Summary
Permitted citation of reasoning is distinguished from the statutory exclusions, and the absence of a hearing is not concluded from the method of citation alone.
6.1The Standard by Which the Path Opens
The fact that the same language was used alone cannot be taken to mean that the objection was ignored. After distinguishing the principle of remand upon revocation of a dismissal of the complaint from the exception of rendition of judgment following sufficient deliberation or by consent, what now remains is the question whether, when the appellate court cites the preceding reasoning, there is no new determination. Plaintiff A and defendant B each object to different parts of their losing portions, so the question arises as to which parts are open to the appellate court. In this situation, it must be distinguished whether the citation of reasoning results in ignoring the objection or instead serves as the gatekeeper of the procedural channel.
The source text corresponding to this question is the provision governing the method of drafting a written judgment. Its text declares, "In writing the reasons for a judgment, the first instance judgment may be cited" (Article 420 of the Civil Procedure Act). The actor indicated by this text is the court that drafts the reasons of the appellate judgment, and the act is drawing the reasons of the judgment of the court below into its own reasons. As a condition, it is written that cases in which the first instance judgment was drafted pursuant to Article 208 paragraph (3) are excluded. By this text alone, other issues are not adjudicated.
That this provision permits citation of reasoning while excluding limited cases is a structure that, while keeping citation of reasoning as a permitted method, also sets out an exception. On the basis of this text, the author understands citation of reasoning as a method of incorporating the reasoning of the court below into the reasons of the appellate judgment. Here two stages are distinguished. One is whether that method of incorporation is itself lawful; the other is whether a judgment that adopted that method merely repeats the earlier determination without any new determination. This difference must exist in order to ask whether the gateway to this remedy has been opened.
The strongest counterargument to the method of citation of reasoning is that the task of copying the preceding reasoning as is can conceal the inadequacy of the preceding deliberation. If the written judgment cites the preceding reasoning, it may inherit the errors of the first instance as they are, or it may appear to be a mere formal shell without reviewing the arguments newly presented by the parties in the appellate court. Even recognizing this unease, citation of reasoning cannot be used as an authority free of exception or as an automatic violation of law. The adverse possibilities pointed out by the counterargument are left as they are, while the conclusion is maintained only to the extent that the absence of deliberation is not asserted merely from the method of citation.
What can be determined in this scene is only the facts connected with this question. Since plaintiff A and defendant B each object to different parts of their losing portions, whether the scope of objection has been specified through an appeal meeting the period and correction requirements or a lawful incidental appeal becomes the criterion by which the channel of this remedy is opened. The gateway to this remedy is opened. The time of service, and the occurrence and removal of the impediments necessary for later supplementation, cannot be fixed by the scene and thus remain undetermined. If a lawful incidental appeal by the appellee is confirmed, the mere extinction of the independent right to appeal does not block a request for modification.
What is confirmed in this section is the text permitting the citation of the preceding reasoning, the fact that this method of citation is called citation of reasoning, and the boundary that the absence of deliberation cannot be asserted from this method alone. Conversely, it is not permissible to say that citation of reasoning is invariably right free of exception or invariably unlawful. Whether the gateway to this remedy is opened is determined in connection with the specification of the scope of objection and defensibility, and a determination that it has been opened does not signify the sufficiency of deliberation as well.
6.2The Conditions That Block Relief
In the preceding section, it was held that this remedy operates where the scope of objection has been specified through an appeal meeting the period and correction requirements or a lawful incidental appeal. The present question, then, lies on the other side of that operation: under what conditions the channel for changing the original judgment on appeal is closed. In this scene, one discerns the service of the written judgment, the filing of the notice of appeal, the performance of correction, the lapse of the impediment, the presence or absence of an incidental appeal, and whether the scope of objection is satisfied.
The text corresponding to this question is Article 420 of the Civil Procedure Act. That provision states that, in writing the reasons for a judgment, the first instance judgment may be cited, but sets an exception to the effect that it is otherwise where the first instance judgment was drafted pursuant to Article 208 paragraph (3) (Article 420 of the Civil Procedure Act). This text governs the method of drafting the written judgment, that is, whether the appellate court, in composing the reasons of its own judgment, may draw upon the text of the preceding judgment. The actor to whom citation is permitted is the appellate court that writes the reasons for the judgment; its act is the incorporation of the reasons of the court below; and the barring condition is limited to cases in which the judgment of the court below was drafted in a specified manner.
Here, citation of reasoning means the method of incorporating the reasons of the court below into the reasons of the appellate judgment. This method of citation and the presence or absence of a new determination must be viewed as two distinct stages. The former concerns the descriptive form of the judgment document; the latter concerns whether the objection raised by the parties was actually addressed in the deliberation and conclusion of the appellate court. If these two criteria are laid over one another, the channel that the preceding section treated as open will be closed, or flung open unconditionally, by nothing more than a single mode of description. A determination of blocking arises from record-based conditions inherent in that channel, such as the expiry of the appeal period, nonfulfillment of the requirements for later supplementation, or the absence of an incidental appeal, rather than from this form.
