Summary
An omission in the ruling on costs is supplemented ex officio or upon motion, while observing the rule on effect that applies where a lawful appeal has been filed.
4.1The Standard by Which the Path Opens
Even when the outcome on the merits is stated, a procedure for fixing costs may remain. This problem is called an omission of a judgment on litigation costs, and taking up the conclusion from the previous section—that the omitted portion of the claim is adjudicated by the original court continuing its trial—this section opens its question. It takes the conclusion of the previous section in that one sentence alone and does not reproduce it; here it addresses whether the judgment on litigation costs is likewise supplemented separately, and under what conditions that remedy operates. This question proceeds to the problem of where to place the omission of a cost judgment as between the roles that correction and supplementary adjudication each take on separately. The remedy operates where an obvious clerical error is handled by correction and a claim omitted from adjudication is handled by continued trial, respectively.
For this question, the relevant wording is found in Article 212 of the Civil Procedure Act. Paragraph (2) thereof provides: "Where the judgment on litigation costs has been omitted, the court shall, ex officio or upon a party's application, render a judgment on such litigation costs," and it then applies the provisions of Article 114 mutatis mutandis. The actor designated by this wording is the court, the act is the supplementation of the omitted judgment on litigation costs, and the condition is that the preceding judgment on litigation costs has been omitted. Here a cost judgment means a judgment on the bearing of litigation costs, and thus it is a determination distinct in its object from the dispositive part fixing the outcome on the merits. Paragraph (3) of the same Article separately provides for the effect attendant on such supplementation; the distinction the author applies is addressed in the steps below.
This wording opens two routes for supplementing an omission of a cost judgment. One is the court acting ex officio, the other is opened by a party's application, and in either case the object is limited to the omitted judgment on litigation costs. The criterion for deciding whether this route is open depends on what one seeks to correct. Where the matter in dispute is not a clerical error but a change of determination on the substance and therefore does not fall within the statutory scope of correction, this route does not satisfy its object. This is also why the two conditions—an obvious clerical error handled by correction, and a claim omitted from adjudication handled by continued trial—are kept separate. An obvious clerical error and an omitted adjudication lie at different loci of error, so the remedy operates when each route takes on the error proper to it.
The strongest counterargument targets the point that litigating the cost question separately delays finality. The outcome on the merits is already written in the dispositive part; if, for costs alone, one more application and adjudication is required, that dispute ends later. This inconvenience is not small. A criticism is also raised in the same place: where an obviously unjust conclusion can be set right by a small correction, requiring a separate challenge is wasteful. Even so, one cannot write that the supplementary cost judgment remains intact even against a lawful appeal. Supplementation for the omission of a judgment on litigation costs is the route provided in paragraph (2), but the cost judgment thereby supplied falls under the effect rule set out in paragraph (3). To write that the supplementary cost judgment remains intact even against a lawful appeal goes beyond the conditions of this remedy.
In the synthetic scenario, the certified copy of the judgment received by plaintiff A contains a misstatement in the party designation, and part of a separate claim does not appear in the dispositive part. Confronting these facts with the conditions of this section, one must first determine whether the misstatement in the party designation falls under a defect in expression, and whether the part of the separate claim missing from the dispositive part is an omission of adjudication itself. The scope of the confirmed record—the original judgment, the claim and its relief, the correction application, the omitted dispositive part, and the course of the appeal—are kinds of materials for making that distinction, and this scenario alone does not fix the answer either way. Where it is not confirmed whether the error is one of expression or one of determination, it remains undetermined. However, if it is confirmed to be an omission of adjudication on the claim itself rather than an omission of determination, it is classified as falling within the route of supplementary adjudication.
The range in which this remedy operates is narrow in this way. A route opens for supplementing, ex officio or on application, an omission of a judgment on litigation costs, and the remedy operates only where its object meshes with the place where adjudication is missing rather than with a clerical error. Conversely, if one fails to distinguish an obvious clerical error from a change of determination on the substance, or if one takes the supplementary cost judgment to remain intact even against a lawful appeal, the conditions of this remedy are not satisfied. Matters whose character cannot be determined from the record of the scenario alone remain undetermined, and that deficiency does not itself mean that no remedy is available. Other questions taken up by the same section and the determinations of other sections are not addressed at this point.
4.2The Conditions That Block Relief
A cost judgment means a judgment on the bearing of litigation costs, and the handling of the case where that judgment is omitted from the written judgment has already been addressed above. Here the question is asked by distinguishing the conditions under which the supplementation procedure is open from those under which it is closed. The previous section assumed that the original court continues to adjudicate the omitted portion of the claim, but whether that assumption carries over unchanged into the domain of costs must be confirmed separately.
