permits is a limited conclusion, namely to determine the stage on the basis of the records specified. Conversely, this section does not permit establishing deprivation of opportunity from an adverse outcome alone, nor does it permit presuming and filling in channels of notice and response that are not in the record. The criteria of determination are the clarification proceedings, the notice of issues, the course of submission of opinions, and the reasons for judgment; and among these, it is when the content of the notice of issues and the party's channel of response remain that simple dissatisfaction with the outcome can be distinguished from a lack of opportunity in the procedure.
6.5Circumstances That Change the Decision
What must be in place before deprivation of opportunity can be discussed? This question presupposes, even if the legal explanation differs, the limit that matters not applied for cannot be adjudicated, and within that limit it belongs to the stage of asking whether an opportunity to state opinions actually existed. The adversity of the outcome and the deficiency of the procedure are two distinct facts, and only when the latter fact is confirmed can deprivation of opportunity be discussed.
The provision corresponding to this question is Article 136 of the Civil Procedure Act. Article 136 (4) thereof provides: "The court shall give the parties an opportunity to state their opinions with respect to a legal issue that the court recognizes the parties have evidently overlooked" (Article 136 of the Civil Procedure Act). The actor indicated by this wording is the court, and its act is that of giving the parties an opportunity to state their opinions. The condition is limited to the case of a legal issue recognized to have been evidently overlooked by the parties.
Connecting this basis with the conclusions of this section makes the stages of determination clear. First one looks at whether there was an opportunity to respond to the relevant perspective, and depending on whether this is confirmed, the determination of deprivation of opportunity can be corrected. Conversely, if the specified change is confirmed, the existing determination of blocking and effectiveness is discarded and the stage is re-determined from the beginning. Here, procedural record means materials that reveal the channels of notice and of submission of opinions, and the clarification proceedings, the notice of issues, the course of submission of opinions, and the reasons for judgment are designated as its categories.
The counterargument most strongly aimed at the point that where the procedural record is thin, actual exclusion is difficult to prove, is the delay of the lawsuit and the consequent increase in costs. That the trial will never end if opinions are heard afresh for each new legal perspective is a cost borne by the side demanding a procedural record, and it is left standing rather than erased. In other words, the state of a thin record is undetermined and does not immediately mean that no relief is available.
The facts of this scene do not reveal what notice the court gave as to that evidently overlooked legal issue, or what channel of response it left open to the parties. Accordingly, this scene alone cannot determine whether an opportunity to state opinions was granted. So long as it is unknown when the legal issue in question was communicated and what opportunity to respond was given, that determination remains undetermined.
What this section permits is a narrow distinction based on the channels of notice and response revealed in the procedural record; what it does not permit is the conclusion of transferring the mere existence of the fact of losing directly into an established deprivation of opportunity. Next, how much must the reasons for judgment explain?
6.6The Strongest Counterargument and the Answer
Whether the opportunity to state one's views on legal issues was deprived is determined by the procedural record. In this scene, what the court must first confirm is not the outcome but whether the channels of notice and response have been preserved. Without this material, it is difficult to find a thread by which to determine the opportunity itself.
The wording corresponding to this question is found in Article 136 (4) of the Civil Procedure Act. There, the court is the actor that first selects a legal issue recognized to have been evidently overlooked, and then arranges an occasion for the parties to speak on that issue. What the parties await is a channel through which to put forward their own explanation on that issue, and only when notice and response follow together is the opportunity drawn by the wording completed.
The determination the author draws from this wording is that of distinguishing simple dissatisfaction with the outcome from a lack of opportunity in the procedure. As defined above, the procedural record consists of materials that reveal the channels of notice and of submission of opinions, and these materials preserve together the fact that a legal issue was communicated and the channel through which the party responded to it. Only by looking at both together can simple dissatisfaction with the outcome be distinguished from a lack of opportunity in the procedure. Hence the conclusion stands that the fact of losing alone cannot establish a deprivation of the opportunity to state one's views on legal issues. The wording that "the reasons for the judgment shall indicate findings on the parties' assertions and other means of attack and defense to the extent sufficient to recognize the ruling as justifiable" (Article 208 of the Civil Procedure Act) supports, from the side of the written judgment, the traces left by the channel of response.
