Summary
Even where a ground for retrial exists, the claim for retrial must be dismissed if the judgment is found to be just.
6.1The Standard by Which the Path Opens
The defect that reopens the door and the reason for changing the conclusion are not the same thing. The preceding section held that where the trial underlying the judgment involves a statutory ground, the existence of an independent method of appeal alone does not exclude it from the grounds for retrial. The next question, then, is whether the original judgment is necessarily overturned once a ground for retrial is recognized. What judgment follows after the door is opened, as in the case of plaintiff A, who obtained a new document after the final and conclusive judgment, is also organized here. The threshold for opening the channel of this remedy is examined first.
The relevant provision is Article 460 of the Civil Procedure Act. Its text provides: "Even where there are grounds for retrial, if the court finds the judgment to be justified, the court shall dismiss the claim for retrial." Here, the person examined by the court is the one who filed the claim for retrial; the act is the claim for retrial against the final and conclusive judgment; and the condition is the case where, notwithstanding the existence of grounds for retrial, the judgment is found to be justified. The text imposes a duty on the court to dismiss the claim once that condition is met.
Even after statutory grounds for retrial are recognized, the court separately examines the justification of the judgment, and this is called the judgment on the result of retrial. The reason a judgment examining the justification of the judgment separately from the defect is necessary is that recognition of the ground does not by itself prove that the outcome of the original judgment was wrong. The entrance to this remedy opens where the statutory grounds for retrial, the antecedent finality requirements, the time period, or its exceptions are satisfied and the justification of the outcome of the original judgment can be re-examined.
If the outcome is maintained even after a defect has been recognized, the significance of the remedy appears small. The claimant expected the judgment to change in return for opening the door, but if the justification is confirmed anew, that expectation is not fulfilled. Yet this inconvenience cannot be a reason to establish a final victory merely from the recognition of a ground. Since the court shall dismiss the claim for retrial if the judgment is justified, the existence of a defect and the alteration of the outcome are determined separately. Even if the channel of the remedy opens, the outcome depends on the determination of justification made upon re-examination.
In the synthetic scene, plaintiff A obtained a new document after the final and conclusive judgment, but has not yet been able to explain which ground for retrial in a civil action that document falls under. Accordingly, whether the statutory grounds for retrial are satisfied is unconfirmed, and the time of occurrence of the ground and of awareness, which are used for the antecedent finality requirements or the computation of the time period, is also not fixed by the materials. Even after such records are assembled, the justification of the outcome of the original judgment is examined separately. If the conditions are altered so that, even where grounds for retrial exist, the outcome of the original judgment is found to be justified, the disposition changes to dismissal of the claim rather than granting of retrial.
What can be confirmed in this section is the distinction that the recognition of a ground and the alteration of the outcome require different determinations, and that where justification is recognized, the claim for retrial is dismissed. Conversely, one cannot categorically assert that plaintiff A's claim is automatically granted or that the original judgment is necessarily changed merely because grounds for retrial exist, nor can it be held that the grounds are satisfied by the new document alone. In that final victory is not established even where grounds for retrial exist, the threshold may be open, but the conclusion is not.
6.2The Conditions That Block Relief
Since retrial is a remedy that reopens a final and conclusive judgment, the ground for opening the door and the conclusion to be reached after opening it must be considered separately. In this scene, no determination on the result can be asserted without confirmation that the matter falls under a statutory ground. That being so, one cannot but ask whether the original judgment is necessarily changed even where a defect is recognized.
The text that answers this question is found in Article 460 of the Civil Procedure Act. That Article reads: "Even where there are grounds for retrial, if the court finds the judgment to be justified, the court shall dismiss the claim for retrial." Here the court determines not only the question of retrial but also the outcome of the re-examination, and the justification of the judgment refers to the recognition that the content of the original judgment was correct. Where such recognition exists, the disposition the court is to take is fixed as dismissal of the claim, not the granting of retrial.
