Summary
Where a dismissal of a suit is revoked, the principle of remand is distinguished from the exception under which the appellate court renders its own judgment based on a sufficient hearing or consent.
5.1The Standard by Which the Path Opens
For a person who has the first opportunity for a trial on the merits, the benefit of the instance is itself part of the relief. Carrying forward from the previous section the premise that the appellee may file an incidental appeal until the close of oral argument even after the right to appeal has lapsed, the question now is not which individual items apply but, when an action within the scope of the challenge stands before the door of the court of appeal, who will handle the merits. Because plaintiff A and defendant B each challenge different portions decided against them, the question is which portions are open to the court of appeal. In this scene, the criterion that opens the channel must first be fixed, and only then can the court that will take up the examination be distinguished.
The relevant text answering this question is Article 418 of the Civil Procedure Act. Its wording provides that, where a first-instance judgment dismissing the action as impermissible is revoked, the court of appeals shall remand the case to the court of first instance. Here the party that remands is the court of appeals sitting as the court of appeal, the object is the case in which the dismissal judgment has been revoked, and the condition is that the first-instance judgment was a dismissal on the ground of the action's impermissibility. The court of first instance, the recipient of the remand, is placed in the position of taking up the examination of the merits for the first time.
The same wording sets an exception to this principle, providing that where the examination has proceeded to a degree sufficient to render a judgment on the merits in the first instance, or where the parties consent, the court of appeals may render a judgment on the merits itself. Mandatory remand is the principle of sending the case back to the court below after the revocation of the dismissal of the action, and beyond it two exception conditions distinguish which court takes up the examination. The two conditions are not the same thing. One concerns the accumulated state of the examination, and the other concerns an expression of the parties' intention. The distinction is necessary because the benefit of the instance does not vanish merely by the revocation of the dismissal.
That said, sending the case back in the manner plaintiff A desires is not always beneficial. If the case is sent back again, delay and expense increase. Because the examination and the trial must be gone through again, time and cost grow, and that procedure is imposed anew on a person who never had the opportunity to have the merits examined. Yet a revocation of the dismissal of the action cannot always be turned into an immediate victory on the merits in the court of appeal. That the dismissal has been revoked and that the claim on the merits is granted are separate determinations, and the wording that fixes the principle of remand and the conditions of the exception leaves that distinction intact.
All that can be confirmed in the stipulated scene is the fact that plaintiff A and defendant B challenge different portions of the parts decided against them. The scene, in which the question is which portions are open to the court of appeal, does not contain whether the dismissal judgment has been revoked, whether the examination in the first instance has proceeded far enough to render a judgment on the merits, or whether the parties consented to the court of appeals rendering judgment itself. Accordingly, this scene alone cannot determine whether the outcome will be remand or judgment by the court of appeal itself. So long as service, the notice of appeal, compliance with the correction order, the lapse of the impediment, the incidental appeal, and satisfaction of the scope of the challenge remain unconfirmed, that determination remains undetermined. If a lawful incidental appeal by the appellee is confirmed, the lapse of the independent right to appeal alone does not block the request for modification.
The conclusion permitted in this section is the distinction that a revocation of the dismissal of the action calls forth the principle of remand, and that only where the foregoing conditions of accumulated examination or the parties' consent exist can the court of appeals render a judgment on the merits itself. Reading a revocation of the dismissal immediately as a victory on the merits lies outside this range. The criterion of who examines the merits depends on whether these conditions are satisfied, and facts that are not established remain undetermined.
5.2The Conditions That Block Relief
On the premise that the appellee may file an incidental appeal until the close of oral argument even after the right to appeal has lapsed, plaintiff A and defendant B challenge different portions of the parts decided against them, so the question is which portions are open to the court of appeal. What must be asked this time, however, is not who acquires the qualification to examine, but the conditions under which the channel for changing the original judgment through the court of appeal opens. That is, if the statutory requirements necessary for relief through appeal are not in place, the relief is blocked. Among these, this article addresses the conditions of blockage.
The place for setting this condition is Article 418 of the Civil Procedure Act. Its wording reads: "Where a first-instance judgment dismissing the action as impermissible is revoked, the court of appeals shall remand the case to the court of first instance" (Article 418 of the Civil Procedure Act). Here, "dismissal of the action" is a judgment that concludes the trial without examining the claim on the merits, and "revocation" is a judgment by which the court of appeal overturns that dismissal. The "court of appeals" is the body that makes these two determinations, and "remand" refers to the act of sending the case back to the court of first instance. The other issues raised by the provision do not go beyond this point.
The same provision sets out the exception immediately afterward. "Provided, however, that where the examination has proceeded to a degree sufficient to render a judgment on the merits in the first instance, or where the parties consent, the court of appeals may render a judgment on the merits itself" (Article 418 of the Civil Procedure Act). With such wording stands mandatory remand, that is, the principle of sending the case back to the court below after the revocation of the dismissal of the action. Why is this distinction necessary? The former is the stage of sending the case back to give an opportunity for examination, and the latter is the stage at which the examination was already sufficient or the parties have accepted the matter, allowing the court to decide for itself. If the two stages are mixed, it cannot be known which one has been lost.
