Summary
Where a final appeal is well-founded and the case is reversed and remanded, the court on remand hears oral argument anew and renders judgment.
1.1The Standard by Which the Path Opens
The mere fact that the preceding judgment has been reversed does not bring the desired performance. Small-claims cases are subject to separately limited grounds for final appeal and reappeal. Yet crossing that threshold does not immediately establish the performance the plaintiff seeks. The question now is whether reversal and remand amounts to final victory. To answer this question, one must first sketch what kind of procedure reversal and remand is and what it sets in motion. Plaintiff A regards reversal and remand as final victory, while Defendant B raises a defense in the remand trial that has not yet been adjudicated.
The provision that answers this question is found in Article 436 of the Civil Procedure Act. Article 436 paragraph (1) provides: "When the court of final appeal recognizes that there is a justifiable ground for the final appeal, it shall reverse the judgment of the court below and remand the case to the court below or transfer it to another court of the same level." (Civil Procedure Act, Article 436). Here the actor is the court of final appeal, the acts are the reversal of the judgment of the court below and the remand or transfer of the case, and the condition is the recognition that the final appeal has justifiable grounds. In place of remand, the option of transferring the case to another court of equal rank is placed in the same paragraph. That paragraph addresses only the decision on reversal and transfer. Who carries on the remaining proceedings, and how, is left to a separate paragraph.
The next provision makes the operating conditions of this remedy clear. Article 436 paragraph (2) provides: "the case shall be tried again after oral argument has been conducted anew" (Civil Procedure Act, Article 436). The court of remand does not simply substitute for the judgment that was earlier set aside; it receives the case back, conducts a new oral argument, and renders judgment again. The same paragraph (2) adds that the court of remand is bound by the findings of fact and law that the court of final appeal adopted as the grounds for reversal. The findings that formed the grounds for reversal must be respected, and the remaining issues opened up by those findings are dealt with in the new oral argument. The reason for dividing these two stages is that reversal does not itself complete the remaining proceedings in its place.
An objection to this structure aims at the question of burden. The plaintiff, who has already had the wrong acknowledged, may find it dispiriting to have to litigate again, and may feel that, where new materials have appeared, being bound by the earlier findings obstructs the discovery of truth. However, the court cannot overturn the findings adopted as the grounds for reversal. Nor can reversal and remand be converted into a final determination of performance. While acknowledging the inconvenience left by that outcome, if the position of reversal and remand were moved, the oral argument in the remand trial would become someone else's affair. That would amount to passing over the remaining issues without any judgment, and so this remedy cannot proceed down that path.
Comparing only the facts placed in the synthetic scene, the defense raised by Defendant B in the remand trial is an issue that has not yet been adjudicated. Because this issue was not included among the findings adopted as the grounds for reversal, it is not bound by the binding force of those findings. The items to be confirmed from the records are the grounds for reversal in the judgment on final appeal, the issues remaining after remand, the composition of the judicial panel, and the records of oral argument. If which findings were the grounds for reversal is not identified in the records, whether this remedy operated also remains undetermined. However, if it is confirmed from incidental explanations in the judgment on final appeal, those sentences alone do not block all of the remaining proceedings.
Reversal and remand operates as this remedy where, following the findings that formed the grounds for reversal, the remaining issues are examined through a new oral argument and a lawfully constituted judicial panel. What is established here is that the examination of the remaining issues remains open and that judgment follows upon that examination, not that the performance desired by the plaintiff has already arrived. The remand trial is the site of the new examination, and the findings that formed the grounds for reversal are the boundary that this examination may not cross. The remedy continues only within that boundary.
1.2The Conditions That Block Relief
Small-claims cases are subject to separately limited grounds for final appeal and reappeal. In this scene, what is at issue is what position reversal and remand occupies, and in what cases the examination at that stage is barred. Defining first the meaning of reversal and remand, it is the setting aside of the judgment of the court below and sending the case back for trial again. Between the fact of reversal and the outcome of a final determination of victory, a distance still remains.
The provision that answers this question is found in Article 436 of the Civil Procedure Act. Its paragraph (1) sets out the manner in which the court of final appeal disposes of the case as follows: "Where the court of final appeal finds that there are justifiable grounds for the final appeal, it shall reverse the judgment of the court below and remand the case to the court below, or transfer it to another court of equal rank." Here the actor is the court of final appeal, the act is the reversal of the judgment of the court below together with sending the case back to another court, and the condition is the recognition that the final appeal has justifiable grounds. This wording shows that reversal and remand is a procedural disposition made according to whether or not there are grounds for the final appeal. Paragraph (1) itself is not a provision that pronounces the determination of final performance.
Paragraph (2) of the same Article sets out the attitude that the court receiving the case on remand must observe: "The court to which the case is remanded or transferred shall try the case again after oral argument has been conducted anew." And after that follows the wording on binding force: the court of remand is bound by the findings that the court of final appeal adopted as the grounds for reversal. The reason for distinguishing these two stages is simple: conducting a new oral argument and rendering judgment is the proper activity of the remand trial, whereas the binding force is the boundary that this activity may not cross. If a conclusion that crosses the boundary is demanded, the examination closes. At the same time, defenses within the boundary that have not yet been adjudicated are not thereby determined in advance. This distinction creates the horizon of judgment at the point of asking whether reversal and remand is victory or not.
