Summary
The appellate court's order for amendment is distinguished from dismissal upon failure to amend, so that a threshold remains even after filing.
2.1The Standard by Which the Path Opens
Submission of a filing is not the same as confirmation of a defect-free challenge. The preceding section set out that the period for appeal runs from service of the written judgment and that an appeal filed before service is also permitted. Here, however, plaintiff A and defendant B are each challenging different parts in which they lost, so the question is which parts are open to the appellate court. In this situation, does the mere fact that a notice of appeal has been filed guarantee the party the adjudication sought? Or is there a separate criterion by which this channel of relief opens? If the fact of filing cannot itself serve as the ground for guaranteeing adjudication, the next question is how the defect remaining in the notice of appeal shapes the threshold.
To answer this question, the Civil Procedure Act separately provides for the power to examine the notice of appeal. The same provision states: "Where the notice of appeal contravenes the provisions of Article 397 (2), or where no revenue stamp has been affixed to the notice of appeal as required by law, yet the presiding judge of the court below, etc. has not issued an order under Article 399 (1), or where the duplicate copy of the notice of appeal cannot be served, the presiding judge of the appellate court shall order the appellant to correct the defect within a reasonable period designated therefor. … Where the appellant fails to correct the defect within the period under paragraph (1), or where the presiding judge of the court below has not dismissed the notice of appeal under Article 399 (2), the presiding judge of the appellate court shall dismiss the notice of appeal by ruling" (Civil Procedure Act Article 402). This text limits the subject of the submitted notice of appeal to the appellant, the act in question to the correction of defects in the entries, revenue stamp, and service, and its condition to performance within a reasonable period.
The order to correct and the dismissal on procedural grounds prescribed in that text lie at different stages. Here, correction of the notice of appeal means the procedure for curing defects in statutory entries, the revenue stamp, service, and the like; it is a measure that deals with documentary defects before the appellate court determines the merits of the case. Since the fact of submission is not the same as confirmation of a defect-free challenge, the fact that a notice of appeal has been received does not establish that the appeal is proper. The author adds that the entrance opens where the scope of the challenge has been specified by an appeal meeting the time and correction requirements, or by a proper incidental appeal. The essential point of this distinction is that the fact of receipt cannot be converted into a determination that the appeal is proper.
The criticism that the hearing on the merits can be blocked by formal defects is aimed here. In that a technical error in describing the scope of the challenge can entrench a substantive error, the loss suffered by the parties and the inconvenience to the court's schedule are not slight. The concern that substantive disputes that could have been handled on appeal might slip away because of a single defect in the documents is rooted in the value of protecting the right to adjudication. Nevertheless, even though the hearing on the merits can be blocked by formal defects, the fact of receipt cannot be converted into a determination that the appeal is proper. Receipt merely occasions the issuance of an order to correct, and the text that, if the correction is not performed, a dismissal on procedural grounds follows, remains in force.
In the synthetic scene, plaintiff A and defendant B are each challenging different parts in which they lost, so confirming the case in which the scope of the challenge has been specified corresponds to the conditions of this question. The Records—service of the written judgment, the notice of appeal, performance of correction, the lapse of an impediment, an incidental appeal, and the scope of the challenge—are the items needed for this comparison. However, if, from this scene alone, the time of service or the occurrence and removal of the impediment necessary for after-the-fact supplementation cannot be confirmed, the expiry of the appeal period and whether correction was performed remain undetermined. If the appellee's proper incidental appeal is confirmed, the mere extinguishment of the independent right to appeal does not block the demand for modification.
The conclusion this section permits is narrow. It goes no further than to hold that the entrance to this relief opens where the fact of submission has not been substituted for a determination that the appeal is proper, the scope of the challenge has been specified by an appeal meeting the time and correction requirements or by a proper incidental appeal, the performance, parties, and conditions demanded in the prayer for relief are specified, and the right of the chosen action can be defended. The conclusion that the fact of receipt itself guarantees adjudication is not permitted by this section, and the possibility of dismissal on procedural grounds after correction is performed remains as the text provides. Conversely, any reading to the effect that propriety is established by the fact of receipt alone is excluded.
2.2The Conditions That Block Relief
The preceding section set out that the period for appeal runs from service of the written judgment and that an appeal filed before service is also permitted. The mere fact that the notices of appeal of both parties have been received does not determine which challenge is to be adjudicated. It therefore asks whether adjudication is guaranteed by the mere fact that a notice of appeal has been filed, and what conditions block relief.
The provision corresponding to this question is Article 402 of the Civil Procedure Act. Paragraph (1) provides: "Where the notice of appeal contravenes the provisions of Article 397 (2), or where no revenue stamp has been affixed to the notice of appeal as required by law, yet the presiding judge of the court below, etc. has not issued an order under Article 399 (1), or where the duplicate copy of the notice of appeal cannot be served, the presiding judge of the appellate court shall order the appellant to correct the defect within a reasonable period designated therefor." Here the subject is the presiding judge of the appellate court, and the object is a notice of appeal containing defects such as failure to affix the revenue stamp or inability to serve the duplicate copy. What this provision addresses is the order to correct defects and the consequence of its non-performance.
