Summary
Access to records by parties and by third parties who have established an interest by prima facie proof differs in its requirements from public-interest inspection of the records of finally concluded cases.
2.1The Standard by Which the Path Opens
The fact that one can see the courtroom does not confer the right to have all of another person's records. This point becomes clear in the contrast between plaintiff A and defendant B. Plaintiff A demands the production of the entire record on the ground that the trial was public, while defendant B asserts the risk arising from disclosure of an address. Even if one accepts the earlier distinction — drawing a line between the reasons for closing the hearing and the publication of judgments, and refusing to justify closure for convenience in the absence of a reason prescribed by law — the question whether a public courtroom means that all records may also be freely inspected remains separate. Record inspection here means access to litigation records according to prescribed qualifications and purposes. The task of this stage is to ask when such access is permitted.
Article 162 of the Civil Procedure Act separately prescribes the subject and object of an application concerning litigation records and the person to whom the application is addressed. Paragraph (1) specifies "a party or a third person who has substantiated an interest" and the items for which they may apply (Article 162 of the Civil Procedure Act). Under this wording, the qualification requires that one be a party or a third person who has substantiated an interest, and the person to whom the application is addressed is the court clerk, etc. What a qualified applicant may demand, in accordance with the Supreme Court Rules, is limited to the inspection and copying of litigation records, the issuance of certified copies, transcripts, or abridged copies of judgments and records, and the issuance of certificates concerning matters of the lawsuit. What this paragraph addresses is not everyone's authority to obtain whatever record they wish, but an application that accords with prescribed qualifications and purposes.
The link that joins this provision to the preceding question lies in the fact that the modes of application are not one. The inspection and copying, or the issuance of certified copies, transcripts, or abridged copies under paragraph (1), is access by a person who has substantiated a particular qualification, whereas the application for inspection under paragraph (2) is access that "any person" may make, for purposes of relief of rights, academic research, or public interest, to litigation records whose judgment has become final (Article 162 of the Civil Procedure Act). One is the use of records by a person having an interest in the case; the other is inspection of finalized records subject to a limitation of purpose. Accordingly, the requirements of the two cases cannot be bundled together and disposed of as a consequence of a public courtroom. Where the access requirements for the hearing, the written judgment, and the litigation records are each satisfied and access is sought beyond the scope of courtroom restrictions, the entrance to this relief opens. This determination marks the conditions under which the door of access opens; it does not fix what, and how much, one may receive once it has been opened.
The counterargument that imposing access requirements makes public oversight difficult carries a genuine unease. Those who support transparency of procedure fear that, as restrictions accumulate, the promise of open adjudication loses its light in access to materials, and that the channel through which citizens and researchers may verify the adjudicative process narrows. The observation that repeated partial restrictions may in fact hollow out the principle of openness comes from the same vein. Such losses cannot be treated lightly. Yet despite this concern, openness of adjudication alone cannot permit unlimited copying of all records. A decision blocking access to the portion for which there are reasons restricting inspection, and the fact that public oral argument or pronouncement of judgment took place, are distinct determinations, and the former cannot be erased by treating it as a consequence of the latter. Public oversight is protected not by eliminating the threshold that asks after access requirements, but by clarifying for which qualifications and purposes that threshold opens.
Returning to the synthetic scene, plaintiff A's demand takes the form of a claim for the production of the entire record on the basis of the public trial, and defendant B's opposition appeals to the risk arising from disclosure of an address. The criteria set out above separate two points in this confrontation. First, one examines whether the qualification of the inspection application, the person to whom it is addressed, and the items that may be applied for conform to the wording of paragraph (1). Next, one looks at whether the scope and conditions of the performance sought by plaintiff A are particularized in the statement of the claim in a form capable of defending the right of the chosen action. The risk of address disclosure raised by defendant B is an issue to be dealt with when determining whether the relevant secret or protection from harm, or a ground for exclusion from the courtroom, is recognized such that access to the designated portion is restricted. However, the scene alone does not permit confirmation of what the documents in question are, or of how the grounds and scope of the restriction decision were determined. Unless that fact is confirmed, that part remains undetermined. If the protective ground is confirmed to be protection from harm to life or body, the inclusion of the parties and the scope of access must be set differently.
The conclusion this section permits is narrow. The mere fact that the courtroom was open cannot be taken to allow unlimited inspection or copying of the entire litigation record; one can say that the entrance to this relief opens where the access requirements for the hearing, the written judgment, and the litigation records are each satisfied and access is sought beyond the scope of courtroom restrictions. By contrast, asserting the provision of records as a general authority, invoking the public trial alone without distinction of qualification or purpose, is not the conclusion of this section. Conversely, the assertion that the distinction of access requirements itself renders public oversight meaningless does not alter the answer above. A case in which the reasons for restriction and the portions that have been blocked are unconfirmed cannot be declared beyond relief.
2.2The Conditions That Block Relief
In the preceding section, it was confirmed that this relief operates where one, satisfying the distinct access requirements for the hearing, the written judgment, and the litigation records, seeks access beyond the scope of courtroom restrictions. What, then, are the conditions under which this relief is blocked? This question starts from the definition that record inspection means access to litigation records according to prescribed qualifications and purposes. Whether one can lay hands on another person's entire litigation record merely by having watched a public trial is the issue.
Article 162 (1) of the Civil Procedure Act provides: "①A party or a third person who has substantiated an interest may, in accordance with the Supreme Court Rules, apply to the court clerk, etc. for the inspection and copying of litigation records, the issuance of certified copies, transcripts, or abridged copies of judgments and records, or the issuance of certificates concerning matters of the lawsuit." Under this wording, the qualification to apply is that of a party or a third person who has substantiated an interest, and the act is an application to the court clerk, etc. for inspection, copying, or issuance. What the wording prescribes is that one may apply; it is not that one may already receive without limitation.
