Summary
A retrial must follow the statutory grounds and restrictions applicable to a final judgment that has become conclusive.
1.1The Standard by Which the Path Opens
To reopen the door of finality, something more specific than dissatisfaction is required. Only by comparing this holding, as a ground for reversal, with the relief and facts to be retried do the fruits of the remand and the remaining burden come to light. Plaintiff A obtained a new document after the final and conclusive judgment, but has not yet been able to explain which ground for civil retrial that document falls under. Faced with this scene, there is a single question: can a retrial be had on the belief that the judgment was unjust alone, or does this avenue of relief open only upon a separately required standard? Retrial means a special action that shakes the effect of a final and conclusive judgment and begins the hearing anew; standing at its entrance, the first issue is whether one becomes qualified to look again at the results of the past judgment. On the mere circumstance that one has obtained a new document, it is difficult to say that any defect remains in the final and conclusive judgment. What must be addressed, therefore, is not the impression made by the document, but the shape of the standard required for the door of retrial to open.
In answering this question, the governing text is Article 451 of the Civil Procedure Act. That Article provides: "(1) If any of the following subparagraphs applies, an action for retrial may be brought against a final and conclusive final judgment. Provided, that this shall not apply where the party asserted that ground by appeal, or failed to assert it despite knowing of it." The subject indicated by this text is the party who wishes to bring an action for retrial, and the act is the bringing of an action for retrial against a final and conclusive final judgment. The condition is that there be a ground falling under any of the following subparagraphs, whose contents are not separately enumerated in this section. The appended proviso excludes the cases where the ground was asserted on appeal or where the party failed to assert it despite knowing of it. By this provision, the law ties the threshold of retrial to grounds and limitations fixed in advance.
The grounds and limitations prescribed by this text serve as the basis for distinguishing mere dissatisfaction from grounds for retrial. Here, grounds for retrial means the defects that the law has specified for recontesting a final and conclusive judgment. That the law has fixed the kinds of defect means that the newly felt grievance of a party cannot substitute for a defect within that enumeration. The author's conclusion, too, stands on this distinction. The entrance to this relief opens where the statutory grounds for retrial, the prerequisite prior-finality requirement, and the time limit or exceptions thereto are all satisfied together, and where the propriety of the result of the original judgment can even be retried. Asking whether grounds for retrial exist and looking again at whether the result of the original judgment was ultimately proper are not the same question. If the door does not open at the earlier stage, one cannot proceed to the later hearing; and even if one passes the earlier stage, the later determination remains separate.
Of course, this standard leaves a painful loss. Because the enumerated grounds cannot encompass every substantive injustice, a serious misjudgment lying outside the list of statutory grounds cannot by itself pass through the door of retrial. Even if a new document makes an impression that could shake the original judgment, if one cannot explain which subparagraph's defect it falls under, all that remains is dissatisfaction. Even so, a new assertion alone cannot be used as a basis for retrial without statutory grounds. This answer must be followed through even in its unfavorable parts. The narrow door of retrial is not widened by the magnitude of substantive grievances; instead, the determination turns on whether the matter corresponds to a defect prescribed by law. Without erasing the remedial gap that the counterargument points out, this position does not manufacture a new basis to fill that gap.
This point becomes clearer when contrasted with the facts of the synthetic scene. While the final and conclusive judgment itself, the circumstances of the occurrence and awareness of the grounds, the course of the appeal, and prior materials on criminal finality have designated places to be confirmed in the record, the scene does not say that such records were gathered. This circumstance alone cannot determine which subparagraph's defect has newly come to light, when the grounds were learned, or whether the exception to the time limit applies. Nor does it mean that the new document fails to fall within the statutory grounds. What remains undetermined is not a suspension of judgment, but leaving unset conditions unconfirmed. Accordingly, what can be confirmed in this scene is only the standard at the entrance; whether the document has met that standard is left to the remaining verification.
The conclusions this section permits and those it does not permit can be divided as follows. What is permitted is to determine, against a final and conclusive final judgment by weighing the statutory grounds and limitations, whether this avenue of relief opens. What is not permitted is to let a party pass through the entrance of retrial on nothing more than the belief that the judgment was unjust and the impression made by a newly obtained document. Even where the result of the original judgment is found proper at the close of a renewed hearing, this distinction does not change; in that case, what remains is the dismissal of the claim, not the granting of retrial.
1.2The Conditions That Block Relief
Can a retrial be had on the belief that the judgment was unjust alone? From this vantage point, the conditions that close the door of finality must be made clear.
Article 451 of the Civil Procedure Act declares, "(1) If any of the following subparagraphs applies, an action for retrial may be brought against a final and conclusive final judgment," and adds in the proviso that "this shall not apply where the party asserted that ground by appeal, or failed to assert it despite knowing of it." This text fixes the subject as a party, the object as a final and conclusive final judgment, and the act as an action for retrial, and makes the grounds of the subparagraphs the conditions of that entrance. The proviso imposes a limitation where the same ground was already dealt with at the appellate stage or was knowingly left undealt with.