Yet the burden of litigating again after a wrong has already been acknowledged is heavy. From the plaintiff's standpoint, the fact that the court of final appeal set aside the judgment of the court below is a confirmation that its judgment was wrong, and if that confirmation must be explained anew in the remand trial, the toll is great. The point that, where new materials have appeared, being bound by the earlier findings obstructs the discovery of truth is another face of the same burden. Despite such losses and inconvenience, reversal and remand cannot be converted into a final determination of performance. Where, in the remand trial, a conclusion contrary to the binding findings that formed the grounds for reversal is demanded on the same premises, if even one of the statutory requirements is not met, the channel of that remedy is closed, because the wording of binding force stands in the way of that contrary conclusion. This does not mean that the significance of the acknowledgment of the wrong disappears. That significance operates only in setting the scope of the remaining issues.
The analysis now returns to the synthetic scene. Plaintiff A reads reversal and remand itself as victory, and Defendant B raises a defense in the remand trial that has not yet been adjudicated. What is confirmed in this scene is only that the two parties expect different things from the same procedural stage. The year, the amount, and the outcome of the judgment are not fixed. Accordingly, this scene alone cannot say whose expectation will be realized. However, where, following the findings that formed the grounds for reversal, the remaining issues are examined through a new oral argument and a lawfully constituted judicial panel, that examination proceeds in an open state. Where which findings were the grounds for reversal is not identified, the matter remains undetermined. Nor is it always clear which sentence is the basis for the binding force.
The conclusion permitted in this section is that reversal and remand is not final victory, and that where a conclusion contrary to the binding findings is demanded on the same premises in the remand trial, the channel of that remedy is closed. What is not permitted is a conclusion that reads reversal and remand as a final determination of performance, or that regards actual payment or delivery as having already been made at that stage. That a legal channel is open must be distinguished from the fact that actual recovery has been achieved. Unconfirmed records and facts remain unconfirmed as they are.
1.3The Boundary That Remains When There Is No Data
Is reversal and remand final victory? In this scene, reversal and remand means setting aside the judgment of the court below and sending the case back for trial again. The news that the court below has fallen and the determination of the performance desired by the plaintiff are located at different stages. On the premise that the court's judgment is still open, it asks where the boundary lies that cannot be fixed for want of materials.
Where a final appeal has grounds and the case is reversed and remanded, the court of remand conducts a new oral argument and renders judgment. Article 436 paragraph (1) of the Civil Procedure Act provides: "Where the court of final appeal finds that there are justifiable grounds for the final appeal, it shall reverse the judgment of the court below and remand the case to the court below, or transfer it to another court of equal rank" (Civil Procedure Act, Article 436). This wording provides that, where the grounds of the final appeal are recognized, the court of final appeal shall choose reversal and remand or transfer. The word remand refers to the procedural measure of sending the case back to the court that will examine it, and transfer describes together the case where another court of equal rank undertakes that examination. Either way, the examination of the case continues after the judgment of the court below has been set aside.
Article 436 paragraph (2) sets out both the manner and the limits of the remand trial: "The court to which the case is remanded or transferred shall try the case again after oral argument has been conducted anew. In this case, it shall be bound by the findings of fact and law that the court of final appeal adopted as the grounds for reversal" (Civil Procedure Act, Article 436). The requirement that the court of remand try the case again after conducting a new oral argument and the requirement that it be bound by the findings adopted as the grounds for reversal are distinct from each other. The former requirement means that the remaining proceedings are not a mere formal session but a genuine re-examination; the latter means that the examination is not freely open. Where which findings were the grounds for reversal is not identified, matters whose adjudicative materials are not specified are left undetermined, distinguished from impossibility. What cannot be confirmed as the basis of judgment for want of materials is not impossibility that can never be addressed, but remains classified in a state as yet undetermined.
The strongest objection targets the distribution of loss. The observation that the burden of litigating again after a wrong has already been acknowledged is heavy targets both the cost of a party having to defend the same issue twice and the risk of rekindling the correction of an error already laid bare by the appellate court. The further point that, where new materials have appeared, being bound by the earlier findings obstructs the discovery of truth is likewise rooted in the concern that treating every sentence of the judgment on final appeal as binding the remand trial with equal weight would neutralize the emergence of new facts. Even so, reversal and remand cannot be converted into a final determination of performance, because reversal and remand is no more than a procedural measure that sets aside the judgment of the court below and restarts the trial, and is not a judgment that has determined which party receives which performance.
In this scene, Plaintiff A thinks that having received reversal and remand alone means having won the lawsuit. However, the wording of Article 436 paragraph (1) of the Civil Procedure Act records only the procedural stages of reversal and remand, and paragraph (2) places behind it the duty of the court of remand to try the case again after conducting a new oral argument. Defendant B raises a defense in the remand trial that has not yet been adjudicated. If what the grounds for reversal in the judgment on final appeal were is not identified, it cannot be determined in what scope the remaining proceedings that must deal with that defense are open, or which findings bind that examination. Whether that defense exists or whether it is sustained is not a fact fixed in this scene. Matters that cannot be determined should be left undetermined rather than erased in the name of impossibility, and they lean toward neither the plaintiff's victory nor the defendant's defeat.