Even so, sending the case back again increases delay and expense. This disadvantage is plain. Beyond that, it must also be kept in mind that a technical error in the scope of the challenge may entrench a substantive error. The channel for changing the original judgment through appeal opens only where the scope of the challenge is specified by an appeal satisfying the period and correction requirements or by a lawful incidental appeal, and service of the judgment, the notice of appeal, compliance with the correction order, the lapse of the impediment, the incidental appeal, and the scope of the challenge are its record. Where the appeal period has passed, the requirements for subsequent supplementation are not satisfied, and there is no corresponding channel such as an incidental appeal, if even one of the statutory requirements is absent, the relief is closed.
In the synthetic scene, plaintiff A and defendant B challenge different portions of the parts decided against them, and the fact that the question is which portions are open to the court of appeal is weighed against the foregoing conditions. When service of the judgment took place on either side, how the appeal brief was corrected, and when the impediment arose and was resolved are all unconfirmed. Accordingly, all that can be determined is that where a lawful channel of challenge specifying the scope is confirmed, the channel opens within that scope, and that in the contrary case it is blocked.
What can be said in this section is the distinction that the channel for changing the original judgment through appeal opens where the statutory requirements are met and otherwise remains closed, and the boundary that a revocation of the dismissal of the action does not by itself mean a victory on the merits in the court of appeal. The absence of materials on the arising and resolution of the impediment necessary for service or subsequent supplementation remains undetermined.
5.3The Boundary That Remains When There Is No Data
On the premise that the appellee may file an incidental appeal until the close of oral argument even after the right to appeal has lapsed, the question that remains is who examines the merits when an action blocked at the entrance opens in the court of appeal. Beyond that, where to place the boundary of insufficient materials for determination is the task of this stage. To fix the examining body in this scene, a criterion distinguishing the open range from the blocked range is needed first.
Article 418 of the Civil Procedure Act provides that, where a first-instance judgment dismissing the action as impermissible is revoked, the court of appeals shall remand the case to the court of first instance. This wording makes clear that in that case the court of appeal sends the case back. The provision, however, immediately adds two exceptions. Where the examination has proceeded to a degree sufficient to render a judgment on the merits in the first instance, or where the parties consent, the court of appeals may render a judgment on the merits itself. Here, the degree to which the examination has proceeded and the parties' consent are each different conditions, and one or the other must be in place before the court of appeal can render judgment itself.
The reason this distinction of conditions matters is that the stages of determination differ from one another. First it is settled whether the dismissal of the action is revoked, and thereafter it is decided whether the case will be sent back or taken up by the court of appeal. If the former is mixed with the latter, it reads as though the revocation of the dismissal alone immediately opens judgment by the court of appeal itself. Mandatory remand means the principle of sending the case back to the court below after the revocation of the dismissal of the action. Only after this principle is confirmed is the existence of the exception of sufficient examination or consent examined. Depending on which stage one stands at, even in the same case, the court that examines the merits differs.
For a court of appeal that has found the dismissal of the action to have been wrong, the incentive to conclude the case at once is great, and in that process the concern also grows that the earlier determination dismissing the action may entrench a substantive error. Even so, a revocation of the dismissal of the action cannot always be turned into an immediate victory on the merits in the court of appeal. If the matter was not sufficiently examined in the first instance, the opportunity to address the merits for the first time must be guaranteed in the court below, and if that opportunity is skipped without the parties' consent, the benefit of the instance is impaired. The delay and expense pointed out by the counterarguments remain as they are, but that alone does not lower the threshold of the exception.
All that can be confirmed in the synthetic scene is the fact that plaintiff A and defendant B challenge different portions of the parts decided against them. Service of the judgment, submission of the notice of appeal, compliance with the correction order, the lapse of the impediment, the presence or absence of an incidental appeal, and how the scope of the challenge was specified were only set aside as items to be confirmed from the records, and nothing has been established. Where the arising and resolution of the impediment necessary for service or subsequent supplementation are unconfirmed, it cannot be asserted which items have actually been satisfied. In this case, matters for which the materials for determination are not specified are left undetermined, distinguished from impossibility. This means that the mere absence of materials is not grounds for concluding that relief is impossible.
What this section permits is the determination of viewing the path after the revocation of the dismissal of the action as divided into the principle of remand and the exception of judgment by the court of appeal itself, and of leaving items without materials undetermined. By contrast, reading the revocation of the dismissal at once as a victory on the merits in the court of appeal, or fixing undetermined items as impossible, is not permitted by this section.
5.4The Records Needed for Determination
In the preceding stage of analysis, it was confirmed that the appellee may file an incidental appeal until the close of oral argument even after the right to appeal has lapsed. At that point, the principle of remand upon revocation of the dismissal of the action is distinguished from the exception of judgment by the court of appeal itself on the basis of sufficient examination or consent. When an action blocked at the entrance opens in the court of appeal, who examines the merits? To make this determination, which records are needed?
As the wording that answers this question, Article 418 of the Civil Procedure Act provides that "Where a first-instance judgment dismissing the action as impermissible is revoked, the court of appeals shall remand the case to the court of first instance." The actor spoken of here is the court of appeals, the act is the revocation of the first-instance judgment, and the condition is that the judgment was a dismissal on the ground of the action's impermissibility. A dismissal means a judgment that did not proceed to a determination of the merits because the requirements of the claim were not met, and the revocation in this case means that the blockage at the entrance rested on a mistaken determination.