The question of separately supplementing a judgment on litigation costs is answered directly by Article 212 of the Civil Procedure Act. Article 212(2) provides that "where the judgment on litigation costs has been omitted, the court shall, ex officio or upon a party's application," render that judgment. The actor designated by this wording is the court that pronounced the judgment, the act is the supplementation of the omitted cost judgment, and the condition is that no judgment existed in the first place. Its starting point differs from that of a correction, which fixes minor clerical mistakes in expression.
Linking these conditions to the author's conclusion reveals the criterion of decision. It was set out earlier that correction is limited to fixing an obvious clerical error; if the matter now in dispute constitutes a change of determination on the substance, it does not fall within the statutory scope of correction. Even in such a case, if the statutory requirements are met, the omission of a cost judgment may be supplemented ex officio or on application, but if even one of the statutory requirements is not met, that remedy route is closed. The correction of a clerical error and the supplementation of an omission of determination are distinct routes, so which one applies must be determined first.
The strongest counterargument targets the losses caused by delay. Litigating the cost question separately puts off the point at which the dispute ends, and requiring a separate challenge when an obviously unjust conclusion can already be set right by a small correction is wasteful. This inconvenience and cost are not denied. Article 212(3) provides that "where there is a lawful appeal against the judgment on the merits," it loses its effect, and in that case the court of appeals adjudicates the total costs of the lawsuit. That effect rule takes precedence over the inconvenience of delay.
Extracting only the facts of the synthetic scenario relevant to this question: the certified copy of the judgment received by plaintiff A contains a misstatement in the party designation, and part of a separate claim does not appear in the dispositive part. Whether that misstatement is one of expression or one of determination has not been confirmed, and whether a cost judgment was omitted is also not settled on the record. The original judgment, the claim and its relief, the correction application, the omitted dispositive part, and the course of the appeal must be examined. Since both the character of the error and the presence or absence of an appeal are undetermined, this scenario alone cannot establish that the route is open or closed.
The conclusion this section permits is the determination that, where the matter in dispute is not a clerical error but a change of determination on the substance and therefore does not fall within the statutory scope of correction, the remedy route is closed if even one of the statutory requirements is not met. Beyond this, it is not permitted to assert anything as to actual recovery results or the outcome of the case.
4.3The Boundary That Remains When There Is No Data
In this scenario, whether the judgment on costs is also missing, and whether the missing judgment can be supplemented separately, remain the questions. Given that the omitted portion of the claim is to be adjudicated by the original court continuing its trial, the issue at this point is whether, where a judgment on litigation costs is missing, a separate procedure is likewise established to supplement it. Here a cost judgment means a judgment on the bearing of litigation costs.
As to this question, Article 212(2) of the Civil Procedure Act provides: "Where the judgment on litigation costs has been omitted, the court shall, ex officio or upon a party's application, render a judgment on such litigation costs" (Article 212 of the Civil Procedure Act). Premised on the case where the judgment on litigation costs has been omitted, this wording opens together the two routes of the court acting ex officio and a party applying. That is, an omission of a cost judgment is read as meaning that, quite apart from the judgment on the merits becoming final and conclusive, the court that handled that judgment may supplement it by separately rendering a judgment on the bearing of litigation costs. The provision adds in the same paragraph that the provisions of Article 114 apply mutatis mutandis, but the scope corresponding to this section is limited to this wording of Article 212(2).
While providing the two routes of ex officio action and application, the same provision does not treat the supplementation of an omission of a cost judgment as the same thing as a correction of the determination on the merits. The continued trial of the omitted portion of the claim, previously designated for supplementation, is a procedure that props up the part where adjudication itself is missing; the supplementation of an omission of a cost judgment spoken of here is a procedure that adds a judgment on the bearing of litigation costs separate from the judgment on the merits already rendered. Both deal with an "omission," but the procedure diverges according to whether its object is the claim or the litigation costs. Premised on the author's definition of a cost judgment as a judgment on the bearing of litigation costs, this distinction also meets the criterion for telling the character of an error. Where it is not confirmed whether the error is one of expression or one of determination—that is, where the matter is one for which the materials of determination have not been specified—it is left undetermined, distinct from the case where determination is impossible.
The counterargument targets the inconvenience of delay. Because litigating the cost question separately puts off finality, criticism follows that requiring a separate challenge procedure when one small correction would end the matter is wasteful. It is a question of whether it is right to require a separate challenge where an obviously unjust conclusion could be set right by a small correction. Article 212(3) of the Civil Procedure Act provides that "where there is a lawful appeal against the judgment on the merits, it loses its effect" (Article 212 of the Civil Procedure Act), making clear that the supplementation of a cost judgment does not remain valid as such within the appellate procedure. The inconvenience of delayed finality remains, but on the strength of that inconvenience one cannot assert that the effect of the supplementary judgment is maintained even on appeal.