These two levels must be distinguished. The first is the question whether there exists a ground for retrial enumerated in the subparagraphs, that is, a defect prescribed by law for recontesting a final and conclusive judgment; the second is the question whether the matter lies outside the limitations surrounding that ground. Even if a ground exists, the door does not open if the limitation of the proviso applies; and even if one escapes the limitation, one cannot bring the action again if none of the subparagraphs supplies a ground. The impression that the result of the final and conclusive judgment seems somewhat unjust cannot substitute for the judgment at either level.
The strongest counterargument is that the enumerated grounds cannot encompass every substantive injustice. A serious misjudgment lying outside the list prescribed by law leaves a remedial gap, and the result of closing the door on one who pleads grievance causes the most extreme inconvenience. While the author acknowledges the limits of the list, he points out at the same time that, if new assertions outside the list are made to substitute for statutory grounds, the limiting provisions are thrown into disarray.
The matter at hand is a retrial against a final and conclusive final judgment, and the records needed are prior materials such as the final and conclusive judgment, the occurrence and awareness of the grounds, the course of the appeal, and criminal finality. Which subparagraph the new document fits, when the ground became known, and whether it could have been dealt with on appeal cannot be determined from this scene alone and remain undetermined. Meanwhile, even where grounds for retrial exist, the condition of the adjudication that, if the result of the original judgment is found proper, the disposition is changed to the dismissal of the claim rather than the granting of retrial, is a matter at the remaining level.
Where there are no statutory grounds, or the limitation for failure to assert on appeal or the time limitation applies with no applicable exception, and only a new dissatisfaction remains, the remedial path of retrial is closed unless every legal requirement is satisfied. This determination clarifies the conditions for opening the door of finality; it does not discuss the possibilities of other relief or other procedures.
1.3The Boundary That Remains When There Is No Data
That conclusion was that the fruits of the remand and the remaining burden come to light only by comparing this holding, as a ground for reversal, with the relief and facts to be retried. The analysis has now moved to the stage of opening the final and conclusive judgment, and asks whether the door opens on the mere existence of newly obtained materials.
The text corresponding to this question is as follows. Article 451 of the Civil Procedure Act provides: "(1) If any of the following subparagraphs applies, an action for retrial may be brought against a final and conclusive final judgment. Provided, that this shall not apply where the party asserted that ground by appeal, or failed to assert it despite knowing of it." Here the object is the final and conclusive final judgment, the act is the bringing of an action for retrial, and the condition is that the matter falls under any of the grounds in the following subparagraphs.
This text connects to the conclusion reached earlier. Grounds for retrial means the defects prescribed by law for recontesting a final and conclusive judgment. Accordingly, the intensity of the dissatisfaction and the specification of the defect are different stages of judgment, because the former points to the motive for reopening finality, while the latter points to the threshold prescribed by law. If the two stages are mixed, even an unspecified protest is treated as a defect, and as a result the limiting meaning of the proviso to Article 451(1) is blurred.
The strongest counterargument is aimed elsewhere. Because the enumerated grounds cannot encompass every substantive injustice, a remedial gap remains for serious misjudgments outside the enumerated grounds. This observation remains to the end to its credit. Yet, answering on the basis of the distinction above, a new assertion alone cannot be used as a basis for retrial without statutory grounds. That is, the reproach of a gap does not lead to lowering the threshold of statutory grounds.
Contrast the synthetic scene with the present question. The materials are in hand, yet the materials for judging the defect are not yet specified. Where, here, one cannot confirm the time when the grounds became known or the crime-related prior finality conditions, the matter of the judgment materials not being specified is left undetermined, distinguished from impossibility.
The boundary drawn in this way permits only the following. To mention the avenue that reopens finality means that a limited determination can be stated once the statutory grounds are specified; to convert this into a description of actual results of payment, delivery, or recovery is not permitted. Even where grounds for retrial exist, if the result of the original judgment is found proper, the disposition is changed to the dismissal of the claim rather than the granting of retrial. By contrast, reading a shortage of materials immediately as a bar to relief runs contrary to the conclusion of this section.
1.4The Records Needed for Determination
In this scene, it remains at issue on what basis retrial, the procedure that reopens the door of finality, must rest, and on the facts recorded in which materials that stage may be judged. The starting point of this question is not belief and dissatisfaction but the scope of the designated records.