The same provision then places the proviso: "Provided, however, that where the examination has proceeded to a degree sufficient to render a judgment on the merits in the first instance, or where the parties consent, the court of appeals may render a judgment on the merits itself." Mandatory remand means the principle of sending the case back to the court below after the revocation of the dismissal of the action, and a judgment on the merits rendered by the court of appeals itself is limited to the two prescribed grounds. If the incidental appeal discussed in the previous section was the channel for widening the scope of the challenge, the staged determination of this section is simply the work of comparing as they stand only the materials recorded in service of the judgment, the notice of appeal, compliance with the correction order, the lapse of the impediment, the incidental appeal, and the scope of the challenge. Put differently, the service materials of the judgment serve as the materials for determining the commencement of the appeal period, the notice of appeal and the materials of compliance with the correction order as those for the raising and the curing of a lawful appeal, the lapse of the impediment as those for satisfaction of the requirements for subsequent supplementation, and the incidental appeal and the entries of the scope of the challenge as those for determining which portions are open to the court of appeal. And missing records are not filled in by presumption. Because this distinction is the ground that preserves the principle of remand and the exception of judgment by the court of appeal itself, the determination of whether the examination has been sufficiently conducted and whether there is consent also stands only upon the foregoing records.
Yet the method that requires only records for the staged determination does not treat the loss and inconvenience lightly. If a case that had been halted by a dismissal is sent back to the court below again, then despite the benefit of the opportunity for a trial on the merits, time and cost attending re-examination and re-determination are imposed again, and the parties must go through a procedure already traversed. The point that it is better for the court of appeal to recognize the degree of the examination broadly and pronounce the merits itself, thereby reducing delay and settling the dispute at an early date, does not lose the weight of a counterargument. However, if one considers together with that the question whether no new determination is made when the court of appeal merely cites the foregoing reasons, the progression of the procedure differs depending on whether the reason for the dismissal was a determination concerning the claim itself or a determination concerning the merits. The author answers that even so, a revocation of the dismissal of the action cannot always be turned into an immediate victory on the merits in the court of appeal. Because the principle of remand is a device that gives the opportunity for the merits in the court below, the court of appeal cannot replace that opportunity with its own pronouncement unless the grounds for the exception of judgment by the court of appeal itself are confirmed.
Leaving as they stand the fact that in this scene plaintiff A and defendant B challenge different portions of the parts decided against them, and that the question is which portions are open to the court of appeal, only the elements bearing on the determination of this section are drawn out and compared. First, if the service materials of the judgment and the materials of the notice of appeal and compliance with the correction order are present, it can be distinguished which party raised the challenge through a lawful appeal. Next, if the lapse of the impediment is not confirmed, it cannot even be established whether the requirements for subsequent supplementation have been satisfied, and the portions entered in the incidental appeal and the scope of the challenge show the range of the court of appeal opened by the appellee's side. Yet in this scene no year, amount, or commencement date has been set, and neither the service in an actual case nor the results of performance are contained in it. Accordingly, grounds for judgment by the court of appeal itself, such as whether the examination has proceeded to a degree sufficient to render a judgment on the merits in the first instance and whether the parties consented, cannot be determined from this scene alone and remain undetermined. This state of being undetermined does not itself mean that relief is impossible or that the court of appeal must unconditionally dismiss the case.
Accordingly, the conclusion permitted by this section is narrow. The stage is determined only from the materials recorded in service of the judgment, the appeal brief, compliance with the correction order, the lapse of the impediment, the incidental appeal, and the scope of the challenge; the staged determination is made only upon the established records; and missing records are not filled in by presumption. The efficacy spoken of here is bound to the stage at which the channel for changing the original judgment through appeal opens, and operates where the scope of the challenge has been specified by an appeal satisfying the period and correction requirements or by a lawful incidental appeal. By contrast, where the appeal period has passed, the requirements for subsequent supplementation are not satisfied, and there is no corresponding channel such as an incidental appeal, that channel is closed. The conclusion not permitted is the view that, on the basis of the mere fact that the dismissal has been revoked, an immediate victory on the merits in the court of appeal is pronounced at once. The term mandatory remand is the name of the principle of sending the case back to the court below after the revocation of the dismissal of the action, and the exception of judgment by the court of appeal itself is limited to prescribed grounds.
5.5Circumstances That Change the Decision
In this scene, both parties wish for the first time to receive a determination on the merits, but it must first be identified which party's dissatisfaction has opened up the appellate stage. Only after the scope of the dissatisfaction is fixed does it become clear who will examine the merits as to which part. The question of this section is precisely that interval, namely, after the reversal of a dismissal on procedural grounds of the complaint, in which court the examination of the merits is conducted. The discussion of mandatory remand is the answer to this question and the device that binds the benefit of instance to the form of continuation of proceedings.
The provision in question provides under Article 418 of the Civil Procedure Act that "where the judgment of first instance that dismissed the complaint as improper under law is reversed, the appellate court shall remand the case to the court of first instance" (Article 418 of the Civil Procedure Act). This wording confines the actor to the appellate court, the act to the remand of the case, and the condition to the reversal of the judgment dismissing the complaint. Other issues raised by the provision fall outside the scope of this paragraph. Mandatory remand, however, is defined as the principle of sending the case back to the court below after the reversal of a dismissal on procedural grounds of the complaint (Article 418 of the Civil Procedure Act). Accordingly, when a judgment dismissing the complaint is reversed, it is the principle that the examination of the merits does not remain in the appellate stage but returns to the court below. By providing that the consequence of reversal is remand, this provision determines the court responsible for examining the merits. Furthermore, the same provision makes a proviso that the appellate court may itself render a judgment on the merits where the case has been examined to a degree sufficient to render a judgment on the merits in the first instance, or where the parties consent (Article 418 of the Civil Procedure Act).