The facts of this scenario alone make it difficult to narrow the remaining boundary further. Whether the error appearing on the certified copy of the judgment is a defect in the party designation or a defect in determination is not confirmed in this scenario. The original judgment, the claim and its relief, the correction application, the omitted dispositive part, and the course of the appeal are set as the materials of determination, but no claim has yet been made that the character of the error has been fixed from these materials. Where it is not confirmed whether the error is one of expression or one of determination—that is, where the matter is one for which the materials of determination have not been specified—it is left undetermined, distinct from an impossible determination.
Accordingly, the boundary of the conclusion this section permits is summarized as follows. Where the judgment on litigation costs has been omitted, it may be supplemented ex officio or on application, and where there is a lawful appeal against the judgment on the merits, it loses its effect. Within this frame, one cannot write that the supplementary cost judgment remains intact even against a lawful appeal. Conversely, this section does not permit fixing as impossible as well those matters for which the materials of determination remain unspecified while the character of the error is unconfirmed. Leaving them undetermined, it draws only the distinction that if it is a clerical error it goes the route of correction, and if it is a change of determination on the substance it does not fall within the statutory scope of correction.
4.4The Records Needed for Determination
Litigation costs become an object of determination separate from the merits, as an assessment of the bearing of litigation costs. Although the certified copy of the judgment received by plaintiff A contains a misstatement in the party designation and part of a separate claim did not appear in the dispositive part, this scenario alone does not reveal whether the judgment on costs is missing. The omitted portion of the claim is adjudicated by the original court continuing its trial. Then, if the judgment on the merits also omits the determination that fixes costs, can that too be supplemented separately in the same way?
Article 212 of the Civil Procedure Act provides: "Where the judgment on litigation costs has been omitted, the court shall, ex officio or upon a party's application, render a judgment on such litigation costs" (Article 212 of the Civil Procedure Act). In this wording, the court is the body that supplements the case where a cost judgment has been omitted, and the methods are ex officio action and a party's application. Here a cost judgment means a judgment on the bearing of litigation costs, and the object of supplementation is not the determination on the merits but the omission of the determination on costs. The same provision adds that in this case the provisions of Article 114 apply mutatis mutandis (Article 212 of the Civil Procedure Act).
Therefore, if a cost judgment is missing, one need not devise a new method; the court that handled the same matter supplements that part, whether ex officio or upon a party's application. The effect after this supplementation is a separate question, however. Article 212(3) of the Civil Procedure Act provides that "a judgment on litigation costs rendered under paragraph (2) loses its effect where there is a lawful appeal against the judgment on the merits," and in that case the court of appeals adjudicates the total costs of the lawsuit (Article 212 of the Civil Procedure Act). This is why the stage of supplementing costs and the question of when the supplemented determination remains alive must be viewed separately.
If the cost question is handled separately, for a party the point at which the dispute ends is put off, and a burden arises of having to go through the procedure again for costs alone in a merits case already won. The observation that requiring a separate challenge where an obviously unjust conclusion can be set right by a small correction is wasteful is in the same vein. Yet one cannot write that the supplementary cost judgment remains intact even against a lawful appeal. The provision states that where there is a lawful appeal it loses its effect, and in that case the total costs are determined by the court of appeals. In plaintiff A's scenario, neither the omission of the cost determination nor the presence of an appeal is recorded, so both remain undetermined.
The materials used to select the stage of determination are fixed. They are limited to the materials recorded in the original judgment and the claim and its relief, the correction application, the omitted dispositive part, and the course of the appeal. The stage of determination is assessed on these records alone, and gaps in the record are not filled by conjecture. If it is not confirmed whether the error is one of expression or one of determination, no conclusion is asserted and it is left undetermined.
The mere fact that the judgment on the bearing of litigation costs is missing must not lead one to move to the procedure for correcting the determination on the merits, nor must one assert that the supplementary cost judgment remains alive even after a lawful appeal has already been taken. Determining which record corresponds to which stage is judged against the fixed list, and facts not on the list are not filled in. How does the corrected content remain in the written judgment?
4.5Circumstances That Change the Decision
Even where the judgment is rendered on the claim on the merits, the determination of which party shall bear the costs of the lawsuit remains as a separate task. The preceding stage confirmed that the omitted portion of the claim continues to be tried by the original court, but, separately from that, there now stands the question of how to supplement the omission of the cost judgment. In particular, the present question asks not only about the method of supplementation but also about which changes would require reversing the stage determination made earlier.
On the question whether the determination on litigation costs is also to be supplemented separately, Article 212 (2) of the Civil Procedure Act provides: "Where the judgment on litigation costs has been omitted, the court shall, ex officio or upon a party's application, render a judgment on those litigation costs" (Article 212 of the Civil Procedure Act). The subject indicated by this text is the court, the act is to render anew the judgment on the omitted litigation costs, and the condition for its invocation is that either ex officio or upon a party's application is permissible. The cost judgment spoken of here means the judgment on the bearing of litigation costs, and is not a fresh treatment of whether the claim on the merits is granted or dismissed.
