Summary
The court on remand must proceed through oral argument again and must distinguish the binding determinations from the matters that remain to be heard.
3.1The Standard by Which the Path Opens
The fact that there is a conclusion to be followed does not eliminate the parties' remaining words. Taking as given the premise of the preceding section that the factual and legal findings the court of final appeal took as the grounds for reversal form the core of the binding effect, this article asks how the remaining words are handled in the proceeding on remand, which is bound by those findings. If there is binding force, does oral argument reduce itself to mere form? In the synthetic scenario, plaintiff A regards the reversal and remand as a final victory, while defendant B raises in the proceeding on remand a defense not yet adjudicated. In this scenario the question is concrete: how can A's expectations and B's remaining contentions meet in the proceeding on remand?
The first source with which to answer this question is Article 436(2) of the Civil Procedure Act. Its text provides: "A court that has received a case on remand or on transfer shall adjudicate it again after conducting oral argument. In such a case, the court is bound by the factual and legal findings that the court of final appeal took as the grounds for reversal." (Civil Procedure Act, Article 436) In this sentence the subject is the court that has received the case on remand or on transfer, the required act is to adjudicate again after conducting oral argument, and the condition is being bound by the findings the court of final appeal took as the grounds for reversal. Here, the oral argument on remand means the procedure for hearing the issues remaining after the reversal.
The provision requires two things of the court of remand at once. One is the requirement to conduct oral argument again; the other is the requirement to follow the findings that formed the grounds for reversal. These two requirements carry different weight. The former is not an instruction to observe the form of procedure but an instruction to create an occasion on which the parties may speak on the remaining issues. The latter is the limit that prevents the conclusion already settled from being argued anew on that occasion. The court of remand must conduct oral argument again and must distinguish the binding findings from the remaining subjects of adjudication. The criterion for that distinction is the question posed by this article. Where, while following the findings that formed the grounds for reversal, the remaining issues are examined through fresh oral argument and by a lawfully constituted bench, the entrance to this relief opens. This criterion creates no new requirement; it is meant to place, together, the oral argument and the binding effect that the provision demands.
The counterarguments most directly aimed at this criterion are two. One is the concern that repeated oral argument may become a means of delay: if the remaining issues are unfolded anew at every proceeding on remand, the case may never end and the same things may be repeated. The other is the criticism that, where new material has appeared yet the court remains bound by the earlier findings, the discovery of truth is blocked: if newly produced grounds are disregarded in the name of binding force, the judgment may miss the facts. Each of the two criticisms points to a loss, delay and truth respectively, and neither disappears. Even so, the statutory procedure of conducting oral argument again cannot be deleted on the ground of binding force. That the place of oral argument demanded by the provision cannot be erased out of concern for possible delay means that, while acknowledging the weight of the counterarguments, the procedure is preserved.
Returning to the synthetic scenario, the criterion is contrasted as follows. Plaintiff A regards the reversal and remand as a final victory, but the defense raised by defendant B is an issue not yet adjudicated. Unless B's defense demands, on the same premises, a conclusion contrary to the findings that formed the grounds for reversal, that defense may become a subject of the remaining adjudication. The scenario, however, does not identify which finding formed the grounds for reversal. Absent that identification, whether this defense can be admitted remains undetermined. Whether the requested performance, parties, and conditions were specified in the prayer for relief, and whether the right of the chosen lawsuit can be defended, likewise cannot be determined from the scenario alone. Accordingly, all that can be fixed from the scenario is the criterion at the entrance, and the actual facts meeting that criterion are unknown.
The conclusion this article permits is this. Even where binding force exists, the oral argument on remand does not remain as mere form. Nor does it mean that every defense is dealt with in every proceeding on remand. Whether a matter is a remaining issue, whether it has been specified in the prayer for relief, and whether there is a right to defend it must each be confirmed separately. One cannot add facts the scenario does not contain and judge on that basis.
3.2The Conditions That Block Relief
Plaintiff A regards the reversal and remand as a final victory, while defendant B raises in the proceeding on remand a defense not yet adjudicated. Following that conclusion, the factual and legal findings that the court of final appeal took as the grounds for reversal form the core of the binding effect. In such a scenario the question is concrete. And what are the conditions under which the channel of relief is closed?
First set out the original text that answers this question. Article 436(2) of the Civil Procedure Act provides: "A court that has received a case on remand or on transfer shall adjudicate it again after conducting oral argument." Here, the court that has received the remand refers to the bench of the instance that received the case back after the reversal, and the wording "shall adjudicate it again after conducting oral argument" indicates the requirement that the procedure known as oral argument on remand must without fail be undergone.
