Summary
Challenge is a separate path that examines whether there are circumstances making a fair trial difficult to expect.
2.1The Standard by Which the Path Opens
That a risk lies outside the list must not be taken to close the question of fairness. Exclusion is determined according to the legal relationship and the grounds for involvement, and is distinguished from a mere expectation of the outcome. When circumstances that do not fall within the statutory grounds for exclusion remain, in what procedure is the remaining risk to be addressed? Plaintiff A wishes to seek recusal on the ground that the presiding judge's questions are unfavorable, but has presented no separate materials showing an interest. In this scene, the question of this section is whether a judge is excluded merely because the questions were felt to be unfavorable, or whether the conditions required by a separate channel must be separately satisfied. Taking up the distinction drawn in the preceding section, the analysis now turns to the standard for the entrance at which that channel opens.
The provision corresponding to this question sets out the requirements for a motion for recusal directly. Article 43(1) of the Civil Procedure Act provides: "A party may move for recusal when there are circumstances in which a fair trial cannot be expected of the judge." This provision specifies the applicant as a party, the act as a motion for recusal, and the condition as circumstances in which a fair trial cannot be expected. Recusal is therefore a separate channel for ascertaining whether there are circumstances in which a fair trial cannot be expected, and it is structured so that one first examines whether such circumstances fall within the condition stated in the text.
Unpacking the condition indicated by this basis, recusal means an application for exclusion based on circumstances in which a fair trial cannot be expected. This definition stands in parallel with the list of statutory grounds for exclusion, and occupies the place that receives the problem of fairness remaining when the grounds for involvement within the list are not confirmed. There is a separate reason why the two concepts must be distinguished. If exclusion is a matter determined according to the legal relationship and the grounds for involvement, recusal is a matter of asking whether circumstances outside that list undermine the expectation of a fair trial. Where statutory grounds for exclusion or lawful grounds for challenge are recognized by concrete materials, the entrance to this remedy opens.
The counterargument most strongly raised is directed at the point that subjective distrust may lead to abuse of applications. If an unfavorable impression of questions is permitted to be advanced as a ground, applications refusing to submit to the hearing would increase, and the feared loss is that the presiding judge's discretion and schedule may be disturbed. If clear evidence of bias is demanded, the converse inconvenience also remains that conflicts of interest difficult to ascertain from outside cannot be controlled. Even so, the absence of grounds for exclusion cannot be converted into the absence of grounds for challenge. Since the circumstance that no ground exists in the list does not lead to the absence of circumstances in which a fair trial cannot be expected, the concern about abuse is left as a matter of addressing abuse of applications and is not made a ground for closing the channel of recusal itself.
Returning to the synthetic scene and comparing only the facts belonging to this question, Plaintiff A received the impression that the questions were unfavorable and wishes to seek recusal, but has presented no separate materials showing an interest. Whether, on these facts alone, the circumstances in which a fair trial cannot be expected are recognized as concrete materials, or whether the account remains merely a description of an impression, cannot be determined from the scene alone. Nothing is confirmed among the materials showing the ground, the time of becoming aware, statements on the merits, the motion for recusal, and the records of the trial; nor does this scene contain whether the relief sought, the parties, and the conditions have been specified in the statement of claim. Where statutory grounds for disqualification are confirmed, only the check that changes the condition—namely, that participation is not permitted merely because the outcome appears fair—has been determined; from the scene alone, all of the above facts remain undetermined.
What this section permits is the judgment that where statutory grounds for exclusion or lawful grounds for challenge are recognized by concrete materials, the channel for excluding the judge in the face of a fairness risk opens. Conversely, to regard the channel as crossed merely on the basis of circumstances outside the list, or an unfavorable impression raised without materials, is a conclusion this section does not permit, and a reading that converts the absence of grounds for disqualification into the absence of grounds for challenge is likewise not permitted.
2.2The Conditions That Block Relief
On the premise that exclusion is determined according to the legal relationship and the grounds for involvement, and is distinguished from a mere expectation of the outcome, the existence of a risk outside the list must not close the question of fairness. Where are circumstances outside the list of exclusion grounds addressed? And what conditions close the channel of relief? Recusal is a separate channel for ascertaining whether there are circumstances in which a fair trial cannot be expected.
The provision corresponding to this question is paragraph (1) of Article 43 of the Civil Procedure Act, which provides: "Where there are circumstances in which a fair trial cannot be expected of the judge, a motion for recusal may be filed." Here recusal means an application for exclusion based on circumstances in which a fair trial cannot be expected. The provision thus leaves open a separate channel for addressing circumstances that do not appear in the list of exclusion grounds but may impair the fairness of the trial.