The reversal and remand under Article 418 are determinations at a stage different from the incidental appeal discussed above. If a lawful incidental appeal by the appellee is confirmed, the mere extinction of the independent right to appeal does not bar a request for modification, and therefore the reversal of the dismissal of the complaint may be at issue within the scope of the dissatisfaction opened up in the appellate stage. When the specified modification is confirmed at that point, the existing determinations of bar and effectiveness are discarded and the determination is redone from that stage onward. In other words, the stage of asking whether a request for modification is permissible and the stage of asking to which court the examination of the merits after the reversal becomes final are separate. If the former is a question of opening the channel for the dissatisfaction, the latter is a question of which court will continue the examination of the opened case. If the two concepts are not separated but are lumped together, one arrives at the mistaken conclusion that the mere fact that the appellate stage has commenced allows the appellate court to dispose of the merits on its own. What can therefore be stated definitively is that once the reversal is confirmed, remand is the principle, and the exception is bound to the limited conditions that the wording prescribes: completion of examination or consent.
Even though discussion has already proceeded in the appellate stage, sending the merits back to the court below forces the parties to bear repeated explanations and attendances, and prolongs the time until the judgment becomes final and conclusive. That this delay and these additional costs may entrench substantive error is the substance of the counterargument. If a single technical mistake in specifying the scope of the dissatisfaction blocks the determination on the merits to the very end, the party seeking relief is made to suffer disadvantage again from the form of procedure. The proviso to Article 418 permits the appellate court's own judgment on the merits only where the condition of sufficient examination or consent is satisfied, and, absent that condition, makes remand the principle (Article 418 of the Civil Procedure Act). The costs pointed out by the counterargument are a matter to be dealt with within the scope of the exception already contemplated by the provision, and do not constitute grounds for neutralizing remand itself. Accordingly, the concern about delay cannot change the conclusion.
The fact confirmed in the synthetic scene is the single line that plaintiff A and defendant B each challenge different parts of the portions decided against them, so that it is at issue which parts are open in the appellate stage. This one line sets only the conditions that both parties have parts decided against them and that such dissatisfaction has not yet been specified. The timing of service of the written judgment, the filing of the notice of appeal, compliance with an order to make corrections, the lapse of the impediment, the existence or nonexistence of an incidental appeal, and the specification of the scope of the dissatisfaction have not been confirmed. Accordingly, this scene cannot determine whether there is no new determination if the appellate court adopts the foregoing reasons, whether the reversal of the dismissal of the complaint actually occurred, or whether the conditions of the proviso—completion of examination or the parties' consent—were satisfied. If a lawful incidental appeal by the appellee is confirmed, the mere extinction of the independent right to appeal does not bar a request for modification, and this is used only to ascertain whether such a request is barred. The other items remain undetermined.
The conclusion permitted in this section is clear. If the reversal of the judgment dismissing the complaint is confirmed, it is the principle that the appellate court remands the case to the court below, and the appellate court's own determination of the merits is limited to cases in which the literal conditions of completion of sufficient examination or the parties' consent are satisfied (Article 418 of the Civil Procedure Act). The impermissible conclusion is the interpretation that reversal alone immediately establishes a victory on the merits in the appellate stage. Moreover, after determining whether a request for modification is barred, if circumstances warranting the overturning of that determination are confirmed, the determination must be redone from that stage onward, though its result does not necessarily lead to a victory on the merits in the appellate stage. The delay and costs feared by the counterargument are circumstances to be addressed within the limited scope of the exception, and the principle of remand cannot be disregarded without the conditions set by the wording. Facts absent from the synthetic scene are not filled in and are left only as conditional distinctions.
5.6The Strongest Counterargument and the Answer
As organized in the preceding stage, the appellee may file an incidental appeal until the close of oral argument even after the right to appeal is extinguished. Yet when the appellate court corrects a judgment that dismissed the complaint, it must also be determined to which level of instance the effect of that correction returns. In that case, the starting point of this question is whether the appellate court will conclude the merits itself, or whether the examination of the first instance must first be undertaken. The reason for ascertaining first who examines the merits here is that the determination of the appellate court does not substitute for the parties' first opportunity to present proof and contest the merits.
The wording that decides this question lies in Article 418 of the Civil Procedure Act. Here the actor is the appellate court, the act is the reversal of the judgment of first instance that dismissed the complaint, and the basic effect following it is to send the case back to the court of first instance. This principle is called 'mandatory remand.' Mandatory remand is the principle of sending the case back to the court below after the reversal of a dismissal on procedural grounds of the complaint. That the provision makes remand the principle reflects the direction of its wording: to have the examination, which until then had not been opened on the merits, be completed in the first instance.