The boundary that reversal and remand is not final victory collapses the moment reversal and remand is converted into a final determination of performance. What can be confirmed at present are the two provisions—that where a final appeal has grounds and the case is reversed and remanded, the court of remand conducts a new oral argument and renders judgment, and that the court of remand is bound by the findings of fact and law that the court of final appeal adopted as the grounds for reversal—and the criterion of distinction that, where which findings were the grounds for reversal is not identified, matters whose adjudicative materials are not specified are left undetermined, distinguished from impossibility. Other facts, namely how the defense raised after remand will be resolved and what performance the plaintiff will actually receive, cannot be determined from the materials of this section.
1.4The Records Needed for Determination
Is reversal and remand final victory? Combined with this question, what this section addresses is the record necessary to determine the stage. Since the mere fact that the preceding judgment has been reversed does not determine the performance desired by Plaintiff A, it is necessary to fix what materials are required to determine at which stage the procedural event of reversal and remand has arrived.
Article 436 paragraph (1) of the Civil Procedure Act provides: "(1) Where the court of final appeal finds that there are justifiable grounds for the final appeal, it shall reverse the judgment of the court below and remand the case to the court below, or transfer it to another court of equal rank." The actor indicated by this wording is the court of final appeal, and the act is reversing the judgment of the court below and remanding or transferring the case. The condition is the case where it is recognized that there are justifiable grounds for the final appeal. This provision fixes only the requirements and manner of reversal and remand, and leaves how the remaining proceedings after remand are to be conducted to a separate wording.
Article 436 paragraph (2) of the Civil Procedure Act provides: "(2) The court to which the case is remanded or transferred shall try the case again after oral argument has been conducted anew. In this case, it shall be bound by the findings of fact and law that the court of final appeal adopted as the grounds for reversal." Under this wording, the court of remand bears the duty to try the case again after conducting a new oral argument, and at the same time is bound by the findings of fact and law that the court of final appeal adopted as the grounds for reversal. Here two things are distinguished: one is the findings that formed the grounds for reversal; the other is the remaining issues to be newly examined after remand. The stage is determined only from the materials recorded in the grounds for reversal of the judgment on final appeal, the issues remaining after remand, the composition of the judicial panel, and the records of oral argument. The determination of the stage is made only on the established record, and gaps in the record are not filled by conjecture. The reason the distinction is necessary is that the scope of the findings to which binding force attaches and the scope that the remand trial newly examines differ from each other.
The burden of litigating again after a wrong has already been acknowledged does not disappear. Although Plaintiff A thinks that he obtained findings favorable to him in the preceding judgment, if Defendant B raises a defense in the remand trial that has not yet been adjudicated, examination for dealing with that defense opens again. Moreover, there is also the criticism that, where new materials have appeared, being bound by the earlier findings obstructs the discovery of truth. However, even if there are such losses and inconvenience, reversal and remand cannot be converted into a final determination of performance. Reversal and remand goes no further than setting aside the judgment of the court below and sending the case back for trial again, and the court of remand must try the case again after conducting a new oral argument. Being bound by the findings that formed the grounds for reversal is meant to prevent an examination that would overturn those findings; it does not mean that the remaining issues have already been determined.
In this scene, Plaintiff A regards reversal and remand as final victory, but Defendant B raises a defense in the remand trial that has not yet been adjudicated. This fact alone cannot fix the stage. What the grounds for reversal in the judgment on final appeal were, what issues remained after remand, how the judicial panel of the remand trial was composed, and what records of oral argument exist must all appear in the record. Where, following the findings that formed the grounds for reversal, the remaining issues are examined through a new oral argument and a lawfully constituted judicial panel, the examination of the remaining remedy proceeds. Conversely, where in the remand trial a conclusion contrary to the binding findings that formed the grounds for reversal is demanded on the same premises, that path is blocked. Where which findings were the grounds for reversal is not identified, the matter is undetermined.
The conclusion permitted in this section is that the stage is determined only from the materials recorded in the grounds for reversal of the judgment on final appeal, the issues remaining after remand, the composition of the judicial panel, and the records of oral argument. If the distinction between the findings revealed in the record and the remaining issues is maintained, it is possible to discern at which stage reversal and remand stands. The conclusion not permitted is to regard the performance desired by Plaintiff A as determined on the basis of the mere fact that the preceding judgment was reversed or the mere designation of reversal and remand. Converting reversal and remand into a final determination of performance crosses the boundary of this section. Gaps in the record are not filled with conjecture but left undetermined. The next stage of analysis is the question: Do all the sentences of the judgment on final appeal bind the remand trial?
1.5Circumstances That Change the Decision
Is a reversal and remand a final victory? In accordance with the conclusion of the preceding section, this determination rests on the grounds for reversal in the judgment on final appeal, the issues remaining after remand, the composition of the bench, and the record of oral argument. Without that record, the conclusion remains undetermined. Whether the determination would be overturned if these circumstances changed is the present question. A reversal and remand breaks the judgment of the court below and sends the case back for a new trial, so the fact of reversal does not itself fix the performance sought by the plaintiff. Each of the conditions of the determination at issue must be compared one by one.