Linking the basis of this provision with the conclusion of this section, the omission of the cost judgment is to be supplemented ex officio or upon application, while observing the rule on effect where there is a lawful appeal (Article 212 of the Civil Procedure Act). Article 212 (3) of the Civil Procedure Act provides that a judgment on litigation costs under paragraph (2) loses its effect where there is a lawful appeal against the judgment on the merits (Article 212 of the Civil Procedure Act). Accordingly, the reason for distinguishing the two stages is clear. Whether the cost determination was overlooked is a determination that opens the channel of supplementation, and whether that supplementary judgment survives a lawful appeal is a separate determination of effect. One does not substitute for the other.
The counterargument that disputing the cost issue separately delays finality is directed at practical inconvenience. The criticism is also raised that, where an obviously unjust conclusion can be corrected by a small amendment, requiring a separate challenge is wasteful. Article 212 (3) of the Civil Procedure Act causes it to lose effect where there is a lawful appeal (Article 212 of the Civil Procedure Act); thus, to say that the supplementary judgment is unconditionally maintained even at the cost of bearing the disadvantage of delayed finality conflicts with the rule of effect prescribed by the statutory text.
Among these, the erroneous designation of a party falls under an obvious clerical error and can be handled through the channel of correction, whereas the portion of the claim omitted from the operative part has not been determined whether it is an omission of adjudication or a mere omission of clerical designation. Therefore, so long as it is not confirmed whether the error is one of clerical designation or one of determination, no channel can be fixed on the basis of this scene alone.
The conclusion this section permits is that the omission of a cost judgment may be supplemented ex officio or upon application, and that such supplementary judgment observes at the same time the rule that it loses effect where there is a lawful appeal. Conversely, to say that a supplementary cost judgment is maintained as it stands even in the face of a lawful appeal is a conclusion this section does not permit. Nor is it permitted to fix on a channel while clerical error and omission of adjudication remain undistinguished.
4.6The Strongest Counterargument and the Answer
Among these, with a procedure for fixing costs in place, there arises the question whether the determination on litigation costs is also to be supplemented separately. The point that the omitted portion of the claim continues to be tried by the original court has been taken over, but this sentence does not yet settle the supplementation of the cost issue or whether that supplementation survives on appeal. Disputing the cost issue separately delays finality. It must be asked whether this inconvenience of delay serves as grounds for altering a confirmed result.
Article 212 (2) of the Civil Procedure Act provides for cases in which the judgment on litigation costs has been omitted as follows. “② Where the judgment on litigation costs has been omitted, the court shall, ex officio or upon a party's application, render a judgment on those litigation costs. In this case, Article 114 shall apply mutatis mutandis.” The subject indicated by this text is the court that continues to have charge of the lawsuit, and the act is a supplementary judgment that fills the omission of the determination on costs. Its condition is that no determination of the bearing of costs has already been included in the judgment on the merits, and its invocation is opened not only to the court's ex officio authority but also to a party's application.
The reason the omission of the cost determination is distinct from the omission of adjudication of part of a claim is that the filling procedure is different and the conditions for the continuance of that procedure are separately fixed. Article 212 (3) of the Civil Procedure Act sets those conditions of continuance as follows. “③ A judgment on litigation costs under paragraph (2) loses its effect where there is a lawful appeal against the judgment on the merits. In this case, the appellate court shall render a judgment on the total costs of the lawsuit.” The channel opened in paragraph (2) is the channel of supplementation, and what paragraph (3) regulates is that the supplementation loses effect in the face of an appeal. Only by reading the two stages separately does it become clear that the fact that a supplementary judgment was rendered and whether that judgment survives the examination of the appellate court are different questions.
The strongest counterargument in this distinction is aimed at the inconvenience that disputing the cost issue separately delays finality. This counterargument says that, where an obviously unjust conclusion can be corrected by a small amendment, requiring a separate challenge is wasteful. If the authenticated copy of the judgment received by plaintiff A lacks the cost determination, only that omission need be filled to end the matter; yet if the parties are sent to appeal so that the total costs of the lawsuit are dealt with anew from the beginning, the resolution of the dispute is delayed and the costs and time remaining with the parties increase. Such loss cannot be denied. The answer above is that, however great the inconvenience of delay, it does not change the rule of effect.
The facts established in this scene are only that the authenticated copy of the judgment contains an erroneous designation of a party and that a separate portion of the claim does not appear in the operative part. Whether the fact of an omission of the cost determination and the fact of a lawful appeal against the judgment on the merits overlap here has not been settled. Comparing precisely with the channel and the blocking conditions constituted by the two paragraphs, the channel of supplementation by correction and additional judgment operates where an obvious clerical error is dealt with by correction and a claim omitted from adjudication is dealt with by continued adjudication, respectively. Conversely, where the matter in dispute is not a clerical error but a change of substantive determination and therefore does not fall within the statutory object of correction, that channel is blocked. Since the character of the error cannot be determined from the scene alone, this item remains undetermined.