Connecting that text with the conclusion of this section, the existence of grounds for challenge is determined in two stages. First, it is examined whether concrete circumstances that would impair fairness have been revealed in materials. Second, it is examined whether the case falls within the statutory limitation where, knowing of that ground, one stated on the merits. If either fails to satisfy the statutory requirements, the channel of relief closes. Since the absence of grounds for disqualification alone cannot immediately yield the absence of grounds for challenge, not mixing the two determinations is the established distinction.
The strongest counterargument starts from the point that subjective distrust may lead to abuse of applications. Requiring clear evidence of bias also aims at the loss that conflicts of interest difficult to reveal from outside cannot be controlled. Even acknowledging that disadvantage, the conclusion holds. The absence of grounds for disqualification cannot be converted into the absence of grounds for challenge, and where concrete circumstances that would impair fairness are not recognized, or where the case falls within the statutory limitation, relief is barred.
On these circumstances alone it is taken that no concrete materials impairing fairness have been confirmed. Only the kinds of materials to be accumulated for judgment—materials showing the ground, the time of becoming aware, statements on the merits, the motion for recusal, and the records of the trial—have been determined; it is not the case that actual records have been secured or that the time of becoming aware has been specified. If statutory grounds for disqualification are confirmed, participation is not permitted merely because the outcome appears fair, so comparison is possible within this scope.
Accordingly, the conclusion this section permits goes no further than the judgment that where the case falls within the statutory limitation, or concrete circumstances that would impair fairness are not recognized, the channel of relief closes if those requirements are not satisfied. A subjective impression of bias alone does not satisfy the condition of the text, and even where materials showing the ground remain insufficient, one does not immediately conclude that no relief is available. Conversely, it is not permitted to hold that grounds for challenge are likewise absent merely because grounds for disqualification are absent.
2.3The Boundary That Remains When There Is No Data
Up to the preceding step, the reasoning led to the conclusion that exclusion is determined according to the legal relationship and the grounds for involvement, and is distinguished from a mere expectation of the outcome. What must next be confirmed is the boundary that cannot be determined for want of materials. How to leave matters for which the materials of determination are unspecified stands at the center of the question.
Article 43 of the Civil Procedure Act provides: "① A party may move for recusal when there are circumstances in which a fair trial cannot be expected of the judge." This provision frames the situation in which a party may file a motion for recusal, taking the judge as the object and the existence of circumstances in which a fair trial cannot be expected as the condition.
Circumstances not falling within the list of statutory grounds for disqualification may also be addressed through this channel. However, if the materials necessary to determine the existence of a ground have not been supplied, the adjudication does not proceed to another stage. Where the time of becoming aware of the ground, or the relationship in question, is not confirmed, matters for which the materials of determination are unspecified are not treated as unavailable for relief but remain undetermined. The moment this is regarded as equivalent to a confirmed nonexistence, an insufficiency of materials is transformed into a final judgment.
The counterargument that subjective distrust may lead to abuse of applications targets substantive loss. If a party repeats applications on nothing more than an unfavorable impression, the trial is delayed and a burden remains for the judge as well. The observation that demanding clear evidence of bias leaves conflicts of interest difficult to ascertain from outside uncontrolled is in the same vein. To the extent that reasons for which no conflict of interest has surfaced remain an unease outside the list, that unease is not folded into a confirmed conclusion before materials that would dispel it come in.
In this scene, among the materials showing the ground, the time of becoming aware, statements on the merits, the motion for recusal, and the trial, the materials showing the ground and the time of becoming aware remain unfilled. One cannot assert as confirmed that an interest exists from the attitude of the questions alone, nor conversely determine that no interest exists. If statutory grounds for disqualification are confirmed, participation is not permitted merely because the outcome appears fair. Matters that cannot be adjudicated on this scene alone remain undetermined, requiring supplementation of the materials of determination.
What is permitted in this section is the distinction of not converting an insufficiency of materials into a confirmed nonexistence; what is not permitted is an adjudication that simply fixes the absence of a ground. Nor is a treatment permitted that reduces the scope of the undetermined and converts it into a confirmed conclusion on grounds of substantive loss.
2.4The Records Needed for Determination
After accepting that distinction, the question remains where circumstances outside the list of exclusion grounds are addressed. Moreover, unless one asks at the same time "Which records are needed?" in order to make that judgment, one fixes only the place for addressing circumstances outside the list and misses what is to be taken as the basis there. This question asks for the place within the procedure for excluding a judge where fairness risk is addressed; it does not create new requirements for exclusion.
The original text corresponding to this question is paragraph (1) of Article 43 of the Civil Procedure Act. Its text is as follows: "① A party may move for recusal when there are circumstances in which a fair trial cannot be expected of the judge." (Article 43 of the Civil Procedure Act) The subject indicated by this text is a party, the act is a motion for recusal, and the condition is when there are circumstances in which a fair trial cannot be expected of the judge. Other paragraphs of the provision, or other issues, do not enter into the explanation of this place. The text is read as opening a channel whereby one may apply; the text itself does not fix the recognition of a ground.
