Summary
Personal information protection measures based on a risk of harm to life or body may restrict disclosure to third parties, including even the parties.
4.1The Standard by Which the Path Opens
Where access to the record becomes a channel of harm, the object and manner of protection must be defined separately. The preceding section concluded that the restriction on grave secrets of private life and trade secrets is applied in accordance with the portion stating the secret and the application requirements. Rather than in the direction of broadening the object of that restriction, this examines whether different information requires different protective devices. Is there information that can be withheld even from the opposing party? In other words, what is the standard by which the channel of this remedy opens?
The statutory provision corresponding to this question is Article 163(2) of the Civil Procedure Act. Its text provides: "Where there is a showing that there is a concern of harm to the life or body of a person involved in the litigation, the court may, upon application of the person concerned, by ruling, take protective measures so that, prior to the inspection, copying, or service of the litigation record, the portion designated by the person concerned, among personal information such as address as prescribed by Supreme Court Rules, is not disclosed to a third party (including a party)" (Civil Procedure Act, Article 163). Here the actors are the person involved in the litigation who filed the application and the court that decides it; the act is the taking of protective measures for the designated personal information, and the condition is a showing of concern of harm to life or body.
This text requires that two things be distinguished. One is the ground for protection, and the other is the object of protection. If the ground of concern of harm is recognized, the court may take protective measures by ruling, and the effect is that the designated portion stating personal information is not disclosed to third parties. Yet the text expressly stipulates, as to third parties, "including a party." Accordingly, the question whether there is information that can be withheld even from the opposing party does not mean that the status of being a party alone can block it, but rather is read to mean that, within the scope furnished by the conditions of designated personal information and a showing of harm, disclosure can be blocked as far as including parties.
The counterargument that blocking information may constrain the right of defense targets a practical inconvenience. If the opposing party conceals the address, service and contact become difficult, the opportunity for defense may be narrowed, and there is also the danger that the principle of public trial will remain a nominal declaration in the face of repeated restrictions on portions. Even without erasing such losses, the conclusion stands. It cannot be written that every restriction on inspection does not apply to parties. The statute expressly permits a restriction on disclosure to third parties, including parties, and that permission is not unlimited but lies within the bounds of a showing of harm and the designated portion.
In the synthetic scene, plaintiff A demands the production of the entire record on the ground of an open trial, and defendant B asserts the risk arising from disclosure of the address. Contrasting this scene with the conditions, where the designated portion—that is, the address—and a showing of concern of harm are confirmed, protective measures may be at issue. By contrast, the demand for production of the entire record raises a separate access requirement, so this scene alone does not permit a determination of how far the scope of protective measures extends. Nor have the facts of an actual case or the results of implementation been confirmed, so the matter remains undetermined.
The conclusion this section permits is narrow. Protective measures for personal information based on concern of harm to life or body can restrict disclosure to third parties, including parties, and this means protective measures against harm, that is, the protection of designated personal information in response to the risk to life or body. To go beyond this and conclude either that all information is hidden even from the opposing party, or conversely that no protection can be claimed merely on the ground of an open trial, is not permitted.
4.2The Conditions That Block Relief
The restriction on grave secrets of private life and trade secrets was applied in accordance with the portion stating the secret and the application requirements. Now, as an extension of this, is there information that can be withheld even from the opposing party? It examines what the conditions are under which the channel of relief closes. Having dealt with the scope of the secret, it examines the conditions under which that restriction closes.
In addressing concern of harm and personal information, Article 163(2) of the Civil Procedure Act provides as follows. "Where there is a showing that there is a concern of harm to the life or body of a person involved in the litigation, the court may, upon application of the person concerned, by ruling, take protective measures so that, prior to the inspection, copying, or service of the litigation record, the portion designated by the person concerned, among personal information such as address as prescribed by Supreme Court Rules (hereinafter referred to as the "portion stating personal information"), is not disclosed to a third party (including a party; hereinafter the same shall apply in the relevant parts of paragraphs (3) and (4) with respect to this paragraph)" (Civil Procedure Act, Article 163). The actor to whom this text refers is the person involved in the litigation who makes the showing and the application; the act is the taking of protective measures to restrict disclosure of the designated portion, and the condition is a showing that there is a concern of harm to life or body.
Viewed in light of this basis, where the relevant secret or the protection against harm, or a statutory ground for exclusion, is recognized and access to the designated portion is restricted, the channel of relief closes if even one of the statutory requirements is not satisfied. The reason for separating the two steps here is that the fact that the materials provided have been designated as an object of protection and the judgment that access itself is restricted by such protective measures, so that relief for the restricted designated portion is barred, constitute different thresholds. Protective measures against harm mean the protection of designated personal information in response to the risk to life or body, and this is the starting point for specifying the object and manner of the restriction.
The point targeted by the counterargument that blocking information may constrain the right of defense is clear. If a person involved in the litigation cannot examine the entire record for the purpose of defense, gaps may arise in the review of the opponent's assertions and in the preparation of rebuttal. Article 163(2) writes "a third party (including a party)," thus leaving open that the disclosure restriction of protective measures against harm may extend to parties (Civil Procedure Act, Article 163). Therefore, while it is acknowledged that a restriction on access imposes a burden on the right of defense, to generalize that the restriction does not apply to parties collides head-on with the text.