The same provision, however, immediately places a door to the exception, providing that "provided, however, that where the case has been examined to a degree sufficient to render a judgment on the merits in the first instance, or where the parties consent, the appellate court may itself render a judgment on the merits" (Article 418 of the Civil Procedure Act). For the appellate court to render a judgment on the merits itself, the case must have been examined to a degree sufficient to render a judgment on the merits in the first instance, or the parties must have consented. The fact that these two conditions are attached is important. The reversal of a dismissal judgment and a judgment of victory on the merits in the appellate stage are not determinations of the same stage: the former opens the procedure, while the latter concludes the relief requested within it. Accordingly, the conclusion of this section is that a reversal of the dismissal of the complaint cannot always be converted into an immediate victory on the merits in the appellate stage. Even with the same reversal judgment, if the threshold of the latter is not crossed, the case returns to the path of mandatory remand.
The strongest counterargument points out that such a remand again increases time and cost. Sending the case back to the first instance requires re-examining the review already conducted in the appellate stage and opening a fresh examination, and the parties must prepare the same materials once more. Such delay and cost are a real burden for those seeking to draw closer to the truth of the merits. Yet if, to relieve that inconvenience, a reversal of the dismissal of the complaint is always converted into an immediate victory on the merits in the appellate stage, the opportunity for the parties to contest the merits for the first time disappears in cases that have not been sufficiently examined or consented to. Even though the disadvantage identified by the counterargument remains, unless it is an exception beyond the conditions set by the provision, no path avoiding remand opens.
The facts that can be confirmed in the synthetic scene are that plaintiff A and defendant B each challenge different parts of the portions decided against them, so that it is at issue which parts are open in the appellate stage. The extent to which the scope of the dissatisfaction for each part has been specified, whether the examination in the first instance reached the degree of rendering a judgment on the merits, and whether the parties consented to a judgment by the appellate court are not settled in this scene. Accordingly, on this scene alone it cannot be determined whether the case must pass through mandatory remand, or whether the appellate court may itself render a judgment on the merits. Even if that were confirmed, however, the reversal of the dismissal would not thereby become a victory on the merits in the appellate stage.
The conclusion this section permits is that when the appellate court reverses a judgment that dismissed the complaint, remanding the case to the first instance is the principle, and the exception is limited to cases in which the case has been sufficiently examined or the parties have consented. Going further and reading the reversal judgment itself as a victory on the merits in the appellate stage is an interpretation that is not permitted. In other words, on the premise of remand, the endpoint of relief may be delayed, but for that reason the first opportunity to examine the merits is not omitted.
5.7The Link to the Application and the Dispositive Part
The conclusion of the preceding section was that a reversal of the dismissal of the complaint cannot always be converted into an immediate victory on the merits in the appellate stage. Then, when a complaint blocked at the entrance comes to be opened in the appellate stage, which court will actually examine and adjudicate the merits of that complaint? This question bears directly on how far the benefit of instance must be respected even after the appellate court has reversed the original judgment.
Here, 'a judgment that dismissed the complaint as improper under law' refers to a judgment that rejected the complaint on the ground of a defect in the requirements of the action without proceeding to the merits, and 'a case of reversal' means a case in which the appellate court overturns that dismissal determination. The actor is the appellate court, the object is that dismissal judgment, and the basic act prescribed by the provision is the remand of the case.
The reason this provision makes remand the principle is that, where a judgment dismissing the complaint has been rendered, there is a high likelihood that the merits were never examined in the first instance. The distinction in the passage therefore divides into two stages. First, it is examined whether the ground for reversal lies in the impropriety of the dismissal of the complaint; next, it is examined whether the case has been examined to a degree sufficient to render a judgment on the merits in the first instance, or whether the parties have consented. These two requirements for the exception are a pathway that exceptionally pierces the principle of remand, not a door that opens automatically upon the reversal of the dismissal alone. The place of the principle of remand is to leave parties who wish to enjoy the benefit of instance in the first examination of the merits an opportunity to pass through the examination of the first instance.
In particular, in that a technical mistake in the scope of the dissatisfaction may entrench substantive error, sending the case back to the first instance at a point when the appellate court has already grasped the issues produces a loss of time that is hard to recover. Even so, a reversal of the dismissal of the complaint cannot always be converted into an immediate victory on the merits in the appellate stage. Delay and cost may be circumstances to be taken into account in the operation of the requirements for the exception, but they do not become grounds for nullifying the principle of remand itself. The appellate court's own judgment on the merits is permitted only when the condition of sufficient examination or the condition of the parties' consent is satisfied.
The facts that can be established in this section are limited to the foregoing synthetic scene. That plaintiff A and defendant B each challenge different parts of the portions decided against them, so that it is at issue which parts are open in the appellate stage; and that the manner in which the scope of the dissatisfaction has been technically specified does not necessarily coincide with the accuracy of substantive determinations. Whether the examination in the first instance reached the degree of rendering a judgment on the merits, and whether the parties consented to a judgment by the court, however, are not settled in this scene. Accordingly, whether those requirements are satisfied remains undetermined and, as an inspection that changes the conditions, if a lawful incidental appeal by the appellee is confirmed, the mere extinction of the independent right to appeal does not bar a request for modification.
The conclusion of this section is that the fact that, occasioned by a reversal of the dismissal of the complaint, a pathway opens for the appellate court to take charge of the merits does not mean that the pathway leads directly to a judgment of victory on the merits. Mandatory remand is the principle, and the two exceptions—sufficient examination or the parties' consent—merely take its place. Conversely, it cannot be asserted that relief is completely barred merely because proof of the requirements for the exception is insufficient.