Paragraph (2) of the same Article provides: "②Any person may, for purposes of relief of rights, academic research, or public interest, apply to the court clerk, etc., in accordance with the Supreme Court Rules, for the inspection of litigation records whose judgment has become final. However, this shall not apply to litigation records related to oral argument whose disclosure was prohibited. <Newly Enacted May 17, 2007>" (Article 162 of the Civil Procedure Act), thereby differing as to object and purpose. Paragraph (3) draws the line: "③Where, upon an application for inspection under paragraph (2), the relevant party to the lawsuit does not consent, the court shall not permit the inspection. In such case, matters necessary for the scope of the relevant parties to the lawsuit and their consent shall be prescribed by the Supreme Court Rules. <Newly Enacted May 17, 2007>" (Article 162 of the Civil Procedure Act). The blocking points indicated by the wording are two-branched. One concerns litigation records related to oral argument whose disclosure was prohibited; the other is the case where the relevant party to the lawsuit does not consent to the application for inspection under paragraph (2). Where these two requirements are recognized and access to the designated portion is restricted, this relief is blocked. Accordingly, access beyond the scope of restrictions, confirmed in the preceding section, and the recognition of the grounds of restriction spoken of now are separate stages.
The counterargument that access requirements make public oversight difficult squarely targets that loss. What can be confirmed from attendance in the courtroom and press reports is far narrower than the circumstances and grounds found in the records, so that adding qualification requirements and grounds of restriction to third-party applications binds citizens' oversight to examination of applications. It also aims at the concern that repeated partial restrictions may hollow out the principle of openness in fact. Even so, the author's conclusion does not change. Openness of adjudication alone cannot permit unlimited copying of all records. While acknowledging the inconvenience to oversight pointed out by the counterargument, one cannot defer permission to copy even to the designated portions for which the blocking conditions prescribed by the statute are recognized.
In the synthetic scene, plaintiff A demands the production of the entire record on the ground that the trial was public, and defendant B asserts the risk arising from disclosure of an address. Here one must distinguish the fact of having watched a public trial from the satisfaction of the qualification and purpose requirements. Whether defendant B's concern over address disclosure falls under the proviso to paragraph (2) as records related to oral argument whose disclosure was prohibited, or under the withholding of consent by the relevant party to the lawsuit in paragraph (3), cannot be determined for want of materials. What the author has altered, in changing one of the conditions of decision, is this: if it is changed to protection from harm to life or body, the parties may also be included, and therefore it is not handled with a scope of access the same as the protection of secrets. This contrast is not an addition of actual facts.
The conclusion this section permits is narrow. The mere existence of a public trial cannot be taken to allow unlimited copying of the entire record, and the conclusion is that this relief is blocked where the litigation record is one related to oral argument whose disclosure was prohibited, or where the relevant party to the lawsuit does not consent to an application under paragraph (2). This does not disturb the guiding premise that a line is drawn between the reasons for closing the hearing and the publication of judgments, nor is the possibility of access beyond the scope of restrictions itself negated. The matters that remain undetermined are the scope of the designated portion and the grounds of the restriction decision, and these are not filled in by conjecture.
2.3The Boundary That Remains When There Is No Data
What is being asked in this scene now is the issue whether, if the courtroom is public, all records may also be freely inspected, and one arrives at where the boundary lies that cannot be fixed for want of materials. The analysis starts from the premise that draws a line between the reasons for closing the hearing and the publication of judgments, and does not justify closure for convenience in the absence of a reason prescribed by law. That premise already contains the meaning that the conditions for opening the hearing and the conditions for handing over the records are not the same. If so, one must first specify the materials as to which side plaintiff A's demand falls.
That boundary is drawn at the thresholds of the subjects and purposes of application prescribed by the statute. Here, "a party or a third person who has substantiated an interest" refers to a person who has substantiated one's own qualification, and the object of the application is divided into the inspection and copying of litigation records, the issuance of certified copies, transcripts, or abridged copies of judgments and records, and the issuance of certificates. The person to whom the application is addressed is the court clerk, etc., and the detailed procedure follows what the Supreme Court Rules prescribe. From this paragraph alone, the conclusion does not follow that attendance at a public trial immediately constitutes the basis for the provision of the entire record.
Accordingly, this wording must be read together with the stages of determination that follow it. Article 162 (2) of the Civil Procedure Act provides: "②Any person may, for purposes of relief of rights, academic research, or public interest, apply to the court clerk, etc., in accordance with the Supreme Court Rules, for the inspection of litigation records whose judgment has become final. <Newly Enacted May 17, 2007>". If paragraph (1) is access by a third person who has substantiated a qualification, paragraph (2) differs as to object and purpose, being inspection for purposes of relief of rights, academic research, or public interest, and its object is also bound to "litigation records whose judgment has become final." Moreover, Article 162 (3) of the Civil Procedure Act provides: "③Where, upon an application for inspection under paragraph (2), the relevant party to the lawsuit does not consent, the court shall not permit the inspection. <Newly Enacted May 17, 2007>", thus subjecting even the inspection of paragraph (2) to the condition of consent by the party to the lawsuit. The reason these two layers must be distinguished is simple. The public or non-public status of the trial and the qualification, purpose, and consent conditions for access to records each require different materials of determination, and one does not take the place of the other. In this regard, where the documents in question or the grounds and scope of the restriction decision cannot be confirmed, matters for which the materials of determination are not particularized are left undetermined, distinguished from impossibility.
The point at which this distinction bites hardest is the loss to public oversight. Access requirements make public oversight difficult. The thresholds of substantiating a qualification or obtaining the consent of the party to the lawsuit narrow the path of those who would oversee the exercise of power and the handling of disputes through the records, and there is the worry that if restrictions are repeated, the principle of openness may become an empty shell in fact. Plaintiff A's demand for the entire record on the basis of the public trial also springs from that worry. For the finalized-record requirement of paragraph (2) and the consent requirement of paragraph (3) noted above remain in place, and even the objects of application under paragraph (1) are particularized as inspection and copying, the issuance of certified copies, transcripts, or abridged copies, and the issuance of certificates. Without erasing the disadvantages, one cannot extend the proposition in the manner of equating a request for public oversight with a request for unlimited copying. The greater the need for oversight, the clearer it must be which materials were blocked and for what reason, and that clarity is precisely the material of determination at this point.