The later sentence of the same Article places a limit on this requirement. The text provides that "the court is bound by the factual and legal findings that the court of final appeal took as the grounds for reversal," and to be bound here means that the court of remand cannot adopt premises different from those findings. It is precisely this distinction that serves as the criterion of decision. The category of binding findings and the category of remaining subjects of adjudication appear on the surface to overlap but are different from one another. Where a conclusion contrary to the binding finding that formed the grounds for reversal itself is demanded on the same premises, if even one of the statutory requirements is not met, that channel of relief is closed.
The counterargument that repeated oral argument may become a means of delay aims at a substantive loss. If similar contentions are heard again while bound by the earlier findings, the case is prolonged, and in the meantime recovery of the claim may be postponed or the dispute protracted. That the discovery of truth is blocked where new material has appeared yet the court remains bound by the earlier findings is likewise hard to ignore. Yet this counterargument can hardly deny the value of oral argument itself. Narrowing the scope of the binding effect is a matter of broadening the adjudication of the remaining issues, not of erasing the procedure known as oral argument on remand.
This question is weighed on the basis of the facts alone as set in the synthetic scenario. Plaintiff A regards the reversal and remand itself as a victory, but the defense of defendant B has not yet been adjudicated. If this defense demands, on the same premises as the binding finding that formed the grounds for reversal, a conclusion contrary to that finding, then if even one of the statutory requirements that would allow the court of remand to accept it is lacking, that adjudication does not open. Conversely, if the defense accepts the binding finding and addresses the remaining issues, oral argument must be conducted again. Where it has not been identified which finding formed the grounds for reversal, and where it is confirmed as incidental explanation in the judgment on final appeal, that sentence alone does not block all remaining adjudication. Undetermined issues are not treated as settled.
Accordingly, the permitted conclusion is narrow. The path of examining the remaining issues, on the premises of the binding findings, through fresh oral argument and by a lawfully constituted bench remains open; conversely, a demand that overturns the binding finding itself does not pass.
3.3The Boundary That Remains When There Is No Data
As set out above, the factual and legal findings that the court of final appeal took as the grounds for reversal form the core of the binding effect. Even so, the question to be addressed here is separate: if there is binding force, does oral argument remain as mere form, and where lies the boundary that cannot be fixed because the material is absent? What is asked in this situation is not the impressions of the two parties but the scope of the procedure.
Article 436(2) of the Civil Procedure Act provides that "a court that has received a case on remand or on transfer shall adjudicate it again after conducting oral argument." In the same paragraph it then lays down that "in such a case, the court is bound by the factual and legal findings that the court of final appeal took as the grounds for reversal" (Civil Procedure Act, Article 436). The subject of the statement is the court that has received the remand, the act is to adjudicate again after conducting oral argument, and the condition is the state of being bound by the findings that formed the grounds for reversal. Other procedural matters in the same paragraph are not the subject of the explanation here.
The wording of this paragraph contains both a requirement and a limitation. The requirement is to adjudicate again after conducting oral argument; the limitation is to be bound by the findings taken as the grounds for reversal. The reason both layers must be seen together is that, if either alone is taken, the decision wavers. Since the object of the binding effect is the factual and legal findings that the court of final appeal took as the grounds for reversal, where it has not been identified which finding formed the grounds for reversal, matters not specified as materials of decision are left undetermined, distinguished from impossibility. It is closer to a state in which material is absent than to something prohibited.
Repeated oral argument may become a means of delay. Once binding force is acknowledged, adjudication thought to be concluded opens again, and the same issue must be spoken of twice, producing such losses as delay of the lawsuit or increase in costs. The complaint that the discovery of truth is blocked where new material has appeared yet the court remains bound by the earlier findings attaches here as well. Since the provision requires the court of remand to conduct oral argument again, that procedure cannot be eliminated on the ground of the risk of delay alone, and the concern about delay is handled by drawing the boundary of the subjects of the remaining adjudication.
In the constructed scenario, only two facts bear on this question. One is the impression that plaintiff A regards the reversal and remand as a final victory; the other is the fact that defendant B raises in the proceeding on remand a defense not yet adjudicated. As seen above, the object of the binding effect is the findings taken as the grounds for reversal. Yet from this scenario alone it has not been identified which finding formed the grounds for reversal. Accordingly, one cannot decide whether defendant B's defense conflicts with the binding finding or lies outside it. This matter remains undetermined rather than impossible. Where it is confirmed as incidental explanation in the judgment on final appeal, that sentence alone does not block all remaining adjudication.
The conclusion permitted in this section is narrow. The oral argument on remand is not a procedure that remains as mere form but an occasion that actually adjudicates the remaining issues, and the binding findings and the subjects of adjudication outside those findings are distinguished. Where that line of distinction is drawn can be judged only after the grounds for reversal in the judgment on final appeal, the issues after remand, the composition of the bench, and the record of oral argument have been confirmed, and at present, the material being absent, it cannot be fixed. Conversely, the conclusion not permitted is to regard the reversal and remand itself as a final victory, or to declare an undetermined defense to be in itself impossible.