The relevant text sets out the entrance conditions of retrial and their limitations together. Article 451(1) of the Civil Procedure Act provides "(1) If any of the following subparagraphs applies, an action for retrial may be brought against a final and conclusive final judgment," and immediately adds in the proviso, "Provided, that this shall not apply where the party asserted that ground by appeal, or failed to assert it despite knowing of it." Here the subject is a party to the final and conclusive final judgment, the act is the bringing of an action for retrial, and the condition is that the matter corresponds to one of the enumerated grounds. The proviso excludes the case where the party asserted the same ground on appeal, or failed to assert it despite knowing of it. (Article 451 of the Civil Procedure Act)
Connecting this text with the conclusion fixed earlier, it becomes clear that retrial must follow the statutory grounds and limitations for a final and conclusive final judgment. Statutory grounds mean the defects prescribed by law for recontesting a final and conclusive judgment, and whether a matter corresponds to such a defect is judged in light of the statutory list of grounds and the limiting provisions. This judgment stands at a different stage from the belief that the judgment was unjust. Belief is a state of mind wishing for retrial, while whether the grounds apply is a judgment about defects that can be confirmed in the record. Only by distinguishing the two does the conclusion remain that the door of finality cannot be opened on belief alone. The demand that the stage be adjudicated by the record, too, comes precisely from this distinction. (Article 451 of the Civil Procedure Act)
Notwithstanding this distinction, there remains the counterargument that the enumerated grounds cannot encompass every substantive injustice. That counterargument points out that a remedial gap arises for serious misjudgments outside the enumerated grounds, and aims at the loss that a party whose judgment is in fact unjust but who cannot find a defect matching the prescribed list is caught at the threshold. Yet the mere fact that a dissatisfaction outside the list remains does not open retrial. This answer, without erasing the remedial gap the counterargument points out, maintains the boundary that an assertion left without grounds cannot serve as a basis for retrial.
Returning to the synthetic scene, Plaintiff A has already received the final and conclusive judgment and obtained a new document thereafter. The fact that this document was obtained can be confirmed by the record, but as yet it has not been explained which ground for civil retrial the document falls under. Nor has this scene fixed whether records of prior materials such as the occurrence and awareness of the grounds, the course of the appeal, and criminal finality exist. Accordingly, at present only the final and conclusive judgment itself and the acquisition of the new document remain, and neither which ground for retrial applies nor whether the limiting provisions are triggered can be judged from this scene. Facts absent from the scene are not conjectured and are left undetermined.
The conclusion this section permits is narrow. The stage that reopens the door of finality is adjudicated on the basis of the materials recorded in prior materials such as the final and conclusive judgment, the occurrence and awareness of the grounds, the course of the appeal, and criminal finality, not on the belief that the judgment was unjust, and it does not fill absent records with presumptions. Alongside this, it must also be remembered that the condition remains that even where grounds for retrial exist, if the result of the original judgment is found proper, the disposition is changed to the dismissal of the claim rather than the granting of retrial. What this boundary does not permit to pass is a new assertion lacking statutory grounds; and whether grounds have been found has not been determined in this scene.
1.5Circumstances That Change the Decision
However strong the emotion he harbored in this scene, that alone is like standing before a door not yet opened. What must be asked, then, is whether a retrial is available on the strength of the belief that the judgment was unjust alone, and what change overturns the existing determination.
The basis for answering this question is Article 451, paragraph (1) of the Civil Procedure Act. (Civil Procedure Act, Article 451) The range of language treated here is confined to the main text and the proviso of paragraph (1); the list of grounds in the various subparagraphs itself is not the subject of this section. The subject prescribed by this language is a party who intends to bring an action for retrial, the object is a final and conclusive final judgment, and the act is the bringing of an action for retrial. And the condition is that a ground corresponding to any one of those enumerated must exist.
Connecting this language with the preceding conclusion reveals that the conditions for opening a retrial and the disposition after retrial are distinct stages of determination. The earlier stage asks whether there exists a defect prescribed by law that permits a final and conclusive judgment to be contested anew—that is, whether grounds for retrial exist. The later stage asks, after that ground is recognized and the result of the original judgment is examined anew as well, what should be done if that result is found to be just. Why must these two questions be distinguished? Because if the earlier question concerns the key that opens the door, the later question concerns what is to be carried out once the door is opened. Accordingly, if the designated change is confirmed, the existing blocking-and-effectiveness determinations are discarded and the determination is redone from the stage onward; yet if grounds for retrial exist but the result of the original judgment is found to be just, the disposition is changed to a dismissal of the claim rather than a grant of retrial.
Nevertheless, the discomfort left by this distinction must not be erased. The counterargument that the enumerated grounds do not encompass every substantive injustice points out that a gap in relief remains for serious misjudgments falling outside the list of defects prescribed by law. Even if the content of the judgment appears truly unjust, unless it falls within the enumerated grounds, that belief alone leaves the door to retrial closed, and the party must bear the inconvenience and disappointment. This loss is real. Yet despite this inconvenience, the conclusion stands. This is because a new argument alone cannot be used as a basis for retrial without a statutory ground. This answer does not, however, treat the weight of the feeling of injustice itself lightly; it means only that the channel to retrial is opened when that feeling can be translated into the form of a defect prescribed by law.