Article 436 paragraph (1) of the Civil Procedure Act provides that, when the court of final appeal finds that there is a justifiable ground for the final appeal, it shall reverse the judgment of the court below and remand the case to the court below, or transfer it to another court of equal standing. This text defines the act whereby the court of final appeal, which handles the instance, determines whether the final appeal has grounds and, where grounds exist, sends the case back to the court below or to another court of equal standing. Here the actor is the court of final appeal, the acts are reversal and remand or transfer, and the condition is that a justifiable ground for the final appeal is found to exist. This paragraph does not contain any meaning that it also fixes the remaining issues after remand.
Article 436 paragraph (2) provides that the court that receives the case by remand or transfer shall conduct oral argument anew and render judgment, and that in such a case it shall be bound by the findings of fact and of law that the court of final appeal adopted as the grounds for reversal. This text places side by side the duty of the court of remand to conduct oral argument anew and render judgment, and its being bound by the findings adopted as the grounds for reversal. The reason these two must be distinguished is that the scope in which the findings adopted as the grounds for reversal bind the court of remand, and the remaining issues to be newly examined in the proceeding on remand, are distinct questions.
The counterargument that, since error has already been acknowledged, the burden of litigating the matter anew is heavy, points to the inconvenience that, once the judgment on final appeal has confirmed the error of the court below, the plaintiff must assert and prove the same issue again. This counterargument demands that a reversal and remand be converted into a final fixing of performance as a condition for overturning the determination. Because a reversal and remand breaks the judgment of the court below and sends the case back for a new trial, the mere confirmation that the final appeal had grounds does not fix the performance sought by the plaintiff. The litigation burden identified by the counterargument remains, but that burden alone cannot eliminate the remaining examination in the proceeding on remand.
In a synthetic scene, Plaintiff A regards the reversal and remand as a final victory, and Defendant B raises, in the proceeding on remand, a defense that has not yet been adjudicated. Because the court of remand must conduct oral argument anew and render judgment (Civil Procedure Act, Article 436), the question is whether this defense falls within the scope in which the findings adopted as the grounds for reversal bind the court, or whether it is a matter remaining as an issue to be newly examined. Unless the grounds for reversal in the judgment on final appeal are specified, which findings constituted the grounds for reversal remains undetermined. The scene does not determine whether the performance to be received by the plaintiff has been fixed, nor what the object of suit, the amount, or the time limit may be.
The conclusion that this determination permits extends only so far as to say that, on the strength of sentences confirmed by incidental explanations in the judgment on final appeal, the remaining examination is not precluded. When there are grounds for the final appeal and a reversal and remand follows, the court of remand conducts oral argument anew and renders judgment (Civil Procedure Act, Article 436), and while it is bound by the findings adopted as the grounds for reversal in the judgment on final appeal, the remaining issues remain subjects of examination in the proceeding on remand. Conversely, the conclusion that reads a reversal and remand as a final fixing of performance is not permitted by this determination.
1.6The Strongest Counterargument and the Answer
A reversal and remand is not a final victory. In this scene, the place where the counterargument that, since error has already been acknowledged, the burden of litigating the matter anew is heavy actually meets its mark is the remaining examination in the proceeding on remand. Notwithstanding this burden, the question is whether a reversal and remand can nonetheless be converted into a final fixing of performance.
To answer this question, the relevant text must first be laid out. Article 436 paragraph (1) of the Civil Procedure Act provides that, when there is a justifiable ground for the final appeal, the judgment of the court below is reversed and the case is remanded to the court below or transferred to another court of equal standing. The actor indicated by this text is the court of final appeal, the acts are reversal and remand or transfer, and the condition is the finding that there is a justifiable ground for the final appeal. The position designated as its effect is not the finality of the judgment, but the court that will try the case anew.
When Article 436 paragraphs (1) and (2) are laid out together, the stages diverge. Article 436 paragraph (2) of the Civil Procedure Act provides that the court that receives the case by remand or transfer shall conduct oral argument anew and render judgment, and shall be bound by the findings of fact and of law that the court of final appeal adopted as the grounds for reversal. The structure these two sentences jointly build divides the earlier reversal from the later trial. Reversal is the position that removes the preceding judgment, and the final fixing of performance is a position that opens only after the remaining issues have been concluded; accordingly, if the two stages of determination are not distinguished, the erroneous equation arises that the reversal by the court of final appeal is itself victory.
What the counterargument that, since error has already been acknowledged, the burden of litigating the matter anew is heavy aims at is time and cost, and the trouble of having to say the same thing again. Plaintiff A feels that he has already obtained a favorable finding in the preceding judgment that was broken, and must face Defendant B's new defense anew in the proceeding on remand. This loss cannot be treated lightly. However, because Article 436 paragraph (2) states both that the court is bound by the findings adopted as the grounds for reversal and that it shall conduct oral argument anew and render judgment, this burden cannot be alleviated by converting a reversal and remand into a final fixing of performance.