The order to correct under paragraph (1) and the dismissal on procedural grounds under paragraph (2) are separate stages of decision. Paragraph (2) provides: "Where the appellant fails to correct the defect within the period under paragraph (1), or where the presiding judge of the court below has not dismissed the notice of appeal under Article 399 (2), the presiding judge of the appellate court shall dismiss the notice of appeal by ruling." Accordingly, the appellate court examines, in the records, the service of the written judgment, the notice of appeal, performance of correction, the lapse of an impediment, an incidental appeal, and the scope of the challenge, and opens this channel only where the scope of the challenge has been specified by an appeal meeting the time and correction requirements or by a proper incidental appeal. By contrast, where the appeal period has expired, the requirements for after-the-fact supplementation are also not met, and no applicable channel such as an incidental appeal exists, the channel of relief is closed, on the view that at least one of the statutory requirements is unmet.
The disadvantage that follows from this determination is not small. The hearing on the merits can be blocked by formal defects, and as a result a technical error in describing the scope of the challenge can entrench a substantive error. The circumstance that the intake office received the notice of appeal does not lighten the loss or inconvenience the parties will suffer. Even so, the fact of receipt cannot be converted into a determination that the appeal is proper. The appellate court's order to correct is a procedure affording an opportunity to cure the defect, and once that opportunity passes, the statutory consequence of dismissal on procedural grounds follows; no answer that erases the fact that a threshold remains after filing can stand.
What can be confirmed from this scene is only the fact that plaintiff A and defendant B are each challenging different parts in which they lost. Contrasting this fact with the conditions above, whether the defect lies in one party's notice of appeal, whether there was an order to correct, and whether correction was performed within the period cannot be determined from the scene alone. Whether service of the written judgment occurred, or whether the impediment necessary for after-the-fact supplementation arose or was removed, is likewise unverified, and this means not a declaration that relief is impossible but that there are as yet no materials for decision. Only the comparison condition is clear: if the appellee's proper incidental appeal is confirmed, the mere extinguishment of the independent right to appeal does not block the demand for modification.
The conclusion this section permits is narrow: adjudication cannot be deemed guaranteed by the mere fact that a notice of appeal has been received, and if even one of the statutory requirements is unmet, the channel of relief is closed. Determining whether the scope of the challenge to be referred to the appellate court has been properly specified lies beyond the scope of this section.
2.3The Boundary That Remains When There Is No Data
The period for appeal runs from service of the written judgment, and an appeal filed before service is also permitted. Is adjudication guaranteed by the mere fact that a notice of appeal has been filed?
The statutory provision corresponding to this question is Article 402 of the Civil Procedure Act. Article 402 provides: "Where the notice of appeal contravenes the provisions of Article 397 (2), or where no revenue stamp has been affixed to the notice of appeal as required by law, yet the presiding judge of the court below, etc. has not issued an order under Article 399 (1), or where the duplicate copy of the notice of appeal cannot be served, the presiding judge of the appellate court shall order the appellant to correct the defect within a reasonable period designated therefor" (Civil Procedure Act Article 402). Here the subject is the presiding judge of the appellate court, and the act is the order to correct. The order to correct addresses the defects of nonconformity in statutory entries, flaws in the affixing of the revenue stamp, and impossibility of serving the duplicate copy.
The order to correct and the dismissal on procedural grounds upon its non-performance are separate stages of decision. Paragraph (2) of the same Article provides: "Where the appellant fails to correct the defect within the period under paragraph (1), or where the presiding judge of the court below has not dismissed the notice of appeal under Article 399 (2), the presiding judge of the appellate court shall dismiss the notice of appeal by ruling" (Civil Procedure Act Article 402). The earlier stage is a procedure giving an opportunity to cure the defect; the later stage is the disposition after that opportunity has passed. Here, correction of the notice of appeal means the procedure for curing defects in statutory entries, the revenue stamp, service, and the like. Accordingly, the stage of confirming the defect and the stage of dismissal on procedural grounds for failure to correct cannot be bundled together and treated as establishing the propriety of the appeal.
The hearing on the merits can be blocked by formal defects. In that a technical error in describing the scope of the challenge can entrench a substantive error, the procedural threshold leaves the parties with real loss and inconvenience. The fact that a notice of appeal has been filed merely shows that the door to adjudication has opened; propriety cannot be regarded as established without passing through the opportunity to correct prescribed in Article 402 and its performance. Even without erasing the disadvantages pointed out by the counterarguments, it cannot be asserted that adjudication is guaranteed by the fact of receipt itself.
Among service of the written judgment, the notice of appeal, performance of correction, the lapse of an impediment, an incidental appeal, and the scope of the challenge, where the occurrence or removal of the impediment necessary for service or for after-the-fact supplementation has not been confirmed, matters for which decision materials are not specified remain undetermined, distinct from impossibility. The channel to alter the original judgment on appeal opens where the scope of the challenge has been specified by an appeal meeting the time and correction requirements or by a proper incidental appeal. By contrast, where the appeal period has expired, the requirements for after-the-fact supplementation are also not met, and no applicable channel such as an incidental appeal exists, it is blocked. Where the foregoing circumstances are not confirmed, neither opening nor blocking is determined; the matter remains undetermined. The mere fact that there are no materials cannot establish that relief is impossible.