3.4The Records Needed for Determination
That the findings taken as the grounds for reversal bind the proceeding on remand does not mean that words not yet uttered also disappear. The preceding analysis confirmed only that the factual and legal findings the court of final appeal took as the grounds for reversal form the core of the binding effect. The questions are whether, where there is binding force, oral argument remains as mere form, and which records must be examined when gauging the degree of that form. Take the foregoing confirmation of the core of the binding effect briefly as given, and concentrate now on the work of bringing to light what words remain even under that confirmation. This question is not a theoretical observation; it concerns the shape of the oral argument on remand, that is, the procedure for adjudicating the issues remaining after the reversal.
As the basis for answering this question, examine the relevant wording first. Article 436(2) of the Civil Procedure Act defines the duty of the court that has received the remand thus: 「A court that has received a case on remand or on transfer shall adjudicate it again after conducting oral argument.」 This wording defines the subject as the court that has received the case on remand or on transfer, and the act as adjudicating again after conducting oral argument (Civil Procedure Act, Article 436). What is therefore required of the court on remand is not a single decision but the procedure of a reopened oral argument. On the wording, this duty arises from the mere fact that the judgment has been reversed, and no separate ground need be found. Although the sentence on binding effect follows in the same paragraph of that provision, the point that the court of remand conducts oral argument again before adjudicating is a separate requirement standing alongside that binding sentence. Oral argument is therefore an essential procedure scheduled after the reversal, not a formality omitted by reason of the binding effect.
Connecting this wording with the confirmation of the preceding section makes the criterion for stage-by-stage decision clear. The court of remand must conduct oral argument again and must distinguish the binding findings from the remaining subjects of adjudication (Civil Procedure Act, Article 436). This distinction is necessary because the findings already settled by the judgment on final appeal and the remaining issues yet to be examined are not dealt with at the same stage. The former is bound and the latter is open; if the two categories are lumped together, one may mistake matters for the absence of remaining words. Here, the stage-by-stage decision is made on the designated records alone. The necessary records are the grounds for reversal in the judgment on final appeal, the issues after remand, the composition of the bench, and the record of oral argument. Using only the materials recorded in these four items, one identifies the stage, and gaps in the records are not filled by inference. The accuracy of the decision depends not on the quantity of material but on respecting the scope of the material.
Even so, the counterarguments do not miss this point. If the same defense is repeated despite the binding findings, the proceeding on remand consumes time without substance, and there is concern that the adjudication of the remaining issues will be pushed back. Nor is the criticism in the same direction easy to dismiss: in a matter whose conclusion is already settled by force of the binding effect, where new material has appeared yet the court remains bound by the earlier findings, the discovery of truth is blocked. Such losses and inconveniences cannot be denied. The fact that repeated oral argument has potential for abuse does not serve as grounds for abolishing the procedure. The burden when the same material and the same defense are repeated is a matter to be handled by defining the content and scope of oral argument, not a circumstance that permits erasing oral argument itself. The concern about delay must be handled, so long as records remain, by narrowing the subjects of adjudication, and the unfavorable aspects of the counterarguments are not to be inserted into this decision.
Nevertheless, what can be identified as to the stage from the facts of the synthetic scenario alone is limited. What can be confirmed in this scenario is that there is a defense not yet adjudicated, in other words, that remaining issues exist. Yet which issue that defense concerns, what record of oral argument remains, and which bench has been composed are not in the scenario. Therefore, the scope within which one can decide is limited to the point that the subjects of remaining adjudication remain open, and beyond that is left undetermined. One qualification to the conditions of decision, however: where it is confirmed as incidental explanation in the judgment on final appeal, that sentence alone does not block all remaining adjudication. This contrast shows not additional facts of an actual case, but that the remaining adjudication differs according to whether a particular sentence is incidental explanation or the grounds for reversal. Where it has not been identified which finding formed the grounds for reversal, whether that finding blocks the remaining adjudication cannot be ascertained from the designated records.
To set out the boundary between the conclusions this section permits and those it does not: even under the binding effect of the judgment on final appeal, oral argument remains open as the procedure for adjudicating the remaining issues. This decision does not mean that the proceeding on remand is made to reconsider the binding findings afresh, nor does it allow a path demanding, on the same premises, a conclusion contrary to the findings already settled. Only, to determine which stage applies, one must look to the designated records, and what lies outside those records is not to be inferred. The risk of delay from repeated oral argument cannot be grounds for deleting the procedure of oral argument, and that risk must be handled by separate means.
3.5Circumstances That Change the Decision
The word binding force means that there is a determination one must follow, but the word itself does not erase the parties' remaining words as well. On the premise that the factual and legal determinations the court of final appeal took as the grounds for reversal lie at the center of the binding effect, this section now examines whether, when binding force exists, oral argument is reduced to mere form, and what kind of change overturns determinations reached at an earlier stage.