Applying this standard to the synthetic scene, confirmed facts and facts not yet confirmed are separated. Plaintiff A obtained a new document after the final and conclusive judgment. Yet because it has not yet been explained which ground for civil retrial that document falls under, the existence of grounds for retrial has never been confirmed on the strength of this scene alone. That is, what is confirmed is the condition that even if grounds for retrial exist, if the result of the original judgment is found to be just, the disposition is changed to a dismissal of the claim rather than a grant of retrial. The contents of the antecedent materials—the occurrence and awareness of the ground, the course of appeal, the criminal finality, and so forth—are not confirmed in this scene and thus remain undetermined.
Accordingly, dividing the conclusions this section permits from those it does not yields the following. What is permitted is that, once the statutory grounds for retrial and the antecedent requirements are confirmed, the propriety of the result of the original judgment can be examined and determined anew, separately from whether that ground is recognized, and that if the result is just, the matter concludes with a dismissal of the claim. It is also a permitted conclusion that, once the designated change is confirmed, the existing blocking-and-effectiveness determinations are discarded and the determination is redone from the stage onward. What is not permitted is the notion that the door to retrial can be opened on the strength of the belief in an unjust judgment alone, and the stance of resting a basis for retrial on new arguments alone without a statutory ground. A determination can stand only within this boundary; facts beyond it remain undecided.
1.6The Strongest Counterargument and the Answer
A retrial must follow the statutory grounds and limitations applicable to a final and conclusive final judgment. The reason this problem is posed again now is that, where someone actually regards the result of a final and conclusive judgment as unjust, it must be made clear how far the law will accommodate that feeling. What a party holds who has obtained a new document after the final and conclusive judgment is a belief, not a defect yet confirmed.
The language corresponding to the present question is Article 451, paragraph (1) of the Civil Procedure Act. It provides: "(1) Where any one of the following subparagraphs applies, an action for retrial may be brought against a final and conclusive final judgment. Provided, that this shall not apply where a party asserted that ground by appeal, or knew of it and failed to assert it" (Civil Procedure Act, Article 451). The subject spoken of here is a party who intends to bring an action for retrial against a final and conclusive final judgment, the act is the bringing of an action for retrial, and the condition is that a ground corresponding to any one of the following subparagraphs must exist. The proviso excludes the case where the party asserted that ground on appeal, or knew of it and failed to assert it.
The reason for distinguishing the two stages set by the provision is that each performs a different role. The earlier stage determines which defects can open a retrial, and the later stage decides whether a party who kept that defect in reserve may bring it out again. The author's application lies in the proposition that this distinction defines the scope of grounds for retrial—that is, of the defects prescribed by law that permit a final and conclusive judgment to be contested anew. The confirmed language requires only the existence of a ground in one of the subparagraphs that can open an action for retrial; it does not itself enumerate the belief that the judgment is substantively unjust as a ground. Accordingly, the mere fact that the result of the judgment is not to one's liking cannot serve as a basis for holding that it falls within the grounds for retrial.
The strongest counterargument is directed at the point that this list of statutory grounds does not encompass substantive injustice in its entirety. A gap in relief remains for serious misjudgments falling outside the enumerated grounds, and before that gap the inconvenience and loss of having to leave an erroneous final and conclusive judgment as it stands appear concretely. The author answers, however, that a new argument alone cannot be used as a basis for retrial without a statutory ground. Even without diminishing the magnitude of the injustice the counterargument points out, the conclusion remains unchanged that the key to opening the door to finality rests in the defects prescribed by law. If the door were opened on substantive injustice alone, a retrial would become a substitute for appellate review.
This document is merely material for a newly arisen argument, and it has not been identified as falling under any of the subparagraph grounds. Whether it falls within the subparagraph grounds required by the language and the course of the appellate stage cannot be determined on the strength of this scene alone, and thus remain undetermined. However, the condition that even if grounds for retrial exist, if the result of the original judgment is found to be just, the disposition is changed to a dismissal of the claim rather than a grant of retrial, shows that a separate examination lies even between the existence of a statutory ground and its being granted.
The conclusion this section permits is narrow. The mere fact of having obtained a new document, or the belief that the judgment was unjust, does not open an action for retrial; it must be shown that the document corresponds to one of the statutory grounds. Conversely, the mere fact that grounds for retrial have not been identified does not settle the substantive conclusion of the case either.
1.7The Link to the Application and the Dispositive Part
This question serves as the criterion for drawing the limits of the adjudicative authority conferred in the retrial procedure surrounding a final and conclusive judgment. The conclusion of the preceding section—that a new argument alone cannot be used as a basis for retrial without a statutory ground—already contains the premise that breaking the stable framework of finality requires cause commensurate with that act. However, what answers that premise permits to this question must be separately set out. The scene before that question is the situation in which Plaintiff A obtained a new document after the final and conclusive judgment but has not yet been able to explain which ground for civil retrial that document falls under.