Contrasting this with the present scene, what plaintiff A has claimed emerges as the heart of the matter. Plaintiff A demands the production of the entire record on the ground that the trial was public, but the scene does not fix in what qualification, for what purpose, or for documents of what scope he applied. Defendant B asserts the risk arising from disclosure of an address, but it is not confirmed from the materials which part of the documents in question, or which grounds and scope of the restriction decision, that assertion concerns. Since it is not specified what has been fixed among the inspection application designated as the adjudicative record, the qualification, the disclosure restriction decision, the protected designated portion, and the types of written judgments, one cannot declare here an impossibility of access or a want of relief. This position, where the documents in question and the grounds and scope of the restriction decision are unconfirmed, remains undetermined in the sense that the materials of determination are not particularized. The contrasting condition — that if it is changed to protection from harm to life or body, the parties may also be included, and therefore it is not handled with a scope of access the same as the protection of secrets — merely calls to mind that if the kind of risk differs, the scope of protection also differs, and is not a fixing of the facts of the present scene.
With this, the conclusions permitted at this point can be separated from those that are not. What is permitted is the confirmation that a public courtroom does not of course mean free inspection and copying of all records, and that the substantiation of qualification under paragraph (1), the finalized record and purpose under paragraph (2), and the consent requirement under paragraph (3) stand as distinct thresholds. What is not permitted is to move toward permitting unlimited copying of all records on the strength of openness of adjudication alone, or to declare at once that matters unconfirmed for want of materials are inaccessible. A lack of materials is undetermined and not a want of relief; accordingly, judgment is reserved until the documents in question and the grounds and scope of the restriction decision are particularized, while the narrow distinction already settled is maintained.
2.4The Records Needed for Determination
In this scene, the question is whether, if the courtroom is open, all records can also be freely examined. In order to determine the stage, one must ask together what records are needed.
Article 162, paragraph (1) of the Civil Procedure Act sets out the persons who may apply for access to litigation records and the method of application. The confirmed text is as follows: "(1) A party or a third person who has substantiated an interest may, in accordance with the Supreme Court Rules, apply to the court clerks, etc. for the inspection or copying of litigation records, for the issuance of certified copies, transcripts, or extracts of judgments or records of proceedings, or for the issuance of certificates concerning matters of the lawsuit." (Article 162 of the Civil Procedure Act) The persons provided for in this text are a party or a third person who has substantiated an interest, and the acts are applications for inspection or copying, or for the issuance of certified copies, transcripts, extracts, or certificates.
Next, the public-interest inspection of finalized records is placed separately. It provides: "(2) Any person may, for the purpose of remedies for rights, academic research, or other public-interest purposes, apply to the court clerks, etc., in accordance with the Supreme Court Rules, for the inspection of litigation records for which the judgment has become final and conclusive. However, this shall not apply to litigation records related to oral argument whose disclosure was prohibited." (Article 162 of the Civil Procedure Act) Here, instead of substantiating a qualification, the purpose of remedies for rights, academic research, or a public-interest purpose is attached, and the object is finalized litigation records.
The reason these two paths are distinguished is that qualification and purpose are required differently. It provides: "(3) Where, upon an application for inspection under paragraph (2), the relevant party to the litigation does not consent, the court shall not permit the inspection. In such case, matters necessary for the scope of the relevant parties to the litigation, consent, and the like shall be prescribed by the Supreme Court Rules." (Article 162 of the Civil Procedure Act), thereby placing the consent of the parties to the litigation upon applications under paragraph (2). The applications by a party or third person under paragraph (1) and the application by any person under paragraph (2) do not carry the same threshold. Accordingly, the stage determination is made solely on the basis of the materials recorded in the inspection application, the decision on qualification or restrictions on disclosure, the portion designated for protection, and the type of judgment document.
The counterargument that access requirements make public oversight difficult aims at substantive loss. Even if a third person's purpose is public-interest in nature, if the parties to the litigation do not consent, inspection is blocked, and one may withdraw the application without knowing the scope of those parties. In that case, the eyes of citizens seeking to oversee the court's public discourse stop before the records. Attendance at an open courtroom and the inspection or copying of litigation records require different qualifications with respect to the applicant, the purpose, and whether the object has been finalized.
Plaintiff A demands the provision of the entire record on the ground that the trial was open to the public, but that scene does not record whether there was an inspection application, what qualification or purpose was substantiated, or whether a restriction decision was made. Defendant B asserts the risk arising from disclosure of an address, but no decision clarifying which portion of access that risk restricts can be confirmed. From this scene alone, it cannot be determined whether this is a party's application under paragraph (1) or a public-interest inspection under paragraph (2). Since the materials are absent, the matter remains undetermined. What separates the cases in which access is restricted at the stage of courtroom disclosure, inspection, and protective measures from those in which it is open is the scope of the portion designated for protection.
The mere fact that the openness of the trial has been confirmed does not create an unlimited right to copy the entire litigation record. Nor does the absence of materials immediately mean that access is impossible. Once the prescribed records are in place, they are merely cross-checked against each requirement; missing records are not filled in by assumption.
2.5Circumstances That Change the Decision
Carried over from the conclusions up to the preceding stage is the single sentence that the reasons for the non-public nature of the deliberations are distinguished from the disclosure of the judgment, and that a non-public treatment adopted for convenience without a reason prescribed by law is not justified. Now the questions of whether, if the courtroom is open, all records can also be freely examined, and what change reverses the existing stage determination, are examined in turn. The publicity of the courtroom and access to records are objects of distinct assessment, so one does not decide the other.
Applications for access to litigation records diverge in their requirements according to the applicant and the purpose, as the text provides. Article 162, paragraph (1) of the Civil Procedure Act provides that "a party or a third person who has substantiated an interest may, in accordance with the Supreme Court Rules, apply for the inspection or copying of litigation records," while paragraph (2) enables any person to apply for the inspection of litigation records for which the judgment has become final and conclusive "for the purpose of remedies for rights, academic research, or other public-interest purposes, in accordance with the Supreme Court Rules." Paragraph (3) stipulates that, for the same application, where the relevant party to the litigation does not consent, the court shall not permit the inspection. Inspection of records means access to litigation records in accordance with prescribed qualifications and purposes.