The facts relevant to this question in this scene are whether defendant B meets the requirements of showing and application in order to keep the designated portion undisclosed, and whether that designated portion is set as an object of protection against concern of harm to life or body. Whether defendant B's assertion conforms to the protective measures against harm under Article 163(2) cannot be determined from this scene alone, and so remains undetermined. If the ground for protection is confirmed as protection against harm to life and body, the question of whether parties are included and the scope of access must be determined differently.
The conclusion this section permits is that, once protective measures against harm are recognized and access to the designated portion is restricted, the channel of relief at this stage closes; the conclusion it does not permit is to generalize that the restriction does not apply to parties. On the materials of the synthetic scene alone, whether defendant B's assertion is accepted, or the actual result of implementation, cannot be determined.
4.3The Boundary That Remains When There Is No Data
The conclusion up to the preceding stage is carried over in one sentence alone: the restriction on grave secrets of private life and trade secrets is applied in accordance with the portion stating the secret and the application requirements. The protection of secrets dealt with in the preceding section and the present question may appear to overlap, but they do not. What must be determined now is whether there is information that can be withheld even from the opposing party, and together with that, the empty places in the materials that obstruct the judgment. Whether one is entitled to see the entire record and whether one can block disclosure of a particular portion are different questions.
Protective measures for personal information based on concern of harm to life or body can restrict disclosure to third parties, including parties. Article 163(2) of the Civil Procedure Act provides that, where there is a showing that there is a concern of harm to life or body of a person involved in the litigation, the court may, upon application of that person involved in the litigation, by ruling, take protective measures so that, prior to the inspection, copying, or service of the litigation record, the designated portion stating personal information is not disclosed to third parties. The statute writes, in this Article, that third parties include parties. Thus, the actor prescribed by this paragraph is the person involved in the litigation who filed the application and designated the portion to be protected; the act is a protective measure taken prior to inspection, copying, or service; and the condition is a showing of concern of harm. Matters provided in the other paragraphs of the Article are not addressed here.
Protective measures against harm mean the protection of designated personal information in response to the risk to life or body. This definition fixes that the object of protection is designated personal information and that the motive for protection is a risk to life or body. That the previously received restriction on grave secrets of private life and trade secrets is applied in accordance with the portion stating the secret and the application requirements, and that protective measures against harm take designated personal information as their object, are judgments at different stages even within the same restriction on access. The former looks to the nature of the secret to be protected and the application requirements; the latter looks to the concern of harm and the designated portion. Even as to access to the same document, the scope of the restriction differs according to which judgment was passed first, so the two stages cannot be merged into a single question.
Blocking information can constrain the right of defense. If defendant B's risk of address disclosure is recognized and disclosure of that portion is blocked, plaintiff A may have to advance his own arguments without having inspected the relevant portion of the record. The loss and inconvenience of being tried without having seen the materials necessary for the defense are great. Conversely, if that concern is disregarded, the harm of address disclosure remains as it is. At the point where the two values collide head-on, the author nonetheless maintains the answer that it cannot be written that every restriction on inspection does not apply to parties. The basis is the text by which Article 163(2) of the Civil Procedure Act writes that third parties include parties, and the constraint on the right of defense is a circumstance to be considered when deciding whether a restriction is recognized, not a rule that can be elevated to say that a restriction does not reach parties.
The facts established in the synthetic scene are only plaintiff A's demand for production of the entire record and defendant B's assertion of the risk of address disclosure. What portion defendant B designated when applying for protective measures, what the showing of concern of harm was, and what the basis and scope of the restriction decision rendered by the court were, do not appear in this scene. Accordingly, even though the text that protective measures for personal information based on concern of harm to life or body can restrict disclosure to third parties, including parties, comes into contact with the scene, it cannot be regarded as having been applied. Where the target document or the basis and scope of the restriction decision cannot be confirmed, matters whose adjudicative materials are not identified are left undetermined, distinguished from impossibility. This means that the mere absence of materials is not taken to close the legal channel of relief or restriction. If it shifts to protection against harm to life and body, parties may also be included, and so it is not handled within the same scope of access as protection of secrets.
The conclusion this section permits is narrow. It is that protective measures under Article 163(2) of the Civil Procedure Act can ensure that the designated portion stating personal information is not disclosed to third parties, including parties, and that the judgment requires a showing of concern of harm and an application, together with the designated portion. The conclusion that is not permitted is equally clear. The constraint on the right of defense cannot be invoked to conclude that every restriction on inspection does not apply to parties, and the empty places of unconfirmed materials cannot be filled in as impossibility of relief. If the application for inspection, the decision on qualification and disclosure restriction, the designated protected portion, and the type of judgment document were recorded, the judgment would be more settled, but at present it is not. Only, how far its scope extends remains undetermined. Is a judgment that has not become final also subject to disclosure?
4.4The Records Needed for Determination
Under that conclusion, it examines whether there is information that can be withheld even from the opposing party, and what records are needed for that judgment. In this scene, both whether there is information to be judged and what records are to be used in the judgment must be settled together.