The conclusion this section permits is that a channel is open for supplementing the omission of the cost determination ex officio or upon application, and it is not the claim that the supplementation is maintained as it stands even in the face of a lawful appeal against the judgment on the merits. Conversely, what this section does not permit is to overturn the rule of effect on the basis of the inconvenience of delay alone, or to assert as definitive the actual outcome of recovery on the basis of unconfirmed facts. Materials that remain with clerical error and change of substantive determination undistinguished are undetermined and do not thereby immediately become incurable.
4.7The Link to the Application and the Dispositive Part
In that authenticated copy, the determination on the merits may appear, while the determination on the bearing of litigation costs may not be written together with it. Here, the cost judgment means the judgment on the bearing of litigation costs. When the cost judgment is missing from the judgment, whether that omission can be supplemented separately is the question at this point. The preceding section confirmed that it cannot be written that the supplementary cost judgment is maintained as it stands even in the face of a lawful appeal. The discussion that follows takes up that conclusion and examines how the omission of litigation costs is to be filled.
The handling of a missing judgment on litigation costs is prescribed in Article 212 of the Civil Procedure Act. Its paragraph (2) declares: “② Where the judgment on litigation costs has been omitted, the court shall, ex officio or upon a party's application, render a judgment on those litigation costs” (Article 212 of the Civil Procedure Act). This text fixes the subject of the determination as the court and the manner of supplementation as two branches, ex officio and a party's application. Even if a party does not apply, the court may proceed on its own, and where there is an application the court renders a judgment on costs in accordance with that application. The object is the judgment on litigation costs, and is limited to filling the omission of the determination on the bearing of costs, not a change of the determination on the merits.
What connects this text with the conclusion of this section is that the determination fixing the subject of supplementation and the determination fixing the effect of the supplementary judgment are stages distinct from each other. Article 212 (2) of the Civil Procedure Act fixes who fills the omitted cost judgment and in what manner, while Article 114, applied mutatis mutandis thereto, keeps the standard for the bearing of costs in view as well. By contrast, paragraph (3) provides that “a judgment on litigation costs under paragraph (2) loses its effect where there is a lawful appeal against the judgment on the merits” (Article 212 of the Civil Procedure Act). Accordingly, the fact that the channel of supplementation is open and whether that supplementary judgment is later maintained are determined separately. The omission of the cost judgment is supplemented ex officio or upon application, while observing the rule on effect where there is a lawful appeal.
There is the counterargument that disputing the cost issue separately delays finality. It points out that, where an obviously unjust conclusion can be corrected by a small amendment, requiring a separate challenge is wasteful. That inconvenience is great, and the cost of the postponement of the timing of final resolution is borne by both parties. Even so, it cannot be written that the supplementary cost judgment is maintained as it stands even in the face of a lawful appeal. Paragraph (3) provides that, where there is a lawful appeal against the judgment on the merits, the cost judgment under paragraph (2) loses its effect, and in that case the appellate court renders a judgment on the total costs of the lawsuit (Article 212 of the Civil Procedure Act). The inconvenience of delay remains, but it does not change the rule of effect.
In the synthetic scene, the erroneous designation of a party is a matter of the kind to be corrected by correction, while the separate portion of the claim not appearing in the operative part and the omission of the cost determination remain as objects to be filled by continued adjudication. However, whether that error is a clerical mistake or a mistake of determination has not been confirmed from the records, and therefore is not settled at this point. The outcome of service or performance in an actual case has not been determined either. Where an obvious clerical error is dealt with by correction and a claim omitted from adjudication is dealt with by continued adjudication, respectively, the supplementation discussion of this section holds good.
Accordingly, the omission of a cost judgment can be supplemented ex officio or upon application. On the strength of that supplementation, one cannot drag in the correction of the judgment on the merits as well, nor can one definitively say, bypassing the rule of effect, that the supplementary judgment remains as it stands even after an appeal. If it is written that the supplementary cost judgment is maintained as it stands even in the face of a lawful appeal, that determination is at odds with the conclusion of this section.
4.8The Scope This Section Undertakes
According to that conclusion, the omitted portion of the claim continues to be tried by the original court. The work of the same court correcting errors of a judgment divides into several channels with different objects, such as clerical error, omission of adjudication, and omission of the cost determination. Among these, the question this stage takes up is whether, when the determination on litigation costs is missing from the operative part on the merits, it can be supplemented separately. This question forms a stage distinct from the work of correcting designation by correction.