The strongest counterargument lies in the point that where the record is thin, actual exclusion is difficult to prove. That the trial will never end if opinions are heard afresh for each new legal perspective is the value that this counterargument seeks to protect. Both the inconvenience of the trial dragging on indefinitely and the burden of having to hear remarks that need not be heard are at stake. Even so, the author's answer does not waver. This answer does not deny the thinness of the record spoken of by the counterargument; it merely demands that deprivation not be rashly asserted on the basis of a thin record.
In the synthetic scene, what the court looks to is some other legal issue that both sides overlooked. What A and B disputed was only the performance of a contract, and no other matter was placed in issue. Measured against the conditions of Article 136 of the Civil Procedure Act, this fact makes it essential to identify which legal issue the court recognized as evidently overlooked and when that issue was communicated. However, in this scene it is not settled which record among the clarification proceedings, the notice of issues, the course of submission of opinions, and the reasons for judgment was actually preserved. Accordingly, it remains unknown when the legal issue in question was communicated and what opportunity to respond was given, and this item remains undetermined.
The conclusion permitted by this section is narrow. Where a legal issue evidently overlooked has been singled out and communicated, and an opportunity to state opinions on that issue was actually granted, deprivation of opportunity does not arise. Here, "actually granted" refers not to the outcome but to the fact that the channels of notice and response were linked. Conversely, only where the court decided without giving an opportunity to state opinions on a legal issue it recognized as evidently overlooked can deprivation of opportunity be discussed.
6.7The Link to the Application and the Dispositive Part
Having accepted from the preceding section that the fact of losing alone cannot establish a deprivation of the opportunity to state one's views on legal issues, this question asks about the place left behind after that skeptical determination—that is, what must remain before a lack of opportunity in the procedure can be discussed. The problem presses most urgently in scenes where a legal perspective lying outside the issues applied for by the parties arises as the basis of decision.
In this wording, the court is the determining actor, the object is a legal issue recognized as evidently overlooked by the parties, and the act that must be performed is granting the parties an opportunity to state opinions on that issue. In other words, what the provision requires is not the decision but the provision of an opportunity to speak that lies before that decision, and the line that distinguishes whether that opportunity was given corresponds precisely to the question of this section.
This wording and the conclusions of this section connect as follows. Whether an opportunity was given is determined not by the visible pronouncement of judgment but by what content was communicated before it and through what channel the party responded; accordingly, on the basis of materials in which those channels do not remain, exclusion is difficult to discuss. Here the reason why the two items divided into the content of the notice of issues and the party's channel of response must be distinguished becomes clear. Article 208 (2) of the Civil Procedure Act requires only that the reasons for the judgment "indicate findings on the parties' assertions and other means of attack and defense"; thus, even if findings are written in the reasons, the opportunity to respond to those findings is not thereby automatically secured.
The counterargument that where the procedural record is thin, actual exclusion is difficult to prove, honestly points to the difficulties of practice. An omission, that is, the fact that no opportunity was given, often leaves no trace upon the record, and the party may lack the materials with which to substantiate that deficiency. Yet this difficulty does not reverse the conclusion. The fact of losing alone cannot establish a deprivation of the opportunity to state one's views on legal issues, and the circumstance that confirmation is difficult does not operate toward relaxing the requirements of the provision. Acknowledging that inconvenience, however, leaves as the remaining task the question of in what form the procedural record defined above—that is, materials revealing the channels of notice and of submission of opinions—should be preserved.
Contrasting this scene with this condition makes the boundary clear. Plaintiff A and defendant B disputed only the performance of a contract, and on the premise that the court seeks to treat some other legal issue overlooked by both sides as the basis of its decision, it must be revealed when that issue was communicated and what opportunity to respond was given before the granting of the opportunity can be determined. Where an opportunity to state opinions on a plainly overlooked legal issue was actually granted, deprivation cannot be discussed even if the decision was unfavorable; where the decision was made on that issue without an opportunity, deprivation first becomes an issue. By contrast, since the scene does not fix the timing and channel of the opportunity to respond, what determination follows from that fact alone cannot be settled at this point.