The stage is adjudicated solely on the materials recorded in the materials showing the ground, the time of becoming aware, statements on the merits, the motion for recusal, and the trial. Stage adjudication is conducted only on the established records, and missing records are not filled by inference. Here, the materials showing the ground means materials supporting circumstances in which a fair trial cannot be expected; the time of becoming aware means the time at which the party came to know that ground; statements on the merits means statements on the merits made after that awareness; and the motion for recusal and the trial means the record items referring to that application and the trial concerning it. The reason these items must be viewed together is that when fairness risk is adjudicated as a single stage of judge exclusion, the circumstances of that risk and its procedural history cannot be viewed separately. Accordingly, the judgment as to the existence of a ground and the judgment as to the existence of the records supporting that judgment must be distinguished.
Even so, there is the counterargument that subjective distrust may lead to abuse of applications. Requiring clear evidence of bias cannot control conflicts of interest difficult to ascertain from outside; conversely, accepting applications on impression alone raises the worry that applications may be abused. This worry does not erase the disadvantages of the party's anxiety and the procedural burden. This counterargument, however, is addressed within the scope of the records comprising the materials showing the ground, the time of becoming aware, statements on the merits, the motion for recusal, and the trial; it is not that a ground is determined to be absent because the records are insufficient. The answer is as established. The absence of grounds for disqualification cannot be converted into the absence of grounds for challenge. Recusal is a separate channel for ascertaining circumstances outside the list of exclusion grounds as circumstances in which a fair trial cannot be expected (Article 43 of the Civil Procedure Act).
Only the facts corresponding to this question in the synthetic scene are taken up here. What is confirmed in this scene is that, along with the intention to seek recusal, materials showing an interest were not separately presented; comparing this against the items of the materials showing the ground, the time of becoming aware, statements on the merits, the motion for recusal, and the trial, the materials showing the ground and the time of becoming aware are in a state not confirmed by established records. Matters the full text of the scene cannot adjudicate—for example, the actual existence of a ground, the result of the application, or the passage of time—remain undetermined. If statutory grounds for disqualification are confirmed, participation is not permitted merely because the outcome appears fair; this, however, is not a fact of this scene but an assumption.
Accordingly, the conclusion permitted at this place is that the stage is adjudicated solely on the materials recorded in the materials showing the ground, the time of becoming aware, statements on the merits, the motion for recusal, and the trial, and that missing records are not filled by inference. Conclusions not permitted are to finish by declaring that grounds for challenge are also absent because grounds for disqualification are not confirmed, or to presuppose circumstances not in the records and dismiss or accept the application in advance. The place that addresses risks outside the list is recusal, the separate channel for ascertaining circumstances in which a fair trial cannot be expected, and the materials for judgment in that channel are bound to the established records.
2.5Circumstances That Change the Decision
In the preceding analysis, it was concluded that exclusion is determined according to statutory relations and grounds for involvement and is distinguished from a mere expectation of outcome. That conclusion already confirms the distinction that a judge is not excluded merely because the outcome appears unfavorable. The remaining question now is where to handle circumstances not enumerated in the list of exclusion, in other words, concerns of fairness that cannot be organized as statutory relations. At precisely this point, what change would overturn the existing stage determination is also at issue. In this scene, dissatisfaction with the tone or content of the questions is closer to an unfavorable expectation of the outcome and is distinguished from the materials of the statutory relation of interest. This does not mean, however, that there is no place at all for risks outside the list to be addressed. This stage asks where that place should be situated, and what circumstances, once confirmed, require the existing blocking and effectiveness determinations to be discarded and the stage determination to be redone from the beginning.
The relevant source text that answers this question is Article 43(1) of the Civil Procedure Act. Its wording provides: "(1) Where there are circumstances that make it difficult to expect a fair trial from a judge, a party may file a motion for recusal" (Civil Procedure Act Article 43). The subject indicated by this wording is the party, the act is a motion for recusal, and the condition is the existence of circumstances that make it difficult to expect a fair trial from a judge. The wording does not confine the grounds to an enumeration of statutory relations, but describes them by the comprehensive standard of circumstances that make it difficult to expect a fair trial. This paragraph merely provides that a motion may be filed, however, so a motion does not itself mean recognition of the grounds. The requirements for the motion and the recognition of the grounds remain distinct.