The statutory provision answering this question is the language of Article 451 of the Civil Procedure Act. The main text of paragraph (1) of that Article provides as follows: "(1) Where any one of the following subparagraphs applies, an action for retrial may be brought against a final and conclusive final judgment. Provided, that this shall not apply where a party asserted that ground by appeal, or knew of it and failed to assert it." This language presupposes that the subject for whom an action for retrial is permitted is a party to that final and conclusive final judgment, and makes clear that the object of the act of bringing that action for retrial is the final and conclusive final judgment. The condition under which the action is permitted is limited to the case where any one of the enumerated subparagraphs applies, and here "subparagraph" means the grounds prescribed by law.
Between this language and the conclusion confirmed earlier lie the two stages of determination: the ground and the limitation. First, one must examine what constitutes grounds for retrial—that is, whether it is a defect prescribed by law that permits a final and conclusive judgment to be contested anew—and even if such a defect is recognized, one must examine together whether it passes beyond the limitation of the proviso. These two must be distinguished, because the question of whether a ground applies is a matter of the existence of a defect, whereas the limitation of the proviso is a matter of how that ground was handled on appeal. Relying on the fact that this conclusion requires both the statutory ground and the limitation, the author judges that the belief in injustice itself cannot serve as the door to retrial. This judgment is the author's evaluation applying the language of the statutory provision, and it does not extend the settled effect of that language by adding new conditions.
The strongest counterargument is aimed at the point that the enumerated grounds do not encompass every substantive injustice. It is the complaint that, where the result of a judgment appears substantively unjust yet there is no defect falling within the enumerated subparagraphs, no channel remains for correcting that injustice. That counterargument points out that the closed structure of the enumeration creates a gap in relief that leaves serious misjudgments as they are. But the earlier answer remains as it is. If a retrial is the channel through which a final and conclusive final judgment can be reopened, that channel opens only through defects prescribed by law, and the complaints arising from the limits of the enumeration cannot serve as grounds for creating new grounds themselves. The disadvantage the counterargument points out—that is, the point that the injustice may be difficult to fully redress—remains unerased.
The facts bearing on this question in this scene are limited. Contrasting them with the preceding condition, against the requirement of the language that, to bring an action for retrial, there must be a defect falling within any one of the enumerated subparagraphs, the mere acquisition of a new document does not settle whether grounds for retrial apply. This is because no basis has yet been provided for judging whether that document is material concerning a defect prescribed by law, or which ground it relates to. Matters that cannot be confirmed remain undetermined. Which of the antecedent materials—the final and conclusive judgment, the occurrence and awareness of the ground, the course of appeal, the criminal finality, and so forth—has been prepared is also not settled in this scene, and the author does not claim to have collected that material.
The conclusion this section permits is that a retrial is not available on the strength of the belief in an unjust judgment alone, and that a retrial must follow the statutory grounds and limitations applicable to a final and conclusive final judgment. Conversely, what is not permitted is the conclusion of opening the door to retrial in place of a statutory ground on the strength of that belief and new arguments alone. Here, the confirmation that no statutory ground exists does not mean that all relief is immediately at an end; it also means that whether the ground applies cannot be judged on the material presently given alone. However, which defect falls under which subparagraph is beyond the scope of this section.
1.8The Scope This Section Undertakes
When he presents to the court a demand that a final judgment that has become final and conclusive be changed, the ground is filtered not by the magnitude of his newly found dissatisfaction but by the presence or absence of the defect prescribed by law. Whether a retrial may be sought on the belief alone that the judgment was unjust, and the judgment that retrial must follow the statutory grounds and limitations governing a final judgment that has become final and conclusive, is the question of this section. Article 451 of the Civil Procedure Act, by its very terms, points to two axes at once. One is the existence of a ground falling under any of the subparagraphs; the other is the history of how that ground was handled at the appellate stage. The scope of this section is the place occupied by the grounds and limitations fixed by this wording, while the actual content of the enumerated grounds and the explanation of each subparagraph are left aside.
That wording governs actions for retrial against a final judgment that has become final and conclusive. First, the object of a retrial must be a final judgment that has become final and conclusive. Finality means a judgment that can no longer be contested by ordinary means of challenge, and a matter that has not become final and conclusive or that is not a final and conclusive judgment cannot pass through the gate of this wording. Second, the path opened by the wording is limited to cases 'falling under any one of the following subparagraphs.' The subparagraphs are the list of grounds the law has set out in advance, and a party may not lay newly found materials or arguments upon that list. Third, the proviso fixes the rule that no action for retrial may be brought where the party asserted that ground by appeal or failed to assert it despite knowing it. That is, grounds already handled at the appellate stage, or known yet not handled, are filtered out at the gate of retrial (Article 451 of the Civil Procedure Act).