5.8The Scope This Section Undertakes
The preceding section held that the appellee's incidental appeal leaves a pathway for a request for modification. Then, when a complaint blocked at the entrance is opened in the appellate stage, what is at issue is who will examine the merits after that door is opened. Here, where the scope of the dissatisfaction and the scope of retrial diverge, one must ask what relief disappears.
The wording for this question is Article 418 of the Civil Procedure Act. That provision provides that "where the judgment of first instance that dismissed the complaint as improper under law is reversed, the appellate court shall remand the case to the court of first instance" (Article 418 of the Civil Procedure Act). This wording binds a lawsuit that moves from one instance to the next to the condition of the 'reversal' of a 'judgment of first instance that dismissed the complaint as improper under law.' In other words, when a judgment that found the party lacked the qualification to bring the complaint or had not fulfilled the required form is overturned in the appellate stage, this provision sets the stage for where the appellate court will handle the merits.
That wording divides into the two stages of principle and exception. In the principle stage, the appellate court must send the case back to the court of first instance, and this is called mandatory remand. The exception stage permits the appellate court itself to render a judgment on the merits in the following two cases (Article 418 of the Civil Procedure Act). The reason the distinction is necessary is that the determination that reverses the dismissal and the determination that fixes the outcome of the merits are different stages. The fact that the former opened the door does not make the latter immediately the province of the appellate court.
As for this distinction, the strongest counterargument is aimed at the increase in delay and cost. If a case that has already undergone examination in the appellate stage is sent back to the first instance, the parties must state the same issues again and submit the same materials again. Time and cost increase, and the harm of the lawsuit's conclusion being delayed remains. That the appellate court reversed the dismissal does not mean that it prevailed on the merits; it means only that the first instance was able to examine the merits. If the two are bound into a single determination, the delay pointed out by the counterargument can be reduced, but the prior value known as the benefit of instance disappears.
The facts relevant to this question in this scene are limited. It is established only that plaintiff A and defendant B each challenge different parts of the portions decided against them, so that it is at issue which parts are open in the appellate stage. Whether the dismissal judgment was reversed, the degree of examination in the first instance, and whether the parties consented to a judgment by the court have all gone unconfirmed. Only if the reversal of the dismissal of the complaint is recognized, and it is additionally revealed whether the case was examined to a degree sufficient to render a judgment on the merits in the first instance or whether the parties consented, can the question of the appellate court's own judgment be decided. Absent such facts, it cannot be established in the present scene that the appellate court directly determines the merits. If the appellate court adopts the foregoing reasons, is there no new determination?
5.9Application of the Text of the Provisions and the Holdings of Precedents
The appellee accepts the premise that an incidental appeal may be filed until the close of oral argument even after the right to appeal has lapsed. On the basis of this premise, once an action that was barred at the threshold is opened in the appellate stage, the question remains who examines the merits. Once the scope of the appeal is identified, the appellate stage thereby obtains the channel through which it may alter the original judgment only within that scope. What wording conceals the threshold of this channel is the object of inquiry on this occasion.
The source text corresponding to this question is as follows. "Where a first-instance judgment dismissing the action as unlawful is set aside, the appellate court shall remand the case to the first-instance court. However, where the case has been examined in the first instance to such a degree that a judgment on the merits could be rendered, or where the parties have consented, the appellate court may itself render a judgment on the merits." (Civil Procedure Act Article 418) This wording first places 'dismissal of the action' and 'setting aside the first-instance judgment' in the subject position. It then directs that the actor, namely the appellate court, shall perform the act of 'remand'.
This provision is not one that widens the options of the appellate stage; it first establishes a principle that, on the wording alone, appears to require remand without exception. The wording, however, attaches to that principle, within the same sentence, two conditions for departing from it: where the case has been examined in the first instance to such a degree that a judgment on the merits could be rendered, and where the parties have consented. Once these two conditions are satisfied, the appellate court is declared able to render a judgment on the merits itself. It is precisely because the wording places the mandatory expression 'shall remand' side by side with the optional expression 'may itself render a judgment on the merits' that these two stages must be distinguished.
If the appellate court, which has already dealt with the facts and the evidence, sends the case back to the first-instance court, the parties must undergo the same procedure once again. The criticism that a technical error in the scope of the appeal may entrench a substantive error arises in the same direction. Yet this disadvantage cannot be invoked to disregard the proviso in the wording. Even though remand entails delay and expense, unless the exceptional conditions prescribed by the wording are confirmed, the channel through which the appellate stage itself renders a judgment on the merits remains, in effect, unopened. This means that setting aside the dismissal on procedural grounds and a finding for a party on the merits are not merged into one; it does not mean that judgment by the appellate stage is prohibited as a rule.
In this scene, Plaintiff A and Defendant B each take issue with different parts of the judgment against them. In this situation, what is required is the record of service of the written judgment, the notice of appeal, compliance with the order to correct, the lapse of the impediment, the incidental appeal, and the scope of the challenge, in order to identify that scope. Once it is determined which parts are open to the appellate stage, the wording of Article 418 fixes the form of the channel through which the original judgment may be altered within that open scope. Whether, however, the case had been examined in the first instance to such a degree that a judgment on the merits could be rendered, and whether the parties consented, cannot be confirmed from the scene alone. These items remain undetermined.