Accordingly, the conclusion permitted by this section is narrow. Only by taking as the ground the content of the notice and the channel of response preserved in the procedural record can simple dissatisfaction with the outcome be distinguished from a lack of opportunity in the procedure. Remembering that, even if the outcome is unfavorable, if it is confirmed that an opportunity to respond to the relevant perspective was given, the determination of deprivation of opportunity is corrected, the boundary of not offering the single fact of losing as proof of deprivation is maintained at the same time. Conversely, a gap in the record does not mean that deprivation of opportunity itself fails to arise, and reading what that material reveals and what it leaves unspoken remains the starting point of the determination.
6.8The Scope This Section Undertakes
This section addresses what must remain in place in order to speak of deprivation of an opportunity. In the preceding step, it was confirmed that the limitation that a matter not applied for cannot be adjudicated remains even when the legal explanation changes. That limitation alone, however, does not determine what materials must be examined in the present scene, where plaintiff A and defendant B have disputed only performance of a contract, yet the court seeks to treat another legal matter overlooked by both parties as a ground of decision. This question is the work of finding the point that separates dissatisfaction with the outcome from a procedural lack of opportunity.
First, the text that answers this question is set out. Article 136, paragraph (4) of the Civil Procedure Act prescribes the court's duty as follows: "The court shall give the parties an opportunity to state their opinions on a legal matter that it finds clearly to have been overlooked by the parties." (Civil Procedure Act Article 136) In this text the subject is the court, the object is a legal matter that is found clearly to have been overlooked by the parties, and the required act is to give the parties an opportunity to state their opinions. Accordingly, what the provision asks is whether the legal perspective to be adopted as a ground of decision was made known to the parties in advance, and whether the parties were able to speak to that perspective. Other issues arising under the provision are not addressed here.
Connecting the above text with the conclusion reached, the range of materials for speaking of deprivation of an opportunity is fixed. The criterion the author sets for this question is that the content of the notification of issues and the party's route of response must be left on the record in order to distinguish simple dissatisfaction with the outcome from a procedural lack of opportunity. This definition matters because the two stages of decision require different facts. One asks whether the judgment was adverse to the parties, and the other asks whether the parties were able to respond to that legal perspective. The former alone cannot establish the latter, and therefore the two materials are kept separate and confirmed accordingly.
The strongest counterargument targets the point that where the procedural record is meager, actual exclusion is difficult to prove. This inconvenience is not small. If it is not recorded when the notice was given, in what terms the legal perspective was communicated, and how the parties responded to it, it is difficult to show the parties' exclusion from the litigation record alone. There is a further burden: if opinions are heard anew for every new legal perspective, the trial may never end. Yet even with these difficulties, the conclusion does not change. The meagerness of the record leaves the difficulty of proof, but closes the path to declaring deprivation of an opportunity from the outcome alone. When it can be asserted neither that exclusion occurred nor that it did not, the determination remains unconfirmed.
Applying the determination of this section, the facts confirmed in this scene are narrow. Plaintiff A and defendant B disputed only performance of a contract, and the court seeks to treat another legal matter overlooked by both parties as a ground of decision. Since the condition prescribed by Article 136, paragraph (4) of the Civil Procedure Act concerns the opportunity to state opinions on a legal matter found clearly to have been overlooked by the parties, what must be asked in this scene is when and in what manner that perspective was made known, and whether A and B were able to respond to it. In the synthetic scene, however, the actual content of service, clarification, notice of issues, the course of opinion submission, and the reasons for the judgment have not been fixed. Therefore, deprivation of an opportunity cannot be found on the basis of this scene alone. When the legal matter in question was announced and what opportunity to respond was given are unknown, and this remains undetermined. Changing only one condition, if it is confirmed that there was an opportunity to answer that perspective even though the outcome was adverse, the determination of deprivation of an opportunity is revised.
This section separates and organizes the conclusions it permits and those it does not. What is permitted is the answer to what must be present in order to speak of deprivation of an opportunity, namely, a procedural record revealing the content of the notification of issues and the party's route of response. This material belongs to the stage of determining whether an opportunity to state opinions on a legal perspective was actually granted, and what must be established is the content of the notice and the route of the response. What is not permitted is to determine that the opportunity to state legal opinions was deprived solely from the fact that the judgment was adverse. The circumstance that meagerness of the record prevents confirmation is merely a reason for non-confirmation; it does not immediately lead to unavailability of relief.