Reading this wording together with the foregoing conclusion reveals that the place for handling circumstances outside the list is the separate channel of recusal. Recusal is the channel that examines whether there are circumstances that make it difficult to expect a fair trial, while exclusion is the channel determined according to statutory relations and grounds for involvement. If the two determinations are treated as the same, the absence of a statutory relation is immediately read as the absence of fairness. Yet the absence of statutory grounds for disqualification is not the same as the absence of grounds for challenge, so a fairness problem cannot be closed merely because it does not appear in the list. Conversely, the fact that the channel of recusal remains open does not create the requirements for exclusion. This is why the criteria of the two stages of determination are kept distinct.
The strongest counterargument targets the point that subjective distrust may lead to abuse of motions. If a party files a motion for recusal every time it feels repelled by the presiding judge's tone or manner of questioning, unnecessary delays and litigation costs will increase and the stability of trials may be shaken. An observation in the same vein is that, unless clear evidence of bias is required, conflicts of interest that are difficult to reveal externally are hard to control. Such losses and inconveniences do in fact remain. That the counterargument points out the risk of abuse, and that, on the strength of that risk, the review of circumstances outside the list is terminated altogether, are separate matters.
The facts relevant to this question in the synthetic scene are narrow. The plaintiff felt that the presiding judge's questions were unfavorable, wanted recusal, and presented no separate materials of interest. Contrasting these facts with the foregoing conditions, the unfavorable impression was not fixed as concrete materials of circumstances that make it difficult to expect a fair trial, and the materials of the statutory relation of interest were also not confirmed. The absence of materials of grounds, however, does not mean the absence of the grounds themselves, and neither the time of awareness nor the presence or absence of statements on the merits has been determined in this scene. The specified change, namely the case in which statutory grounds for disqualification are confirmed, is only a condition of the check and not a fact occurring in this scene. Accordingly, this scene alone cannot determine whether the grounds for challenge are recognized or what effect the motion for recusal has, and the related matters remain undetermined.
The conclusion permitted in this section goes no further than that circumstances outside the list are not closed off as a matter of fairness, and that recusal is the separate channel through which those circumstances are examined. Distinguished from this, the conclusion not permitted is to assert categorically that a judge is excluded merely on the basis of an impression from unfavorable questions, and to reduce the absence of statutory grounds for disqualification to the absence of grounds for challenge. The point that, once the specified change is confirmed, the existing blocking and effectiveness determinations are discarded and the determination is redone from the stage itself is a condition of the determination and not the outcome of an actual case.
2.6The Strongest Counterargument and the Answer
Where circumstances remain that fall outside the determination of statutory relations and grounds for involvement for exclusion, the question of where to address the fairness problem remains. Moreover, the concern that subjective distrust may lead to abuse of motions must also be taken into account. Confronted with this concern, this question asks whether one can say that, merely because there are no grounds for disqualification, there are no grounds for challenge either. To answer this question, one must first examine the wording of the application for exclusion of the judge, namely recusal.
Article 43(1) of the Civil Procedure Act provides that "where there are circumstances that make it difficult to expect a fair trial from a judge, a party may file a motion for recusal" (Civil Procedure Act Article 43). This wording sets the subject of the motion as a party participating in the lawsuit, the act as a motion for recusal, and the condition as circumstances that make it difficult to expect a fair trial from a judge. This definition serves only to distinguish what recusal is an application about, while at the same time showing that the provision itself does not enumerate the specific contents of grounds for challenge in a list.
If this wording is joined to the determination examined above, the determination that asks whether the matter falls under statutory grounds for exclusion and the determination that asks about the fairness circumstances for recusal are situated at different stages. If exclusion is a determination that weighs statutory relations and grounds for involvement, then closing the fairness problem over the range in which circumstances lying outside that list remain does not fit the distinction between these two determinations. Conversely, for recusal to be recognized, concrete circumstances that impair fairness must appear as materials, and if the circumstances fall within the list for exclusion, they are attributed to the determination of those statutory grounds.
Subjective distrust may lead to abuse of motions. This unease is connected to actual loss. If motions for recusal are repeated merely on the basis of the unfavorable impression received by a party, there remain for the party the cost of procedural delay, for the judge the burden of unfounded suspicion regarding fairness, and for the trial as a whole the inconvenience of a delayed final judgment. This is because such a change subordinates the very channel for examining fairness risks to the list for exclusion, closing in advance the path for addressing risks outside the list. The disadvantage of abuse pointed out by the counterargument remains as it is, but one does not proceed to a conclusion that merges the two determinations into one on the basis of that disadvantage.
The facts to be contrasted with the criteria of determination in this scene are that it is unclear whether the unfavorable feeling received by the plaintiff is materials of grounds or not, and that no separate materials of interest were presented. These two facts do not determine whether concrete circumstances that impair fairness are recognized, or conversely whether the matter is no more than a mere expectation of outcome. Nor has it been confirmed which of the items—materials of grounds, the time of awareness, statements on the merits, a motion for recusal, or the trial—appears in the records. Yet treating the very circumstance that no unconfirmed materials exist as an absence of grounds for disqualification and thereby determining the absence of grounds for challenge as well runs counter to the distinction set out above.