The strongest counterargument is that mechanical citation can conceal a substantive lack of deliberation. It is the concern that substantive errors may become entrenched owing to a narrowly drafted description of the scope of objection, and that loss leads to the uncomfortable consequence that issues the parties were never able to examine become final. Yet even accepting that concern, citation of reasoning cannot be used as an authority free of exception or as an automatic violation of law. So long as the statutory exclusion—cases in which the judgment of the court below was drafted in the manner of Article 208 paragraph (3)—is placed alongside it in the provision, treating citation as unconditionally permitted or as unconditionally unlawful departs from the text.
Returning to the synthetic scene, plaintiff A and defendant B each object to different parts of their losing portions, so whose objection remains before the appellate court is the starting point of the determination. If the appeal period has already passed, the requirements for later supplementation are also not satisfied, and there is no incidental appeal or other such channel, then that request for modification is blocked. At this point, whether the technical description of the scope of objection has substituted for substantive deliberation cannot be determined from this scene alone and thus remains undetermined.
Accordingly, the conclusion this section permits is narrow. If the conditions of blocking are confirmed in the record running from service of the written judgment and performance of correction, through the lapse of the impediment, to the presence or absence of an incidental appeal, this remedy is closed; if those conditions are absent, the channel of the preceding section is preserved. Conversely, one cannot assert from the mere existence of a permitted citation of reasoning that there was no deliberation, nor can one decide the opening and closing of this remedy by the method of citation alone.
6.3The Boundary That Remains When There Is No Data
When the determinations of the first instance and the appellate court share the same wording, the reader suspects that the appellate court may have undergone no fresh review. Yet such suspicion alone cannot establish that the deliberation of the appellate court was lacking. This section addresses whether there is no new determination when the appellate court cites the preceding reasoning, and where the boundary lies that cannot be fixed for want of materials.
The statutory text corresponding to this question is Article 420 of the Civil Procedure Act. It provides: "In writing the reasons for a judgment, the first instance judgment may be cited; provided, however, that this shall not apply where the first instance judgment was drafted pursuant to Article 208 paragraph (3)." The actor here is the appellate court that writes the reasons for the judgment; the act is the citation of the first instance judgment; and the condition is that the first instance judgment, the object of citation, must not have been drafted pursuant to Article 208 paragraph (3). This text deals only with whether citation is permitted, and does not govern the scope of appealable objections or the requirements of service and later supplementation.
Article 420 permits citation while excluding limited cases, so whether citation is permitted and whether an exclusion ground applies must be examined separately. The conclusion the author derives through this distinction is that the mere fact that the method of incorporating the reasons of the court below into the reasons of the appellate judgment was used cannot establish that there was no deliberation. Citation of reasoning is but one of the markers that indicate the presence or absence of deliberation; it does not serve as the ground for fixing the absence of deliberation itself. Therefore, it is equally inaccurate to assert from the method of citation alone that there is no new determination, or, conversely, to regard citation as always accompanying a new determination.
This determination leaves substantive concern. The counterargument that mechanical citation can conceal a substantive lack of deliberation targets the loss that the convenience of drafting a written judgment may take the place of reviewing the objections raised by the parties. The observation that technical errors in describing the scope of objection may entrench substantive errors arises from the same worry. Yet despite such disadvantages, citation of reasoning cannot be used as an authority free of exception or as an automatic violation of law. This reservation does not erase the weight of the counterargument; it is the act of honoring the condition that the method of citation and the substance of deliberation must be treated as distinct questions.
How those items were actually filled in has not been confirmed. Where the occurrence or removal of impediments necessary for service or later supplementation has not been confirmed, matters for which the materials of determination are not specified cannot be fixed as impossibility. Such matters must remain undetermined, and here "undetermined" means only a lack of materials and does not mean that relief is impossible.
The conclusion of this section lies in distinguishing permitted citation of reasoning from statutory exclusion, in recognizing that the absence of deliberation cannot be asserted from the method of citation alone, and in leaving boundaries that cannot be fixed as undetermined, distinguished from impossibility. By contrast, judgments that regard citation itself as a matter of right, or that regard the mere use of citation as unlawful, are not permitted by this section.
6.4The Records Needed for Determination
The preceding section distinguished the principle of remand upon revocation of a dismissal of the complaint from the exception of rendition of judgment following sufficient deliberation or by consent. What remains now is what the stage following the appellate court's citation of the preceding reasoning should be taken to be. To make this determination, which records are needed?
That provision states: "In writing the reasons for a judgment, the first instance judgment may be cited; provided, however, that this shall not apply where the first instance judgment was drafted pursuant to Article 208 paragraph (3)." Here the first instance judgment means the preceding-stage judgment handled by the appellate court, and citation is the act of placing its reasons into the reasons of the appellate judgment. However, the method the text permits concerns the way of drafting the written judgment, and a judgment drafted pursuant to Article 208 paragraph (3) remains within the statutory exclusion.
To connect this text with the foregoing determination, citation of reasoning and the stage determination must be viewed separately. The choice of the method of incorporation does not decide the presence or absence of deliberation in its stead. The mere fact that the same method was used cannot establish that the appellate court made no determination at all or that it determined sufficiently. The materials for use in the determination are bound to what is recorded in the service of the written judgment, the notice of appeal, the performance of correction, the lapse of impediment, the incidental appeal, and the scope of objection.