Accordingly, the single fact that the courtroom was open does not satisfy the requirements of both paragraph (1) and paragraph (2). A party or a third person who has substantiated an interest and an applicant under a purpose of remedies for rights, academic research, or public interest must each separately meet the qualification and purpose attached to their respective texts, and records before finality and records after finality are not placed on the same path. So long as this distinction is maintained, the conclusion is settled that the publicity of the trial alone cannot permit unlimited copying of all records. The earlier assessment, which separates the disclosure of the judgment from the reasons for the non-public nature of the deliberations, operates here in the same way.
A counterargument arises that, when the access requirements are set this thickly, public oversight becomes difficult. The concern is that if persons who consult finalized records for academic research or public-interest purposes are blocked at every stage of proving qualification and obtaining the consent of the parties to the litigation, the channel through which society monitors trials is effectively narrowed. Yet even while acknowledging this loss, the earlier answer does not change. The publicity of the trial alone cannot permit unlimited copying of all records, and neither can the mere fact that partial restrictions are repeatedly imposed dismantle the access requirements as a whole. The difficulty of public oversight is a residual cost, not a ground for unlimited copying.
In the synthetic scene, the demand of Plaintiff A and the opposition of Defendant B are the facts bearing on this question. The circumstance of the open trial invoked by Plaintiff A concerns the question of the publicity of the hearing and the judgment, and the risk arising from the disclosure of an address stated by Defendant B may constitute a reason for delineating the scope of access. In this scene, however, no year, amount, or outcome of the judgment is fixed. If the specified change—that is, a change to protection against harm to life or body, which may also encompass parties—is confirmed as a condition that it is not handled within the same scope of access as protection of secrets, the existing determination of blocking and effect must be discarded and the stages must be reassessed from the beginning. The portions for which the inspection application, the decision on qualification or restrictions on disclosure, the portion designated for protection, and the type of judgment document are not confirmed remain undetermined.
The conclusion permitted by this section is limited to the point that, from the mere fact that the trial was open, the entire record cannot be inspected without limit, and that an application for access must pass separately through the respective requirements of a party or a third person who has substantiated an interest under paragraph (1), and the public-interest inspection of finalized records under paragraph (2). If the change to protection against harm to life or body is confirmed, it is not bound within the same scope of access as protection of secrets, and the stage determination is reopened from the outset. Conversely, if it cannot be confirmed from the materials how much of which documents is to be shown and which portions are to be protected, the decision is deferred, while the narrow conclusion already reached remains in place.
2.6The Strongest Counterargument and the Answer
If the preceding stage confirmed that the reasons for the non-public nature of the deliberations are distinguished from the disclosure of the judgment, and that a non-public treatment adopted for convenience without a reason prescribed by law is not justified, then the question that remains is the qualification to lay hands on individual records. The issue is whether a person who watched an open trial may also copy the entire record as it stands, or whether the prescribed qualifications and purposes must be separately met. The inspection of records spoken of here means access to litigation records in accordance with prescribed qualifications and purposes, and sitting in the courtroom to observe the proceedings and applying for records services are placed on different channels. Only when that difference is clear can the criticism that access requirements make public oversight difficult be assessed where it belongs.
That distinction is first set by the text of each paragraph of Article 162 of the Civil Procedure Act. Article 162, paragraph (1) provides that "a party or a third person who has substantiated an interest may, in accordance with the Supreme Court Rules, apply to the court clerks, etc. for the inspection or copying of litigation records" (Article 162 of the Civil Procedure Act). This text limits the applicants to a party and a third person who has substantiated an interest, and divides the acts into inspection or copying, the issuance of certified copies, transcripts, or extracts, and the issuance of certificates. That is, only after the substantiation of qualification and the procedure prescribed by the Supreme Court Rules are presupposed does an application before the court clerks, etc. take shape. Unlike this paragraph, which also covers the method of inspection, the inspection of disclosed records for other purposes is dealt with in a separate paragraph, with different applicants and conditions.
The reason for placing the text of this paragraph side by side with that of the next is that the access requirements are designed separately for each channel. Article 162, paragraph (2) provides that "any person may, for the purpose of remedies for rights, academic research, or other public-interest purposes, in accordance with the Supreme Court Rules, apply for the inspection of litigation records for which the judgment has become final and conclusive," while excluding records related to oral argument whose disclosure was prohibited (Article 162 of the Civil Procedure Act). Whereas paragraph (1) allows a third person who has substantiated a qualification broad handling of records, paragraph (2) permits only inspection, presupposing finality and specifying a purpose, to any person. Hence, if the single fact that the trial was open were read as permitting unlimited copying as well, it would erase the requirements of applicant, purpose, and method separately established by each paragraph. The conclusion of this section stands on that textual distinction, and the legal channel opens only where the requirements for the inspection of records are met, separately from the proceedings the court opened to the public.
The counterargument that those requirements obstruct public oversight aims at substantive loss: if citizens or the press cannot track the course of a finalized case, the channel for verifying abuses of power narrows, and room is created for parties to hold onto the materials while evading responsibility. The counterargument goes so far as to claim that repeated partial restrictions may effectively collapse the principle of disclosure. Yet imposing access requirements is not a matter of closing the open courtroom again; it is a design that divides the scope in the same manner as Article 162, paragraph (2), which, while leaving inspection open for finalized records upon specification of a purpose, excludes only oral argument whose disclosure was prohibited. The inconvenience of public oversight is acknowledged, but it cannot be absorbed into a single lump, on the ground of alleviating that inconvenience, together with the application requirements for a party or a third person who has substantiated an interest and the requirements for the public-interest inspection of finalized records. The risk of closure that the counterargument points out remains as it is, while the distinction by channel set by the text remains in place.
From this scene alone it cannot be confirmed whether the plaintiff has substantiated a qualification under paragraph (1), whether the records in question are finalized litigation records, whether they form part of a matter related to oral argument whose disclosure was prohibited, or to which portion the address disclosure corresponds. Accordingly, only when the records of the inspection application, the decision on qualification or restrictions on disclosure, the portion designated for protection, and the type of judgment document remain can one first cross-check which paragraph's requirements apply to which portion; and if those materials are absent, the assessment remains undetermined. Protection of secrets and protection against harm to life and body are not bound together within the same scope of access.