The conclusion this section permits is limited to taking the wording of that source text alone as the basis for adjudging the channel through which the original judgment is altered on appeal. That the principle of remand required by the wording of Article 418 is distinguished from the exception of judgment on the merits by the appellate court itself, depending on the degree of examination or the consent of the parties, is likewise a determination within this scope. By contrast, if the reasons for the judgment are read expansively, or new wording is drawn in from another provision, the basis of this conclusion changes. The boundary that setting aside a dismissal on procedural grounds is not immediately converted into a victory on the merits is also included here.
5.10Fine Distinctions Within the Stage
What the preceding section treated was the point that the appellee may file an incidental appeal until the close of oral argument even after the right to appeal has lapsed. Once that premise is accepted, Plaintiff A and Defendant B each take issue with different parts of the judgment against them, so that it becomes a matter of which parts are open to the appellate stage. Even if the channel through which the original judgment may be altered within the scope of the appeal is opened, whether the result of the alteration is to be fixed on the spot or to be adjudged separately remains a distinct question. What this piece takes as its question is what part within the channel for altering the original judgment on appeal is to be adjudged separately.
The statutory wording corresponding to this question governs the handling after setting aside the dismissal on procedural grounds. Civil Procedure Act Article 418 declares, "Where a first-instance judgment dismissing the action as unlawful is set aside, the appellate court shall remand the case to the first-instance court," and then sets out two exceptions in the proviso (Civil Procedure Act Article 418). Here the actor is the appellate court, the act is the remand of the case, and the condition is that a first-instance judgment dismissing the action as unlawful is set aside in the appellate stage. On the wording, remand is the principle, and the exceptions are bound to two specified reasons: the degree to which the examination has proceeded, or the consent of the parties.
The above wording and the conclusion of this section, which takes that wording as its basis, proceed as follows. The detailed distinctions are limited to the conditions of the case where it operates, the case where it is barred, and the case where the matter is undetermined. The two determinations to be distinguished here are 'whether the channel is opened' and 'once it is opened, who determines what, and within what scope.' If the former concerns the identification of the scope of the appeal and the lawfulness of the incidental appeal, the latter concerns the principle of mandatory remand and its exceptional conditions. Since setting aside a dismissal on procedural grounds cannot always be converted into an immediate victory on the merits in the appellate stage, if the two determinations are crushed into a single lump, the principle and the exceptions prescribed by the provision disappear.
The strongest counterargument against this distinction is the point that "sending the matter back again increases delay and expense." The counterargument is aimed at the point that if a party who was barred at the threshold by a dismissal on procedural grounds, having crossed that threshold in the appellate stage, must nevertheless return to the first instance, the procedure meanwhile lengthens, expenses swell, and the point at which the party finally obtains the opportunity for a trial on the merits is pushed back. Even so, the foregoing answer does not change. Even while acknowledging that a technical error in the scope of the appeal may entrench a substantive error, setting aside a dismissal on procedural grounds cannot always be converted into an immediate victory on the merits in the appellate stage. The fact that the inconvenience caused by remand is great is not a reason for overturning this conclusion; it is a motive for examining the two exceptional conditions—the degree of examination and consent—prescribed by the proviso to Article 418.
Contrasted with this scene, it becomes clear which parts are open. The mere fact that Plaintiff A and Defendant B each take issue with different parts of the judgment against them, so that it is a matter of which parts are open to the appellate stage, does not establish whether, after the portion of dismissal on procedural grounds is set aside, the case had been examined in the first instance to such a degree that a judgment on the merits could be rendered, or whether the parties consented to the appellate court's rendering of judgment on the merits. Accordingly, here only the principle of remand and the two specified exceptional conditions are confirmed, and which exception applies to this scene remains undetermined.
Even if the channel for altering the original judgment on appeal is open in the case where it operates—that is, where the scope of the appeal is identified through an appeal meeting the requirements of the period and correction, or through a lawful incidental appeal—when it comes to setting aside the dismissal on procedural grounds, mandatory remand is the principle, and the appellate court's own judgment on the merits is confined to the proviso conditions of the degree of examination or the consent of the parties. What this section does not permit is a determination that treats setting aside a dismissal on procedural grounds and victory on the merits as the same thing, and a determination that newly establishes a ground for judgment on the merits outside the two exceptions prescribed by the wording.
5.11Synthesis of Effectiveness, Blockage, and Undetermination
Both parties having thus expressed their intention to challenge only the portion of the first-instance judgment unfavorable to themselves, it must first be determined up to what range the appellate stage may revisit the original judgment. Only after this range is opened does the question of the subject of the examination—namely, who is to revise that judgment—finally arise.
The wording corresponding to this section is as follows. The actor this wording designates is the appellate court, the act is the remand of the case, and the condition is the case in which the appellate stage sets aside that part of the first-instance judgment which was dismissed on the ground that the action was unlawful. A dismissal on procedural grounds means a pronouncement that concludes the trial without adjudicating the claim on the merits, on the ground of a defect in the requirements of the lawsuit; setting aside means that the appellate stage disavows that pronouncement of dismissal and extinguishes its effect.