The statutory provision on this question is Article 436 of the Civil Procedure Act. Paragraph (2) of the same Article first states: "A court that has received a case on remand or transfer shall again hear oral argument and render judgment." Here, the court on remand is the court that receives the case back and examines it after the reversal, and the act of again hearing oral argument means dealing with the remaining issues in light of the parties' attacks and defenses. The same paragraph then makes it clear that, in that case, the court is bound by the factual and legal determinations of the court of final appeal that served as the grounds for reversal.
The reason for reading these two sentences separately is that the object bound and the object to be examined again differ. What is bound is the determination the court of final appeal took as the grounds for reversal, and what the oral argument on remand takes up is the issues remaining after the reversal. Under the author's application, the mere fact that the former determination has already been settled does not mean that the examination of the latter issues is also finished. Accordingly, one cannot skip the remaining examination entirely on the basis of binding force, and unless one distinguishes the bound determination from the remaining object of examination, one cannot even tell which side has already been settled.
At the same time, one cannot simply cast off the burden of repeated oral argument. The strongest counterarguments are that, if new material has appeared yet one remains bound by the prior determination, the discovery of truth is obstructed, and that the procedure may be delayed in the course of repeating the same assertions. These disadvantages are acknowledged as they stand. Even so, the author's answer does not change. The way to prevent the delay the counterargument targets lies not in closing oral argument that has already been opened, but in identifying what falls outside the bound determination.
Viewing the determination conditions this section lays down against this scene: where a statement is confirmed only as incidental explanation in the judgment on final appeal, that sentence alone does not block all remaining examination. The specified change is the case in which the determination that formed the grounds for reversal is newly specified or overturned, and in that event the existing blocking and nullifying determinations are discarded and the determination is made anew from that stage. As the record for this determination, one places the grounds for reversal in the judgment on final appeal, the issues after remand, the composition of the panel, and the record of oral argument. However, where which determination formed the grounds for reversal is not specified, the matter remains undetermined. Since the scene alone cannot establish which determination was the basis of the binding effect, or what the conclusion on the remaining defenses is, unconfirmed items are left blank.
The conclusion permitted in this section is narrow. Even if binding force exists, the oral argument on remand must be reopened as a procedure for examining the remaining issues, and that sentence alone cannot bar the remaining examination in its entirety. Conclusions not permitted are to disregard the bound determination and demand an opposite conclusion on the same premise, or, conversely, to invoke binding force to abolish the procedure itself. Either way, the error arises from mixing the determination that formed the grounds for reversal with the remaining issues.
3.6The Strongest Counterargument and the Answer
In this situation the question is whether oral argument becomes a mere formality when binding force exists. The issue is whether, because a determination one must follow has already been settled, one may decline to receive the parties' remaining words. One must first settle what place the oral argument on remand is for.
The wording that answers this question is found in Article 436(2) of the Civil Procedure Act. That provision stipulates: "A court that has received a case on remand or transfer shall again hear oral argument and render judgment." The subject indicated by this wording is the court that has received the case on remand or transfer, and the required act is to again hear oral argument and render judgment. That is, the court on remand has the duty to examine again and render judgment on the remaining issues.
The same provision at once declares that the court on remand is bound by the factual and legal determinations of the court of final appeal that served as the grounds for reversal. The duty of oral argument in the preceding sentence and the binding effect in the following sentence point to two different stages. Binding effect is a limit that prevents already determined matters from being overturned again, and oral argument is the place for receiving, outside that limit, words not yet decided. Thus, if one does not separate the two concepts and takes binding effect as grounds for omitting oral argument itself, the subject and act specified by the provision disappear. The court on remand operates in accordance with this provision when, while following the bound determination, it examines the remaining issues through new oral argument.
However, the strongest counterargument targets the loss caused by delay: that repeated oral argument can become a means of delay. There also stands the criticism that, if new material has appeared yet one remains bound by the prior determination, the discovery of truth is obstructed. If a party raises again an already concluded determination and drags out time, the opposing party bears the inconvenience of waiting for the outcome as it is. This loss must not be erased. The way to reduce the risk of delay is to distinguish the bound determination from the remaining object of examination, not to do away with the door of oral argument.
The fact relevant in this scene is that Defendant B raises, in the remand proceeding, defenses that have not yet been determined. Whether this defense overlaps with the determination that formed the grounds for reversal, or instead constitutes a remaining issue outside it, is not settled by the scene alone. Where which determination formed the grounds for reversal is not specified, judgment on the matter is reserved. The outcome of winning and losing, and of performance, in the actual case likewise cannot be settled here for lack of material.