6.9Application of the Text of the Provisions and the Holdings of Precedents
Premised on the limitation that a matter not applied for cannot be adjudicated, this asks whether the parties responded to the legal perspective that the court overlooked. On what basis can it be determined, in this scene, whether the parties were given an opportunity to state their opinions?
In the source text, the provision responding directly to this problem is Article 136, paragraph (4) of the Civil Procedure Act. That provision provides: "The court shall give the parties an opportunity to state their opinions on a legal matter that it finds clearly to have been overlooked by the parties." Here the subject is the court, and the act is to give the parties an opportunity to state their opinions. The object is a legal matter found clearly to have been overlooked by the parties, limited to matters the court has so found. This text alone does not concretely fix the timing or form of the notice, or the manner of response. Beyond this, however, no further requirement can be read into this provision.
Connecting that text with the conclusion of this section, the ground for finding deprivation of an opportunity must conform to the structure of the subject, act, and condition designated by the provision. This structure separates two stages of decision. First, whether the court found a legal matter clearly overlooked; second, whether an opportunity to state opinions on that matter was actually given. To speak of deprivation of an opportunity, it must be revealed what route existed at this second stage. Material revealing the route of notice and opinion submission—that is, the procedural record—is the material for this distinction. The mere fact that the outcome was adverse cannot establish the absence of the second stage. Article 208, paragraph (2) of the Civil Procedure Act provides: "In the reasons for a judgment, the court shall indicate its findings on the parties' assertions and other means of attack and defense to the extent necessary to recognize that the operative part is just." This text fixes the scope of what must be indicated in the reasons for the judgment; it is not a ground for establishing the granting of the opportunity itself. The texts of the two provisions are applied only within this scope, and neither is a greater degree of elaboration in the reasons for the judgment demanded, nor is the standard of determination broadened by provisions outside that text.
The strongest counterargument to this perspective is that where the procedural record is meager, actual exclusion is difficult to prove, and that if opinions are heard anew for every new legal perspective, the trial will never end. The counterargument points out that, in this direction, there is ultimately no way to verify whether the party that lost in substance had no place to speak, and that if opinions are heard again each time, the case will never conclude. These losses and inconveniences are not erased. That is, the adversity of the outcome is a question separate from the lack of opportunity, and a determination that there was no opportunity must be followed by material revealing the route of notice and response. The difficulty of proof pointed out by the counterargument is a circumstance that remains undetermined, and it cannot become a ground for immediately establishing deprivation of an opportunity in the direction urged by the counterargument.
Contrasting the synthetic scene with the foregoing conditions, plaintiff A and defendant B disputed only performance of a contract, and the other legal matter that the court sought to consider was overlooked by both parties. Whether the court found that matter clearly to have been overlooked, and what route of opinion submission it opened for that matter, are not determined by this scene alone. If a procedural record—that is, material revealing the route of notice and opinion submission—were presented, the matter could be decided accordingly; but on the materials as currently set, it cannot be confirmed. If, even though the outcome was adverse, it is confirmed that there was an opportunity to answer that perspective, the determination of deprivation of an opportunity changes. What cannot be confirmed for want of material remains undetermined.
The permitted conclusion is that, to speak of an opportunity to answer an overlooked legal perspective, it must be revealed how the court communicated that perspective and by what route the parties responded. As against this, the impermissible conclusion is to assert deprivation of an opportunity solely from the fact of losing, or to broaden the standard of determination by provisions outside that text.
6.10Fine Distinctions Within the Stage
This carries forward the view in the preceding section that the content of the notification of issues and the party's route of response must be left on the record in order to distinguish simple dissatisfaction with the outcome from a procedural lack of opportunity. This question asks not about the advantage or disadvantage of the judgment's result, but about what procedure preceded it.
As the text answering this question, Article 136 of the Civil Procedure Act provides: "(4) The court shall give the parties an opportunity to state their opinions on a legal matter that it finds clearly to have been overlooked by the parties." (Civil Procedure Act Article 136) The subject indicated by this text is the court, the act is to give the opportunity to state opinions, and the object is a legal matter found clearly to have been overlooked by the parties. The requirement is the finding that the matter was clearly overlooked, and the effect is the duty to give the opportunity to state opinions. This paragraph does not address other issues arising under the provision.