Article 163(2) of the Civil Procedure Act provides that "Where there is a showing that there is a concern of harm to the life or body of a person involved in the litigation, the court may, upon application of the person concerned, by ruling, take protective measures so that, prior to the inspection, copying, or service of the litigation record, the portion designated by the person concerned, among personal information such as address as prescribed by Supreme Court Rules (hereinafter referred to as the "portion stating personal information"), is not disclosed to a third party (including a party; hereinafter the same shall apply in the relevant parts of paragraphs (3) and (4) with respect to this paragraph)" (Civil Procedure Act, Article 163). This text sets, as to the actor to whom protective measures against harm—that is, the protection of designated personal information in response to the risk to life or body—apply, the person involved in the litigation; as to the act, the protection of the portion stating personal information that he designated; and as to the condition, a showing and application of concern of harm.
This text and the standard for step determination must be read separately. The requirements prescribed by the provision for taking protective measures and the scope of third parties whose disclosure can be blocked are matters confirmed by the text. By contrast, whether that protection was actually designated, and which portion was designated, cannot be known from the text alone. Therefore, the stage is determined only from the materials recorded in the application for inspection, the decision on qualification and disclosure restriction, the designated protected portion, and the type of judgment document. The step determination is made only on the settled records; absent records are not filled in by presumption.
The counterargument that blocking information may constrain the right of defense aims at the greatest cost of this judgment. If the non-disclosure of the address asserted by defendant B is accepted, plaintiff A will be unable to read that portion even under the purport of an open trial, and the materials available for the defense will diminish. The worry that, as repeated restrictions on portions accumulate, the result may be that the principle of openness retains only its place is of the same context. Even so, on the ground of this disadvantage, the text of the restriction on inspection cannot be re-read as excluding its application to parties. Because the provision expressly writes that third parties include parties, the point that protective measures against harm can restrict disclosure even as to parties remains as written.
In the synthetic scene, only the fact that defendant B asserted the risk arising from address disclosure enters into this question. This assertion is merely material leading to a judgment on whether there is a showing of concern of harm to life or body and what the designated portion is; it does not in itself mean that protective measures are recognized. From the scene alone, the content of the application for inspection, the existence and scope of the decision on qualification and disclosure restriction, the designated protected portion, and the type of judgment document cannot be confirmed, so whether the records for the step determination are in place is undetermined. If the ground for protection is confirmed as protection against harm to life and body, whether parties are included and the scope of access must be defined differently, and protective measures against harm are not mixed with protection of secrets.
What this section permits is the judgment that, when the requirements for protective measures are confirmed, the restriction on disclosure of that designated portion may reach third parties, including parties, and the standard that the step determination is made only on the basis of the application for inspection, the decision on qualification and disclosure restriction, the designated protected portion, and the type of judgment document. What it does not permit is filling in absent records on conjecture to determine the existence of protective measures, and generalizing that every restriction on inspection does not apply to parties.
4.5Circumstances That Change the Decision
The conclusion was that restrictions on grave secrets of private life and on trade secrets are applied in accordance with the confidential entry portion and the application requirements. Quite apart from the scope of access addressed at the preceding step of this section, what now remains at issue is whether there is information that can be withheld even from the opposing party and, at the same time, which changes overturn the determination made at the existing step. In this scene, as long as the demand for production of the entire record and the claim of address-disclosure risk stand opposed to each other, the need to define separately what is protected and how it is protected becomes apparent.
Article 163(2) of the Civil Procedure Act provides: "② Where there is a prima facie showing that there is a concern that a person involved in the litigation may suffer harm to his or her life or body, the court may, upon application of that person involved in the litigation, by decision, take protective measures so that, prior to inspection, copying, or service of the litigation record, the part of personal information prescribed by the Supreme Court Rules, such as address, that the person involved in the litigation designates (hereinafter referred to as the "personal information entry portion") is not disclosed to third parties (including the parties; the same shall apply in the relevant part of paragraphs (3) and (4) in relation to this paragraph)." This text sets the object of protection as a person involved in the litigation with a prima facie showing of concern of harm to life or body, and sets the form of protection as protective measures for the personal information entry portion designated by that person. Here the subject is a person involved in the litigation who possesses both the prima facie showing and the application, the act is protective measures taken by decision of the court, and the condition is the prima facie showing of concern of harm to life or body. The range covered by the text of this paragraph extends no further than restricting disclosure of the designated personal information entry portion.
The approach seen in the preceding section, under which restrictions on grave secrets of private life and on trade secrets are applied in accordance with the confidential entry portion and the application requirements, and the approach prescribed by the present protective measures against harm cannot be grouped within the same scope. Here, protective measures against harm mean the protection of designated personal information in response to risks to life or body; in that the object of protection is the designated personal information entry portion and the form of protection is the restriction on disclosure to third parties, its scope diverges. Once this distinction is confirmed as a designated change, the existing blocking and enforceability determinations must be discarded and the matter re-adjudicated from the step.