The three elements of this wording cannot be lumped into one. The earlier requirement of 'a ground falling under any of the subparagraphs' is a judgment that limits the defect of the matter to the kinds the law has fixed in advance, and the later proviso is a judgment that distinguishes whether there is a history of that ground having already been handled. One may pass the former and still be stopped at the latter, and however one tries to avoid the limitation of the latter, a ground not on the list of the former cannot come through. The reason the two judgments are kept separate is that the roles of appeal and retrial differ. Appeal deals with challenges before finality, and retrial is the exceptional passage that reopens a judgment that has become final and conclusive. Leaving the door of the exception open while making it hard to use often is a device meant to prevent the overlap of those two functions. Thus, grounds for retrial mean the defects that the law prescribes for contesting a final and conclusive judgment again, and the word 'defect' demands the existence of grounds enumerated by the law, not the party's own judgment.
The strongest counterargument aims at what this list misses. It points out that there is substantive injustice that cannot be dealt with by retrial, among which is included a serious misjudgment sufficient to support the conviction that the outcome of the judgment is wrong. For example, even where newly obtained materials appear sufficient to overturn the conclusion of the judgment, if they are not explained by any one of the enumerated grounds, they gain no force before the court's door. Put shortly, this inconvenience is the criticism that the door is too narrow and obstructs the realization of justice. The answer of this section does not deny the facts of that observation, yet it does not move the conclusion. The door cannot be expanded beyond the enumeration merely because the inconvenience is great; instead, the matter remains a share to be dealt with by other routes of challenge or by discussions in other sections.
Returning to the synthetic scene, plaintiff A has obtained a new document after the final and conclusive judgment but is in a state of being unable to explain which ground for civil retrial that document falls under. This fact alone settles neither of the two judgments in the wording examined above. If that document is read as one of the enumerated grounds, the inquiry moves on to the existence of the ground; if it is not so read, the gate of retrial is closed at that stage. Moreover, the scene does not tell whether that ground was already asserted at the appellate stage, or was known yet not asserted. Only when records such as the time of awareness or the course of the appeal are added can the judgment under the proviso be made; with the materials alone held by plaintiff A, that question cannot be confirmed. Accordingly, the present state remains undetermined. The passage that, even where grounds for retrial exist, if the result of the original judgment is recognized as just, the disposition is changed not to a grant of retrial but to a dismissal of the claim, is merely a test with altered conditions, not a judgment that actually occurred in this scene.
The conclusion this section permits is narrow. A demand to reopen a final judgment that has become final and conclusive must reach the enumerated statutory grounds, and if that ground was handled on appeal, the path is blocked by that history alone. Conversely, the conclusion this section does not permit is equally clear. A belief that the judgment was unjust, newly obtained materials, and a conviction that the outcome is wrong cannot by themselves open the gate of retrial, nor may a dissatisfaction lying outside the enumerated grounds be promoted into a new ground. Reading the actual list of grounds, and confirming the occurrence, awareness, and appellate course of those grounds, remain as the tasks ahead.
1.9Application of the Text of the Provisions and the Holdings of Precedents
The path to contesting a judgment that has become final and conclusive again does not open on belief or dissatisfaction alone; there must be a defect prescribed by law. This defect is called grounds for retrial, and what is at issue is how the wording containing those grounds applies to a final civil judgment.
The source text in question is limited to the main text and proviso of Article 451 (1) of the Civil Procedure Act. The confirmed source text is: '① Where any one of the following subparagraphs applies, an action for retrial may be brought against a final judgment that has become final and conclusive. Provided, That this shall not apply where the party asserted that ground by appeal or failed to assert it despite knowing it.' The subject indicated by this wording is the party seeking to bring an action for retrial; the act is the bringing of an action for retrial against a final judgment that has become final and conclusive; and the condition is falling under any one of the following subparagraphs while at the same time passing the limitation of the proviso.
This connects the source text of the basis with the conclusion of this section. What is taken as the basis of the determination is only the wording within the scope of that source text, and it is not extended to the reasons for judgment or other paragraphs. The structure of the wording, divided as in the preceding paragraph, is read in two steps. First, one examines whether the case falls under a ground for retrial in any of the subparagraphs, and then examines the assertion on appeal that the proviso blocks. These two judgments must be distinguished so that the existence or nonexistence of the ground and the lapse of the opportunity to assert the ground may each be evaluated.
Even if the outcome of the judgment feels manifestly unjust, if it does not fall within the enumerated grounds, a gap in relief remains, and the inconvenience is that this loss falls upon the party awaiting retrial. Yet this does not mean that the gap pointed out by the counterargument has been erased. New arguments alone cannot be used as a basis for retrial without statutory grounds, and the gap remains as a limitation of the wording.