In the same vein, Article 208 of the Civil Procedure Act provides: "(2) In the reasons for a judgment, the court shall indicate its findings on the parties' assertions and other means of attack and defense to the extent necessary to recognize that the operative part is just." (Civil Procedure Act Article 208) In that it calls for leaving on the record the route by which the determination is to be indicated, this text pairs with the preceding one. The content of the notification of issues and the party's route of response must be left on the record in order to distinguish simple dissatisfaction with the outcome from a procedural lack of opportunity. The fact that an opportunity was given and the fact that the outcome was adverse are separate stages of decision.
If the content of the notice or the route of response is not left on the record, the party will have difficulty specifying the loss of having been excluded, and the court, for its part, suffers the inconvenience that the trial will not end if a new legal perspective is presented at every stage. Without erasing these disadvantages, it nonetheless cannot be determined that the opportunity to state legal opinions was deprived from the fact of losing alone. A bad outcome does not mean a lack of opportunity, and a determination that there was no opportunity requires separate material.
The facts confirmed in this scene are 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 parties as a ground of decision. Contrasting this point with the foregoing conditions, that legal matter appears close to an object found clearly to have been overlooked. The scene, however, does not state when and with what content the notice was given, or by what route of response the parties submitted their opinions. Therefore, whether the opportunity was actually granted remains undetermined.
The conclusion this section permits is narrow: it is the determination that the procedural record means material revealing the route of notice and opinion submission, and that only where such a record remains can dissatisfaction with the outcome be distinguished from a lack of opportunity. The impermissible conclusions are to assert immediately that there was no opportunity because the judgment was adverse, and to fill unverified matters with conjecture and thereby establish exclusion. Meagerness of the record only makes proof difficult; it does not alter the requirements of deprivation of an opportunity. How are the operation, the blockage, and the undetermined state of the opportunity to answer an overlooked legal perspective to be distinguished?
6.11Synthesis of Effectiveness, Blockage, and Undetermination
Premised on that limitation, this addresses whether the parties had an opportunity to answer the other legal matter that the court sought to adopt as a ground of decision. The question in this scene is not victory or defeat, but whether a route was given to respond to that perspective.
The statute corresponding to this question is Article 136, paragraph (4) of the Civil Procedure Act, and its text is as follows: "The court shall give the parties an opportunity to state their opinions on a legal matter that it finds clearly to have been overlooked by the parties." (Civil Procedure Act Article 136) The text fixes the subject as the court, the act as the granting of an opportunity to state opinions, and limits the object to a legal matter found clearly to have been overlooked by the parties. Here, a legal matter refers to a legal perspective or ground not addressed by the parties, and the case of being found clearly overlooked refers to the state in which the court has recognized that fact. This paragraph addresses only this limited text, not the issues of other paragraphs.
The core connecting that text with the conclusion is the distinction between the duty to "give" and whether that duty was actually performed. The former is the normative requirement that the court must give the parties an opportunity to state opinions on a legal matter clearly overlooked, and the latter is the empirical judgment whether that opportunity was in fact granted. Only by separating these two does it become clear that the conclusion of deprivation of an opportunity rests not on a violation of the provision's requirement but on the absence of the fact of granting. Accordingly, the open condition is a case in which an opportunity to state opinions on a legal matter clearly overlooked was actually granted, and the blocked condition is a case in which the court adjudicated without giving an opportunity to state opinions on a legal matter it found clearly overlooked. The undetermined state remains the case where it is unknown when the legal matter in question was announced and what opportunity to respond was given. These three are not the addition of a new requirement but the result of separating the conditions of the text from the fact of granting.
Where the procedural record is meager, actual exclusion is difficult to prove. If the record does not leave the notice and the route of opinion submission, the material for distinguishing whether the parties were excluded or whether the court simply chose a different ground is reduced. That loss is a difficulty of proof, and is a matter separate from the fact that the judgment was adverse. The counterargument that if opinions are heard anew for every new legal perspective the trial will not end is also weighty. Leaving the delay and inconvenience pointed out by the counterargument as they are, it nonetheless cannot be determined that the opportunity to state legal opinions was deprived from the fact of losing alone. This is because a determination concerns the presence or absence of the granting of the opportunity, not the adversity of the outcome. This answer does not erase the costs left by the counterargument, but states only that they do not become a ground for overturning the conclusion.