If the opposing party is prevented from inspecting the record, the inconvenience arises that it cannot obtain the materials necessary to defend its own claims, and that loss bears directly on the value of the parties' right of defense. The counterargument aims as far as the point that, if partial restrictions are repeated, the principle of disclosure may be effectively undermined, pointing out that even if a single restriction appears small, their accumulation alters the basic posture of access to records. Since the text expressly states that third parties include the parties, writing as though the parties are invariably an exception goes beyond the range fixed by the text. While leaving intact the disadvantageous aspect of the curtailment of the right of defense identified by the counterargument, the author maintains the conclusion that, once the designated change is confirmed, the existing blocking and enforceability determinations are discarded and the matter is re-adjudicated from the step.
In the synthetic scene, plaintiff A's demand for production of the entire record and defendant B's claim of address-disclosure risk are the facts that bear on this question. Placing these two matters before the foregoing conditions, where the risk of address disclosure is substantiated as a concern of harm to life or body, protective measures for the designated personal information entry portion become the issue. The circumstance that plaintiff A demands production of the entire record on the ground of a public trial does not, in itself, justify production of the entire record, regardless of whether the protective measures are limited to the designated portion. However, in this scene no year, amount, or commencement date is set, and the outcome of the judgment is not yet settled; accordingly, the results of actual payment, delivery, or recovery, as well as victory or defeat, cannot be asserted together. Whether the designated change has actually been confirmed, and over what range of records that change extends, cannot be determined from this scene alone.
The conclusions this section permits are, first, that when the matter shifts to protection against harm to life or body, disclosure to third parties including the parties may be restricted, and therefore the matter is not handled within the same scope of access as confidentiality protection; and second, that once the designated change is confirmed, the existing blocking and enforceability determinations are discarded and the matter is re-adjudicated from the step. Conversely, what is not permitted is the conclusion, generalized, that every restriction on inspection does not apply to the parties. The object and scope of a restriction on inspection are bound to the court's decision and the designated personal information entry portion, and where that scope cannot be verified, the matter remains undetermined. Undetermined status does not immediately mean that no relief is available; room remains for re-adjudication after the designated change is confirmed.
4.6The Strongest Counterargument and the Answer
In this scene, the point that the blocking of information may curtail the right of defense comes to the fore. Upon reaching the question whether there is information that can be withheld even from the opposing party, one must examine separately the propriety of the blocking and the loss the blocking leaves behind. It further examines how to answer the strongest counterargument that, if partial restrictions are repeated, the principle of disclosure may be effectively undermined. The counterargument carries the concern that repeated partial restrictions may in fact undermine the principle of disclosure.
For this question, the relevant text is Article 163(2) of the Civil Procedure Act. Its text provides: "Where there is a prima facie showing that there is a concern that a person involved in the litigation may suffer harm to his or her life or body, the court may, upon application of that person involved in the litigation, by decision, … take protective measures so that [the designated portion] is not disclosed to third parties (including the parties)" (Civil Procedure Act, Article 163). The subject indicated by this text is the person involved in the litigation who has made the prima facie showing and the court that renders the decision; the act is protective measures prior to inspection, copying, or service; and the condition is the prima facie showing and application regarding concern of harm to life or body. The object of protection is the personal information entry portion designated by the person involved in the litigation, and the party to whom it is to be kept undisclosed is third parties.
The link joining the text of this Article with the conclusion of this section is the qualification "including the parties." When this definition and the qualification in the Article are placed together, it becomes apparent that protective measures against harm and confidentiality protection, applied in accordance with the confidential entry portion and the application requirements, do not share the same scope of application. The conclusion the author draws at this point is that one cannot write that every restriction on inspection does not apply to the parties. Since the Article specifies the range as third parties including the parties, the scope of the persons subject to access must be verified separately for each type of restriction.
Even so, the counterargument remains that, if partial restrictions are repeated, the principle of disclosure may be effectively undermined. The loss this counterargument targets is the right of defense. If defendant B closes a designated portion by invoking the risk of address disclosure, plaintiff A must organize its claims and evidence without seeing that portion, and from plaintiff A's position, having demanded the entire record on the premise of a public trial, the materials for preparation are reduced. The counterargument worries as far as a situation in which piecemeal blocks overlap until the principle of disclosure remains only in name. The answer is not to erase that disadvantage, but to maintain the fact that the scope of application may differ according to the type of restriction on inspection. The author adheres to the conclusion that one therefore cannot write that every restriction on inspection does not apply to the parties.
Contrasting the synthetic scene with the foregoing conditions, it is confirmed that plaintiff A's demand and defendant B's claim aim at different issues. Plaintiff A demands production of the entire record on the ground that the trial is public, while what defendant B asserts is the risk arising from address disclosure. Where that risk is substantiated as a concern of harm to life or body, defendant B makes an application, and the court by decision designates the portion as subject to protective measures, then, according to the text of Article 163(2) of the Civil Procedure Act, that portion may be withheld from disclosure to third parties including the parties. However, in the scene, the presence or absence of the prima facie showing, the application and the decision, the scope of the designated personal information entry portion, and the degree of substantive harm are all left unset. Accordingly, the recognition and scope of the protective measures cannot be determined from this scene alone and remain undetermined.