Article 212 of the Civil Procedure Act prescribes the manner of handling on the premise of an omission of the cost judgment. Article 212 (2) provides that “where the judgment on litigation costs has been omitted, the court shall, ex officio or upon a party's application,” thereby making clear that the subject of supplementation is the court and that the routes of invocation are both ex officio and a party's application. The provision says only that it “shall render a judgment on those litigation costs,” and thus refers not to correcting the designation in the authenticated copy of the judgment but to issuing anew a determination on the bearing of litigation costs. The content of Article 114, applied mutatis mutandis in this case, is not dealt with in this section and is therefore not set out here. What is confirmed from the text as it stands is that the supplementation of the omission is accomplished through a separate judgment.
The link connecting the above provision with its conclusion is the distinction between the object of supplementation and its timing. The omission of the cost judgment differs from a change of determination that alters the outcome of the merits of a claim, and goes no further than filling in a determination on the bearing of litigation costs. Article 212 (2) leaves the channel of supplementation open because this omission is of a nature that can be dealt with separately from the operative part on the merits. Yet that channel does not always carry the same effect. Article 212 (3) provides that “a judgment on litigation costs under paragraph (2) loses its effect where there is a lawful appeal against the judgment on the merits,” thereby tying the effect of the supplementary judgment to the presence or absence of a lawful appeal against the judgment on the merits. The same paragraph continues, “the appellate court shall render a judgment on the total costs of the lawsuit,” thereby fixing that the court thereafter charged with the cost determination is the appellate court.
The counterargument that handling the cost issue separately delays the resolution of the dispute and leaves the parties with the inconvenience of going through the procedure once more is a valid point. The criticism that, where an obviously unjust conclusion can be corrected by nothing more than a small amendment, requiring a separate challenge is wasteful is aimed in the same direction. Yet, invoking that inconvenience, it cannot be written that the supplementary cost judgment is maintained as it stands even in the face of a lawful appeal. The provision declares that it loses its effect where there is a lawful appeal, and entrusts the determination on the total costs to the appellate court. Accordingly, however much the inconvenience of delay may remain an object of adjustment, it cannot serve as grounds for nullifying the rule of effect.
From this scene alone it is not determined whether the gap in that operative part is an omission of the cost determination or an omission of adjudication of the claim itself. The cost issue must be confirmed separately from the correction of the clerical error not dealt with here, and at the same time must be placed alongside the rule set out earlier that the omitted portion of the claim continues to be tried by the original court. The original judgment, the prayer for relief, the application for correction, the omitted operative provision, and the course of the appeal form the list of what to look at for such confirmation. Whether any record of the course of the appeal remains is likewise not determined from the scene alone. Hence it remains unverified whether the supplementary cost judgment will actually be subject to the rules of effect of an appeal, or whether that channel remains available.
The conclusion of this section is confined to the proposition that the omission of a cost judgment is a separate object of supplementation ex officio or upon application, and that such supplementary judgment loses its effect where there is a lawful appeal against the judgment on the merits. Tailored to this question, the omission of the cost determination has been distinguished from the correction of clerical error and from a change of substantive determination, but as to the form in which the corrected content remains in the written judgment, no answer is given here.
4.9Application of the Text of the Provisions and the Holdings of Precedents
Although the procedure is set so that the omitted portion of the claim from the preceding stage is tried further by the original court, the situation in which the determination on the bearing of litigation costs is separately omitted still remains. Is the determination on litigation costs also to be supplemented separately? Whether the route for filling the omission of the cost judgment and the route for the omission of the claim confirmed earlier should be treated as passing through the same procedure, or should be split apart according to the wording of each, is the question to be decided this time.
The relevant provision is worded as follows in Article 212, paragraph (2) of the Civil Procedure Act: "Where the judgment on litigation costs has been omitted, the court shall, ex officio or upon a party's application, render a judgment on those litigation costs." (Civil Procedure Act Article 212) This wording limits the act it addresses to the omission of the judgment on litigation costs, and for the supplementation it leaves open two avenues together: the court's ex officio authority and a party's application. By its wording, the subject of the supplementation is the court that rendered the judgment on the merits, and the object is the determination on the bearing of litigation costs.
The reason why the wording of Article 212, paragraph (2) and the routes of supplementation by rectification and supplementary judgment must be kept apart is that the cost judgment, as defined in the preceding paragraph, is precisely the judgment on the bearing of litigation costs. A rectification that corrects the expression in the judgment and a supplementary judgment made where the judgment on the claim itself is omitted are each placed under the objects set by their respective wording, and the omission of the cost judgment is dealt with only through the route set by Article 212, paragraph (2). At this point, Article 212, paragraph (3) provides that "a judgment on litigation costs under paragraph (2) loses its effect where a lawful appeal is taken against the judgment on the merits" (Civil Procedure Act Article 212), thereby also determining when the effect of the supplemented cost judgment comes to an end.