The conclusion permitted by this section is narrow. The mere fact that the trial was open does not permit unlimited copying of the entire litigation record, and inspection of records is bound by the definition of access to litigation records in accordance with prescribed qualifications and purposes, assessing the application requirements of paragraph (1) and the purpose-based inspection requirements of paragraph (2) separately. Where those requirements are met, the legal channel opens; this does not mean that the actual inspection or copying has already been completed, and where the requirements are not confirmed, the matter is merely undetermined and is not immediately declared inaccessible. Conversely, nor can the conclusion be drawn in this section that, invoking the existence of an open courtroom, one is entitled to obtain any record by any means. The counterargument pointing to the inconvenience of the access requirements remains, but the distinction set by the text comes first.
2.7The Link to the Application and the Dispositive Part
Accepting the premise that the publicity of the trial alone cannot permit unlimited copying of all records, the present question is narrowed to whether, if the courtroom is open, all records can also be freely examined. In this scene, the circumstance of being able to enter the courtroom and observe, and the act of inspecting and transcribing litigation records prepared by others, are different matters.
Article 162, paragraph (1) of the Civil Procedure Act provides as follows: "A party or a third person who has substantiated an interest may, in accordance with the Supreme Court Rules, apply to the court clerks, etc. for the inspection or copying of litigation records, for the issuance of certified copies, transcripts, or extracts of judgments or records of proceedings, or for the issuance of certificates concerning matters of the lawsuit." This text limits the persons with access to a party and a third person who has substantiated an interest, specifies their acts as applications for inspection or copying, or for the issuance of certified copies, transcripts, extracts, or certificates, and takes the procedure prescribed by the Supreme Court Rules as a condition.
Article 162, paragraph (2) of the Civil Procedure Act provides a different path. "(2) Any person may, for the purpose of remedies for rights, academic research, or other public-interest purposes, apply to the court clerks, etc., in accordance with the Supreme Court Rules, for the inspection of litigation records for which the judgment has become final and conclusive. However, this shall not apply to litigation records related to oral argument whose disclosure was prohibited." Paragraph (1) requires the substantiation of qualification and interest, whereas paragraph (2) substitutes for it the purpose requirement of remedies for rights, academic research, or public interest, and narrows the object to the inspection of finalized litigation records. Ultimately, inspection of records—that is, access to litigation records in accordance with prescribed qualifications and purposes—varies by channel in qualification, purpose, and whether the records have been finalized, and therefore cannot be assessed as one together with the publicity of the trial.
Article 162, paragraph (3) of the Civil Procedure Act puts a brake on the paragraph (2) channel. "(3) Where, upon an application for inspection under paragraph (2), the relevant party to the litigation does not consent, the court shall not permit the inspection. In such case, matters necessary for the scope of the relevant parties to the litigation, consent, and the like shall be prescribed by the Supreme Court Rules." The counterargument that access requirements make public oversight difficult carries its greatest weight here. When citizens watch a trial and seek to verify the judgments of power, if they cannot compare the records directly, oversight rests on a sandcastle, and the more requirements are piled up, the more the principle of disclosure remains only in name—such is the inconvenience. Even so, the answer does not change. The need for oversight must be resolved by a path that passes through the purpose requirement and the consent requirement of paragraph (2), and the publicity of the trial alone cannot permit unlimited copying of all records.
Returning to the synthetic scene, it must first be determined whether the demand of Plaintiff A falls under an application under paragraph (1) or an application under paragraph (2). The requirements to be met diverge between the case in which A substantiates an interest as a third person and the case in which A seeks to inspect finalized litigation records for the purpose of remedies for rights, academic research, or public interest. Defendant B invokes the risk arising from disclosure of an address to block access, but paragraph (3) merely provides that, for an application under paragraph (2), inspection shall not be permitted where the parties to the litigation do not consent. Accordingly, from this scene alone it is not determined to what range B's risk is protected in an application under paragraph (1), or whether only access to the designated portion is blocked. What does clearly remain, however, is the difference in the condition that, if the change to protection against harm to life or body is made, it may also encompass parties and therefore is not handled within the same scope of access as protection of secrets.
The conclusion permitted by this section is narrow. From the mere fact of being able to observe in an open courtroom, one cannot claim the right to inspect and transcribe the entire litigation record without distinction of qualification or purpose. Paragraph (1) and paragraph (2) are different channels in qualification, purpose, and the records at issue, and on the paragraph (2) channel there are separately placed the devices of whether the judgment is final and conclusive, whether the matter is related to oral argument whose disclosure was prohibited, and the consent of the parties to the litigation. Within this range, matters that remain for want of materials are left undetermined, but the mere circumstance that access was blocked is not taken to mean that the materials do not exist, nor that relief has ended.
2.8The Scope This Section Undertakes
In the preceding section, distinguishing the grounds for closed examination from the public pronouncement of judgment, the analysis did not justify closure for convenience without grounds provided by law; that judgment, however, concerned the manner in which an examination is conducted. Now, in the scene where Plaintiff A demands the production of the entire record on the ground that the trial was open and Defendant B asserts the risk arising from disclosure of an address, a separate question is posed: does an open courtroom mean that all records may also be freely inspected? For being able to observe from the gallery of a courtroom and obtaining the litigation records kept in the file cabinet are different acts.
Article 162 (1) of the Civil Procedure Act provides that "a party or a third person who has established an interest may, in accordance with what the Supreme Court Rules provide, apply for inspection or copying of the litigation records." Here the applicant is a party or a third person who has established an interest, the act is inspection, copying, and the like, the method is in accordance with what the Supreme Court Rules provide, and the place of filing is a court clerk, etc. What this text prescribes is only an application made by a person with the requisite qualifications and following the prescribed procedure; it does not declare indiscriminate access to all records by the mere fact of having observed an open trial. (Civil Procedure Act, Article 162)
In that text, inspection of records means access to litigation records according to prescribed qualifications and purpose. Public-interest inspection of finalized records sets out its requirements separately in another paragraph. Paragraph (2) provides that "any person may, for the purpose of seeking relief in rights, academic research, or public interest, in accordance with what is prescribed by the Supreme Court Rules," apply for inspection of litigation records for which the judgment has become final, yet appends the proviso that "it shall not be so with respect to litigation records related to oral argument that has been closed to the public" (Civil Procedure Act, Article 162). Paragraph (3) provides as to such an application that "where the relevant party to the litigation does not consent, inspection shall not be allowed" (Civil Procedure Act, Article 162). This distinction is not fortuitous but a graduated structure erected because the weight of the request and of the protection varies according to the applicant's qualifications, whether the case has become final, and whether the oral argument was open to the public. If the openness of the trial and the inspectability of the records are treated as one and the same, the distinct place occupied by each of these requirements is erased.