On the facts given in the synthetic scene, there is only the circumstance 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 parties as a ground of decision. This circumstance alone does not reveal when the court announced that matter and what opportunity to respond it gave. If clarification, notice of issues, the course of opinion submission, and the reasons for the judgment remain, that record corresponds to the procedural record meaning the route of notice and opinion submission, and it becomes the material distinguishing effectuation from blockage. The content of the actual record, however, is not fixed, and the state of non-confirmation is left as it is.
The conclusion this section permits is the separation of three conditions. Where an opportunity to state opinions on a legal matter clearly overlooked was actually granted, the opportunity to answer that perspective is open; where the court adjudicated on a legal matter it found clearly overlooked without giving an opportunity, that opportunity is blocked. Where it is unknown when the legal matter in question was announced and what opportunity to respond was given, the matter remains undetermined. What is not permitted here is a determination that establishes deprivation of an opportunity on the single fact that the outcome was adverse, and deprivation of the opportunity to state legal opinions must not be established from the fact of losing alone. Conversely, even where the record is meager, lack of material is non-confirmation and not immediately unavailability of relief.
6.12이 권의 결론과 남는 물음
As summarized in the preceding section, the mechanism operates where an opportunity to state one's views on a legal issue that plainly had been overlooked was in fact granted; it is barred where the court, having recognized a legal issue as plainly overlooked, rendered its decision without giving an opportunity to state views on it; and it remains undetermined where it is unknown when the legal issue in question was brought to the parties' attention and what opportunity to respond was given.
Article 136 (4) of the Civil Procedure Act provides: “The court shall give the parties an opportunity to state their opinions with respect to a legal issue that the court recognizes as having evidently been overlooked by the parties” (Civil Procedure Act, Article 136). Under this language, the actor is the court, the object is the legal issue recognized as having evidently been overlooked by the parties, and the act demanded is the granting of an opportunity to state one's views. Put differently, the core of this paragraph is to secure for the parties an occasion to speak when the court seeks to take as a ground for its decision an overlooked legal issue that the court itself has recognized.
Upon the foundation of this language, which requires an opportunity to be heard, the conclusion of this section is settled as follows. The reason the two elements must be examined together is that whether notice was given and what response the party made to that notice are questions belonging to different stages. Unless it is confirmed which legal issue was communicated, the object upon which to judge whether a response was made is not even fixed; and unless the course of response is confirmed, one cannot know whether the notice resulted in a substantive opportunity to be heard.
The counterargument that actual exclusion is difficult to prove where the procedural record is meager is aimed at this very point. It is also pointed out that, in practice, there may have been an occasion to hear the parties' views and yet the party did not speak, and that it may be preferable not to seek opinions afresh for each new legal perspective in order to prevent trials from being prolonged. However, the mere fact of losing cannot establish a deprivation of the opportunity to state one's views on a legal issue. If one were to assert, from the fact alone that the outcome was unfavorable, that a procedural opportunity was lacking, one would be deciding on the basis of the losing result alone, without confirming the notice and the course of response.
What can be confirmed in the synthetic scene is the fact that Plaintiff A and Defendant B disputed only the performance of the contract, and that the court seeks to regard as the ground of its decision another legal issue that both sides overlooked. This scene alone does not reveal when the court communicated that issue to the parties, what opportunity to respond it gave, or whether it decided without giving any opportunity. Accordingly, whether a deprivation of opportunity is established in this matter remains undetermined. The criterion for decision, however, is clear.
The conclusion permitted by this section is a narrow one: only when the content of the notice of the issue in dispute and the parties' course of response remain preserved in the procedural record can one finally distinguish mere dissatisfaction with the result from the absence of a procedural opportunity. Going further, the degree to which the reasons for the judgment must be explained remains a separate question. To what extent must the reasons for the judgment be explained?
Statutes referred to
Questions left open
- What shall be the criterion for judging the substance of the opportunity to state one's views?
- How is accessibility of response to electronic requests for clarification ensured?
- Where a change of legal perspective requires a change in factual allegations, how far should it be permitted?