The counterargument that mechanical citation can conceal a substantive lack of deliberation targets a clear loss. The counterargument holds that a citation confined to form, copying the preceding reasoning as is without reading the scope of the objection raised by the parties, entrenches substantive errors. In particular, the observation that technical errors in the scope of objection may entrench substantive errors remains. Even so, citation of reasoning cannot be used as an authority free of exception or as an automatic violation of law. The conclusion is maintained so as to guard against cases where the established records indicate a substantive lack of deliberation, but without immediately turning the method itself into a violation of law.
The fact confirmed in the synthetic scene is the single line that plaintiff A and defendant B each object to different parts of their losing portions, so the question arises as to which parts are open to the appellate court. This line merely presupposes that the scopes of objection are described differently; it does not tell the date of service of the written judgment, the filing of the notice of appeal, or whether correction was performed. Therefore, which among service of the written judgment, the notice of appeal, the performance of correction, the lapse of impediment, the incidental appeal, and the scope of objection has been filled in by record cannot be fixed from the scene alone. Where the occurrence or removal of impediments necessary for service or later supplementation has not been confirmed, that portion remains undetermined.
The conclusion this section permits is narrow. Even if the appellate court cited the preceding reasoning, the stage determination is made only on the established records, and absent records are not filled in by assumption. It places side by side the range within which, the records being filled in, a determination can be made, and the range as to which determination must be reserved. It does not immediately convert the side for which no record was found into extinction of rights or impossibility of relief.
6.5Circumstances That Change the Decision
Within the framework distinguishing the principle of remand upon revocation of a dismissal of the complaint from the exception of rendition of judgment following sufficient deliberation or by consent, this section now addresses the case where the appellate court cites the preceding reasoning. In this scene the question is situated whether, when the appellate court cites the preceding reasoning, there is no new determination. The conclusion of the preceding section is left as it is, and only the explanation needed for this question is continued.
The statute corresponding to this question sets out together the permission and the exclusion of citation of reasoning. Article 420 of the Civil Procedure Act declares, "In writing the reasons for a judgment, the first instance judgment may be cited." The actor spoken of in this text is the appellate court that writes the reasons for the judgment, and the act is the citation incorporating the reasons of the first instance judgment into the reasons for judgment. Citation of reasoning means the method of incorporating the reasons of the court below into the reasons of the appellate judgment, and the text does not prohibit that method itself. However, where a statutory ground of exclusion applies, that method is not permitted, so the question whether a ground of exclusion is confirmed comes first.
This connects the text with the conclusion set forth above. The reason for distinguishing permitted citation of reasoning from statutory exclusion is that the form of citation does not speak to the presence or absence of deliberation. From the mere fact that the appellate court cited the preceding reasoning, one cannot assert that there is no new determination or that the objection was ignored. Conversely, asserting the absence of deliberation from the method of citation alone is likewise not permitted.
The counterargument that mechanical citation can conceal a substantive lack of deliberation targets a realistic loss. In exchange for a more concise form of the judgment document, it does not reveal whether the issues of the objections raised by the parties were actually addressed, and that inconvenience is borne by the party on trial. The worry that technical errors in the scope of objection may entrench substantive errors arises in the same direction. Even so, citation of reasoning cannot be used as an authority free of exception or as an automatic violation of law. A determination that widens authority by form alone or that automatically declares a violation lies outside this distinction.
The fact confirmed in the synthetic scene conforms to the conditions cited above. The fact that the first instance judgment was drafted pursuant to Article 208 paragraph (3) is not fixed in the scene, so whether it falls within the statutory exclusion remains undetermined. If a lawful incidental appeal by the appellee is confirmed, the mere extinction of the independent right to appeal does not block a request for modification; but that fact is absent from the scene, and so it remains undetermined. Conversely, the lapse of the appeal period or satisfaction of the requirements for later supplementation is also absent from the scene and cannot be asserted. With such items unconfirmed, one can only set the direction of the determination to be rendered.
The conclusion this section permits is that the objection is not said to have been ignored on the strength of the mere form that the appellate court cited the preceding reasoning. At the same time, it is not permitted to assert from the method of citation alone that there was no substantive deliberation, nor does the extinction of the independent right to appeal immediately lead to blocking a request for modification. Any assertion that skips the confirmation of a statutory exclusion or the confirmation of a designated modification departs from this distinction. The question whether the channel for changing the original judgment on appeal is actually open remains.
6.6The Strongest Counterargument and the Answer
The preceding step examined whether a fresh determination was made on any individual issue even where the appellate court quoted the foregoing reasons. Now, positing the counterargument that mechanical quotation may conceal a lack of substantive hearing, what remains is whether it can be asserted outright that there is no fresh determination as soon as the appellate court quotes the foregoing reasons.
Attached to this question is the short rule that the Civil Procedure Act lays down in Article 420. That provision first states, "In stating the reasons for a judgment, the court may quote the judgment of the court of first instance" (Civil Procedure Act, Article 420). The subject whom this language permits is the appellate court when stating the reasons for its judgment, the act is the technique of drawing the reasons of the preceding judgment into the present written judgment, and the condition attaches to the proviso that follows. The "quotation of the reasons" arising here denotes that same technique, namely the method of incorporating the reasons of the court below into the reasons of the appellate judgment.