The conclusions this section permits are limited: first, that personal information protective measures based on concern of harm to life or body may restrict disclosure to third parties including the parties; and second, that for this reason one cannot write that every restriction on inspection does not apply to the parties. This conclusion does not mean that protective measures always take precedence over the right of defense, nor does it mean that they share the same scope of application as other restrictions applied in accordance with the confidential entry portion and the application requirements. Conversely, generalizing that every restriction on inspection does not apply to the parties runs contrary to this text.
4.7The Link to the Application and the Dispositive Part
Once the premise is accepted that one cannot write that every restriction on inspection does not apply to the parties, a question in the other direction remains. This question is posed at the point of asking whether the entire record can simply be handed over on the sole ground that the trial is public. In the scene where plaintiff A demands production of the entire record on the ground of a public trial and defendant B asserts the risk arising from address disclosure, the collision of the two claims is not immediately resolved as a matter of one side being right and the other wrong. Rather, the answer diverges according to how the object and scope of protection are set.
For this question, the relevant text is Article 163(2) of the Civil Procedure Act. Its text provides: "Where there is a prima facie showing that there is a concern that a person involved in the litigation may suffer harm to his or her life or body, the court may, upon application of that person involved in the litigation, by decision, take protective measures so that, prior to inspection, copying, or service of the litigation record, the part of personal information prescribed by the Supreme Court Rules, such as address, that the person involved in the litigation designates (hereinafter referred to as the "personal information entry portion") is not disclosed to third parties (including the parties; the same shall apply in the relevant part of paragraphs (3) and (4) in relation to this paragraph). <Newly Enacted July 11, 2023>" (Civil Procedure Act, Article 163). Here the subject is the person involved in the litigation who has made a prima facie showing of concern of harm; that person's act is the court's decision upon application; and the condition is the case in which the concern of harm to life or body is substantiated by a prima facie showing. The object of protection is the personal information entry portion, such as address, designated by that person involved in the litigation.
The distinction to note in this text is that, while the protective measures refer to a restriction on disclosure to third parties, they expressly state that those third parties include the parties. That is, this Article does not leave the object of protection solely as a matter concerning third parties merely because one invokes the opposing party who must be given access in order to exercise the right of defense. Protective measures against harm, namely the protection of designated personal information in response to risks to life or body, are measures whose scope of objects is set differently. Whereas restrictions based on grave secrets of private life or trade secrets are applied on the standard of the confidential entry portion and the application requirements, these protective measures take as their axes the designated personal information portion and the prima facie showing of concern of harm. Accordingly, the two types of restriction cannot be treated within the same scope of access.
The strongest counterargument is directed at the point that the blocking of information may curtail the right of defense. If the opposing party cannot read core parts such as the address, preparing an answer and a defense becomes difficult, and if such restrictions are repeated, there is the concern that the principle of public trial may be reduced to a mere form. Even if the value of disclosure carries weight in determining the scope of the right of defense, since the text provides that disclosure to third parties including the parties may be restricted, one cannot assert that a party falls outside the object of protection automatically merely by being the opposing party. Without ignoring the loss the counterargument indicates, the range in which access is severed remains bound to the designated personal information entry portion and the court's decision.
Returning to the synthetic scene, plaintiff A's demand is for production of the entire record, and defendant B's defense is the risk arising from address disclosure. This contrast alone does not establish whether the prima facie showing of concern of harm was sufficient with respect to defendant B's claim, what decision the court actually rendered, or which portion was designated. What must be verified is the application for inspection and eligibility, the decision restricting disclosure, the designated portion under protection, and the type of judgment document. Where the target document or the basis and scope of the restriction decision cannot be verified, no determination can be made from this scene alone.
Accordingly, the conclusion this section permits is that personal information protective measures based on concern of harm to life or body may restrict disclosure to third parties including the parties, and that such restriction is bound to the designated personal information entry portion and to the conditions of prima facie showing, application, and decision. What this section does not permit is either to treat protective measures against harm within the same scope of access, unlike the case of grave secrets of private life or trade secrets, or to generalize that every restriction on inspection does not apply to the parties.
4.8The Scope This Section Undertakes
Separately from such protection of secrets, in the scene where plaintiff A demands production of the entire record on the ground of a public trial and defendant B asserts the risk arising from address disclosure, the analysis examines whether there is information that can be withheld even from the opposing party.
That Article reads: "② Where there is a prima facie showing that there is a concern that a person involved in the litigation may suffer harm to his or her life or body, the court may, upon application of that person involved in the litigation, by decision, take protective measures so that, prior to inspection, copying, or service of the litigation record, the part of personal information prescribed by the Supreme Court Rules, such as address, that the person involved in the litigation designates (hereinafter referred to as the "personal information entry portion") is not disclosed to third parties (including the parties; the same shall apply in the relevant part of paragraphs (3) and (4) in relation to this paragraph)." By its text, the subject is the person involved in the litigation who made the application, the act is protective measures for the designated portion, and the condition is the prima facie showing of concern of harm.