In the synthetic scene, if only the facts belonging to this question are laid out, what remains is the defense not yet adjudicated in the proceeding on remand. The grounds for reversal in the judgment on final appeal, the issues remaining after remand, the composition of the bench, and the record of oral argument are set as the materials of determination, and the actual result of performance in a real case is not included among them. If it is confirmed by an incidental explanation in the judgment on final appeal, that sentence alone does not preclude all remaining examination, and where which findings constituted the grounds for reversal is not specified, it cannot be determined which findings bind the remaining examination. What cannot be determined from the scene alone remains undetermined.
What this section permits is the determination that places a reversal and remand between the breaking of the preceding judgment and the fixing of the final performance, and what it does not permit is the determination that moves that position to final victory. Accordingly, insofar as Plaintiff A accepts a reversal and remand as a final victory, the trial of Defendant B's remaining defenses remains open.
1.7The Link to the Application and the Dispositive Part
In the preceding section, the conclusion was already received that a reversal and remand cannot be converted into a final fixing of performance. Taking up that conclusion, what must now be asked is whether a reversal and remand is a final victory. Within this opposition, one must distinguish whether a reversal and remand is itself victory, or whether determinations still remain.
The text that answers this question is found in Article 436 of the Civil Procedure Act. Its paragraph (1) provides: "When the court of final appeal recognizes that there is a justifiable ground for the final appeal, it shall reverse the judgment of the court below and remand the case to the court below or transfer it to another court of the same level." The actor spoken of here is the court of final appeal, the acts are the reversal of the judgment of the court below and the remand or transfer of the case, and the condition is that a justifiable ground for the final appeal is recognized. Once this condition is satisfied, the judgment of the court below is not maintained as it stands, and the case returns as one to be tried anew. This text points only to the meaning of a reversal and remand or transfer, and does not settle other issues as well.
That text leads to the conclusion that a reversal and remand is not a final victory. Article 436 paragraph (2) provides: "The court that receives the case by remand or transfer shall conduct oral argument anew and render judgment." Accordingly, what remains in the procedure is for the court of remand to conduct oral argument anew and render judgment. A reversal and remand means breaking the judgment of the court below and sending the case back for a new trial; here one must distinguish the 'broken preceding judgment' from the 'final performance that has not yet come.' The former is a determination concerning the effect of the preceding judgment, and the latter is a determination concerning whether the performance sought by the plaintiff has been fixed. If the two determinations are handled at once, the remaining examination in the proceeding on remand vanishes.
What the counterargument that, since error has already been acknowledged, the burden of litigating the matter anew is heavy aims at most persuasively is precisely that point. Even though the error has been revealed by the findings that the court of final appeal adopted as the grounds for reversal, the plaintiff must prove and persuade anew in the proceeding on remand. Time and cost are spent in that process, and the defendant may counter with remaining defenses. The findings of the court of final appeal bind the court of remand, but the scope of the binding findings and the examination of the remaining issues are separate matters. The inconvenience identified by the counterargument is acknowledged, but that inconvenience cannot erase the very existence of the proceeding on remand.
In the synthetic scene, the relevant fact is the existence of the remaining issues. Whether this defense falls inside or remains outside the scope of the findings that became the grounds for reversal is not specified by this scene alone. Where which findings constituted the grounds for reversal is not specified, the scope of the remaining examination remains undetermined. If the court of remand, in accordance with the findings that became the grounds for reversal, examines the remaining issues through new oral argument and a duly constituted bench, that examination is valid. Conversely, if on the same premises a conclusion contrary to the grounds for reversal is demanded, that demand is barred.
What has been confirmed in this section is the narrow conclusion that a reversal and remand is not a final victory, and that the court of remand conducts oral argument anew and renders judgment. When there are grounds for the final appeal and a reversal and remand follows, what is fixed is not a judgment of victory; the case returns to examination. Beyond that scope, one cannot assert categorically the actual result of the proceeding on remand or whether performance has taken place.
1.8The Scope This Section Undertakes
A so-called reversal and remand means breaking the judgment of the court below and sending the case back for a new trial, and the preceding section proceeded on the premise that, when there are grounds for the final appeal and a reversal and remand follows, the court of remand conducts oral argument anew and renders judgment. Upon this premise, what is asked now is how this conclusion connects with the premise received from the preceding section.
Article 436 paragraph (1) of the Civil Procedure Act provides: "When it is recognized that there is a justifiable ground for the final appeal, the judgment of the court below shall be reversed and." The actor in this text is the court of final appeal, and the act is the reversal of the judgment of the court below when a justifiable ground for the final appeal is recognized. The court of final appeal shall remand the case to the court below or transfer it to another court of equal standing (Civil Procedure Act, Article 436). Here the meaning that the court of final appeal itself fixes the performance sought by the plaintiff is not contained in the text.
The point at which the provision structure of reversal and remand in paragraph (1) connects with the premise of the preceding section is this. Reversal means toppling the existing judgment, namely the judgment of the court below, and remand means sending that case back to be tried anew. The reason these two stages must be distinguished is that, while the former withdraws the effect of a judgment already rendered, the latter opens the door to a procedure that examines the case itself anew. The examination of the latter does not automatically conclude merely upon the accomplishment of the former.