The fact of receipt stops short of the conclusion that the propriety of the appeal is established, with the two thresholds of confirming the defect and the opportunity to correct standing before it. What this section permits is a judgment made in accordance with the distinction in Article 402 between the order to correct and the dismissal on procedural grounds for failure to correct. What this section does not permit is the categorical assertion that adjudication is guaranteed by the fact of receipt alone, and the judgment that treats the absence of unconfirmed materials as immediately impossible. Matters for which decision materials are not specified are left in the realm of the undetermined. The question of this section ends here.
2.4The Records Needed for Determination
By distinguishing the appellate court's order to correct from the dismissal on procedural grounds upon failure to correct, it also leaves a threshold after filing. The question now raised is what kinds of records are to be kept when adjudicating that threshold. Accordingly, what must be asked, laid out in the records, is not the fact of submission itself but what remained after the submission. Confirmation of receipt is not the same as a determination that adjudication is guaranteed.
Article 402 of the Civil Procedure Act arranges the defects remaining in the submitted notice of appeal. Paragraph (1) sets out the case "where the notice of appeal contravenes the provisions of Article 397 (2), or where no revenue stamp has been affixed to the notice of appeal as required by law, yet the presiding judge of the court below, etc. has not issued an order under Article 399 (1), or where the duplicate copy of the notice of appeal cannot be served." At that time the presiding judge of the appellate court orders the appellant to correct the defect within a reasonable period. The presiding judge of the appellate court may entrust this order to a court clerk, etc.
Paragraph (2) of Article 402 sets out two branches depending on whether that order is performed. It provides that "where the appellant fails to correct the defect within the period under paragraph (1), or where the presiding judge of the court below has not dismissed the notice of appeal under Article 399 (2), the presiding judge of the appellate court shall dismiss the notice of appeal by ruling," thereby making non-performance and the continuation of the court below grounds for dismissal on procedural grounds (Civil Procedure Act Article 402). It distinguishes the threshold not by the fact of submission but by confirmation of service of the written judgment, the notice of appeal, performance of correction, the lapse of an impediment, an incidental appeal, and the scope of the challenge. Without the time at which correction was ordered and what was performed within that period, it cannot be determined whether the threshold was crossed. Only by separating these two can one prevent confirmation of submission from being flipped into confirmation of propriety. Records that do not exist are not filled in by presumption.
The fact that the hearing on the merits can be blocked by formal defects is the loss this distinction carries. If a submitted challenge is dismissed on account of a single entry or revenue stamp, substantive error remains as well. Even without concealing that burden, the fact of receipt cannot be converted into a determination that the appeal is proper. Paragraph (3) allows an immediate appeal against the order under paragraph (2) (Civil Procedure Act Article 402). That is, it leaves open a channel to contest even a dismissal on procedural grounds. The state in which this channel is open is not the same as the result of an actual dismissal on procedural grounds having been overturned. While leaving even the adverse side of the counterarguments in place, it cannot be established that adjudication is guaranteed by the fact of submission alone.
The facts usable for adjudication in this scene are limited. Until it is determined which parts the scope of the challenge in the records covers, it cannot be asserted either that adjudication of those parts is guaranteed or that it is not opened. The adjudication diverges according to what among service of the written judgment, the notice of appeal, performance of correction, the lapse of an impediment, an incidental appeal, and the scope of the challenge remains in the records.
What this section permits is only a judgment that divides and views the threshold after submission by the records. What it does not permit is a judgment that establishes the propriety of the appeal on the strength of confirmation of submission alone, or inserts circumstances absent from the records to assert that adjudication is guaranteed. Gaps where the records are silent are left undetermined. Undetermined does not mean that relief is impossible.
2.5Circumstances That Change the Decision
As summarized earlier, the appeal period is measured from service of the judgment, and an appeal filed before service is also permitted. In this scene, even though a record remains that the notice of appeal was received by the court, that receipt did not establish the validity of the appeal. This stage examines what thresholds remain even after filing, and what change would overturn the determination made at the preceding stage.
The threshold of this procedure is made concrete in Article 402 of the Civil Procedure Act. Paragraph (1) provides that, where the notice of appeal contravenes the statutory form or lacks the required revenue stamp yet no order of dismissal on procedural grounds has been issued, or where a copy of the notice of appeal cannot be served, the presiding judge of the appellate court shall order correction within a reasonable period. Paragraph (2) then provides that, if the defect is not cured within that period, the presiding judge of the appellate court shall dismiss the notice of appeal by order. This language takes as its criterion not the filing itself but whether the defect is corrected. Accordingly, filing is the starting point of the procedure; it is not the point at which adjudication is assured.