This Article shows why the distinction between the two steps the author drew above is necessary. Unlike grave secrets of private life or trade secrets, protective measures against harm have the narrow object and method of protecting designated personal information in response to risks to life or body. What the same Article designates is the personal information entry portion designated by the person involved in the litigation, and the form of protection is a measure whereby that portion is not disclosed to third parties. Accordingly, the requirement to define the object of protection and the form of protection separately opens only a single route: nondisclosure of the designated portion, tailored to the condition of concern of harm.
Even so, the blocking of information may curtail the right of defense. If inspection of the record is barred, the opposing party finds it difficult to defend its own claims, and this restriction conflicts with the value of open justice. The concern that repeated partial restrictions may effectively undermine the principle of disclosure is also connected to this. Yet what the author answers is that, even so, one cannot write that every restriction on inspection does not apply to the parties. The words "third parties (including the parties)" expressly stated in the Article leave in place the premise that the disclosure restriction of protective measures against harm may extend to a range that includes the parties, without thereby erasing the disadvantage of curtailing the right of defense in this section.
The facts confirmed in the synthetic scene are plaintiff A's demand for production of the entire record and defendant B's claim of address-disclosure risk. On these two claims alone, neither the object nor the scope of the protective measures has been specified, and the presence of a prima facie showing of concern of harm has not been confirmed. As the Article examined above requires the element of a prima facie showing and the method of designation, the scene alone does not permit the assertion that those requirements have been met. At what point the entire record demanded by plaintiff A and the designated portion targeted by the protective measures interlock likewise remains undetermined on the facts of this scene alone. The application for inspection and eligibility, the decision restricting disclosure, the designated portion under protection, and the type of judgment document remain as the record of adjudication.
The conclusions this section permits are that personal information protective measures based on concern of harm to life or body may restrict disclosure to third parties including the parties, protective measures against harm here meaning the protection of designated personal information in response to risks to life or body. What this section does not permit is either the conclusion, generalized, that every restriction on inspection does not apply to the parties, or a determination that the requirements and scope of the protective measures are established on the facts of the scene alone. What remains next is whether a judgment that has not become final is also subject to disclosure.
4.9Application of the Text of the Provisions and the Holdings of Precedents
The question here is whether there is information in this scene that may be withheld even from the opposing party. Unlike the parts recorded as secrets addressed in the preceding step, the point at issue this time is the protection of designated personal information, which is called protective measures against harm, in response to dangers to life or body. So long as the demand for access and the demand for protection collide in the same record, it is necessary first to determine by which range of statutory language the matter is to be judged.
This provision indicates, respectively, that the object of protection is the part of the record containing designated personal information, that the method is a protective measure taken by decision, and that the persons whose receipt of disclosure is barred are third parties including the parties.
The conclusion of this section derived on the basis of this provision is that only the relevant statutory language is used as the basis for adjudicating disclosure and inspection in court and protective measures. Only the language within the scope of the relevant provision is applied, and it is not extended to the grounds of the judgment or to other paragraphs. Here two distinctions are important. One is the distinction in the object of protection: the part of the record containing designated personal information and other parts of the record are not treated alike. The other is the distinction in the manner of protection: blocking disclosure in advance of inspection, copying, and service as a procedural measure, and a blanket prohibition on access itself, are not the same determination. If these two distinctions are ignored, one goes beyond the range prescribed by the statutory language.
The strongest counterargument aims at the point that blocking information may restrict the right of defense. If the opposing party cannot see entries such as the address in submitted documents, it may become difficult to assess the credibility of those statements or to confirm where service is to be made. Further, the loss is raised together that repeated partial restrictions may cause the principle of openness to collapse in practice. Since the relevant provision, in naming the persons whose receipt of disclosure is barred, expressly states "including the parties," the possibility of restriction as to the parties cannot be excluded on the face of the statutory language. The inconvenience to the right of defense remains as it is, but that inconvenience alone cannot erase the scope of protection prescribed by the statutory language.
The facts confirmed in the synthetic scene are only that Defendant B asserts a risk arising from disclosure of an address and that Plaintiff A demands the production of the entire record. Whether Defendant B's assertion is settled as a substantiation of a concern of harm to life or body, and which part of the entire record demanded by Plaintiff A corresponds to the part containing designated personal information, are not determined by this scene alone. Whether the court issued protective measures by decision upon application, and before which stage of inspection, copying, or service those protective measures were applied, are likewise unconfirmed. These items remain undetermined, and if the ground for protection is confirmed as protection against harm to life and body, the question whether the parties are included and the range of access must be determined differently.
The conclusion permitted by this section is that, within the requirements and scope prescribed by the language of Article 163 paragraph (2) of the Civil Procedure Act, protective measures may be taken so that the part of the record containing designated personal information is not disclosed to third parties including the parties. The conclusion not permitted is the interpretation of going beyond that statutory language to render the entire record of the case non-public, or of broadening the scope of protection on the basis of the grounds of the judgment and other items. The outcome of performance or the success or failure in an actual case is not determined by this provision either.
4.10Fine Distinctions Within the Stage
The preceding section concluded that protective measures for personal information based on a concern of harm to life or body may restrict disclosure to third parties including the parties, and that the basis for this is the language of Article 163 of the Civil Procedure Act. Yet the fact that the preceding section set out that basis and the present question are different from each other. The present question concerns what the object of protection of that measure is, that is, whether there is information that may be withheld even from the opposing party. To answer this question, the range indicated by the term protective measures against harm must first be clarified. Unlike the other question concerning the general scope of inspection of trial records, this section is limited to determining the object of the protective measures.