While that language leaves the form of quotation of the reasons open, it immediately sets out one exclusion in a proviso (Civil Procedure Act, Article 420). The meaning of this distinction is that the absence of a hearing is not asserted on the basis of the form of quotation alone. The provision separates the layer that grants authority as to form from the layer that requires the content of the reasons to be stated directly, and the author reads these two separated layers as the stages of adjudication of permitted quotation of the reasons and statutory exclusion. Accordingly, the formal fact that quotation of the reasons was used cannot serve as the ground for proving the absence of issue-by-issue examination, nor, conversely, does it prove even the fact that examination took place.
Even so, the point aimed at by the counterargument that mechanical quotation may conceal a lack of substantive hearing is clear. It is the concern that a technical error in the scope of the challenge may entrench a substantive error. Where the issue-by-issue determinations attached to different losing portions fall away to one corner of the form of the written judgment and are bound together only by quotation, it is difficult to confirm whether the layer containing the content of the challenge actually raised was read, and the risk remains that a wrong conclusion is fixed in place by reason of the form. Such a loss is not erased. Even so, the author's answer is that quotation of the reasons cannot be used as an authority without exception or as an automatic violation of law. The risk identified is addressed only in the direction of setting up more precisely the conditional distinction of statutory exclusion.
Placing the facts in this scene alongside the confirmed language, what is open is the formal channel of quotation, and what is blocked is only the form set by the proviso. On the premise alone that A and B challenged different losing portions, it is not determined which side's issue-by-issue determination was in fact bound together mechanically, or whether substantive examination was cut short. That fact is a layer left undetermined by the synthetic scenario. Furthermore, for the demand for modification to lead to actual effect, a separate condition attaches that the scope of the challenge must be delimited by an appeal satisfying the time and correction requirements or by a lawful incidental appeal, and since at the present layer the elapse of the appeal period and whether correction was performed are also unconfirmed, this part remains undetermined.
In the end, what is permitted is the layer of separately assessing the form of quotation of the reasons itself and dividing the determination by contrasting it with the conditions of statutory exclusion. What is not permitted is the layer of automatically concluding, from a single instance of quotation, that there was no issue-by-issue examination, and, conversely, the layer of ending the matter on the sole ground that there was quotation, as though nothing was amiss. The author's assertion remains without tilting to either extreme, in the form that quotation of the reasons cannot be used as an authority without exception or as an automatic violation of law.
6.7The Link to the Application and the Dispositive Part
Even if one accepts the conclusion of the preceding section that quotation of the reasons cannot be used as an authority without exception or as an automatic violation of law, plaintiff A and defendant B each challenge different losing portions, so it becomes a question which portion is open to the appellate court. The question remaining now is whether the appellate court's quotation of the foregoing reasons means that there is no fresh determination. With the scope of the challenge delimited, one must examine how the descriptive method of the written judgment distinguishes the presence or absence of a hearing.
The relevant language is Article 420 of the Civil Procedure Act concerning the method of stating the reasons for a judgment. It provides, "In stating the reasons for a judgment, the court may quote the judgment of the court of first instance. Provided, that this shall not apply where the judgment of the court of first instance has been prepared pursuant to Article 208, paragraph (3)" (Civil Procedure Act, Article 420). The subject this language addresses is the court preparing the appellate judgment, the act is the statement of the reasons for judgment, and the condition is the case where the judgment of the court of first instance, the object of quotation, does not follow a particular method of preparation. The provision's other issues are passed over at this point.
The permissive phrase of this provision and the exclusionary phrase of the proviso differ in nature. The former opens the method by which the appellate court incorporates the reasons of the court below, that is, quotation of the reasons, as a means of statement; the latter takes out of that method, by statute, the method of preparation for which that means cannot be used. This is why one cannot conclude that there was no hearing merely from the circumstance that the court chose the method of quotation. If permitted quotation and statutory exclusion are read bundled together, one arrives at the erroneous determination that the form of statement substitutes for the substance of the hearing.
The strongest counterargument is aimed at the point that mechanical quotation may conceal a lack of substantive hearing. If the appellate court copies the foregoing reasons verbatim without correcting a technical error in the scope of the challenge, a substantive error may become fixed in place. That loss leads to the inconvenience that, for the convenience of form, the issues raised by the parties are erased from the written judgment. Yet if quotation of the reasons is made an authority without exception, the statutory exclusion of the proviso becomes meaningless; conversely, if it is made an automatic violation of law, the permissive phrase loses its force. The conclusion that maintains the counterargument's adverse aspect without erasing it is that the absence of a hearing is not asserted on the basis of the form of quotation alone.
The facts confirmed in the synthetic scenario are only that plaintiff A and defendant B each challenge different losing portions. Which portion is open to the appellate court must be checked against the service of the written judgment, the notice of appeal, the performance of correction, the elapse of the period of impediment, the incidental appeal, and the record of the scope of the challenge. Here, no material is given on which to determine whether the quotation of the reasons falls under the method of preparation caught by the proviso or is a permitted quotation. Accordingly, since the presence or absence of a fresh determination cannot be established from the method written in the judgment alone, that item remains undetermined.