The actor indicated by the above language is the presiding judge of the appellate court, the object is the formal defect remaining in the notice of appeal, and the condition is correction within the designated period. If correction is not performed, the consequence of dismissal on procedural grounds follows. This distinction connects with the conclusion of this section. Here, however, not only the existence of an incidental appeal but also whether the requirements of validity for the appeal itself have been satisfied must be confirmed separately. The fact that an incidental appeal exists and the fact that the defects of the appeal have been cured lie at different stages of determination. If the two are merged into one, it becomes impossible to distinguish a challenge that has passed the formal requirements from one that has not.
The point that a formal defect can block a hearing on the merits leaves a real loss behind: a technical mistake in the scope of the challenge can entrench a substantive error. Even when the substantive wrongfulness of the judgment is clear, if the party fails to cure, within the designated period, a defect in the entries of the notice of appeal or in the revenue stamp, the party loses the opportunity to litigate the merits. It is difficult to regard this inconvenience as one that must be borne. Receipt is merely a record that a document has entered the court; it is not a determination that a challenge satisfying the formal requirements has been confirmed. In order to preserve, without defect, the loss pointed out by the counterargument, what is needed instead is that the period and procedure for correction be observed. The part where that opportunity is missed must be confirmed from the record.
In the scene where Plaintiff A and Defendant B each challenge different portions of the losing part, so that the question is which portions are open to the appellate court, the records to be confirmed are: service of the judgment, the notice of appeal, performance of the correction, lapse of the impediment, the incidental appeal, and the scope of the challenge. Where performance of the correction is not confirmed from among this list, the dismissal requirement of Article 402, paragraph (2) draws near, whereas where the occurrence and removal of the impediment are not confirmed, the determination remains undetermined. In that case, the existing determination of blocking and effectiveness is discarded and the determination is redone from the stage itself. However, as no year, amount, or commencement date is set for this scene, it is not possible to determine here when the period expired.
The conclusion this section permits is that the filing of the notice of appeal itself does not assure adjudication, and that even after filing there remains the threshold of an order to correct. At the same time, the conclusions this section does not permit are reading the fact of receipt as a determination of the validity of the appeal, or, without confirming an incidental appeal, blocking the demand for change to the end by the mere extinction of the independent right to appeal. If a valid incidental appeal is confirmed, the existing determination of blocking and effectiveness is discarded and the determination is redone from the stage itself. However, since neither the actual date of service nor the commencement point of the correction deadline is established by this material, the remaining items remain undetermined.
2.6The Strongest Counterargument and the Answer
It is difficult to regard the appeal as established as a valid means of challenge merely because the filing office has taken in and held the notice of appeal. The question whether adjudication is assured merely by filing a notice of appeal begins precisely in this gap, and asks whether a notice of appeal on which formal defects remain can advance to a hearing on the merits.
The statutory language corresponding to this question prescribes the presiding judge of the appellate court's power of examination. Article 402 of the Civil Procedure Act, paragraph (1), provides that where the notice of appeal contravenes the provisions of Article 397, paragraph (2), or where the revenue stamp prescribed by law has not been affixed to the notice of appeal and yet the presiding judge of the court below has not issued an order under Article 399, paragraph (1), or where a copy of the notice of appeal cannot be served, the presiding judge of the appellate court shall order that the defect be corrected within a reasonable period. Here the subject concerned is the appellant, the act is the correction of the notice of appeal by curing defects in statutory entries, revenue stamps, service, and the like, and the condition is performance within the designated period.
Paragraph (2) of the same Article then provides that where the appellant has not corrected the defect within the period under paragraph (1), or where the presiding judge of the court below has not dismissed the notice of appeal pursuant to Article 399, paragraph (2), the presiding judge of the appellate court shall dismiss the notice of appeal by order. The point at which these two stages diverge is not the presence or absence of receipt but whether the defect has been corrected. The fact of receipt is a procedural record that a document has arrived, whereas a determination of validity is a decision recognizing a challenge that meets the requirements; the former cannot be turned into the latter. The point that a formal defect can block a hearing on the merits means that the consequence of dismissal on procedural grounds under paragraph (2) lies open; it does not mean that a valid appeal is constituted by receipt alone.
The inconvenience this distinction most directly targets is that a technical mistake in the scope of the challenge can entrench a substantive error. Plaintiff A and Defendant B each challenge different portions of the losing part, and if a single defect in a revenue stamp or an entry remains uncorrected and results in dismissal on procedural grounds, the very opportunity to litigate a substantive determination that can already be called right disappears. Yet the fact of receipt cannot be turned into a determination of the validity of the appeal. The answer that the fact of receipt cannot be turned into a determination of the validity of the appeal does not erase the loss pointed out by the counterargument, but it does not permit inflating the meaning of receipt as a means of preventing that loss. The response the provision has prepared is the granting of an opportunity to correct the defect, and the provision clearly leaves open the consequence of dismissal on procedural grounds even when that opportunity goes unperformed.
Taking only the facts placed before this question from the synthetic scene, it is confirmed that the two parties each challenge different portions of the losing part, but the date of service of the judgment, the entries of the notice of appeal and the state of the revenue stamp, whether the order to correct has been performed, and whether there is an incidental appeal are all left unsettled. Accordingly, depending on which way the items to be confirmed from the record—service of the judgment, the notice of appeal, performance of the correction, lapse of the impediment, the incidental appeal, and the scope of the challenge—turn out, the path of dismissal on procedural grounds and the path of a hearing on the merits diverge. Where the occurrence or removal of an impediment necessary for service or later supplementation is not confirmed, this section remains undetermined.