The conclusion permitted by this section remains within the scope that, on the basis of the mere fact that statutory grounds for exclusion are not confirmed, one cannot say that the fairness circumstances for recusal are negated as well. At the same time, that conclusion does not mean that a motion for recusal is always accepted, nor does it provide any assurance that recusal is recognized even where there are no concrete materials impairing fairness. If statutory grounds for disqualification are confirmed, the other side of this boundary is formed by the point that involvement is not permitted merely because the outcome appears fair. This question is left undetermined, with the concern over abuse of motions and the lack of materials remaining simultaneously.
2.7The Link to the Application and the Dispositive Part
In the preceding section, it was confirmed that the absence of grounds for disqualification cannot be converted directly into the absence of grounds for challenge. The question left by that determination is this: circumstances that warrant concern that it would not be fair for a particular judge to take charge of a case, even though they do not fall within the list of grounds for exclusion separately written into the law—where in the world are they addressed? This question asks whether there is only one channel for excluding a judge, or whether there are two mutually distinct routes.
The wording that answers this question is found in Article 43(1) of the Civil Procedure Act. The provision declares that "where there are circumstances that make it difficult to expect a fair trial from a judge, a party may file a motion for recusal" (Civil Procedure Act Article 43). Here, the subject designated by the statute is the party, the act is a motion for recusal, and the condition for the requirement is that there exist circumstances that make it difficult to expect a fair trial from a judge. No phrase referring to the list of grounds for exclusion appears in this paragraph.
Based on this wording, the conclusion of the present section is fixed as follows. Here, two determinations must be seen separately. One is the determination of exclusion, which asks whether the judge should properly stand aside because the matter falls under a relation or ground for involvement prescribed by law; the other is the determination of recusal, which asks whether there are circumstances that make it difficult to expect a fair trial even if the matter does not reach such statutory grounds. The mere fact that the former determination ended negatively does not mean that the latter determination is closed as well.
Nevertheless, the strongest counterargument points to clear losses and inconveniences. If the basis on which a party asserts that a judge should be recused stops at subjective distrust, experiences of receiving unfavorable questions or of suffering an unexpected adoption may lead immediately to motions, delaying the procedure and shaking the judge's authority. This concern cannot be eliminated. Still, the point that the absence of grounds for disqualification cannot be converted into the absence of grounds for challenge is maintained. This is because the mere fact that subjective distrust is expressed in the form of a motion does not mean that the threshold of the recusal determination is automatically set according to the presence or absence of that motion.
Contrasting this fact with the conditions above, the plaintiff appears to have advanced the assertion that there are circumstances that make it difficult to expect a fair trial. Yet the concrete materials supporting those circumstances are not confirmed in the scene. Therefore, this scene alone cannot determine whether grounds for challenge are recognized. The fact that materials of grounds have not been confirmed remains undetermined; it does not mean that recusal is immediately denied.
The boundary between the conclusion drawn in this section and the conclusion not drawn is summarized as follows. The fairness problem cannot be closed merely because there are circumstances outside the list, and such circumstances become the subject of determination, in the separate channel of recusal, of whether they constitute circumstances that make it difficult to expect a fair trial. However, whether the grounds for applying through that channel are supported by concrete materials, or are blocked by statutory restrictions, cannot be concluded on the basis of these materials alone.
2.8The Scope This Section Undertakes
Although it was confirmed above that exclusion is determined according to statutory relations and grounds for involvement and is distinguished from a mere expectation of outcome, that confirmation alone cannot be said to have disposed of the cases in which doubts about fairness remain. In this circumstance, the first question the court must gauge is not the impression given by the questions but whether a separate channel for excluding the judge remains open. If so, when there are doubts about the fairness of the bench, who can stop the procedure, and on what grounds?
Article 43(1) of the Civil Procedure Act provides as follows: "Where there are circumstances that make it difficult to expect a fair trial from a judge, a party may file a motion for recusal." In this wording, the subject of the motion is 'a party', the object is 'a judge', and the time is 'when there are circumstances that make it difficult to expect a fair trial'. The act that is performed is a 'motion for recusal', an application to exclude from the case the judge who would continue the trial. The court does not treat this provision as a device for recounting the grounds listed for exclusion, but handles it as a channel requesting a separate determination concerning fairness. Accordingly, even where no grounds for disqualification are found, the application opened by this wording formally remains.