The conclusion this section permits is that the statutory procedure of again hearing oral argument cannot be deleted on the ground of binding force. What is not permitted is a conclusion that overturns the bound determination on the same premise, or a conclusion that the oral argument procedure itself may be omitted. The concern about delay is addressed by identifying the remaining object of examination.
3.7The Link to the Application and the Dispositive Part
The preceding section carried over the premise that the statutory procedure of again hearing oral argument cannot be deleted on the ground of binding force, and the question that follows is whether oral argument is reduced to mere form when binding force exists. In this situation one must determine whether the oral argument on remand is a procedure for hearing the remaining words, or merely a ceremony confirming a conclusion already settled.
"A court that has received a case on remand or transfer shall again hear oral argument and render judgment. In such case, the court is bound by the factual and legal determinations of the court of final appeal that served as the grounds for reversal." This wording specifies the subject as the court that has received the case on remand or transfer, and the act as again hearing oral argument and rendering judgment. And it limits the range of determinations by which that court is bound to the factual and legal determinations of the court of final appeal that served as the grounds for reversal.
The distinction is needed because the objects of the two determinations differ. The factual and legal determinations that formed the grounds for reversal are the antecedent determinations the court on remand must accept, while the issues remaining after remand are the objects to be examined anew within the bounds of that determination. The oral argument on remand is the procedure for examining the issues remaining after the reversal, and if this procedure is reduced to form, an unexamined defense may pass by without trial.
The strongest counterargument starts from the point that repeated oral argument can become a means of delay. If a party, knowing it is bound by the prior determination, repeats the same assertions, the lawsuit is prolonged; and if new material has appeared yet one remains bound by the prior determination, the disadvantage remains that the discovery of truth is obstructed. Even without erasing such losses and inconveniences, the conclusion holds. That is because the statutory procedure of again hearing oral argument cannot be deleted on the ground of binding force. The risk of delay cannot serve as grounds for abolishing the procedure, and which determinations fall within the scope of binding effect remains a separate question to be identified.
In the scene above, the fact corresponding to this question is that Defendant B raised, in the remand proceeding, defenses that had not yet been determined. Unless this defense overturns the same premise as the determination the court of final appeal took as the grounds for reversal, the court on remand treats it as a remaining issue and examines it after again hearing oral argument. Conversely, where a conclusion opposite to the determination that formed the grounds for reversal is demanded on the same premise, that falls outside the scope of the bound determination. Where which determination formed the grounds for reversal is not specified, the boundary of the remaining issues is likewise undetermined.
Accordingly, even where binding force exists, the oral argument on remand is not a procedure leaving only form. What has been settled is solely the antecedent determination that the court is bound by the factual and legal determinations that formed the grounds for reversal, and the court on remand examines the remaining issues on the premise of that determination. That said, not every sentence of the judgment on final appeal becomes a basis of binding effect, and repeated assertions are dealt with after distinguishing by which determination they are bound.
3.8The Scope This Section Undertakes
This question begins from the fact that the existence of a conclusion one must follow does not erase the parties' remaining words as well. On the premise that the factual and legal determinations the court of final appeal took as the grounds for reversal are the center of the binding effect, it examines whether one can distinguish the way the remaining words are handled in the remand proceeding from the scope of the determinations one must follow.
「A court that has received a case on remand or transfer shall again hear oral argument and render judgment. In such case, the court is bound by the factual and legal determinations of the court of final appeal that served as the grounds for reversal.」 In this wording, 'a court that has received a case on remand or transfer' is the court handling the remand proceeding, and 'shall again hear oral argument and render judgment' means that the court must perform the procedure of reopening the examination and arriving at a judgment. 'The factual and legal determinations that served as the grounds for reversal' are the determinations the court of final appeal took as the basis of its reversal, and 'is bound' means that the court on remand cannot, on the same premise, reach an opposite conclusion on the same premise.
These two wordings are instructions for different stages and must be read together. The former sentence places upon the remand proceeding the procedural duty of reopening the examination, while the latter limits the range of determinations to be followed in that examination. Thus, the oral argument on remand is the procedure for examining the issues remaining after the reversal, and the bound determination is the premise that the examination must already follow. If this distinction is missed, a procedure of merely reconfirming the binding determination and a procedure of newly handling the remaining issues are merged into one.
The point that repeated oral argument can become a means of delay imposes real inconvenience on parties facing a remand proceeding. If the same issue is raised again and the procedure is delayed, the finality of the judgment and the settlement of the dispute are pushed back. The criticism that, if new material has appeared yet one remains bound by the prior determination, the discovery of truth is obstructed also arises at this point. Yet even if this criticism is well taken, the statutory procedure of again hearing oral argument cannot be deleted on the ground of binding force. While leaving intact the wording of Article 436(2) of the Civil Procedure Act that the court 'shall again hear oral argument and render judgment,' the inconvenience of delay targeted by the counterargument must be addressed by distinguishing the bound determination from the remaining object of examination.