The conclusion this section permits is narrow. The filing of a notice of appeal leaves a record of receipt, but if formal defects remain and are not corrected, the threshold of the presiding judge of the appellate court's order of dismissal on procedural grounds remains alive, and the conclusion reading the fact of receipt as a determination of the validity of the appeal is not permitted. Conversely, one cannot say that the substance of the merits determination is denied straightaway merely by the existence of a formal defect, nor can one assert on the basis of undetermined records that relief is impossible. The items this section cannot determine remain undetermined as they are, and which path is actually open is decided according to the confirmed records.
2.7The Link to the Application and the Dispositive Part
Taking up the conclusion of the preceding section—that the fact of receipt cannot be turned into a determination of the validity of the appeal—it opens the question whether adjudication is assured merely by filing a notice of appeal. In delineating the scope of the challenge, the mere filing of an appeal is insufficient; one must also examine how the procedure continues after filing.
Article 402 of the Civil Procedure Act provides: "Where the notice of appeal contravenes the provisions of Article 397, paragraph (2), or where the revenue stamp prescribed by law has not been affixed to the notice of appeal and yet the presiding judge of the court below has not issued an order under Article 399, paragraph (1), or where a copy of the notice of appeal cannot be served, the presiding judge of the appellate court shall order the appellant to correct the defect within a reasonable period." In this language, the subject of the order to correct is the presiding judge of the appellate court, the object is the appellant, and the order is to set a reasonable period and require correction of the defect within that period. The defects subject to the order are enumerated as three: violation of statutory entries, non-affixing of a revenue stamp, and inability to serve the copy.
These two stages are distinct. An order to correct is a procedure giving the opportunity to cure a defect, whereas an order of dismissal on procedural grounds is a disposition sending the notice of appeal out after that opportunity has passed. Correction of a notice of appeal means the procedure of curing defects in statutory entries, revenue stamps, service, and the like, and depending on whether it is performed, the door to dismissal on procedural grounds opens or closes. The point that the fact of filing cannot be turned into a determination of the validity of the appeal arises precisely from this distinction.
The counterargument that a formal defect can block a hearing on the merits aims at substantive loss. The concern that a technical mistake in the scope of the challenge can entrench a substantive error points to a situation in which a wrong that ought to be contested on the merits is buried because of the form of a document. This disadvantage cannot be ignored. The structure whereby a period is given to cure the defect and dismissal on procedural grounds follows if it is not performed within that period shows at once that, while the path of correction remains, the path of adjudication also remains, and that once that path closes it is not opened by the fact of receipt alone.
In the synthetic scene, Plaintiff A and Defendant B each challenge different portions of the losing part, so that it is first a question which portions the notice of appeal concerns. The order to correct and the order of dismissal on procedural grounds under Article 402 deal only with the defects of the notice of appeal and their correction; they do not perform the task of specifying the scope of the challenge in their place. Accordingly, from this scene alone it cannot be determined which portions are open to the appellate court, and the scope of the challenge stated in the notice of appeal and the performance of the correction must be confirmed. The items to be examined from the record are service of the judgment, the notice of appeal, performance of the correction, lapse of the impediment, the incidental appeal, and the scope of the challenge; among these, if the occurrence or removal of an impediment is not confirmed, the determination remains undetermined.
The conclusion this section permits is that adjudication is not assured by the mere fact of filing a notice of appeal, and that one must pass the threshold left by the order to correct and the dismissal on procedural grounds upon its non-performance. The reading that turns the fact of receipt into a determination of the validity of the appeal is not permitted.
2.8The Scope This Section Undertakes
Although it was earlier confirmed that the appeal period is measured from service of the judgment and that an appeal before service is also permitted, that much concerned the entrance to the path leading to adjudication. Even after the two persons' notices of appeal have been received, what has been entrusted to the appellate court must be confirmed separately.
Article 402 of the Civil Procedure Act vests in the presiding judge of the appellate court the power to examine defects remaining in the notice of appeal. Here the subject is the presiding judge of the appellate court, the act is an order to correct, and the conditions are contravention of statutory entries, omission of a revenue stamp, and inability to serve the copy.
Even a notice of appeal caught by these conditions does not come to an end straightaway. The provision first gives an opportunity to cure the defect, and calls that procedure the correction of the notice of appeal. This term means the procedure of curing defects in statutory entries, revenue stamps, service, and the like. The granting of the opportunity to correct and the dismissal on procedural grounds upon non-correction are separate stages of determination. If the former is the provision of time to fill the formal defect, the latter is what brings the notice of appeal to an end only when the defect still remains after the designated period has passed. If the two are read together, the threshold extending beyond the fact of filing is erased, and the appellate court's power of examination is lumped together.