That text reveals the reason for placing the recognition of a defect and the alteration of the outcome at separate stages. Grounds for retrial merely open the way to re-examine the final and conclusive judgment in retrial adjudication, while the judgment on the result of retrial means the stage of examining the justification of the judgment separately from the defect. Only by distinguishing the two stages can one understand that recognition of a ground does not lead directly to the establishment of victory. If there is no ground, the path is closed; even if there is a ground, the claim is dismissed where justification is recognized.
If the outcome remains unchanged even after a defect has been recognized, the remedial efforts made until then may appear to have been in vain. If the situation is one in which the plaintiff can only explain the relationship between the newly obtained document and the statutory ground, and can no longer contest whether the content of the judgment was right or wrong, dissatisfaction remains. Nor is it erased that a remedial gap remains for grave misjudgments outside the enumerated grounds. While leaving that adverse reality as it is, the confirmed conclusion is that a final victory cannot be established merely by recognizing grounds for retrial.
The only facts confirmed in the synthetic scene are that plaintiff A obtained a new document after the final and conclusive judgment and that he has been unable to explain whether that document falls under a ground for retrial. Accordingly, whether this document constitutes a statutory ground, whether it is barred by the restriction for failure to assert on appeal or by the limitation of time, and whether an applicable exception exists remain undetermined. Nor are materials concerning the justification of the content of the judgment available, so no determination can be made in the judgment on the result of retrial. Under the designated comparison conditions, if, even where grounds for retrial exist, the outcome of the original judgment is found to be justified, the disposition changes to dismissal of the claim rather than granting of retrial.
The determination in this section has a narrow scope. Where there is no statutory ground, or where the matter is barred by the restriction for failure to assert on appeal or by the limitation of time and no applicable exception exists, leaving only a new grievance, the channel of the remedy of retrial is closed if any one of the statutory requirements is not met. Conversely, a victory cannot be established in advance merely by recognizing a defect, and it is an admissible conclusion that the disposition varies according to the outcome of re-examining even the justification of the judgment. What result follows upon what records being prepared, and whether that judgment can be enforced immediately, are not determined here.
6.3The Boundary That Remains When There Is No Data
The conditions under which retrial, as an independent method of appeal, opens against a final and conclusive original judgment, and the conditions under which the conclusion of that judgment is actually changed after it opens, contain different questions. If what the preceding stage addressed was why and when the former door opens, the present question concerns what determinations must be completed inside the opened door. The reason for asking, in this scene, about the relationship between the recognition of grounds for retrial and the alteration of the outcome is that no final state is automatically fixed by the mere fact that a defect has been confirmed.
With respect to this question, Article 460 of the Civil Procedure Act provides that "even where there are grounds for retrial, if the court finds the judgment to be justified, the court shall dismiss the claim for retrial" (Article 460 of the Civil Procedure Act). The person specified by this text is the court that has received the claim for retrial; the act it addresses is the pronouncement of dismissal of the claim; and its condition is the case where, notwithstanding the existence of grounds for retrial, the judgment is found to be justified. Accordingly, the court determines whether to dismiss the claim only after separately examining the justification of the judgment itself, going beyond the presence or absence of grounds. Here this Article is read only insofar as it divides the judgment on the result of retrial, and since the requirements of grounds for retrial or questions of time are not addressed in the text of this Article, the discussion is not carried over to them.
The reason Article 460 prescribes the judgment on the result of retrial as a stage that examines the justification of the judgment separately from the defect is that the two determinations confirm different facts. Recognition of grounds for retrial addresses whether there was some defect in the litigation proceedings or the basis underlying the judgment, whereas the justification of the judgment asks whether, even with that defect, the pronounced conclusion itself was correct. The fact that the former is confirmed does not conclude the latter determination, and the court passes through the two stages in sequence. Hence follows the conclusion that even where there are grounds for retrial, if the court finds the judgment to be justified, the court shall dismiss the claim for retrial (Article 460 of the Civil Procedure Act). That a final victory cannot be established merely by recognizing grounds for retrial stems from this distinction, meaning that recognition of a defect does not substitute for the determination as to the alteration of the outcome.