Of the facts in this scene, two are relevant to this question. Confronting these facts with the preceding conditions reveals that the remand proceeding has remaining objects in the form of defenses that must still be handled because they have not yet been examined. Where which determination formed the grounds for reversal is not specified, the scope of the determination's binding effect cannot be fixed, and thus one cannot assert the scope of any particular determination on the basis of the synthetic scene alone.
The conclusion permitted in this section is that a procedure of again hearing oral argument remains in the remand proceeding, and that within it one must distinguish the bound determination from the remaining issues as the object of examination. What is not permitted is a determination that, on the sole ground that binding force exists, leaves every word and every examination in the remand proceeding as mere form. Even though the court is bound by the factual and legal determinations the court of final appeal took as the grounds for reversal, the examination in the remand proceeding remains a procedure for dealing with the issues remaining after the reversal.
3.9Application of the Text of the Provisions and the Holdings of Precedents
Under the premise that the factual and legal determinations the court of final appeal took as the grounds for reversal are the center of the binding effect, one need only remember that a reversal and remand is not settled as a final victory. In this scene the question is who examines the still remaining issues, and by what standard. One must examine how far the wording of the relevant source text serves as the basis for the determination of that procedure.
The relevant source text is Article 436(2) of the Civil Procedure Act. Its wording sets out the procedure of the court on remand, "② A court that has received a case on remand or transfer shall again hear oral argument and render judgment," and then limits the object of binding effect, "the court is bound by the factual and legal determinations of the court of final appeal that served as the grounds for reversal" (Article 436 of the Civil Procedure Act). The condition is the state of being bound by the factual and legal determinations of the court of final appeal that served as the grounds for reversal. Although these two aspects are placed in the same sentence, they carry different instructions. One concerns the procedure the court on remand is to perform; the other concerns the boundary of the determinations that examination must follow.
The reason these two aspects of the wording must be distinguished is that their objects of determination differ. The wording "shall again hear oral argument and render judgment" fixes the procedure in which the oral argument on remand is to open, and the binding wording fixes the range of determinations that the examination must follow. The former determination does not stand in for the fact-finding on the remaining issues, and the latter determination does not erase the parties' remaining assertion procedure as well. Accordingly, while determining in accordance with the factual and legal determinations that formed the grounds for reversal, the court on remand must nonetheless take the remaining issues as the subject of new oral argument. If these two stages are mixed, the bound determination appears to absorb the whole of the remaining examination. When the wording of the relevant source text alone is taken as the basis of determination, those two ranges are preserved.
The counterargument that repeated oral argument can become a means of delay must make clear, in actual litigation, which side is disadvantaged. If the remand proceeding is delayed by repeating the same assertions, the opposing party suffers the loss of delayed settlement of the dispute, and the court's judgment bears the cost of being opened several times over the same record. The concern that, if new material has appeared yet one remains bound by the prior determination, the discovery of truth is obstructed, is also squarely accepted. That risk of delay is the value the counterargument targets, and the inconvenience of obstructed discovery of truth is the value that the binding effect of the prior determination brings. The response is not deletion but confining the scope of application to the relevant wording. The delay cost indicated by the counterargument is retained, and the procedure of oral argument in the remand proceeding is retained.
In this scene, the remaining words are the remand defenses of Defendant B. Those defenses are issues not yet determined and become the subject of the oral argument in the remand proceeding. While determining in accordance with the factual and legal determinations that formed the grounds for reversal, the court on remand examines those defenses in new oral argument and disposes of them by a judgment of a lawfully constituted panel. By contrast, if a conclusion opposite to the determination the judgment on final appeal took as the grounds for reversal is demanded on the same premise, that stretch conflicts with the bound range. Expanding through other sentences of the reasons for judgment is not dealt with in this question.
The conclusion permitted in this section is narrow. Only the wording of the relevant source text serves as the basis for determining the examination of the remaining relief after a reversal and remand, and only wording within the scope of the relevant source text applies. Reading this wording broadly as part of the reasons for judgment is not the conclusion of this section. At the same time, the existence of binding force does not leave the oral argument in the remand proceeding as mere form. New oral argument on the remaining issues and adjudication by a lawfully constituted panel are not erased.
3.10Fine Distinctions Within the Stage
상고법원이 파기의 이유로 삼은 사실상 및 법률상 판단이 구속의 중심이다. 이러한 상황에서 남은 구제의 심리 안에서 다시 나누어 판정할 부분은 무엇인가.
해당 원문 구절은 민사소송법 제436조 제2항으로, “사건을 환송받거나 이송받은 법원은 다시 변론을 거쳐 재판하여야 한다”고 정한다(민사소송법 제436조). 이 문언은 환송을 받은 법원을 주체로 하여 다시 변론을 거칠 행위를 요구하며, 같은 항에서 상고법원이 파기의 이유로 삼은 사실상 및 법률상 판단에 기속된다고 함께 선다.