The facts in the synthetic scene corresponding to this question are that plaintiff A obtained a new document after the final and conclusive judgment, and that he is in a state of being unable to explain which ground for civil retrial that document falls under. This fact is a situation in which the existence of statutory grounds has not yet been confirmed, and it is not a confirmation that there are no grounds. Whether an assertion on appeal was made and whether the period elapsed are not contained in the scene either, so whether the proviso applies is also unverified. Accordingly, this only fixes the scope of application of the wording, and on this scene one cannot determine whether a retrial is to be granted.
What this section permits is to take the wording of that source text as the basis for determining retrial against a final civil judgment and to weigh the grounds and the proviso within that scope. What it does not permit is the work of broadening the basis to the reasons for judgment or other paragraphs in order to create a new ground, and the work of missing the condition that, even where grounds for retrial exist, if the result of the original judgment is recognized as just, the disposition is changed not to a grant of retrial but to a dismissal of the claim.
1.10Fine Distinctions Within the Stage
That conclusion was that civil retrial must look separately at the stability of finality and the need to reexamine the case. Now the remaining question is the part to be determined by further division within that.
Article 451 (1) of the Civil Procedure Act provides: '① Where any one of the following subparagraphs applies, an action for retrial may be brought against a final judgment that has become final and conclusive. Provided, That this shall not apply where the party asserted that ground by appeal or failed to assert it despite knowing it.' Here, the subject the court requires is the party seeking to bring an action for retrial; the act is the bringing of an action for retrial against a final judgment that has become final and conclusive; and the condition is, together with the existence of a ground falling under any one of the following subparagraphs, going beyond the limitation set by the proviso. This wording does not prescribe the requirements of the other subparagraphs; it indicates only the statutory grounds and the limitations surrounding those grounds.
The axis connecting this wording with the conclusion of this section is whether the statutory grounds are satisfied. Grounds for retrial mean the defects the law prescribes for contesting a final and conclusive judgment again, and these are distinct from the party's feeling that the judgment is unjust. Taking this distinction as the criterion for detailed classification: the case in which it operates is where the statutory grounds for retrial and the antecedent finality requirements and the time limit or its exception are satisfied and the justness of the result of the original judgment can even be reexamined; the case in which it is blocked is where there are no statutory grounds, or where one is caught by the limitation on failure to assert on appeal or by the time limit, and no corresponding exception applies and only a simple new dissatisfaction remains; and the case in which it is undetermined is where the time of awareness or the antecedent finality conditions relating to a crime cannot be confirmed.
The criticism this classification most strongly confronts is that the enumerated grounds cannot contain every substantive injustice. Even where there is a serious misjudgment in the content of the judgment, if it does not fall within the list of statutory grounds, that loss cannot be filled by retrial, and the party is left with an inconvenience outside the system. Yet the author's answer here is that new arguments alone cannot be used as a basis for retrial without statutory grounds, and this holds even after recognizing the limits of the enumeration.
The facts in this scene belonging to this question are only that a new document was obtained and that one cannot explain which ground for civil retrial it falls under. What the contents of the antecedent materials are—the final and conclusive judgment, the occurrence of the ground and the awareness of it, the course of the appeal, the criminal finality—cannot be known. Whether that document falls under a statutory ground, whether the limitation on failure to assert on appeal or the time limit applies, and whether the crime-related antecedent finality conditions are met cannot be confirmed by this scene, and so they are left undetermined.
The conclusion permitted in this section is limited to the conditions specified in the detailed classification, and what is not permitted is taking new arguments alone as a basis for retrial without statutory grounds.
1.11Synthesis of Effectiveness, Blockage, and Undetermination
One question lying atop this remains. Whether the qualification to shake the stability of finality again is conferred by the mere existence of a document is the issue now to be addressed.
The statutory provision answering this question is the main text of Article 451 (1) of the Civil Procedure Act. Its wording declares: '① Where any one of the following subparagraphs applies, an action for retrial may be brought against a final judgment that has become final and conclusive.' Here the subject is the party contesting a final judgment that has become final and conclusive; the act is the bringing of an action for retrial; and the condition is the existence of a ground falling under any one of the following subparagraphs. That is, the grounds enumerated in the subparagraphs are arranged as the key that opens the gate of retrial. The provision does not reach the contents of the other subparagraphs and remains at this sentence.
The wording immediately adds a proviso: 'Provided, That this shall not apply where the party asserted that ground by appeal or failed to assert it despite knowing it.' Through this, the roles of the main text and the proviso are divided. The main text opens the path of retrial upon the mere existence of the enumerated grounds, while the proviso closes that path where the ground was already handled on appeal or was held back despite being known. The reason these two steps are separated is to prevent a defect that could have been resolved in the appellate procedure from being made a ground for reopening a judgment that has become final and conclusive. The actual existence of the ground and the present entitlement to raise that ground are different judgments.