The above wording places the existence or nonexistence of grounds and the possibility of application side by side, and the author joins that division across the space between basis and conclusion. This definition explains the way in which recusal accepts the residual risks that did not make it onto the statutory list for exclusion. If exclusion is a determination that fixes statutory relations and grounds for involvement in advance, recusal is a determination that examines whether there are concrete circumstances that make it difficult to expect a fair trial even where such relations have not appeared. The two stages rest on different materials of determination, so the conclusion of the earlier stage cannot be carried over wholesale as the conclusion of the later stage.
Nevertheless, before this channel lies the difficulty that subjective distrust may lead to abuse of motions. If motions are filed repeatedly merely on the feeling that an unfavorable answer was given in the lawsuit, the trial is delayed and the opposing party endures a groundless wait. If the court begins to exclude a judge on the basis of the impression given by questions alone, the determination in the name of fairness becomes, in substance, a procedure of protest. Erasing circumstances not on the list by pointing to their absence from the list is to abolish the place of application that the wording has given to a party. The court, while addressing the conditions for preventing abuse of applications, does not close the question of recusal itself—whether there are concrete circumstances that impair fairness.
This fact alone does not support the determination that there is a statutory relation between the presiding judge and the plaintiff, or that there are concrete circumstances impairing fairness. Among the records of materials of grounds, the time of awareness, statements on the merits, a motion for recusal, and the trial, what appears in this scene is only the intention to file the motion, and neither the time of learning the grounds nor the relation at issue has been confirmed. In this case, the recognition of grounds for challenge remains undetermined. Undetermined, however, is not beyond remedy. If statutory grounds for disqualification are confirmed, only the direction of the check—that involvement is not permitted merely because the outcome appears fair—is confirmed, while the facts on the opposite side are not determined in this scene.
Accordingly, the conclusion permitted by this section is narrow. Circumstances that failed to make the list for exclusion, instead of closing the fairness problem by pointing to their absence from the list, have a place where they are judged, in the separate channel of recusal, as to whether they are circumstances that make it difficult to expect a fair trial. The conclusion not permitted is equally clear. A judge is not excluded merely on the impression that the questions were unfavorable, and neither the recognition of grounds for challenge nor the effect of an application can be opened up in advance at this point.
2.9Application of the Text of the Provisions and the Holdings of Precedents
Even though the statutory relations and grounds for involvement of exclusion are set, circumstances not entered on that list remain in the discussion of the exclusion of a judge. This question is the work of moving the gap left by the preceding stage over to the next decision criterion. In this scene, one must distinguish what the adverse impression and the absence of separate material respectively signify in order to reach this question.
The wording to be applied on this occasion is found in Article 43 paragraph (1) of the Civil Procedure Act. In this wording, the party who may apply is the party, the act is a motion for recusal, and the condition is circumstances in which a fair trial cannot be expected. This paragraph is read as wording that permits an application to be made, and wording that separately fixes the requirements for an application does not fall within this scope. The reasons for the judgment or the contents of other paragraphs are not added to the interpretation of this wording.
If the wording is limited merely to opening the channel for an application, the basis for deciding the risk to fairness is also bound within the scope of that wording. Recusal means an application for exclusion on account of circumstances in which a fair trial cannot be expected, while exclusion is decided according to the statutory relations and the grounds for involvement. Why must the two decisions be distinguished? Because exclusion is a stage that examines whether specified grounds for involvement are present or absent, whereas recusal is a separate channel that examines whether there are circumstances in which a fair trial cannot be expected. Accordingly, a determination that there are no grounds for disqualification does not automatically become a determination concerning the wording of the channel for recusal.
If an application follows on nothing more than the disadvantage felt by a party, there is a loss in that the proceedings are delayed and the authority of the judge is shaken. Moreover, if clear evidence of bias is required, the inconvenience remains that conflicts of interest that are difficult to discern from the outside cannot be controlled. While not overlooking these points, the absence of grounds for disqualification cannot be turned directly into the absence of grounds for challenge. If one asserts, on the sole basis that the statutory grounds for exclusion have not been confirmed, that the wording of the channel for recusal has not been satisfied, one erases the distinction between the two stages.
The facts confirmed in the synthetic scene are that plaintiff A felt that the presiding judge's questions were adverse, and that A presented no separate material on interests. Because the material on the grounds, the time of knowledge, the statement on the merits, the motion for recusal, and the record of the trial do not fall within the confirmed scope, those items remain undetermined. Whether concrete circumstances that impair fairness are recognized also cannot be determined from this scene alone. However, if a statutory ground for disqualification is confirmed, the condition that involvement is not permitted merely because the outcome appears fair serves as the point of contrast. This contrast is merely a test that changed the decision condition, not a fact that occurred.
The conclusion permitted by this section is that only that source wording is taken as the basis for deciding the exclusion of a judge in respect of the risk to fairness, and is applied only within the scope of that wording. The conclusions not permitted are declaring that the channel for recusal is also closed on the ground that there are no grounds for disqualification, or interpreting the matter by bringing in the reasons for the judgment and other paragraphs to widen the scope of the wording.