If a substantive error is entrenched through a missing character in the statement of the scope of the challenge or a missing revenue stamp, the propriety of the judgment is relegated and the handling of documents decides the outcome. This inconvenience cannot be treated lightly. For that the provision, on the premise of an opportunity to correct, has prescribed dismissal on procedural grounds upon non-correction is an arrangement premised on the fact that adjudication is not assured by filing alone.
In the synthetic scene, what defects remain in the notices of appeal of A and B, and whether an order to correct has been issued, are not settled by the material. In that case it cannot be determined which condition of Article 402 each appeal falls under, or whether the correction period has elapsed. What the scene confirms is only the fact that the two have each lodged a challenge to different portions of the losing part. Neither can it be concluded that the person who filed the notice of appeal is assured of a hearing on the merits, nor can it be asserted that the notice of appeal has been dismissed. Where the designated material ends, the determination also stops.
What this section permits is the confirmation that the receipt of a notice of appeal and the validity of the appeal are to be distinguished, and that the order to correct and the dismissal on procedural grounds upon non-correction form a sequence. The conclusion that adjudication is assured by the fact of filing alone is not contained here. For what reason a hearing on the merits is blocked, and which part of the judgment the appellate court can address, is not the task of this section.
2.9Application of the Text of the Provisions and the Holdings of Precedents
Under the premise that the appeal period is counted from service of the written judgment and that an appeal filed before service is also permitted, the question is whether adjudication is assured beyond the stage of filing. In this scene, the expressions of dissatisfaction by the two parties do not in themselves mean that a channel for changing the judgment has been opened. Accordingly, whether adjudication is assured merely by the fact that a notice of appeal was filed must first be determined.
The source provision corresponding to this question is Civil Procedure Act, Article 402, the text of which prescribes the authority of the presiding judge of the appellate court to examine the notice of appeal. Paragraph (1) of Article 402 provides that "where the notice of appeal contravenes the provisions of paragraph (2) of Article 397, or where the notice of appeal does not have attached the revenue stamp as required by law, yet the presiding judge of the court of first instance, etc. has not issued an order under paragraph (1) of Article 399, or where a copy of the notice of appeal cannot be served," the presiding judge of the appellate court shall order the appellant to correct the defect within a reasonable period (Civil Procedure Act, Article 402). The same paragraph also states that the presiding judge of the appellate court may have a court clerk, etc. issue that order to correct.
The same provision then divides matters into two stages. Paragraph (2) of Article 402 provides that "where the appellant fails to correct the defect within the period under paragraph (1), or where the presiding judge of the court of first instance does not dismiss the notice of appeal under paragraph (2) of Article 399," the presiding judge of the appellate court shall dismiss the notice of appeal by ruling, and paragraph (3) provides that an immediate appeal may be taken against that dismissal ruling (Civil Procedure Act, Article 402). The reason for distinguishing the order to correct from dismissal for non-correction is that the threshold remaining after filing lies at a different stage of decision from the filing itself. Only the text of the relevant source provision is used as the basis for adjudging the channel for changing the original judgment by appeal, without extending to the reasons for judgment or other paragraphs.
The point most strongly targeted by the objection that examination on the merits may be blocked by formal defects is this inconvenience. If a technical error in the entries, the revenue stamp, or service provides the occasion, the very opportunity for examination of the substantively wrong part may disappear. The concern that a technical error in the scope of the challenge may entrench substantive error arises from the proposition that examination on the merits can be preserved only if the fact of filing is taken to assure adjudication. The conclusion holds even without erasing this loss and inconvenience. The fact of filing is not a confirmation that adjudication is assured; it is no more than the starting point for determining how to deal with the formal defects that remain thereafter.
In the synthetic scene, the facts relevant to this question are limited to the expressions of dissatisfaction by the two parties as to their respective losing portions, and the remaining records are not fixed. Service of the written judgment, the notice of appeal, performance of the correction, expiration of an impediment, an incidental appeal, and whether the scope of the challenge has been satisfied are all unconfirmed. Whether the scope of the challenge has been specified by an appeal satisfying the period and correction requirements or by a lawful incidental appeal, whether an order to correct was issued, and whether it was performed within the designated period cannot be confirmed from this scene. The occurrence and removal of an impediment necessary for service or later cure likewise remain undetermined.
The conclusion this section permits is narrow. On the text of the relevant source provision alone, it takes as the basis for adjudging the treatment of formal defects remaining after a notice of appeal is filed—that is, the distinction between an order to correct and dismissal for non-correction. Beyond this scope, it does not permit a decision that reads the fact of filing as assurance of adjudication, or that broadens the scope of the channel by relying on other paragraphs and the reasons for judgment. Whether the channel for changing the original judgment by appeal has in fact been opened presupposes confirmation of the records: service of the written judgment, the notice of appeal and performance of the correction, expiration of an impediment, an incidental appeal, and the scope of the challenge; and without that confirmation, the matter cannot escape the state of being undetermined. However, the circumstance of being undetermined is merely an indication of insufficient data and is not equivalent to a declaration that no remedy is available. When the data is supplied, whether the channel is open will then be determined according to the requirements as they stand.