Of course, the counterargument remains that access requirements make public oversight difficult. If partial restrictions are imposed repeatedly, the principle of openness may in effect collapse, and that loss will be borne by those who wish to observe the trial from outside the courtroom. Even so, the mere openness of a trial cannot warrant unlimited copying of all records. The structure of paragraph (3), which makes the consent of the parties to the litigation a condition of the request, is a position left open while squarely acknowledging that disadvantage, and one cannot newly create a right of unlimited copying not found in the text in order to eliminate the inconvenience of which the counterargument speaks. The difficulty of oversight targeted by the counterargument remains, but for that reason the distinction among the requirements itself is not overthrown.
Contrasting the scene, in which Plaintiff A demands the production of the entire record on the ground that the trial was open and Defendant B asserts the risk arising from disclosure of an address, with the foregoing conditions, Plaintiff A's demand rests on the single fact of an open trial. Yet the requirements of an established interest or of finalized records are not determined in this scene, and whether Plaintiff A's application follows the route of which paragraph, and which part of access Defendant B's address-disclosure risk ought to block, cannot be adjudged on this material alone. Accordingly, whether access to the designated portion is restricted, and what the target document or the basis and scope of the restriction decision are, remain undetermined.
The conclusion this section permits is narrow. An open courtroom does not mean free copying of all records; access to records by a party or by a third person who has established an interest, and public-interest inspection of finalized records, must each satisfy their own requirements. Conversely, this section does not establish the conclusion that, merely because access requirements exist, the entire record of a case lies outside the scope of openness, nor the conclusion that a record is permanently shielded on the sole ground that a confidentiality once existed. How the protection of secrets and the scope of openness are divided is not settled here.
2.9Application of the Text of the Provisions and the Holdings of Precedents
What must first be asked in this scene is who may inspect records of what scope, and in what capacity. Having laid down the premise that the grounds for closed examination are distinguished from the public pronouncement of judgment and that closure for convenience without grounds provided by law is not justified, the analysis now examines the text to be applied to the question whether an open courtroom means that all records may also be freely inspected.
The statutory text corresponding to this question is the three paragraphs of Article 162 of the Civil Procedure Act. This text limits the applicant to a party and a third person who has established an interest, characterizes the act as an application, and prescribes the conditions as those in accordance with what the Supreme Court Rules provide. Paragraph (2) addresses different applicants and purposes (Civil Procedure Act, Article 162). Paragraph (3) governs the court's determination on such application for inspection (Civil Procedure Act, Article 162). It thus becomes plain that the three paragraphs are a text that sets different application routes and examination requirements even for the same records.
Connecting these texts with the conclusion of this section, only the text within the corresponding scope of the original provision can be used as the basis for adjudging courtroom openness, inspection, and protective measures. Since the application by a party or a third person who has established an interest under paragraph (1) and the public-interest inspection of finalized records under paragraph (2) have different requirements, the mere fact that one is established cannot be taken to permit access to records by the other route. The fact that the phrase "in accordance with what the Supreme Court Rules provide" in paragraph (1) and the phrase "in accordance with what is prescribed by the Supreme Court Rules" in paragraph (2) are each attached to the application under their respective paragraphs is also a sign that the requirements of the two routes should not be read together. The reasoning of the judgment or the content of other paragraphs does not enlarge this distinction. Nor does one newly insert requirements for protective measures that are absent from the text.
The counterargument that access requirements make public oversight difficult targets the loss that, if one cannot access the records, one cannot verify what the parties submitted and on what basis the court decided, on the strength of the mere fact that the trial was open. The points that oversight becomes possible only if the entire record is received, as in Plaintiff A's demand, and that repeated partial restrictions may in the end undermine the principle of openness, are not erased. Still, applications that fail to satisfy the applicants, purposes, and conditions prescribed by the text need not be handled in the same way. The openness of a trial alone cannot warrant unlimited copying of all records, and the circumstance that the purpose is oversight does not by itself displace the requirements of the text. The value of the open courtroom and the requirements for access to records are kept separate.
In this synthetic scene, the fact relevant to this question is that Plaintiff A demands the production of the entire record on the ground that the trial was open and Defendant B asserts the risk arising from disclosure of an address. Contrasting these circumstances with the texts of paragraphs (1) and (2), whether Plaintiff A is a party or a third person who has established an interest, and whether the requested production is inspection or copying, and which part of the litigation records it concerns, are not determined by this scene alone. Nor is it confirmed whether these are finalized litigation records, whether they are litigation records related to oral argument closed to the public, or whether the relevant party to the litigation does not consent. These items remain undetermined.
What is permitted here extends no further than distinguishing, on the one hand, the scope of applications that satisfy the applicants, purposes, and conditions prescribed by the text of each paragraph of Article 162, and, on the other, the grounds for the court's determination. Adding requirements not found in the text, or filling in undetermined facts so as to assert the acceptance or rejection of either side, is not permitted. Drawing in other paragraphs and the reasoning of the judgment to enlarge the conclusion is likewise not included here. Still, the circumstance that the material has not been confirmed does not immediately mean that access is impossible or that relief is unavailable; the judgment within the confirmed scope of the text is not conflated with other unverified matters.
2.10Fine Distinctions Within the Stage
Thus, when courtroom openness and access to records are raised together in a single case, the qualification to watch a trial and the qualification actually to look into another person's litigation records must be assessed separately. Inspection of records means access to litigation records according to prescribed qualifications and purpose, and those qualifications and purpose are confirmed at the places where the respective provisions lay them down. Accordingly, to the question whether an open courtroom means that all records may also be freely inspected, the answer emerges only after first separating and examining whether the subject of access and the object of access satisfy the requirements of which provision.