2.10Fine Distinctions Within the Stage
Whether a judge can be excluded in this scene, and which parts must be examined separately when judging the grounds for exclusion, is the question on this occasion. A mere adverse impression cannot establish the matter; at the same time, circumstances outside the list are not excluded from consideration altogether. The matter is organized within the range in which it is made explicit under which conditions, and again under which conditions, the respective determinations diverge within the determination of exclusion.
Article 43 paragraph (1) of the Civil Procedure Act provides: "(1) A party may file a motion for recusal where there are circumstances in which a fair trial cannot be expected from the judge." (Article 43 of the Civil Procedure Act). The party designated by this wording is the party, the act is a motion for recusal, and the condition is the existence of circumstances in which a fair trial cannot be expected. Accordingly, recusal stands open as a separate channel not bound to the statutory relations and grounds for involvement of exclusion. Since the wording of Article 43 paragraph (1) itself does not fix what those circumstances are, the subjective disadvantage in the scene cannot at present be asserted to constitute grounds for challenge on the basis of this wording alone.
The conclusion that there are no statutory grounds for exclusion and the conclusion that there are likewise no fairness grounds for recusal are determined at different stages. Exclusion is the result of judging according to the statutory relations and the grounds for involvement, whereas recusal is a separate determination that examines whether there are circumstances in which a fair trial cannot be expected. Hence the detailed distinctions within the stage are defined only by the conditions of the case in which it operates, the case in which it is blocked, and the case in which it remains undetermined. The case in which it operates is where a statutory ground for exclusion or a lawful ground for challenge is recognized on concrete material; the case in which it is blocked is where the statutory restriction applies, namely that a statement on the merits was made while knowing the grounds for challenge, or where concrete circumstances that impair fairness are not recognized; and the case in which it is undetermined is where the time of learning of the grounds or the relationship at issue has not been confirmed. These three conditions merely re-sort the existing determination into three parts, and no further stage should be added to create more.
The counterargument lies in the point that subjective distrust may lead to abuse of applications. If an application is permitted on the strength of nothing more than a feeling that questions were adverse, the predictability of determinations would be shaken, and there is a concern that parties dissatisfied with an adverse outcome would abuse recusal as a means of reversing it. This concern is left intact and unerased, yet the answer does not stray beyond the defined range. A counterargument also remains to the effect that, if clear evidence of bias is required, conflicts of interest that are difficult to discern from the outside cannot be controlled; but even so, the decision criteria of the two institutions cannot be bundled together and reduced to one. The possibility of abuse is a matter to be addressed in separate application requirements or statutory restrictions, and does not serve as grounds for closing the channel for recusal itself.
In this scene, plaintiff A felt that the presiding judge's questions were adverse and wishes to seek recusal, but presented no separate material on interests. On this fact alone, it cannot be established at present which condition applies. The case in which it operates is where a statutory ground for exclusion or a lawful ground for challenge is recognized on concrete material, but no such material was presented in the scene. Whether concrete circumstances that impair fairness are not recognized is a matter to be judged by the material on the grounds, the time of knowledge, the statement on the merits, the motion for recusal, and the record of the trial. Accordingly, the present state, where the time of learning of the grounds or the relationship at issue has not been confirmed, remains the case in which the matter is undetermined. Conversely, if a statutory ground for disqualification is confirmed, involvement is not permitted merely because the outcome appears fair.
The conclusion permitted in this section extends only so far as confirming that circumstances outside the list of exclusion do not serve as grounds for closing the question of fairness, and that recusal is a separate channel that examines circumstances in which a fair trial cannot be expected. The setting of the conditions for the case in which it operates, the case in which it is blocked, and the case in which it is undetermined is intended to confine the distinctions within the stage to the conditions made explicit, and does not create new decision stages beyond that. Conversely, what is not permitted is asserting that grounds for challenge themselves do not exist merely because the material on the grounds has not yet been confirmed, or a determination that connects the absence of grounds for disqualification directly to the absence of grounds for challenge. Here the time, relationship, and material that cannot be confirmed are left undetermined, but that itself does not mean that no relief is available.
2.11Synthesis of Effectiveness, Blockage, and Undetermination
The remaining circumstances not classified as grounds for exclusion are examined in a separate place. Yet where is that separate place? Can the discussion of exclusion be blocked from the outset by the mere circumstance that an element capable of impairing fairness is not written in the statutory list? This question begins with distinguishing the conditions that open the channel for the exclusion of a judge from those that close it.