Under this wording, when the appellate stage sets aside the dismissal, the principle is that the case is sent back to the first-instance court, and this principle is called mandatory remand. The reason mandatory remand means the principle of remanding to the court below after setting aside the dismissal of an action is that the dismissed lawsuit has not yet received adjudication on the merits, so that the benefit of the instance is to be restored to the parties. There is, however, a separate reason for dividing the principle of remand from the exceptions to remand. Civil Procedure Act Article 418 provides: "However, where the case has been examined in the first instance to such a degree that a judgment on the merits could be rendered, or where the parties have consented, the appellate court may itself render a judgment on the merits," thereby allowing a judgment on the merits by the court itself upon sufficient examination or consent. These two stages of determination ask, respectively, whether the duty to remand is established and whether the court may render judgment on the merits without remanding, and thus answer different questions.
Yet the counterargument that sending the matter back again increases delay and expense is aimed at concrete loss. If a case that has already come up to the appellate stage is turned back to the first instance, the party must once more prepare for oral argument and once more await the judgment, and all of that time and expense are borne by the side that has not received adjudication on the merits. Notwithstanding this disadvantage, setting aside a dismissal on procedural grounds cannot always be converted into an immediate victory on the merits in the appellate stage. The appellate stage's setting aside amounts to no more than eliminating the pronouncement of dismissal, and from that setting aside alone there does not follow the conclusion that the party's claim has been accepted. For the appellate stage to grant the claim, it must first be confirmed whether the case had been examined in the first instance to such a degree that a judgment on the merits could be rendered, or whether the parties have consented.
Within the scene in which Plaintiff A and Defendant B each take issue with different parts of the judgment against them, so that it is a matter of which parts are open to the appellate stage, the only fact that can be contrasted with the conditions of mandatory remand is that there is a portion of the first-instance judgment in which the action was dismissed as unlawful, and that that portion is pending before the appellate stage. Whether the case had been examined in the first instance to such a degree that a judgment on the merits could be rendered, or whether the parties consented to the appellate court rendering judgment on the merits itself, is not confirmed in this scene. Accordingly, whether the conditions for the appellate court to render judgment on the merits itself are met remains undetermined, and one can neither exclude the principle of remand without exception nor assert the exception of judgment on the merits as a certainty. Whether service has been effected or records collected outside the scene cannot add anything to this determination.
The conclusion this section permits goes no further than distinguishing the principle of remand that follows upon setting aside the dismissal of an action from the exception of judgment on the merits upon the two conditions of sufficient examination or consent. This distinction permits neither reading the appellate stage's setting aside as immediately a grant of the claim on the merits or the party's victory, nor asserting remand as the only necessary result. If whether the channel for altering the original judgment on appeal is open or closed remains still undecided, this determination as to which court examines the merits along that channel holds only conditionally.
5.12Conclusion Carried Over to the Next Section
Since both sides view the range of the parts decided against them differently, the boundary of the case that the appellate stage is to examine must itself be determined first. Once this boundary is opened, the next question to be addressed is who is to undertake the examination of the merits. Here the right to a trial also touches upon the question of observing the stages of examination so that an entire instance is not skipped over.
Article 418 provides, with respect to setting aside a judgment dismissing an action and remanding the case: "Article 418 (Mandatory Remand) Where a first-instance judgment dismissing the action as unlawful is set aside, the appellate court shall remand the case to the first-instance court. However, where the case has been examined in the first instance to such a degree that a judgment on the merits could be rendered, or where the parties have consented, the appellate court may itself render a judgment on the merits." (Civil Procedure Act Article 418) This wording respectively fixes the appellate court as the actor who sets aside, the first-instance judgment dismissing the action as unlawful as the object, and the remand of the case as the effect. The counterpart of the remand is the first-instance court.
The main clause and the proviso of the provision are not separate determinations but a division of the procedure that follows the same setting aside. Once the setting aside of the dismissal of the action is declared, remand is the principle, and the appellate stage's own judgment on the merits is confined to cases meeting the requirements of the proviso. That the setting aside of the dismissal of an action and the granting of the claim on the merits are separate determinations becomes clear here. Since the former determination does not immediately bring along the latter, the setting aside alone does not determine who acquires the authority to examine the merits. If one moves into the frame of judgment on the merits without satisfying the requirements, the prior and subsequent stages become entangled.
Delay and expense are concrete losses in themselves, and for parties who have already contested the matter several times, the repetition of examination becomes a heavy burden. Remand is a device that, at the cost of spending more time, leaves the first examination of the merits in the position of the first instance, and to eliminate this cost one would have to go beyond the wording's conditions—the degree of examination or the consent of the parties—required by the proviso. Without concealing the disadvantage pointed out by the counterargument, the provision ensures that that disadvantage does not substitute for the requirements.
What is confirmed in the synthetic scene is only the fact that both parties challenged different parts decided against them, and whether the case had been examined in the first instance to such a degree that a judgment on the merits could be rendered, or whether the parties consented to judgment on the merits, is not revealed. Accordingly, on this scene alone it cannot be determined whether the appellate stage's judgment on the merits is open or closed. Since this confirmation condition is a channel distinct from the degree of examination, it is left conditional without asserting which side is correct.
The conclusion this section permits goes no further than distinguishing the examination to follow the setting aside of a dismissal of an action. It suffices to confirm the frame that, once the setting aside is declared, remand is the principle, and the appellate stage may render judgment on the merits itself only upon confirming the requirements of the proviso. To go beyond this frame and read setting aside as immediate victory, or to fix the opening of judgment on the merits in an unverified scene, goes beyond the scope of this section.