It cannot be denied that, even though the plaintiff's assertions were accepted on final appeal, if the issues are addressed again in the proceeding on remand, time and effort are spent again. The objection that, even where new material has appeared, being bound by the prior determination obstructs the discovery of truth is also advanced in the same direction. A reversal and remand breaks the judgment of the court below and sends the case back for a new trial, and room remains open for the court of remand to examine the remaining issues.
What this section addresses is the boundary with the neighboring sections. That is, where which findings constituted the grounds for reversal is not specified, the matter remains undetermined. Where the grounds for reversal in the judgment on final appeal are specified and, in accordance with those findings, the remaining issues are examined through new oral argument and a duly constituted bench, the examination of the remedy operates.
The conclusion this section permits is that a reversal and remand does not fix a final victory. On the premise that small-claim cases apply separately limited grounds for final appeal and reappeal, when there are grounds for the final appeal and a reversal and remand follows, the court of remand conducts oral argument anew and renders judgment. However, conclusions to the effect that a specified performance has already been fixed, or that no further determination of the remaining issues is necessary, are not permitted. How does the text of Article 436 of the Civil Procedure Act support this conclusion?
1.9Application of the Text of the Provisions and the Holdings of Precedents
The question of this section now is to determine what may be taken as the basis of determination for the examination of the remedy remaining after a reversal and remand. The scope of application of the relevant original text is the issue in this question.
Among the relevant original texts, Article 436 paragraph (1) of the Civil Procedure Act describes the disposition of the court of final appeal as follows: "① When the court of final appeal recognizes that there is a justifiable ground for the final appeal, it shall reverse the judgment of the court below and remand the case to the court below, or transfer it to another court of equal standing." (Civil Procedure Act, Article 436) The actor indicated by this text is the court of final appeal, the acts are the reversal of the judgment of the court below and the remand or transfer of the case, and the condition is the case in which a justifiable ground for the final appeal is recognized. The subject and procedure of the new trial to be conducted by the court of remand are determined by this text.
The next text, Article 436 paragraph (2) of the Civil Procedure Act, limits the status of the court that receives the case by remand. "The court that receives the case by remand or transfer shall conduct oral argument anew and render judgment. In such a case, it shall be bound by the findings of fact and of law that the court of final appeal adopted as the grounds for reversal." (Civil Procedure Act, Article 436) This text declares at once that the examination in the proceeding on remand is an examination newly opened and an examination bound by the findings adopted as the grounds for reversal. Herein lies the reason that the disposition of the preceding paragraph and the examination of this paragraph are divided.
However, the counterargument that, since error has already been acknowledged, the burden of litigating the matter anew is heavy may be raised. Since the court of final appeal has pointed out the error of the court below by the reversal and remand, the plaintiff may expect that the remaining examination will be a mere formality, and the defendant's new defense may be received as a burden that shakes that determination again. This disadvantage must not be concealed. While the burden asserted by the counterargument is acknowledged, that burden alone cannot eliminate the opportunity of examination that the text provides.
Returning to this scene, the grounds for reversal in the judgment on final appeal, the issues remaining after remand, the composition of the bench, and the record of oral argument are the materials for determination of the remaining examination. Where, in the proceeding on remand and in accordance with the findings that became the grounds for reversal, the remaining issues are examined through new oral argument and a duly constituted bench, this conforms to the text. Conversely, if on the same premises a conclusion contrary to the binding findings that became the grounds for reversal is demanded in the proceeding on remand, that demand contravenes this text. Where which findings constituted the grounds for reversal is not specified, the determination cannot be fixed by this section alone.
What this section permits is to use as the basis of determination for the examination of the remedy remaining after a reversal and remand the text of the relevant original text, namely the text of Article 436 paragraphs (1) and (2) of the Civil Procedure Act. Only the text within the scope of the relevant original text is applied, and it is not extended by other explanations in the reasons for the judgment. Reading the fact that the remaining examination in the proceeding on remand is open as though it were the arrival of fixed performance is a conclusion this section does not permit.
1.10Fine Distinctions Within the Stage
이 장면 앞에서 환송심의 심리 안에서 남은 구제를 다시 나누어 판정할 부분이 무엇인지 묻는다. 파기환송은 최종 승소인가라는 앞선 물음은 이미 다루었고, 지금은 그 뒤에 열린 심리에서 어느 범위를 따로 가를 것인가를 살핀다.
이 물음에 답하는 문언으로 민사소송법 제436조 제1항은 “①상고법원은 상고에 정당한 이유가 있다고 인정할 때에는 원심판결을 파기하고 사건을 원심법원에 환송하거나, 동등한 다른 법원에 이송하여야 한다.”라고 정한다. 여기서 상고법원은 상고에 정당한 이유가 있다고 인정하는 주체이고, 원심판결의 파기와 사건의 환송 또는 이송이 그 행위이며, 상고에 정당한 이유가 있다고 인정하는 것이 조건이다. 이 항은 파기 뒤 사건이 어느 법원에 돌아가는지를 정할 뿐이다. 같은 조의 제2항이 정하는 환송 뒤 심리의 방식이나 기속의 범위는 이 항의 문언 안에서 정해지지 않는다.