That provision stipulates that, where there is a substantiation of a concern of harm to the life or body of a person involved in the litigation, the court may, upon application of that person involved in the litigation, take protective measures by decision. Those protective measures are, in advance of the inspection, copying, and service of the litigation record, to the effect that personal information prescribed by Supreme Court Rules, such as an address, that is designated by that person involved in the litigation (Article 163 paragraph (2) of the Civil Procedure Act calls this the part of the record containing personal information) is not disclosed to third parties. Here, third parties include the parties, and this definition is used identically in the parts of paragraphs (3) and (4) of the same provision that relate to this paragraph (Article 163 paragraph (2) of the Civil Procedure Act). Accordingly, what this provision protects is the designated part of the record containing personal information, and the manner of protection is to prevent it from being disclosed.
To connect the above statutory language with the conclusion of this section, two things are distinguished. One is the risk that occasions the protection. The provision requires the condition of a concern of harm to life or body. The other is the object of protection. The provision specifies the designated part of the record containing personal information. Combining the two, protective measures against harm in this section mean the protection of designated personal information in response to dangers to life or body. This definition encompasses both the occasion and the object of protection. Cases in which only the designated part is asserted without any substantiation of a danger to life or body, or cases concerning information outside the scope of the designated part of the record containing personal information, do not fall within the protective measures of this provision. Thus, when the conditions of this section are met, protective measures for personal information may restrict disclosure to third parties including the parties (Article 163 paragraph (2) of the Civil Procedure Act).
If the opposing party does not know the contents of the record, it is difficult to gauge what must be defended, and it may hinder parties to the litigation from checking each other's assertions and preparing their defenses. Further, there is also the counterargument that repeated partial restrictions may cause the principle of openness to collapse in practice. The concern is that, as measures blocking bit by bit accumulate, inspection may end up being the exception and blocking the rule. This counterargument is accepted without erasing that disadvantage, because the statutory language of the provision states that third parties include the parties. The restriction of the right of defense remains as a counterargument, but it does not yield the conclusion that the parties are excluded.
The analysis returns to the synthetic scene. If these facts are compared with the preceding conditions, Defendant B's assertion may fall within personal information prescribed by Supreme Court Rules, such as an address, and further the question becomes whether there is a substantiation of a concern of harm to life or body. Yet the scene does not determine the presence or absence of such substantiation or the court's decision, nor does it determine the scope of the designated part. Accordingly, from this scene alone, whether the protective measures are recognized or their scope cannot be confirmed. What is clear, however, is that Defendant B's assertion does not return to the counterargument of restricting the right of defense. In answer to the question whether there is information that may be withheld even from the opposing party, the path of restricting disclosure to third parties including the parties remains open.
The conclusion permitted by this section is narrow. Protective measures against harm mean the protection of designated personal information in response to dangers to life or body, and when those conditions are met, disclosure to third parties including the parties may be restricted. By contrast, saying that all restrictions on inspection do not apply to the parties lies outside the conclusion of this section. Moreover, the recognition and scope of the protective measures have not been confirmed, and in the range where the substantiation and the confirmation of the designated part remain undetermined, judgment is reserved. What remains is how the definition in this section operates in actual access procedures. How are the operation of disclosure and inspection in court and protective measures, and blocking and undetermined matters, distinguished from each other?
4.11Synthesis of Effectiveness, Blockage, and Undetermination
The conclusion was that restrictions on grave secrets of private life and trade secrets are applied in accordance with the parts recorded as secrets and the requirements for application. Now, in the scene where Plaintiff A demands the production of the entire record on the ground of a public trial and Defendant B asserts a risk arising from disclosure of an address, the analysis examines whether there is information that may be withheld even from the opposing party, and how to distinguish disclosure and inspection in court, and the cases where protective measures open and the cases where they are blocked and the undetermined cases. This question is the work of separately grasping the cases where access is permitted and where it is blocked, and the cases where judgment must be reserved because they cannot be confirmed.
As the statutory language corresponding to this question, Article 163 paragraph (2) of the Civil Procedure Act stipulates that, where there is a substantiation of a concern of harm to the life or body of a person involved in the litigation, the court may, upon application of that person involved in the litigation, take protective measures by decision so that, in advance of the inspection, copying, and service of the litigation record, personal information prescribed by Supreme Court Rules, such as an address, that is designated by that person involved in the litigation, the so-called part of the record containing personal information, is not disclosed to third parties, third parties including the parties (Article 163 of the Civil Procedure Act). Here, the court is the entity that decides the protective measures, the relevant person involved in the litigation makes the application, and the object of protection is the designated personal information part that follows the substantiation of a concern of harm to life or body.