The counterargument to this distinction is directed at the point that, if the outcome is maintained even though a defect has been recognized, the significance of the remedy appears small. It is the concern that, in a case where it has even been confirmed that a basis such as forgery or false testimony was used, if all the plaintiff receives is dismissal of the claim, the procedure that opened the door may end up returning nothing at all. Even in responding without erasing this inconvenience, a final victory cannot be established merely by recognizing grounds for retrial. For even after severing the path through which the defect entered and reopening the door, the determination of which way to settle the conclusion of the claim is still left to the determination of the justification of the judgment. The concern about the size of the remedy pointed out by the counterargument clearly remains, but on that account alone it does not change into the proposition that the alteration of the outcome follows automatically from the recognition of the ground.
This distinction, when compared with the scene of plaintiff A, makes clearer how far matters are settled and how far questions remain. What is settled are only the two facts that a new document was obtained after the final and conclusive judgment and that it has not yet been explained which ground for retrial in a civil action that document falls under. Since a final and conclusive judgment exists, the judgment that is the object of the judgment on the result of retrial is fixed; but which, if any, of the antecedent materials—such as the time of occurrence of the ground and of awareness, the course of appeal, or the existence of a criminal final and conclusive judgment—is confirmed through the new document is not determined by the scene. Since the materials for determination have not been specified, with no explanation as to which ground that document falls under, this item is left undetermined rather than marked as impossible, just as in cases where the time of learning of the ground or the antecedent finality condition relating to a crime cannot be confirmed. Undetermined is a status indicator that does not distinguish whether the materials can be filled in or not, and it does not proceed in itself to any determination that a particular remedy is available or unavailable.
The boundary this section leaves need only be read as keeping two things in view: that even where grounds for retrial exist, if the judgment is found to be justified the claim for retrial is dismissed, and that confirmation of a ground does not substitute for the alteration of the outcome. Conversely, a reading under which some final victory is established merely by recognizing grounds for retrial does not accord with this text, and a conclusion that stops at recognition of the ground while skipping the determination of justification cannot be drawn here either. That boundary is neither widened nor narrowed with materials absent from the scene, nor are the places marked undetermined turned into conclusions of incompletion.
6.4The Records Needed for Determination
The ground that reopens the door of retrial and the reason for changing the conclusion of the judgment are not the same. In this scene, even if the court becomes able to open the door of retrial, questions still remain. Is the conclusion of the original judgment necessarily changed after a defect is recognized, and what records must be opened up in order to determine that stage? The judgment that opens the door and the judgment that changes the conclusion each require a different basis. What is addressed now is the latter stage.
Article 460 of the Civil Procedure Act makes that distinction clear in its text. "Article 460 (Dismissal of Retrial Where the Outcome Is Justified): Even where there are grounds for retrial, if the court finds the judgment to be justified, the court shall dismiss the claim for retrial." (Article 460 of the Civil Procedure Act) The person indicated by this text is the court examining the claim for retrial; the act is the dismissal of the claim for retrial; and the condition is the case where, notwithstanding the existence of grounds for retrial, the judgment is found to be justified. The justification of the judgment spoken of here is placed as a separate object of determination from the existence or non-existence of grounds for retrial. This Article does not address the requirements of grounds for retrial or the exceptions to time periods.
Accordingly, even if the court recognizes grounds for retrial, it does not immediately reverse the conclusion of the original judgment. The fact that the door was opened through the defect and the fact that, as a result of re-examination, the content of the original judgment was correct can hold simultaneously. The judgment on the result of retrial means the stage of examining the justification of the judgment separately from the defect. In that determination, the court inquires into whether the outcome of the original judgment was correct, and if it is found to be justified, the court shall dismiss the claim for retrial. There is no need to read any new requirement or exception into this. What the text fixes is the separation of the recognition of a ground and the alteration of the outcome, together with a single consequence: if justification is recognized, the matter ends in dismissal.
When that is so, a criticism arises that the remedy is ultimately not achieved even though the defect has been brought to light, so that the victim's dissatisfaction remains as it is. It is further pointed out that a remedial gap remains for grave misjudgments outside the enumerated grounds for retrial. Yet a final victory cannot be established merely by recognizing grounds for retrial. Even after recognizing a ground, the court shall examine anew whether the outcome of the judgment was justified and, if it is justified, dismiss the claim. This answer does not erase the remedial gap pointed out by the counterargument; it merely does not treat the recognition of a ground and the establishment of victory as the same thing.