이 조문은 다시 변론할 의무와 판단의 기속을 한 문장에 두어, 구속된 판단과 남은 심리 대상을 구분할 것을 요구한다. 파기의 이유가 된 판단은 환송심이 따라야 할 전제이고, 파기 뒤에 열린 쟁점은 그 전제 위에서 심리할 대상이다. 이 두 구분을 섞으면, 따라야 할 결론이 남은 변론 자체를 없앤다는 잘못된 전제로 이어진다. 이에 이번 판정은 단계 안의 세부 구분을 작동하는 경우, 막히는 경우, 미확정인 경우 조건에 한정한다.
반론은 반복 변론이 지연 수단이 될 수 있다는 데에 겨눈다. 이미 내려진 판단을 전제로 하면서도 같은 쟁점을 계속 꺼내면, 종국 판단이 늦어지고 상대방이 그 불이익을 감당해야 하는 손실이 생기며, 분쟁의 조기 해결이라는 가치가 흔들린다. 지연의 위험은 제어할 몫으로 남기되, 환송심이 다시 변론을 거칠 의무를 없앨 근거는 되지 못한다.
합성 장면에 드러난 사실만으로 보면, 피고 B가 낸 항변은 환송심에서 아직 판단되지 않은 것이므로 파기의 이유가 된 판단과 겹치는지가 우선 가려져야 한다. 파기 이유가 된 판단에 따르면서 남은 쟁점을 새 변론과 적법한 재판부로 심리하면 작동하는 경우에 해당하고, 같은 전제로 파기 이유 판단과 반대되는 결론을 요구하면 막히는 경우에 해당한다. 상고판결의 파기 이유·환송 뒤 쟁점·재판부 구성·변론 기록이 이를 뒷받침할 자료이고, 장면만으로 확정되지 않은 사항은 미확정으로 둔다.
이 절이 허용하는 결론은, 구속된 판단을 전제로 남은 쟁점을 다시 변론하여 심리한 경우 그 심리가 유효하다는 것까지이며, 그 전제에 반하는 결론을 같은 자리에서 요구하는 것은 허용하지 않는다. 반대로 어떤 판단이 파기의 이유인지 특정되지 않은 채 단계를 더 나누는 것은 이 절의 범위를 넘는다.
3.11Synthesis of Effectiveness, Blockage, and Undetermination
이번에 다룰 물음은 구속력이 있으면 변론은 형식만 남는가 하는 것이다. 파기환송이 끝난 뒤에도 당사자의 말이 남아 있는 한 그 말을 다루는 자리가 필요하다.
이 물음에 답하는 문언은 민사소송법 제436조 제2항에 있다. "사건을 환송받거나 이송받은 법원은 다시 변론을 거쳐 재판하여야 한다. 이 경우에는 상고법원이 파기의 이유로 삼은 사실상 및 법률상 판단에 기속된다"고 정한다(민사소송법 제436조). 여기서 환송받은 법원은 파기 후 사건을 이어받은 법원이고, 다시 변론을 거치는 일은 그 법원이 마쳐야 할 심리 활동이다. 상고법원이 파기의 이유로 삼은 판단은 사실상 판단과 법률상 판단을 모두 가리키며, 이 판단에 기속된다는 말은 환송 법원이 그 판단에서 벗어날 수 없다는 뜻이다.
이 문언에는 두 가지가 함께 놓여 있다. 하나는 다시 변론을 거쳐 재판하라는 절차이고, 다른 하나는 파기의 이유가 된 판단에 기속된다는 한계이다. 이 둘은 서로를 대신하지 않는다. 구속의 한계가 남은 쟁점까지 스스로 결정하지 않기 때문이다. 파기의 이유가 된 판단이 무엇인지를 따르면서 남은 쟁점을 새 변론과 적법한 재판부에서 심리한 경우 그 심리는 실효를 얻는다. 반대로 환송심에서 파기 이유가 된 구속 판단 자체와 반대되는 결론을 같은 전제로 요구하는 경우 그 요구는 막힌다. 어느 판단이 파기의 이유였는지 특정되지 않은 경우에는 미확정으로 남는다.
가장 강한 반론은 반복 변론이 지연 수단이 될 수 있다는 점에서 나온다. 같은 주장을 되풀이하고 새 자료를 내며 판단을 다시 요구하는 일이 환송심을 길게 늘일 수 있다는 것이다. 그러나 저자는 이 불이익을 인정하면서도 구속력을 이유로 다시 변론할 법정 절차를 삭제할 수는 없다고 답한다. 지연의 가능성은 절차를 지우는 근거가 되지 못한다. 반론이 지적한 지연의 부담은 그대로 남는다.