The basis for that distinction is set out in Article 162 of the Civil Procedure Act. First, Article 162 (1) provides: "①A party or a third person who has established an interest may, in accordance with what the Supreme Court Rules provide, apply for inspection or copying of the litigation records" (Civil Procedure Act, Article 162). In this text the applicant is set as a 'party' or a 'third person who has established an interest', and what may be applied for is inspection or copying of the litigation records, certified copies of written judgments and records of proceedings, and the like. In other words, inspection of records under this paragraph is carried out by application of a person whose qualification has been established, and the mere fact of having observed the courtroom is not taken as a qualification requirement.
Next, Article 162 (2) provides that "any person may, for the purpose of seeking relief in rights, academic research, or public interest, in accordance with what is prescribed by the Supreme Court Rules, … apply for inspection of litigation records for which the judgment has become final" (Civil Procedure Act, Article 162), and Article 162 (3) adds that "the court shall not allow inspection where, upon an application for inspection under paragraph (2), the relevant party to the litigation does not consent" (Civil Procedure Act, Article 162). The way the author connects these texts with the foregoing conclusion is as follows. Access under paragraph (1) is an application by a person whose qualification has been established; access under paragraph (2) is an application, for specified purposes, in respect of finalized records; and paragraph (3) places thereafter the separate condition of consent by the parties to the litigation. The reason these two routes must be examined separately is that the subject of access, the finality of the records, and the required consent are placed at different levels, so that one cannot, having satisfied the requirements of only one side, claim the scope of the other. To this corresponds the condition operative in the case. Where one satisfies the differing access requirements for the examination, the written judgment, and the litigation records, and seeks access within a scope beyond the statutory restrictions, the route on which inspection of the records is permitted opens. The author regards this as a matter of qualified capacity that meets the requirements, and does not substitute for it the separate fact of the openness of the trial.
When access requirements are separated in this way, the counterargument arises that public oversight becomes difficult. If the matter was contested in an open courtroom, anyone ought to read the records directly and verify that the trial proceeded properly; yet if one must establish one's qualification and obtain the consent of the parties to the litigation, oversight is in effect blocked. That observation plainly has a disadvantageous aspect. If applications for inspection for the purposes of relief in rights, academic research, or public interest are strictly barred, criticism and verification by third persons may diminish. The answer nevertheless does not change. The fact of an open courtroom concerns the manner in which a trial is made public, whereas inspection and copying of litigation records is a separate problem of access for which Article 162 of the Civil Procedure Act separately requires qualification, purpose, and consent; the foregoing fact alone cannot discharge all of the latter requirements.
Returning to this scene, Plaintiff A's demand is to receive the entire record on the basis of an open trial, and Defendant B opposes it on the ground of the risk arising from disclosure of an address. What the author can confirm here is that the two contentions touch questions of different scope. First, Article 162 (1) of the Civil Procedure Act addresses applications for inspection or copying by a party or a third person who has established an interest, and paragraph (2) addresses cases in which finalized litigation records are applied for the purposes of relief in rights, academic research, or public interest (Civil Procedure Act, Article 162). The material to determine which side's requirements Plaintiff A satisfies, whether the records he demands are finalized litigation records, and whether Defendant B's opposition falls under the consent issue of paragraph (3), is not fixed by the scene. What can be adjudged here is only the conditions of adjudication. Where the target document or the basis and scope of the restriction decision cannot be confirmed, the matter remains undetermined; and if the ground for protection is confirmed as protection against harm to life or person, whether the parties are included and the scope of access must be set differently. In what category of protection the risk of address disclosure is classified, too, is not determined by this scene alone.
Accordingly, what can be said within this scope is narrow and clear. The part to be divided and adjudged anew within courtroom openness, inspection, and protective measures is the distinction of conditions concerning the qualification of the subject of access and the purpose of the application, whether the target records have become final, and what the reason for the restriction blocking that access is. Where one satisfies the differing access requirements for the hearing, the written judgment, and the litigation records and seeks access within a scope outside the statutory restrictions, the route of inspection operates; where protection of the relevant secret or against harm, or a ground for exclusion from the courtroom, is recognized and access to the designated portion is restricted, it is blocked; and where the target document or the basis and scope of the restriction decision cannot be confirmed, the matter remains undetermined. The author makes detailed determinations only within these three distinctions of conditions and does not newly insert any separate stage of judgment beyond them. Conversely, the conclusion that, because there was an open trial, the entire record must be copied without limitation does not stand within this scope either.
2.11Synthesis of Effectiveness, Blockage, and Undetermination
Building on the premise that the reasons for closing a hearing to the public are distinguished from the disclosure of a judgment, and that closing a hearing to the public for convenience without a reason provided by law is not justified, the question of this material is how the effectiveness, blocking, and undetermined status of open court, inspection, and protective measures are to be distinguished from one another. The demands of plaintiff A and the concerns of defendant B lie along different access routes.
The examination begins with the text governing access to court records. Article 162, paragraph (1) of the Civil Procedure Act provides that “a party or a third party who has substantiated an interest may, as prescribed by the Supreme Court Rules, apply for the inspection and copying of the court records,” and paragraph (2) of the same Article provides that “any person may, as prescribed by the Supreme Court Rules, apply for the inspection of court records for which the judgment has become final, for the purpose of relief of rights, academic research, or public interest.” The former provision takes parties and third parties who have substantiated an interest as the eligible applicants, while the latter takes final court records as its subject and requires relief of rights, academic research, or a public interest purpose. However, the latter provision contains the proviso that “this shall not apply to court records pertaining to oral argument that has been closed to the public” (Civil Procedure Act, Article 162).
This text is connected to a fixed conclusion. Article 162, paragraph (3) of the Civil Procedure Act provides that, for an application for inspection under paragraph (2), “where the relevant party to the litigation does not consent, the records shall not be made available for inspection” (Civil Procedure Act, Article 162). Because the access of a party or a third party who has substantiated an interest and the public-interest inspection of final records are subject to different requirements, the two routes cannot be assessed together on the strength of a single fact of an ‘open trial.’ Within the same provision as well, records before finality and records after finality, and records relating to closed oral argument and other records, are distinguished. Accordingly, the blocking condition is the case where protection of the relevant secrecy or harm, or a statutory ground for exclusion, is recognized and access to the designated portion is restricted, and a restriction confined to the designated portion does not also block access outside the scope that the restriction defines.