The loss this distinction leaves is clear. Because the enumerated grounds cannot contain every substantive injustice, even where one believes there is a serious misjudgment, if it does not fall within the subparagraphs, one cannot even stand before the gate of retrial. Even if the judgment had been reached contrary to reality, an unease remains that, if one cannot explain whether the new document falls under any of the subparagraphs, there is no remedy. Without erasing the gap that remains as the price of preventing the function of the judgment that has become final and conclusive from being impaired, it refuses the work of converting a dissatisfaction lying outside the enumeration of grounds into a ground itself.
Contrasting this with the present scene makes the boundary clear. The new document obtained by plaintiff A has not been explained as falling under any ground for civil retrial. Accordingly, whether that document falls under any one of the subparagraphs, and whether the proviso on appeal applies, cannot be judged from this scene alone. Yet the distinction is maintained that if the time of awareness or the crime-related antecedent finality conditions cannot be confirmed, the matter remains undetermined. The fact that materials are absent is not itself an immediate bar. Only when the antecedent materials—the final and conclusive judgment, the occurrence of the ground and the awareness of it, the course of the appeal, the criminal finality—are filled in does it become possible to distinguish operation from bar.
Accordingly, the conclusion this section permits remains at a conditional distinction. If the statutory grounds for retrial, the antecedent finality requirements, and the time limit or its exception are satisfied, and the justness of the result of the original judgment can even be reexamined, retrial operates; if there are no statutory grounds, or one is caught by the limitation on failure to assert on appeal and the time limit, and no corresponding exception applies and only a simple new dissatisfaction remains, it is barred. Belief alone does not open the door.
1.12Conclusion Carried Over to the Next Section
What must now be sorted out again at this point is the question whether a retrial is available on the mere belief that the judgment was unjust. This question asks about the threshold of the gateway for re-contesting a final and conclusive judgment.
Article 451 paragraph (1) of the Civil Procedure Act provides that "if any one of the following subparagraphs applies, an action for retrial may be brought against a final judgment that has become final and conclusive," while adding the proviso that "this shall not apply where a party asserted that ground by appeal, or knew of it and yet failed to assert it" (Article 451 of the Civil Procedure Act). Here the object is a final judgment that has become final and conclusive, the act is the filing of an action for retrial, and the condition is the existence of a ground falling within any one of the subparagraphs. These grounds are called grounds for retrial.
This wording requires the commencement of retrial to be examined in two stages. The first stage is to see whether the defect raised by a party falls within any one of the subparagraphs. If it does not, without even reaching the proviso, the path of the action for retrial is not opened. The second stage is to see whether that ground was already asserted on appeal, or was known and yet not asserted. In the preceding section, by comparing this determination, as a ground for reversal, with the relief and facts to be re-examined, the achievement of the remand and the remaining burden became clear; but at this point, the very condition for opening a final and conclusive judgment is tied to statutory grounds. This is the foundation of the question whether grounds that could have been contested on appeal can be reserved for retrial.
Yet the counterargument that the enumerated grounds cannot encompass every substantive injustice cannot be erased. To a party who believes the conclusion of the judgment to be manifestly unjust, the list of statutory grounds may appear narrow. The conviction that a judgment is not just, and the possibility of carrying that conviction through the channel of retrial, are different matters. This answer maintains its conclusion to the extent that, while recognizing the remedial gap that the counterargument points out, the effect of finality cannot be undone on the mere belief of injustice. Dissatisfaction does not substitute for defect.
In the synthetic scene, Plaintiff A obtained a new document after the final and conclusive judgment, but cannot yet explain which civil ground for retrial that document falls under. On this fact alone, it cannot be asserted that the newly discovered document falls within any one of the subparagraphs. Only after the antecedent materials—the final and conclusive judgment, the occurrence and awareness of the ground, the course of the appeal, and a criminal final and conclusive decision—have been assembled can one examine whether the statutory grounds, the antecedent finality requirements, the time period, or its exceptions are satisfied. Where the time of awareness cannot be ascertained, or where the antecedent finality condition related to a crime cannot be confirmed, the matter remains undetermined.
In sum, the mere belief that a judgment was unjust cannot open the door to retrial. To re-contest a final and conclusive judgment, the defect must fall under a ground for retrial—that is, a defect for which the law permits re-contesting a final and conclusive judgment—and the limitation of the proviso must be examined as well. Conversely, the enumeration of statutory grounds does not by itself constitute a sufficient condition for retrial. Only in cases where the propriety of the outcome of the original judgment can be re-examined does the effect of the action become apparent. The conclusion thus far goes no further than closing the argumentation to date. Can grounds that could have been contested on appeal be reserved for retrial?