What can be confirmed in the present scene is only the fact that a new document was obtained and the state in which it has not been explained which ground for retrial in a civil action that document falls under. To determine the stage, only the materials recorded in the antecedent materials—such as the final and conclusive judgment, the occurrence of the ground and awareness of it, the course of appeal, and the criminal final and conclusive judgment—are laid open. With these records, the establishment of the ground and the conditions for the resulting determination can be compared. However, items absent from the records are not filled in by inference, so on the present scene alone the establishment of the ground or the justification of the judgment cannot be settled. What remains is undetermined, and this does not mean that the remedy is impossible.
Even where grounds for retrial are recognized, if the outcome of the original judgment is found to be justified, the disposition changes to dismissal of the claim rather than granting of retrial. The conclusion this section permits is that the recognition of a ground and the alteration of the outcome are distinguished, that the stage is determined only on the fixed records, and that absent records are not filled in by inference. Conversely, this section does not permit asserting a final victory on the basis of the recognition of a ground alone, or making a determination by adding facts absent from the records.
6.5Circumstances That Change the Decision
What is now asked, in the situation facing plaintiff A, is whether, even assuming that a document newly obtained after the final and conclusive judgment is recognized as a ground opening the door to retrial, the mere fact that the door has opened also changes the conclusion of the existing judgment. Accordingly, it must first be made clear what determination lies between the establishment of the ground and the alteration of the outcome.
The provision declares: "Even if there are grounds for retrial, where the judgment is found to be just, the court shall dismiss the claim for retrial." (Civil Procedure Act, Article 460) Here the subject is the court adjudicating the claim for retrial, the act is the determination whether to grant the retrial, and the condition is the case in which the judgment is found to be just while grounds for retrial already exist. The text does not regulate issues concerning other requirements for retrial or the gravity of the defect; it addresses only the determination of the outcome that follows recognition of the ground.
Read in light of the conclusion of this section, this text makes it clear that the determination of the outcome of a retrial means a stage of examining the justness of the judgment separately from the defect. The reason the two stages must be distinguished is that, whereas the first stage addresses the question of opening the door so that the original judgment may be re-examined, the second stage addresses the question of deciding, at the close of that examination, whether to maintain or to alter the result of the original judgment. Accordingly, the fact that a ground is recognized confers only the qualification to begin the second stage; it does not predetermine the conclusion of that stage.
The objection that, if the outcome is maintained even though a defect is recognized, the significance of relief appears diminished, is directed at the loss and sense of frustration suffered by the party who has newly uncovered a document and yet, despite those efforts, ends up bearing the conclusion of the original judgment as it stands. This inconvenience is not erased; indeed, it is a situation acknowledged by this very provision. Even so, final victory cannot be secured on the strength of recognition of the grounds for retrial alone. If, in the determination of the outcome of the retrial, the judgment is found to be just, the court shall dismiss the claim for retrial (Civil Procedure Act, Article 460); thus, so long as the justness of the outcome is confirmed independently of the recognition of the defect, the conclusion of the existing judgment is maintained.
Among the facts set in the synthetic scene, those relevant to this question are that plaintiff A obtained a new document after the final and conclusive judgment, and that A has not yet been able to explain under which ground for civil retrial the document falls. These two facts alone are insufficient to determine whether grounds for retrial have been established, whether, if established, the result of the judgment is found to be just, or at which stage the existing determination is to be discarded and a new decision rendered. The actual contents of the antecedent materials—the final and conclusive judgment, the occurrence and awareness of the grounds, the course of any appeal, and the criminal finality—have not been verified. Matters that cannot be adjudicated on the scene therefore remain undetermined.
The conclusion this section permits is that, even where grounds for retrial exist, if the judgment is found to be just, the determination changes to a dismissal of the claim rather than a grant of the retrial. This means that recognition of a ground does not automatically carry through to alteration of the outcome; it does not mean rendering the defect a nullity or denying relief itself. Even where grounds for retrial exist and the outcome of the original judgment is found to be just, final victory cannot be treated as secured.