Connecting this statutory language with the conclusion of this section, protective measures against harm carry the meaning of the protection of designated personal information in response to dangers to life or body. This provision does not uniformly permit or uniformly prohibit the inspection of records, but, after a concern of harm is substantiated and the requirements for application and decision are met, takes only the designated part as the object of protection. For this reason, access must be examined as divided among the conditions under which it opens, the conditions under which it is blocked, and the undetermined cases that cannot be confirmed, and each case is distinguished by the different access requirements for hearings, written judgments, and litigation records, and by the scope of statutory restrictions. Cases of access outside the range of statutory restrictions fall under the conditions that open, and cases where the relevant secret is protected or harm is protected or a statutory ground for exclusion is recognized and access to the designated part is restricted fall under the conditions that are blocked.
The strongest counterargument is aimed at the point that blocking information may restrict the right of defense, and further that repeated partial restrictions may cause the principle of openness to collapse in practice. From the standpoint of needing to grasp the flow of the record in order to defend, the inconvenience that necessary checks may be delayed when access to the designated part is blocked is not erased. The language of Article 163 paragraph (2) of the Civil Procedure Act makes clear that third parties whose receipt of disclosure is barred include the parties (Article 163 of the Civil Procedure Act), and if the ground for protection is confirmed as protection against harm to life and body, the question whether the parties are included and the range of access must be determined differently. While recognizing the loss pointed out by the counterargument, an expansive interpretation excluding the inclusion of the parties is not contained in this statutory language.
Returning to the synthetic scene, Defendant B is asserting a risk arising from disclosure of an address, and Plaintiff A is demanding the production of the entire record on the ground of a public trial. On these facts alone, the substantiation of a concern of harm, the application, the court's decision, and the scope of the protected designated part are all unconfirmed. Accordingly, whether the defendant's assertion becomes the basis for restricting access to which part, whether that restriction corresponds to a concern of harm to life or body, or whether it falls under some other secret or a statutory ground for exclusion, cannot be determined in this scene. The target documents, and the basis and scope of the restriction decision, remain undetermined, and the success or failure and the actual result of performance likewise cannot be judged in this scene.
What this section permits is to confirm the requirements and object of protective measures against harm, and the framework of restricting access to third parties including the parties, and thereby to distinguish the conditions under which access opens, the conditions under which it is blocked, and the undetermined cases. What it does not permit is a generalization that all restrictions on inspection do not reach the parties, or a narrative that converts the unconfirmed scope of restriction decisions into the results of actual payment, delivery, or recovery. A state of insufficient materials is undetermined and does not immediately mean that relief is impossible.
4.12Conclusion Carried Over to the Next Section
The question now remaining is the path not covered by the preceding section, that is, the point where defense and safety collide directly. What is at issue in this scene is not whether the information in question should be classified as a secret, but by what route that information endangers whose life or body.
Article 163 paragraph (2) of the Civil Procedure Act sets out side by side the requirement of substantiation and the measures the court may take. Where there is a substantiation of a concern of harm to the life or body of a person involved in the litigation, the court may, upon application of that person, take protective measures by decision in advance of the inspection, copying, and service of the litigation record; the object of those measures is the part designated by the person involved in the litigation among the personal information prescribed by Supreme Court Rules, and the persons whose receipt of disclosure is barred are third parties including the parties (Article 163 of the Civil Procedure Act). In this statutory language, the actor is the person involved in the litigation who makes the substantiation, the act is the protective measure with respect to the designated part, and the conditions are the substantiation of a concern of harm to life or body and the application.
The point that the language of this paragraph fixes that third parties include the parties is the core of this question. Whereas the secrecy restrictions of the preceding section were determined in accordance with the requirements for application and the designated part, protective measures against harm have reached the stage of prescribing even the manner of protection in units of designated parts. The statute takes only designated personal information as the object of protection and prevents that part from being disclosed at the stages of inspection, copying, and service of the litigation record. Only if these two stages are not mixed do the determination of parts recorded as secrets and the determination of protective measures against harm operate under different requirements.
The counterargument that blocking information may restrict the right of defense aims at concrete loss. If Defendant B designates an address and receives protective measures, Plaintiff A cannot attack and rebut on the basis of that address, and defense preparation through inspection of the litigation record is narrowed. The counterargument goes on that repeated partial restrictions may cause the principle of openness to collapse in practice. Even so, the conclusion is maintained. Since the statute writes that third parties include the parties, one cannot generalize that all restrictions on inspection do not apply to the parties.
Only two facts are confirmed in the synthetic scene. Plaintiff A demands the production of the entire record on the ground of a public trial, and Defendant B asserts a risk arising from disclosure of an address. Fitted to the preceding conditions, protective measures against harm are a matter to be determined with respect to the designated part of the record containing personal information where the substantiation and the application are in place. Since the content of the substantiation in the actual case, the scope of the application, and the court's decision are not in the scene, they remain undetermined. By contrast, if the conditions are changed so that the matter becomes protection against harm to life and body, the parties may also be included, and therefore the matter is not handled with the same range of access as the protection of secrets.
Accordingly, the conclusion permitted by this section is clear. Protective measures for personal information based on a concern of harm to life or body may restrict disclosure to third parties including the parties, and protective measures against harm mean the protection of designated personal information in response to dangers to life or body. Distinguished from this, whether the entire record must be disclosed, and which range is opened depending on the type of written judgment, is not determined by this section.