Since a fresh application must be made limited to the bearing of litigation costs and the court must render a judgment, the loss of time and effort is great in that the dispute remains unresolved even after the merits have already been pronounced. There also arises, in the same vein, the counterargument that it is wasteful to require a separate challenge when a manifestly unjust conclusion can be corrected by a minor amendment. Given that Article 212, paragraph (3) provides that the effect is lost where a lawful appeal is taken, an interpretation that leaves the effect intact even after an appeal, on the ground of the inconvenience of going through a separate supplementary judgment, runs contrary to the wording.
Here it must first be determined whether the misdesignation of the parties falls under a manifest error of expression or an error of determination, and the scope of this section is confined to the route of supplementation where the determination on litigation costs is separately omitted. The original of the judgment, the statement of the relief sought, the application for rectification, the omitted operative part, and the course of the appeal have been designated as the materials to check, but the interval in which it is not confirmed whether the matter is an error of expression or an error of determination remains undetermined.
What is permitted in this section extends no further than the supplementation of the omission of the cost judgment ex officio or upon application, and the treatment by which the effect is lost where a lawful appeal is taken. Beyond that, a conclusion that the supplemental cost judgment remains valid even after an appeal, or a conclusion that the omission of some determination other than costs can be filled in the same way, lies outside the range set by this wording.
4.10Fine Distinctions Within the Stage
Now the question is, within that route, how far the portion to be adjudicated separately this time extends. The present question is confined to ascertaining by what criterion the detailed distinctions within the stage are drawn. A distinction that goes beyond the given criterion is not an answer to this question.
The wording relevant to the present question concerns the case where the judgment on litigation costs has been omitted. Article 212, paragraph (2) of the Civil Procedure Act provides that "where the judgment on litigation costs has been omitted, the court shall, ex officio or upon a party's application, render a judgment on those litigation costs" (Civil Procedure Act Article 212). The subject to which this wording refers is the court, the act is a judgment on the omitted litigation costs, and the condition is the case in which the judgment on litigation costs has been omitted. The same paragraph adds that in this case the provisions of Article 114 shall apply mutatis mutandis, but the content of that mutatis mutandis application is not included in the scope of the present inquiry.
On that basis, the detailed distinctions within the stage are limited to the conditions of the case in which it operates, the case in which it is blocked, and the case that is undetermined. The case in which it operates is where a manifest error of expression is handled by rectification, and a claim omitted from the judgment is handled by continued trial, respectively. The case that remains blocked is where the disputed matter is not an error of expression but a change of substantive determination, and therefore does not fall within the statutory object of rectification. The case that remains undetermined is where it is not confirmed whether the error is one of expression or one of determination. The reason for dividing these three is that the route of supplementation branches according to the nature of the error. Were an additional step to be created outside the distinguished conditions, the determination would grow beyond the range set by the provision.
There is placed alongside the argument that it is wasteful to require a separate challenge when a manifestly unjust conclusion can be corrected by a minor amendment. This counterargument points to the loss that delay imposes on the parties and on the court respectively, and that part cannot be erased. The same paragraph provides that in this case the appellate court shall render a judgment on the total costs of the lawsuit; hence the inconvenience of a delayed conclusion cannot sustain the effect of the supplementary judgment.
In the synthetic scene, the facts relevant to this question are two. The certified copy of the judgment received by plaintiff A contains a misdesignation of the parties, and a portion of a separate claim does not appear in the operative part. The former error appears more likely to be an error of expression, and the latter omission is placed as a question of the judgment on a claim that does not appear in the operative part. However, it has not been determined which of the original of the judgment, the statement of the relief sought, the application for rectification, the omitted operative part, and the course of the appeal shows what. Accordingly, on this scene alone it is not confirmed whether the error is one of expression or one of determination, and the case remains undetermined.
The conclusion permitted by this section is confined to binding the detailed distinctions within the stage to expressly stated conditions and indicating which route is opened under those conditions. The conclusion not permitted by this section is to erect one further step outside the case in which it operates, the case in which it is blocked, and the case that is undetermined. The circumstance that materials are not yet available merely leaves the matter undetermined and does not convert it at once into a state of no remedy. Nor should the statement that a legal route is open be read as an actual result of payment, delivery, or recovery.
4.11Synthesis of Effectiveness, Blockage, and Undetermination
The procedure for determining costs may remain even after the written judgment in the merits has issued. In this scene, the question now asked is whether the route for supplementing the cost judgment actually opens, or is blocked, or whether it is not yet clear whether it has opened or closed. This distinction becomes the starting point for choosing the next step in the procedure.
The omission of the cost judgment can be filled by a supplementary procedure. Article 212, paragraph (2) of the Civil Procedure Act provides that "where the judgment on litigation costs has been omitted, the court shall, ex officio or upon a party's application, render a judgment on those litigation costs," and adds that "in this case the provisions of Article 114 shall apply mutatis mutandis." Here the object is the case in which the judgment on litigation costs is omitted, the subject is the court, and the routes are two: ex officio and a party's application. The cost judgment refers to the judgment on the bearing of litigation costs, and is distinguished from the outcome of victory or defeat on the merits of the judgment.