What this section permits is the determination that, after distinguishing permitted quotation of the reasons from statutory exclusion, one does not assert the absence of a hearing on the basis of the form of quotation alone. What it does not permit are the two extreme conclusions that any quotation is always proper, or that quotation of the reasons is itself an automatic violation of law. Viewing the challenge as ignored on the mere fact that the same sentence was repeated also falls outside this distinction.
6.8The Scope This Section Undertakes
The preceding section accepted the premise that permitted quotation of the reasons is distinguished from statutory exclusion and that the absence of a hearing is not asserted on the basis of the form of quotation alone. Upon that premise, the present question narrows to examining how this conclusion connects with the premise received in the preceding section. Put differently, whether the mere circumstance that the appellate court quoted the foregoing reasons permits the assertion that there was no fresh determination must be decided here.
That language provides, "In stating the reasons for a judgment, the court may quote the judgment of the court of first instance." This phrase specifies, respectively, the subject stating the reasons for judgment as the appellate court, the act as the quotation of the judgment of the court of first instance, and the condition as the time of stating the reasons for judgment. The quotation here means, as the author has defined it, the method of incorporating the reasons of the court below into the reasons of the appellate judgment. The provision limits this only by providing that where the judgment of the court of first instance has been prepared pursuant to Article 208, paragraph (3), it may not be quoted, and the language and scope of application of this exception are left to the question that follows.
The link connecting this language with the conclusion of this section lies in the fact that the provision opened quotation in the form that one "may" quote. Since the provision setting out the method of stating the reasons for judgment permits quotation while setting an exception for certain written judgments, permitted quotation of the reasons and statutory exclusion are placed at different stages of adjudication. The former addresses the admissibility of the method of quotation itself; the latter addresses the type of written judgment for which that method is excluded. Just as the principle of remand upon reversal of a dismissal on procedural grounds was distinguished from the exception allowing judgment on the merits after sufficient hearing or by the parties' consent, the choice of the method of quotation and the presence or absence of a hearing remain separate dimensions. Accordingly, the mere fact that the method of quotation was used cannot be transposed into the absence of a hearing.
Even so, what the counterargument that mechanical quotation may conceal a lack of substantive hearing aims at is something separate. In that a technical error in the scope of the challenge may entrench a substantive error, the risk is flagged that issues raised by the parties may be buried within formal quotation. If the appellate court accepts the erroneous determination of the court below as it is and merely copies the reasons across, the parties must bear together the loss of the opportunity actually to be heard and the inconvenience of the wrong conclusion becoming final. Neither treating quotation as unconditionally permitted and dismissing the absence of a hearing, nor conversely treating quotation as unconditionally unlawful and automatically establishing the absence of a hearing, falls within the scope of this conclusion.
Plaintiff A and defendant B each challenge different losing portions, so this scene determines only which portion is open to the appellate court. This scene establishes nothing as to whether quotation of the reasons actually occurred, or, if it did, in respect of which issues. The content of the actual records has not been verified. Therefore, the circumstances under which the method of quotation was chosen, and how that choice interlocked with the presence or absence of a hearing, cannot be adjudged by this scene and remain undetermined.
The conclusion this section permits is narrow. There exists the language that one may quote the judgment of the court of first instance as a method of stating the reasons for judgment, and the mere fact that the method of quotation was used cannot establish that the appellate court conducted no hearing. The point that the challenge cannot be regarded as ignored on the mere fact that the same sentence was written remains intact. The conclusions not permitted are treating quotation as an authority without exception, so that a lack of hearing cannot be raised as an issue at all, and treating quotation as an automatic violation of law, so that the absence of a hearing is established in itself. Either way, one commits the error of superimposing the method of quotation and the substance of the hearing into one. How does the language of Article 420 of the Civil Procedure Act support this conclusion?
6.9Application of the Text of the Provisions and the Holdings of Precedents
This observation touches the question left by the preceding section. While dealing with how to dispose of matters following the reversal of the dismissal on procedural grounds, the preceding section distinguished as exceptions to the principle of remand the cases of rendering judgment on the merits after sufficient hearing or with the parties' consent. Upon that premise, what is at issue now is in what sentences the appellate written judgment carries the content of the foregoing hearing. Within the scope of that challenge, can it be said that the challenge raised was ignored merely from the fact that the appellate court quoted the foregoing reasons?
The language answering this question is Article 420 of the Civil Procedure Act. That provision, in setting out the method of writing a judgment, provides that in stating the reasons for a judgment the court may quote the judgment of the court of first instance. Provided, that this shall not apply where the judgment of the court of first instance has been prepared pursuant to Article 208, paragraph (3) (Civil Procedure Act, Article 420). Here the subject of "may quote" is the appellate court stating the reasons for judgment, and the act is bringing the content of the judgment of the court of first instance within its own reasons. The conditional sentence means that this quotation is not open without limit. Where the judgment of the court of first instance has been prepared in the designated manner, quotation is closed off. These two things alone are what the provision sets, and it does not address other issues concerning the reasons for judgment.