The strongest counterargument targets the point that the access requirements make public oversight difficult. If partial restrictions are imposed repeatedly, the principle of openness may effectively collapse, and the complaint remains that those who hold the information control judicial oversight. Attending an open courtroom and inspecting or copying court records are equipped with different access requirements, and the qualifications and application route under paragraph (1) and the purpose, finality, and consent conditions under paragraph (2) are set out separately. Even if one considers alternatives to reduce the cost of public oversight that the counterargument identifies, the result should not be the deletion of the requirements prescribed in paragraphs (1), (2), and (3).
This section contrasts the matter with only the facts ascertainable from the synthetic scene. Plaintiff A demands the production of the entirety of the records on the ground of an open trial, but whether that demand satisfies the qualification and application requirements of paragraph (1), or the purpose and finality requirements of paragraph (2), is not written in the material. Defendant B asserts the risk arising from disclosure of an address, yet has not specified to which designated portion that address belongs or under which ground of protection of secrecy or harm it falls. The route of receiving another person's entire record by unlimited copying is not provided for by this text. Because it cannot be confirmed what the document in question is, or what the grounds and scope of the restriction decision are, this item remains undetermined. Within the range of what is confirmed, the opening condition is the case where one satisfies the distinct access requirements for hearings, judgments, and court records and accesses matters outside the scope of the statutory restriction, and the blocking condition is the case where protection of the relevant secrecy or harm, or a statutory ground for exclusion, is recognized and access to the designated portion is restricted.
The conclusion this material permits is a limited one. The single fact that an open courtroom was held does not open unlimited copying of the entirety of the records; the access of a party or a third party who has substantiated an interest to the records and the public-interest inspection of final records must each satisfy their own qualification, purpose, and consent conditions; and the portion designated by a restriction and the scope beyond it are counted separately. The conclusions not permitted are a demand for the production of another person's entire record without confirming the qualifications and purpose of the inspection application, and the judgment that the entire case must be concealed on the strength of the risk of address disclosure alone. Items for which the document in question, or the grounds and scope of the restriction decision, are not confirmed are left as undetermined, and that lack of material does not immediately mean that no relief is available.
2.12Conclusion Carried Over to the Next Section
The preceding step leaves only the single sentence that the reasons for closing a hearing to the public are distinguished from the disclosure of a judgment, and that closing a hearing to the public for convenience without a reason provided by law is not justified. Proceeding from the same problem, the remaining question is whether, where the courtroom is open, all records may also be freely viewed. The qualification for accessing an open hearing and the qualification for obtaining court records after finality are different requests, and therefore one permission cannot be regarded as resolving both at once.
The basis for answering this question is Article 162 of the Civil Procedure Act. Its paragraph (1) provides that “a party or a third party who has substantiated an interest may, as prescribed by the Supreme Court Rules, apply to a court clerk, etc. for the inspection and copying of the court records.” This text defines the applicants as parties and third parties who have substantiated an interest, and divides the subject matter into the inspection and copying of court records, the issuance of certified copies, transcripts, or extracts of judgments and protocols, and the issuance of certificates. What this paragraph provides is record inspection, that is, the application route for access to court records in accordance with specified qualifications and purposes; it is not an authority to receive all materials as an incidental benefit of attending a courtroom.
Paragraph (2) of the same Article provides that “any person may, as prescribed by the Supreme Court Rules, apply to a court clerk, etc. for the inspection of court records for which the judgment has become final, for the purpose of relief of rights, academic research, or public interest,” while excepting court records pertaining to oral argument that has been closed to the public. Article 162, paragraph (3) of the Civil Procedure Act provides that, for an inspection application under paragraph (2), where the relevant party to the litigation does not consent, the records shall not be made available for inspection. The reason for this distinction is clear. The qualification and purpose requirements of paragraph (1) do not leave the door of public-interest inspection under paragraph (2) open, and the consent control of paragraph (3) preserves, even for the inspection of court records for which the judgment has become final, the procedure of obtaining the consent of the parties to the litigation. The judgment that the openness of a trial alone cannot permit unlimited copying of all records emerges here.
The strongest counterargument lies in the point that the access requirements make public oversight difficult. It is the apprehension that, if substantiation of qualifications and the consent of the parties are required repeatedly, the observer will withdraw from reading the records of the case, and that gap may be filled in the name of secrecy. The observation that, if partial restrictions are imposed repeatedly, the principle of openness may effectively collapse belongs to the same family. The author does not deny such inconvenience, yet does not change the conclusion. The route of inspection and copying is open to a party or third party who has substantiated an interest and satisfied the application requirements of paragraph (1); applications for inspection of final records under the relief of rights, academic research, or public interest purposes of paragraph (2), and the consent control of paragraph (3), each have their proper place. To erase the requirements themselves on the ground of the difficulties of public oversight is inconsistent with the distinction this provision draws.
Only two facts are ascertainable from the synthetic scene. From this scene alone it cannot be confirmed whether an inspection application was filed, and what its qualifications and purpose were; whether the consent of the parties to the litigation exists; whether the matter is related to oral argument that has been closed to the public; and the scope of the portion designated for protection. Defendant B's concern about the disclosure of an address is a circumstance to be examined for the protection of secrecy or harm, and if the ground for protection is confirmed to be protection against harm to life or body, the question of including the parties and the scope of access must be set differently.
The question whether a person who observed a hearing in an open courtroom may have copies of all court records is answered only so far as confirming that access to court records is a separate request made in accordance with specified qualifications and purposes. The judgment this section permits is the restrained finding that access satisfying the application requirements of paragraph (1) and the public-interest inspection of final records and the consent control prescribed in paragraphs (2) and (3) operate as distinct requirements. What this section does not permit is the conclusion that takes the openness of the trial as its sole basis and demands unlimited inspection and copying of the entirety of the records. However, what secrecy is to be recognized, and which portion alone is to be blocked from access, is not determined here. If secrecy exists, must the entire case be concealed?