That separate place is recusal. Article 43 of the Civil Procedure Act provides: "(1) A party may file a motion for recusal where there are circumstances in which a fair trial cannot be expected from the judge." The party designated by this wording is the party, the act is a motion for recusal, and the condition is the existence of circumstances in which a fair trial cannot be expected. Since the wording fixes only whether an application is possible, whether the grounds actually invoked are recognized is determined outside the wording of this paragraph.
This condition and the statutory relations and grounds for involvement of exclusion distinguished in the preceding section form layers that do not overlap. Exclusion is a method that prescribes by statute the grounds attached to the relation between the judge and the case, whereas recusal is a method that accepts as material even anxieties extending beyond the list of grounds. Accordingly, the opening condition is defined as the case in which a statutory ground for exclusion or a lawful ground for challenge is recognized on concrete material. The blocking condition is separately set as the case falling under the statutory restriction where a statement on the merits was made while knowing the grounds for challenge, or the case in which concrete circumstances that impair fairness are not recognized. The undetermined case remains where the time of learning of the grounds or the relationship at issue has not been confirmed. These three stages are different determinations and cannot be merged into one.
The strongest counterargument is aimed at the point that subjective distrust may lead to abuse of applications. If clear evidence of bias is required, the reproach also operates that conflicts of interest that are difficult to discern from the outside cannot be controlled. If the opportunity to apply is broadened, indiscriminate applications delay the procedure; if applications are strictly separated, undisclosed interests remain as they are. While acknowledging this loss and inconvenience, the absence of grounds for disqualification cannot be turned directly into the absence of grounds for challenge. This is because no grounds arise for asserting that there is no risk to fairness on the sole basis that the matter does not fall within the list of exclusion. The two-sided inconvenience of the counterargument is left intact, and the two channels are kept separate.
What is confirmed in this scene is only the adverse feeling and the fact that an intention to seek recusal was expressed. The absence of separate material on interests is connected to the question whether the case falls under that in which concrete circumstances that impair fairness are not recognized. However, whether the case falls under that where the time of learning of the grounds, or the relationship at issue, has not been confirmed, cannot be determined from this scene alone. As the record of determination, the material on the grounds, the time of knowledge, the statement on the merits, the motion for recusal, and the trial are examined. The time of knowledge and whether a statement on the merits was made, which are absent from this scene, are left undetermined.
The conclusion permitted by this section is confined to the range that circumstances outside the list of exclusion are also examined through the separate channel of recusal, and that if concrete material is recognized, the door to the exclusion of a judge opens. Conversely, there is no guarantee that an application is not abusive merely because of subjective disadvantage, and if concrete circumstances are not recognized, the door to exclusion remains closed. Unconfirmed grounds and relationships are left undetermined, and if a statutory ground for disqualification is confirmed, involvement is not permitted merely because the outcome appears fair.
2.12Conclusion Carried Over to the Next Section
In the preceding stage, it was seen that exclusion is judged according to the statutory relations and the grounds for involvement. Now, together with the question of where circumstances outside the list of exclusion are handled, what remains is what is carried over to the next section.
As the wording that answers this question, Article 43 of the Civil Procedure Act provides that "where there are circumstances in which a fair trial cannot be expected from the judge, a motion for recusal may be filed" (Article 43 of the Civil Procedure Act, Article 43 paragraph (1)). Here the party prescribed is the party, the act is a motion for recusal, and the condition is the existence or non-existence of circumstances in which a fair trial cannot be expected. These circumstances may be examined separately even if they do not appear on the list of statutory grounds for exclusion.
This wording connects to the conclusion of the preceding section. If exclusion is the stage judged according to the statutory relations and the grounds for involvement, then recusal is the separate channel that examines whether there are circumstances in which a fair trial cannot be expected. The criteria of the two stages differ, so the absence of one cannot be converted directly into the absence of the other, and this distinction leaves a place open for circumstances outside the list.
Yet the point most strongly targeted by the counterargument that subjective distrust may lead to abuse of applications is the loss that, if a judge is excluded merely on an adverse feeling, the lawsuit may be delayed and the stability of adjudication shaken. While leaving in place the disadvantage of the abuse pointed out by the counterargument, the existence of the separate channel itself is not erased as an absence outside the list.
The facts confirmed in the synthetic scene are that plaintiff A felt the questions were adverse and wishes to seek recusal, and that A presented no separate material on interests. On this fact alone, one cannot determine what among the material on the grounds, the time of knowledge, the statement on the merits, the motion for recusal, and the record of the trial has been established. If a statutory ground for disqualification is confirmed, involvement is not permitted merely because the outcome appears fair; accordingly, matters not established from the scene alone remain undetermined.
Therefore, the conclusion permitted by this section is only the determination that circumstances outside the list of exclusion may be dealt with separately as a question of fairness, and it does not extend to the conclusion that plaintiff A's application is recognized on actual grounds. Is the case different where a statement on the merits was made while knowing the grounds for challenge?