이 조문이 정한 판단의 자리는 앞선 물음과 이번 물음의 경계를 만든다. 이 문언은 환송받은 법원에 두 가지를 함께 요구한다. 다시 변론을 거쳐 재판할 것과, 상고법원이 파기의 이유로 삼은 사실상 및 법률상 판단에 기속될 것을 말이다. 파기의 이유로 삼은 판단이라는 범위와 그 밖에 남은 쟁점이라는 범위를 구별해야 하는 까닭이 여기에 있다. 앞의 범위는 환송심이 따르는 판단이고, 뒤의 범위는 환송심이 새로 심리하여 재판할 대상이다. 단계 안의 세부 구분은 작동하는 경우, 막히는 경우, 미확정인 경우 조건에 한정한다.
가장 강한 반론은 이미 잘못을 인정받았는데 다시 다투는 부담이 크다는 점이다. 원고 A는 상고법원이 원심의 잘못을 파기의 이유로 삼았다고 보고, 그 인정만으로 환송심에서 더 이상 다툴 것이 없다고 기대한다. 같은 판단이 이미 확정된 줄 알고 다시 자료를 준비하고 주장을 정리해야 하는 불편과 지연의 손실이 크다. 새 자료가 나타났는데도 종전 판단에 묶이면 진실발견이 막힌다는 반론도 여기에 붙는다. 이 부담과 불편을 지우지 않으면서도 파기환송을 최종 급부 확정으로 바꿀 수는 없다. 파기의 이유로 삼은 판단에 기속된다는 문언은 그 판단을 따르는 범위를 정할 뿐, 아직 판단되지 않은 항변까지 확정했다고 읽을 수 없다.
이 장면에서 이 물음에 걸리는 사실은 피고 B가 환송심에서 아직 판단되지 않은 항변을 낸다는 점이다. 이 항변이 상고법원이 파기의 이유로 삼은 사실상 및 법률상 판단에 드는지 아닌지가 이 절의 범위의 쟁점이다. 파기 이유가 된 판단에 따르면서 남은 쟁점을 새 변론과 적법한 재판부로 심리하면 작동하는 경우에 해당하고, 환송심에서 파기 이유가 된 구속 판단 자체와 반대되는 결론을 같은 전제로 요구하면 막히는 경우에 해당한다. 어느 판단이 파기의 이유였는지 특정되지 않은 경우에는 미확정인 경우로 남는다. 상고판결의 부수 설명으로 확인되면 그 문장만으로 모든 남은 심리를 차단하지 않는다는 대조 조건만 함께 두며, 그 밖의 사실은 이 장면으로 확정하지 못한다.
이 절이 허용하는 것은 파기의 이유로 삼은 판단의 범위를 정하고, 그 안과 밖의 쟁점을 작동하는 경우·막히는 경우·미확정인 경우의 조건으로 나누어 살피는 것이다. 이 절이 허용하지 않는 것은 파기환송을 최종 급부 확정으로 바꾸거나, 명시한 세 조건 밖에 새 판단 단계를 세우는 것이다. 기록에 있는 상고판결의 파기 이유·환송 뒤 쟁점·재판부 구성·변론 기록은 어느 판단이 파기의 이유였는지 가리는 데 쓰일 뿐이고, 자료가 부족하면 미확정으로 남는다.
1.11Synthesis of Effectiveness, Blockage, and Undetermination
그 문장은 파기환송이 승소 판결이 아니라는 점만 남긴다. 이제 남은 구제의 심리를 두고 어떤 경우에 길이 열리고, 어떤 경우에 막히며, 어떤 경우에 판단을 유보해야 하는지 묻는다. 이 장면에서 쟁점은 두 당사자의 기대가 아니라 환송심이 어떤 판단에 묶인 채 무엇을 새로 심리할 수 있는가이다.
이 문언은 상고에 이유가 있을 때 상고법원이 파기와 함께 사건을 돌려보내거나 옮긴다는 주체와 행위를 정한다. 이 정의만으로는 남은 쟁점의 처리 방식이 드러나지 않으므로 같은 조 제2항이 필요한 이유가 생긴다.
제436조 제2항은 "사건을 환송받거나 이송받은 법원은 다시 변론을 거쳐 재판하여야 한다"고 정한다(민사소송법 제436조). 이 문언은 환송받은 법원이 새 변론을 거쳐 재판한다는 절차를 정하고, 같은 항은 상고법원이 파기의 이유로 삼은 사실상 및 법률상 판단에 기속된다고 덧붙인다. 두 층위를 구별해야 하는 까닭은, 심리의 길이 열리는 경우와 막히는 경우가 바로 이 구분에 갈리기 때문이다. 열리는 조건은 파기 이유가 된 판단에 따르면서 남은 쟁점을 새 변론과 적법한 재판부로 심리한 경우이다. 막히는 조건은 환송심에서 파기 이유가 된 구속 판단 자체와 반대되는 결론을 같은 전제로 요구하는 경우이다.