2.10Fine Distinctions Within the Stage
In this scene, the scope of the question asked this time is whether, merely because the notices of appeal filed by the two parties were received, the merits are opened for each contested portion, or whether formal thresholds remain even after receipt.
The provision corresponding to this section is Civil Procedure Act, Article 402. Its paragraph (1) provides: "Where the notice of appeal contravenes the provisions of paragraph (2) of Article 397, or where the notice of appeal does not have attached the revenue stamp as required by law, yet the presiding judge of the court of first instance, etc. has not issued an order under paragraph (1) of Article 399, or where a copy of the notice of appeal cannot be served, the presiding judge of the appellate court shall order the appellant to correct the defect within a reasonable period designated by the presiding judge" (Civil Procedure Act, Article 402). Here the actor is the presiding judge of the appellate court, the object he faces is the formal defect remaining in the notice of appeal itself, and the act is an order to correct within a designated period. Paragraph (2) provides that where the defect is not corrected within that period, or where the presiding judge of the court of first instance does not dismiss, the presiding judge of the appellate court shall dismiss the notice of appeal by ruling; and paragraph (3) permits an immediate appeal against that dismissal ruling (Civil Procedure Act, Article 402).
This text lays the ground for distinguishing receipt from legality. The fact that the notice of appeal has reached the court and the procedure is proceeding stands at a different stage from the state in which that notice of appeal has been confirmed free of defects to the point of leading to oral argument. The separation of the order to correct from dismissal for non-correction means that a separate threshold remains even after filing; if this distinction does not hold, the two states would be determined all at once by the single fact of filing. Accordingly, the part to be separately adjudged within the channel for changing the original judgment by appeal is limited to the stated conditions. Where the scope of the challenge has been specified by an appeal satisfying the period and correction requirements or by a lawful incidental appeal, the channel operates; where the appeal period has lapsed, the requirements for later cure are not satisfied, and there is no such channel as an incidental appeal, it is blocked.
The strongest objection is that examination on the merits may be blocked by formal defects. Where a substantive error in the content of the judgment is clear, yet, because of unmet formal requirements such as entries, the revenue stamp, or service, examination of the reasons cannot even begin, the loss and inconvenience suffered by the parties are great. The risk that a technically erroneous statement of the scope of the challenge will leave substantive error outside that scope solidified operates in the same direction. Even so, the fact of receipt cannot be converted into a determination of the legality of the appeal. If, while leaving the loss identified by the objection in place, the process of confirming and correcting formal defects or dismissing a notice of appeal in which the defect remains were merged with receipt, the distinction laid down in Article 402 would disappear (Civil Procedure Act, Article 402).
In this scene, where Plaintiff A and Defendant B each challenge different losing portions and the question is which portions are open to the appellate court, what is currently confirmed is only the fact that the two challenge different portions. Whether formal defects remain in the notices of appeal of the two, whether an order to correct was issued, whether the designated period has lapsed, and whether there was an incidental appeal are undetermined. In the synthetic scene, no year, amount, or commencement date has been set. Consequently, which portions are open and which are blocked can be determined only once the records are confirmed, and so long as the occurrence and removal of an impediment necessary for service or later cure are not confirmed, the matter remains undetermined. Whether substantive error exists has likewise not been confirmed in this scene.
What this section permits is distinguishing the thresholds that remain after receipt within the stated conditions; what it does not permit is converting the fact of receipt into a determination of legality, or creating and inserting a new stage of decision outside the stated conditions. The distinction between an order to correct and dismissal for non-correction is rooted in the text of Article 402, and decision moves only within these conditions (Civil Procedure Act, Article 402). Any expression that converts the fact of receipt into a determination of legality is treated as crossing the boundary.
2.11Synthesis of Effectiveness, Blockage, and Undetermination
Even after the preceding stage summarized that the appeal period is counted from service of the written judgment and that an appeal before service is also permitted, whether adjudication is assured merely by the fact that a notice of appeal was filed remains a separate question. The fact of filing and the legality of the filed notice of appeal are distinct issues, and the scope opened to the appellate court differs according to which has been confirmed. It must now be distinguished whether the channel for changing the original judgment by appeal actually operates, is blocked, or must be held in abeyance on the records alone.
Its paragraph (1) provides: "Where the notice of appeal contravenes the provisions of paragraph (2) of Article 397, or where the notice of appeal does not have attached the revenue stamp as required by law, yet the presiding judge of the court of first instance, etc. has not issued an order under paragraph (1) of Article 399, or where a copy of the notice of appeal cannot be served, the presiding judge of the appellate court shall order the appellant to correct the defect within a reasonable period designated by the presiding judge." Here the actor is the presiding judge of the appellate court, the object is the defective notice of appeal, and the condition is that one of the following is confirmed: contravention of the entries, absence of the revenue stamp, or impossibility of serving the copy. What this text addresses is not the filing itself but the correction procedure after filing.