The point at which this wording and the conclusion of this section mesh is that they do not funnel the omission of costs and the omission of a claim into the same procedure. The route of supplementation opens when a manifest error of expression is handled by rectification, and a claim omitted from the judgment is handled by continued trial, respectively. Here only the point that the omitted portion of the claim is tried further by the original court is accepted as a premise, and that route is not re-argued. The state in which it is not confirmed whether the error is one of expression or one of determination remains undetermined. These three are determinations at different stages and are not flattened into one.
The strongest counterargument takes aim at delay and cost. If the cost question is separately contested, the conclusion is delayed, and it is pointed out that it is wasteful to require a separate challenge when a manifestly unjust conclusion can be corrected by a minor amendment. This observation cannot be set aside, in that it regards the inconvenience of the procedure dragging out as a real burden. Still, the answer remains the same. Article 212, paragraph (3) of the Civil Procedure Act provides that a judgment on litigation costs under paragraph (2) loses its effect where a lawful appeal is taken against the judgment on the merits, and adds that in that case the appellate court shall render a judgment on the total costs of the lawsuit.
What is confirmed in this scene is that the misdesignation of the parties and the omission from the operative part of a portion of a separate claim are present together. Whether the misdesignation of the parties is a matter to be corrected by rectification, and whether the part omitted from the operative part is an omission of determination or an omission of the judgment itself, is not determined by this scene alone. The materials to check have been set as the kinds of the original of the judgment, the statement of the relief sought, the application for rectification, the omitted operative part, and the course of the appeal. Absent that confirmation, whether the supplementary cost procedure has opened remains undetermined.
Accordingly, the route of supplementation opens only in the case where a manifest error of expression is handled by rectification, and a claim omitted from the judgment is handled by continued trial, respectively; the route is blocked when the disputed matter is a change of substantive determination and thus does not fall within the object of rectification; and it is undetermined when the nature of the error is not confirmed. The rule that the omission of costs is supplemented ex officio or upon application but loses its effect where a lawful appeal is taken is observed alongside. The fact that the route is open must not be read as an actual result of payment, delivery, or recovery, and the fact that the route is closed must not be broadened into the loss of other routes at law. Undetermined is a state of insufficient materials, not a state in which relief is impossible.
4.12Conclusion Carried Over to the Next Section
Taking up the flow, confirmed earlier, by which the omitted portion of the claim is tried further by the original court, what remains is the question whether the determination on litigation costs is also to be supplemented separately. This section deals only with the route for supplementing the omission of the cost judgment and the conditions under which that route is maintained.
The basis applied in answering this question is Article 212, paragraph (2) of the Civil Procedure Act. The subject spoken of here is the court, the act is supplementing the omission of a judgment on the bearing of litigation costs, and the condition is that the judgment is missing. The supplementation is effected both ex officio and upon a party's application.
The mode of supplementation indicated by the wording of Article 212, paragraph (2) of the Civil Procedure Act is placed at a stage different from the continued trial of the portion of the claim dealt with in the preceding section. The cost judgment means the judgment on the bearing of litigation costs, and this definition is the starting point for distinguishing the two stages. If the determination on costs is omitted from the written judgment, the problem arises of filling in that determination separately, and this overlaps with the problem of rewriting the operative part as it appears in the written judgment itself. The provision on mutatis mutandis application written together in the same article is, in this section, only attached in its wording and is not broadened into other issues.
Against this route, the loss may be raised that if the cost question is separately contested, the conclusion is delayed. Behind it also lies the inconvenience that it is wasteful to require a separate challenge when a manifestly unjust conclusion can be corrected by a minor amendment. Article 212, paragraph (3) of the Civil Procedure Act states that "where a lawful appeal is taken against the judgment on the merits, it loses its effect" (Civil Procedure Act Article 212), and then provides that "the appellate court shall render a judgment on the total costs of the lawsuit" (Civil Procedure Act Article 212).
In this scene, the fact bearing on this question is only whether the determination on costs remains or not, and the scene does not go so far as to state whether the cost judgment itself is omitted. Only by examining the original of the judgment, the statement of the relief sought, the application for rectification, the omitted operative part, and the course of the appeal can it be determined which is the case. If one of the adjudicative conditions is changed and it is confirmed to be an omission of the judgment on the claim itself rather than an omission of determination, it is classified under the route of supplementary judgment.
The conclusion permitted by this section goes no further than that the omission of the cost judgment is supplemented ex officio or upon application, while observing the rule on effect in the case of a lawful appeal. It must be distinguished from the case in which a manifest error of expression is handled by rectification, and a claim omitted from the judgment is handled by continued trial, respectively, and it must not be passed over as though the supplemental cost judgment were maintained intact even upon a lawful appeal. Where and how the determination on costs is to be left is asked separately.