가장 강한 반론은 이미 잘못을 인정받았는데 다시 다투는 부담이 크다는 데 있다. 상고법원이 원심의 잘못을 파기의 이유로 적어 두었는데도 환송심에서 남은 항변을 다시 다룬다면, 원고 A는 한 번의 승인으로 끝날 줄 알았던 싸움을 연장해야 한다. 새 자료가 나타났는데도 종전 판단에 묶이면 진실발견이 막힌다는 점도 같은 방향에서 제기된다. 다만 이 반론의 불리한 부분은 지울 수 없다. 파기환송을 최종 급부 확정으로 바꿀 수는 없다. 반론이 지적한 번거로움은 제436조 제2항이 다시 변론을 요구한 대가이고, 그렇다고 파기환송이 급부를 확정하는 판결로 바뀌지는 않는다.
합성 장면에서 앞의 조건과 대조할 사실은 제한되어 있다. 이 사실만으로 어느 항변이 타당한지, 환송심 재판부 구성이 적법했는지, 변론 기록에 무엇이 담겼는지는 정해지지 않았다.
이 절이 허용하는 것은 조건부 구별뿐이다. 파기 이유가 된 판단에 따르면서 남은 쟁점을 새 변론과 적법한 재판부에서 심리하면 그 심리는 실효를 얻고, 같은 전제에서 파기 이유가 된 구속 판단과 반대되는 결론을 요구하면 막히며, 파기 이유가 특정되지 않으면 미확정이다. 어떤 문장이 남은 심리를 묶는지는 이 구별이 끝난 뒤에야 판단할 수 있다.
1.12Conclusion Carried Over to the Next Section
이전 단계까지 소액사건에는 별도로 한정된 상고·재항고 사유가 적용된다는 점을 확인했다. 파기환송은 최종 승소인가? 이 장면은 실제 사건의 재현이 아니라 판단 조건을 정하기 위한 합성 전제다.
민사소송법 제436조 제1항은 상고법원이 취할 조치를 이렇게 정한다. "상고법원은 상고에 정당한 이유가 있다고 인정할 때에는 원심판결을 파기하고 사건을 원심법원에 환송하거나, 동등한 다른 법원에 이송하여야 한다." 이 문언은 상고법원, 즉 상고에 대한 판단 권한을 가진 상급심이 상고의 정당한 이유를 인정한 경우 원심판결을 파기하는 행위와 함께 사건을 돌려보내는 결과를 명시한다. 이 조문의 다른 쟁점은 다루지 않는다.
같은 조 제2항이 환송 법원의 태도를 정한다. "사건을 환송받거나 이송받은 법원은 다시 변론을 거쳐 재판하여야 한다. 이 경우에는 상고법원이 파기의 이유로 삼은 사실상 및 법률상 판단에 기속된다." 여기서 구별되는 두 단계가 있다. 하나는 파기의 이유가 된 사실상 및 법률상 판단에 환송 법원이 구속된다는 점이고, 다른 하나는 그 판단을 토대로 다시 변론을 거쳐 재판을 완결한다는 점이다. 두 단계를 나누어야 하는 까닭은 앞의 것은 상고판결이 확정한 전제이고 뒤의 것은 아직 끝나지 않은 심리의 범위이기 때문이다. 이 구별을 무시하면 파기환송을 최종 급부 확정으로 바꾸는 결과가 된다.
이미 잘못을 인정받았는데 다시 다투는 부담이 크다는 반론이 겨냥하는 것은 시간과 비용, 그리고 이미 얻은 인정을 다시 방어해야 하는 심리적 불리함이다. 상고심에서 원고의 주장이 받아들여졌다는 경험은 파기환송과 함께 사라지지 않지만, 그렇다고 그 경험이 환송심의 절차를 건너뛸 권리를 만드는 것은 아니다. 파기환송을 최종 급부 확정으로 바꿀 수는 없다. 피고가 환송심에서 아직 판단되지 않은 항변을 낼 수 있다는 사실이 원고에게 불리하게 느껴져도, 그것은 상고판결이 파기의 이유로 삼은 판단의 범위 바깥에서 남은 쟁점이 실제로 존재할 수 있음을 보여줄 뿐이다. 반론의 무게를 인정하면서도, 절차가 아직 완결되지 않았다는 범위는 지울 수 없다.
합성 장면에서 확인되는 사실은 두 가지다. 원고 A는 파기환송을 최종 승리라고 여기고, 피고 B는 환송심에서 아직 판단되지 않은 항변을 제기하려 한다. 이 장면을 조문의 앞에 있는 조건과 대조하면, 환송 법원은 다시 변론을 거쳐 재판하여야 하므로 아직 판단되지 않은 항변은 그 변론의 대상이 될 수 있다. 다만 이 장면만으로는 어느 판단이 파기의 이유였는지 특정되지 않았고, 실제 사건의 사실·송달·이행 결과나 합성 장면에 없는 판결 결과는 설정하지 않았다. 따라서 항변의 인용 여부나 그로 인한 급부의 방향은 이 자리에서 판단할 수 없다. 남은 것은 판단 조건의 분류일 뿐이다.
이 절이 허용하는 결론은 파기환송 자체가 최종 승소를 뜻하지 않는다는 것이다. 반대로, 파기환송만으로 모든 남은 심리가 끝났다고 보거나, 환송심의 재판 결과를 미리 확정한 결론은 이 자리에서 도출할 수 없다. 어떤 판단이 상고판결의 모든 문장을 환송심에 묶는 기준이 되는지는 아직 열려 있다. 상고판결의 모든 문장이 환송심을 묶는가?