The conclusion this language supports is to distinguish the separated stages of adjudication. The first is whether quotation is permitted; the second is whether that quotation shows the absence of a particular hearing. Article 420 sets forth the standard only for the former. Which sentences a judgment that has drawn in the foregoing reasons by a permitted method resembles is a matter of the latter, and that fact does not directly yield the absence of a hearing. Conversely, even where quotation is closed off because the case falls under the exception in Article 420, this provision does not determine what legal effect that in itself directly produces. If the two stages are mixed, the permitted method of preparation and the substance of the hearing are lumped together into a single problem.
The strongest counterargument points to the place where the loss remains. If the appellate court mechanically brings in the foregoing reasons, while giving the impression that it has made a fresh determination it may pass over issues that it has not actually examined. The point that a technical error in the scope of the challenge may entrench a substantive error aims in the same direction. In a scene where A and B challenge different losing portions, if it becomes ambiguous which challenge the quoted sentences responded to, the suspicion grows that the hearing on that part was omitted. This conclusion does not erase the risk the counterargument identifies; it merely does not leave that risk to be borne by the method of quotation itself.
The facts confirmed in this scene are only that the challenged portions differ from each other. Which portions A and B challenge is not fixed, nor is it revealed which sentences the appellate court quoted and how. The service of the written judgment, the notice of appeal, the performance of correction, and the content of the incidental appeal are not given in this scene. As a result, what can now be established is only the determination that the method of quotation is not used on its own as an indicator of the absence of a hearing. Whether the challenge of A or B actually received a hearing, and to which part the quoted reasons relate, remain undetermined.
Accordingly, what this section permits is the determination not to take the method of quotation as the ground for the absence of a hearing, and what it does not permit is the side that asserts the absence of a fresh determination from quotation alone and the side that makes quotation an authority permitted without exception. The fact that a method of preparation caught by the statutory exclusion is designated is confirmed within the language of Article 420, and that fact does not by itself fix the conclusion as to either challenged portion. The fact that the same provision sets out both permission and exclusion is the reason the method of quotation cannot be used as an abbreviation for substantive determination. What remains here is the question of what the content and scope of the quoted reasons point to.
6.10Fine Distinctions Within the Stage
앞 단계에서는 항소심이 앞 이유를 인용해도 그 자체로 새 판단이 없는 것은 아니라는 점을 남겼다. 이 장면 안에서 항소로 원판결을 바꿀 통로 안에 다시 나누어 판정할 부분이 무엇인지를 따진다.
민사소송법 제420조는 판결이유를 적을 때에 제1심 판결을 인용할 수 있고, 다만 제1심 판결이 제208조제3항에 따라 작성된 경우에는 그러하지 아니하다고 규정한다. 이 문언이 가리키는 주체는 판결이유를 적는 항소심이고, 행위는 제1심 판결의 인용이며, 조건은 인용 대상 판결이 제208조제3항에 따라 작성되지 않았음이다. 저자가 이 조문에 붙인 이름이 이유 인용이고, 그 뜻은 항소심 판결 이유에 원심 이유를 편입하는 방식이다.
이 문언은 인용을 허용하되 정해진 한 곳을 빼므로, 인용 방식과 그 방식을 쓸 수 없는 경우를 나누어 읽어야 한다. 허용된 이유 인용은 절차상 남는 심리를 하지 않은 것으로 그치는 것이 아니라, 앞 이유를 자기 것으로 삼아 이어 붙이는 태도를 가리킨다. 법정 제외는 인용 대상이 제208조제3항에 따라 작성된 판결이어서 그 방식을 쓸 수 없는 경우이다. 두 구별을 놓치면 인용 자체가 심리 부재를 뜻하는지, 아니면 앞 심리를 받아들인 결과인지가 섞인다. 세부 구분은 작동하는 경우·막히는 경우·미확정인 경우의 조건에 한정한다.
기계적 인용이 실질적 심리 부족을 가릴 수 있다는 반론은, 불복 범위의 기술적 실수가 실체적 오류를 고착할 수 있다는 점을 겨눈다. A와 B가 각기 다른 패소 부분에 불복해 둔 판에, 앞 이유를 그대로 옮기는 방식이 쓰이면 그 불복이 닿은 쟁점이 실제로 다루어졌는지가 흐려진다는 뜻이다. 저자가 보기에 손실은 판결문의 간결함이 아니라 당사자가 제기한 쟁점의 실질적 검토가 사라지는 데 있다. 반론이 지적한 불리함을 지우지 않으면서도, 인용 방식을 그 자체로 심리 부재의 증거로 삼는 것은 이 문언이 정한 구별 밖의 판단이다.
합성 장면에서 확인되는 사실은 A와 B가 각기 다른 패소 부분에 불복하고 있다는 것뿐이고, 판결서 송달·항소장·보정 이행·장애 경과·부대항소·불복 범위 가운데 어느 기록이 어떻게 되어 있는지는 정하지 않았다. 작동하는 경우는 기간·보정 요건을 갖춘 항소 또는 적법한 부대항소로 불복 범위를 특정한 경우이고, 막히는 경우는 항소기간이 지났고 추후보완 요건도 충족되지 않으며 부대항소 등 해당 통로도 없는 경우이며, 미확정인 경우는 송달 또는 추후보완에 필요한 장애의 발생·해소가 확인되지 않은 경우이다. 장면만으로 어느 쪽인지 가릴 수 없으므로 그 판정은 미확정으로 남는다.