합성 장면으로 돌아가면, 원고 A는 파기환송을 승리로 여기지만 피고 B는 아직 판단되지 않은 항변을 내었다. 이 항변이 파기의 이유가 된 판단과 겹치지 않는 남은 쟁점이라면 환송심 변론의 대상이 된다. 그 대상은 새 변론과 적법한 재판부에서 심리되어야 한다. 다만 이 장면에는 실제 사건의 기록과 판단 결과가 없으므로, 어떤 판단이 파기의 이유였는지 특정할 수 있는 자료가 모인다면 미확정이 해소될 수 있다. 그 특정이 되지 않은 채로 남아 있는 한 차단과 실효의 어느 쪽이라도 단정할 수 없다.
이 절의 구별은 이렇다. 파기 이유가 된 판단에 따르면서 남은 쟁점을 새 변론과 적법한 재판부로 심리한 경우 그 심리는 열린다. 같은 전제에서 구속 판단 자체와 반대되는 결론을 요구하는 경우 그 요구는 막힌다. 어느 판단이 파기의 이유인지 특정되지 않은 경우 판정은 미확정에 머문다. 이 구별이 허용하지 않는 것은, 구속력이 있다는 이유만으로 환송심 변론 전체를 형식으로 보는 판단이다. 반대로 구속의 한계를 벗어난 남은 심리를 허용하는 것도 아니다.
3.12Conclusion Carried Over to the Next Section
앞 절에서는 파기 이유가 된 판단에 따르면서 남은 쟁점을 새 변론과 적법한 재판부로 심리한 경우에는 작동하고, 환송심에서 파기 이유가 된 구속 판단 자체와 반대되는 결론을 같은 전제로 요구하는 경우에는 막히며, 어느 판단이 파기의 이유였는지 특정되지 않은 경우에는 미확정으로 남는다고 보았다. 이제 그 결론이 환송심의 진행에 무엇을 남기는지가 문제다.
이 물음에 답하는 법문은 민사소송법 제436조이다. 그 제436조 제2항은 "사건을 환송받거나 이송받은 법원은 다시 변론을 거쳐 재판하여야 한다"고 선언한 다음, 같은 항에서 "상고법원이 파기의 이유로 삼은 사실상 및 법률상 판단에 기속된다"고 덧붙인다(민사소송법 제436조). 이 문언은 환송을 받은 법원, 즉 상고법원이 파기한 사건을 다시 맡은 법원을 주체로 하여, 다시 변론을 거치는 행위와 그 판결이 따라야 할 판단 기준을 함께 정한다. 환송심 변론이란 이 문맥에서 파기 후 남은 쟁점을 심리하는 절차를 뜻한다.
이 두 문장이 함께 놓인 것은 두 대상을 구분해야 하기 때문이다. 앞 문장은 절차의 진행을, 뒷 문장은 따라야 할 판단의 범위를 각각 말한다. 구속되는 것은 상고법원이 파기의 이유로 삼은 사실상 및 법률상 판단이고, 새로 심리할 대상은 그 판단이 끝나지 않은 남은 쟁점이다. 따라서 환송 법원은 다시 변론을 거쳐야 하며 구속된 판단과 남은 심리 대상을 구분해야 한다는 결론이 나온다. 구속력이 있다는 사유만으로 다시 변론하는 법정 절차를 건너뛸 수는 없다.
물론 같은 절차가 반복되면 지연의 수단이 될 수 있다. 이미 결론이 정해진 줄 아는 당사자가 남은 항변을 되풀이하면, 환송심은 같은 말만 하다가 판결을 늦출지도 모른다. 진실발견을 가로막는 비용이라는 점을 부정할 수 없다. 그러나 구속되는 판단이 어디까지인지 특정되지 않은 채로, 다시 변론할 법정 절차를 아예 삭제하는 방식으로 그 비용을 없앨 수는 없다. 구속력을 이유로 다시 변론할 법정 절차를 삭제할 수 없다는 답이 유지된다.
여기서 구속된 판단에 해당하는 것은 상고판결이 파기의 이유로 삼은 판단이고, 나머지 항변은 그 판단이 끝내지 못한 남은 쟁점에 속할 수 있다. 다만 판단 기록으로 어느 판단이 파기의 이유였는지 특정되지 않은 경우에는 이 장면만으로 그 항변이 반드시 남은 심리 대상이라고 단정할 수 없다.
이 절에서 넘기는 것은 두 가지의 구별이다. 하나는 구속된 판단과 남은 쟁점을 나누는 작업이고, 다른 하나는 다시 변론을 거쳐야 한다는 법정 절차의 유지만이다. 이 판단만으로 환송심에서 이길 당사자나 남은 항변의 승패를 확정하지 못하며, 어떤 법관이 심리하는지도 여기서는 다루지 않는다. 그 문제는 다음 물음으로 남는다. 앞 판결에 관여한 법관이 다시 심리할 수 있는가?