The text continues to paragraph (2), providing that "where the appellant fails to correct the defect within the period under paragraph (1), or where the presiding judge of the court of first instance does not dismiss the notice of appeal under paragraph (2) of Article 399," the presiding judge of the appellate court shall dismiss the notice of appeal by ruling; and against the same dismissal ruling an immediate appeal against a ruling is permitted. The reason these two stages must be distinguished is that, so long as the correction of the notice of appeal—that is, the procedure for curing defects in statutory entries, the revenue stamp, service, and the like—remains available, the fate of the filed notice of appeal has not been fixed. Because a period to cure the defect is given and dismissal follows only when it is not cured within that period, the fact of receipt and the determination of legality belong to different stages of decision. If, at this point, the scope of the challenge is specified by an appeal satisfying the period and correction requirements or by a lawful incidental appeal, the channel is open.
Nevertheless, the objection that examination on the merits may be blocked by formal defects carries weight. Even where a substantive error exists, if the merits cannot be reached because a single entry cannot be corrected, the error in the judgment remains as it is and the loss the parties must bear is not small. Voices criticizing the result that technical error displaces substantive decision arise accordingly. The text prescribing the opportunity for correction and dismissal after the lapse of that period is incompatible with the premise that legality is determined by filing alone, and the inconvenience identified by the objection is left to be dealt with through the channel permitting an immediate appeal against a dismissal. The time when the channel closes is determined by the same standard. Where the appeal period has lapsed, the requirements for later cure are not satisfied, and there is no such channel as an incidental appeal, the channel is regarded as blocked.
In this scene, Plaintiff A and Defendant B each challenge different losing portions, so which portions are open to the appellate court varies according to whether the scope of the challenge has been specified. So long as it is unconfirmed when the impediment necessary for service or later cure arose and was removed, that item remains undetermined. Conversely, if performance of the correction or the lapse of the period is not confirmed by the records, it cannot be categorically asserted that the channel is open.
The conclusions permitted in this section are three. Where the scope of the challenge has been specified by an appeal satisfying the period and correction requirements or by a lawful incidental appeal, the channel is open; where the appeal period has lapsed, the requirements for later cure are not satisfied, and there is no other channel such as an incidental appeal, the channel is blocked. Where, in between, the occurrence and removal of an impediment necessary for service or later cure are unconfirmed, the matter must be left undetermined, and insufficient data is not immediately converted into a denial of remedy. What this distinction does not permit is the decision that the legality of the appeal is determined by the fact of receipt alone. That the legal channel has been opened does not confirm the results of actual payment, delivery, or recovery; it confirms only the subsistence of the threshold, including the possibility of dismissal.
2.12Conclusion Carried Over to the Next Section
The preceding stage summarized only that the appeal period is counted from service of the written judgment and that an appeal before service is also permitted. It must now be asked what thresholds remain after a notice of appeal has been received.
Civil Procedure Act, Article 402 prescribes the appellate court's power of examination as follows. Paragraph (1) provides that "Where the notice of appeal contravenes the provisions of paragraph (2) of Article 397, or where the notice of appeal does not have attached the revenue stamp as required by law, yet the presiding judge of the court of first instance, etc. has not issued an order under paragraph (1) of Article 399, or where a copy of the notice of appeal cannot be served, the presiding judge of the appellate court shall order the appellant to correct the defect within a reasonable period designated by the presiding judge," and it also provides that the presiding judge of the appellate court may have a court clerk, etc. issue that order to correct. Here the actors are the presiding judge of the appellate court and the appellant.
Paragraph (2) leads to dismissal if the defect remains after the correction period expires. "Where the appellant fails to correct the defect within the period under paragraph (1), or where the presiding judge of the court of first instance does not dismiss the notice of appeal under paragraph (2) of Article 399," the presiding judge of the appellate court shall dismiss the notice of appeal by ruling. Paragraph (3) provides that an immediate appeal against a ruling may be taken against that dismissal ruling. The text separates the fact of filing from legality. The order to correct under paragraph (1) is a procedure opening the opportunity to cure the defect, and the dismissal under paragraph (2) is a decision disposing of the result that the defect remains. These two are incompatible with the idea that the fact of filing immediately becomes a determination of legality.
A minor deficiency in the entries, the revenue stamp, or service of the copy may produce the inconvenience of entrenching substantive error. Receipt merely confirms the state of standing before the threshold, and Article 402 leaves the stages of correction and dismissal thereafter. What this section answers is whether the filing of the notice of appeal itself assures adjudication, not how technical errors in the scope of the challenge are remedied.
Correction is the procedure for curing defects in statutory entries, the revenue stamp, service, and the like, and whether it has been performed is confirmed by the records. Service of the written judgment, the notice of appeal, performance of the correction, expiration of an impediment, an incidental appeal, and the scope of the challenge are those records. However, this section gives only whether the defect remaining in the notice of appeal has been confirmed. If a lawful incidental appeal by the appellee is confirmed, a demand for modification is not blocked merely by the extinction of the independent right to appeal; but the synthetic scene contains no such fact. Accordingly, which portions are open remains undetermined.
This section confirms that the filing of a notice of appeal cannot be read as an assurance of adjudication. It does not, however, deny the effect of the appeal as filed, nor does it determine which defects are curable. What remains is only the threshold after receipt. Can the appellate court freely change the entire judgment?