이 절이 허용하는 결론은, 항소심이 앞 이유를 인용했다는 사실만으로 제기한 불복이 무시되었다고 단정할 수 없고, 허용된 이유 인용과 법정 제외를 구별한 뒤에 인용 방식을 읽어야 한다는 데 있다. 허용하지 않는 결론은, 인용을 예외 없는 권한으로 보아 어떤 경우에도 정당화하거나, 반대로 자동 위법으로 보아 어떤 경우에도 잘못으로 돌리는 것이다. 어느 통로가 열려 있는지는 작동하는 경우·막히는 경우·미확정인 경우에 명시한 조건에 묶인 채로 판정하고, 그 밖의 단계를 새로 만들지 않는다.
6.11Synthesis of Effectiveness, Blockage, and Undetermination
소 각하 취소 시 환송 원칙과 충분한 심리 또는 동의에 따른 자판 예외를 구별한 뒤에, 이번에는 항소로 원판결을 바꿀 통로가 실제로 열려 있는지가 문제 된다. 제기된 불복이 제대로 다루어졌는지는 판결서 송달·항소장·보정 이행·장애 경과·부대항소·불복 범위의 확인으로 판단한다.
이 절에서 다루는 법령 문언은 이유를 적는 방법을 정한다. 민사소송법 제420조는 "제420조(판결서를 적는 방법) 판결이유를 적을 때에는 제1심 판결을 인용할 수 있다"고 정하고, 같은 조는 이어서 "다만, 제1심 판결이 제208조제3항에 따라 작성된 경우에는 그러하지 아니하다"는 예외를 둔다. 이 문언에서 판결이유를 적는 주체는 항소심이고, 행위는 제1심 판결을 인용하는 것이며, 조건은 제1심 판결이 제208조제3항에 따라 작성되지 않은 경우이다. 조문이 허용하는 것은 인용이라는 기재 방식이며, 이 문언만으로 심리의 유무가 바로 정해지는 것은 아니다.
이 근거와 이 절의 결론은 허용된 이유 인용과 법정 제외를 구분하는 지점에서 만난다. 제208조제3항에 따라 작성된 제1심 판결을 인용할 수 없다는 예외는 인용이 허용되는 나머지 경우와 나누어 읽어야 하는데, 하나는 기재 방식의 허용 여부이고 다른 하나는 그 방식이 쓰인 뒤에도 심리가 실제로 있었는지의 문제이기 때문이다. 항소로 원판결을 바꿀 통로가 열리는 것은 기간·보정 요건을 갖춘 항소 또는 적법한 부대항소로 불복 범위를 특정한 경우이고, 인용 방식이 그 통로의 열림과 닫힘을 대신 결정하지는 않는다.
반론은 기계적 인용이 실질적 심리 부족을 가릴 수 있다는 점을 겨눈다. 불복 범위의 기술적 실수가 실체적 오류를 고착할 수 있다는 우려는, 표면상 제1심 판결을 인용하면서도 항소심이 당사자가 제기한 불복을 들여다보지 않았다면 그 오류가 판결 안에 그대로 남는다는 손실과, 당사자가 심리가 있었다는 사실을 판결문만으로 확인하기 어렵다는 불편을 구체적으로 가리킨다. 그렇더라도 저자의 답은 같다. 즉 인용이 있었다는 사실만으로 심리 권한이 예외 없이 확보된 것도 아니고, 인용이 있었다는 사실만으로 당연히 위법이 되는 것도 아니며, 반론이 지적한 불리한 사정은 남겨 둔 채 결론은 유지된다.
이 장면에서 이 물음에 관련된 사실은 두 당사자가 각기 다른 패소 부분에 불복하고 있다는 것뿐이다. 이 사실을 기준으로 판단하면, 어느 부분이 항소심에 열려 있는지는 기간·보정 요건을 갖춘 항소 또는 적법한 부대항소로 불복 범위가 특정되었는지에 따라 달라지고, 판결서 송달·항소장·보정 이행·장애 경과·부대항소·불복 범위 가운데 무엇이 확인되었는지에 따라 열림, 막힘, 미확정이 갈린다. 그밖에 송달이나 추후보완에 필요한 장애의 발생·해소가 확인되지 않은 채로 남은 쟁점은 장면만으로 확정할 수 없으므로 미확정으로 둔다.
이 절이 허용하는 결론은 좁다. 인용 방식이 쓰였다는 사실만으로 제기된 불복이 무시되었다고 단정할 수 없고, 같은 사실만으로 심리가 없었다고 단정할 수도 없다. 통로가 열리는 것은 기간·보정 요건을 갖춘 항소 또는 적법한 부대항소로 불복 범위를 특정한 경우이고, 막히는 것은 항소기간이 지났고 추후보완 요건도 충족되지 않으며 부대항소 등 해당 통로도 없는 경우이며, 미확정은 송달 또는 추후보완에 필요한 장애의 발생·해소가 확인되지 않은 경우이다. 그 밖에 상고심의 사실심사 범위 같은 물음은 이 절이 다루지 않는다.
6.12이 권의 결론과 남는 물음
앞 절에서 소 각하 취소 시 환송 원칙과 충분한 심리 또는 동의에 따른 자판의 예외를 구별한 데 이어, 이제 항소심이 앞 이유를 인용하면 새 판단이 없는가라는 물음에 이른다. 이 장면에서 불복이 특정된 부분과 항소심이 실제로 판단한 부분이 서로 어긋나 보일 때, 그 어긋남이 곧 심리의 결여를 뜻하는지가 쟁점이다. 즉 인용이라는 서술 방식이 새 판단의 부재를 의미하는지, 아니면 판단의 전개 방식을 택한 것에 지나지 않는지가 여기서 가려져야 한다.
이 물음에 대해 민사소송법 제420조는 "판결이유를 적을 때에는 제1심 판결을 인용할 수 있다. 다만, 제1심 판결이 제208조제3항에 따라 작성된 경우에는 그러하지 아니하다." 이 문언에서 주체는 판결이유를 적는 항소심이고, 행위는 제1심 판결의 인용이며, 조건은 제1심 판결이 제208조제3항 방식으로 작성되지 않았을 것이다. 다시 말해 판결이유의 작성에서 원심의 이유를 끌어오는 방식이 문언상 허용되면서도, 일정한 방식으로 작성된 제1심 판결에 대해서는 그 허용이 끊긴다. 이 조문은 인용의 허용 여부만 정할 뿐, 항소심이 어느 부분을 심리했는지까지 직접 정하지 않는다.
따라서 인용 방식과 심리 부재는 별개의 판단 단계로 놓아야 한다. 이유 인용은 항소심 판결 이유에 원심 이유를 편입하는 방식이며, 그 자체로 항소심이 아무 판단도 하지 않았다는 뜻이 되지 않는다. 판결이유를 적는 방법이 허용된 경우와 법정 제외에 걸린 경우가 나뉘는 것은 작성 방식의 문제이고, 제기된 불복이 실제로 다루어졌는지는 별도로 살펴볼 문제다. 저자가 보기에 인용이 있었다는 사실 하나로 심리가 없었다고 단정하거나, 반대로 인용이 있다는 사실로 심리가 충분했다고 단정하는 것은 모두 같은 단계를 건너뛴다. 이 구별을 지켜야 불복 범위와 판단 범위가 어긋나 보이는 사정이 무엇을 뜻하는지 읽어낼 수 있다.
그러나 이 구별을 지키는 편이 늘 편리한 것은 아니다. 기계적 인용이 실질적 심리 부족을 가릴 수 있다는 반론이 정확히 그 지점을 겨냥한다. 불복 범위의 기술적 실수가 실체적 오류를 고착할 수 있다는 점에서, 원고 A나 피고 B가 제기한 불복이 형식적으로 특정되지 않았다는 이유로 다루어지지 않았다면 그 손실은 고스란히 당사자에게 남는다. 이 불리한 부분을 지우지 않은 채 저자는 답한다. 즉 기계적 인용이라는 우려가 현실이라 해서 인용 자체가 위법이 되는 것은 아니고, 반대로 인용이 허용된다는 점만으로 심리가 채워졌다고 보는 것도 아니다. 어느 쪽이든 방식 하나로 결론을 자동으로 끌어내는 사용은 허용되지 않는다.
이 구별을 이 장면에 놓아보면, 판결서 송달·항소장·보정 이행·장애 경과·부대항소·불복 범위라는 기록 항목이 무엇을 가리키는지 분명해진다. 원고 A와 피고 B는 각기 다른 패소 부분에 불복하고 있으므로, 각각의 불복 범위가 항소심에 열려 있는지, 그리고 항소심이 인용한 원심 이유가 그 범위를 실제로 다루었는지는 기록에서 읽어낼 일이다. 다만 송달이나 보정 이행의 결과, 부대항소의 성립 여부는 여기서 확정할 수 없다. 피항소인의 적법한 부대항소가 확인되면 독립 항소권 소멸만으로 변경 요구를 차단하지 않는다는 대조 조건도, 실제로 그러한 부대항소가 있었는지와는 별개의 문제로 남는다.
이 절이 허용하는 결론은 좁다. 항소심이 앞 이유를 인용했다는 사실만으로 제기된 불복이 무시되었다고 단정할 수 없고, 반대로 인용 방식이 심리 부재의 반증이 되지도 않는다는 것이다. 반면 이 절이 허용하지 않는 결론은, 인용을 예외 없는 권한으로 보아 어떤 경우든 유효하다고 단정하는 것, 그리고 인용을 자동 위법으로 보아 어떤 경우든 무효라고 단정하는 것, 양쪽 모두다. 어느 부분이 항소심에 열려 있었고 실제로 판단되었는지는 앞의 조건에 따라 가려질 일로 남는다. 상고는 사실을 처음부터 다시 정하는 절차인가?
Statutes referred to
Questions left open
- 일부 불복의 위험을 당사자에게 어떻게 설명할 것인가?
- 항소심의 재심리 범위와 신속성은 어떻게 조정할 것인가?
- 환송보다 자판이 적절한 조건은 무엇인가?