6.6The Strongest Counterargument and the Answer
Surrounding this scene, the criticism is raised that, if the outcome is maintained even though a defect is recognized, the significance of relief appears diminished. What that criticism targets is the gap between the stage of reopening the door and the stage of changing the conclusion. What the preceding section confirmed is that final victory cannot be secured on the strength of recognition of the grounds for retrial alone; but how far that gap diminishes the significance of relief requires a separate explanation.
The text answering this question is found in Article 460 of the Civil Procedure Act. That provision stipulates: "Even if there are grounds for retrial, where the judgment is found to be just, the court shall dismiss the claim for retrial" (Civil Procedure Act, Article 460). The subject established by this text is the court adjudicating the claim for retrial, the act is the dismissal of the claim, and the condition is the case in which, notwithstanding the recognition of grounds for retrial, the judgment is found to be just. Other issues under the provision lie outside the scope of this explanation.
The reason the court examines the justness of the judgment separately, even while presupposing grounds for retrial, is that the two determinations address different objects. Grounds for retrial ask whether the procedure that produced the original judgment was attended by a defect. If the defect is what opens the door, the determination of the outcome fixes what conclusion is to be reached within that door. That, precisely because of this distinction, final victory cannot be secured on the strength of recognition of the grounds for retrial alone, is what was stated earlier.
The objection that, if the plaintiff's claim is dismissed even though the defect has already come to light, what the plaintiff obtains is unclear, operates here at its strongest. If, at the end of spending time and resources to open the door to retrial, the judgment remains as it was, the loss is that relief is a mere name. The inconvenience targeted by that criticism is real. The court must look to the defect and the outcome together, and if the outcome is just, the choice of dismissal remains. This distinction is maintained even without erasing the curtailment of relief that the objection points out.
Plaintiff A has obtained a new document but is in a state of being unable to explain under which ground for civil retrial it falls. This fact points to an unconfirmed condition at the stage of grounds for retrial, and on this scene alone the question whether a ground is established cannot be decided. The contents of the antecedent materials—the final and conclusive judgment, the occurrence and awareness of the grounds, the course of any appeal, and the criminal finality—as well as the time of the occurrence and awareness of the grounds, have never been specified. Accordingly, on the present scene it remains undetermined even whether the stage of determining the outcome of the retrial has been reached. The designated comparison condition—that is, that if there are grounds for retrial but the result of the original judgment is found to be just, the outcome changes to a dismissal of the claim rather than a grant of the retrial—is not a fact of the scene but a condition of adjudication.
The conclusion this section permits is to view the recognition of the defect and the securing of final victory separately; what it does not permit is to secure final victory on the strength of recognition of the grounds for retrial alone. Even where there is a defect, if the outcome is just the claim may be dismissed, and it does not follow that the defect becomes meaningless. So long as plaintiff A cannot explain under which ground the document obtained falls, the adjudication on that scene remains open.
6.7The Link to the Application and the Dispositive Part
If grounds for retrial are recognized, must the original judgment necessarily be overturned? Taking up the thread from the preceding section, that final victory cannot be secured on the strength of recognition of the grounds for retrial alone, this section addresses the stage of determination that lies between the recognition of the ground and the alteration of the outcome. The fact that a defect exists in a final and conclusive judgment means only that there was an error in the process of deliberation that formed the basis of that judgment; that error alone does not mean that the opposing party must relinquish the rights already obtained. If the two questions are bundled together and judged at once, it does not even become clear what conclusion should be reached.
This distinction is one of the devices expressly provided for by the statutory text. Article 460 of the Civil Procedure Act stipulates: "Even if there are grounds for retrial, where the judgment is found to be just, the court shall dismiss the claim for retrial." Under this text, even after first confirming the existence of a defect, the court separately examines whether the result of the original judgment is right. The subject of the act is the court, the object of the dismissal is the claimant's claim for retrial, and the determination that the outcome is just becomes the condition commanding dismissal in this sentence. This provision does not address issues arising under other provisions.
The reason the court follows this procedure is that the two determinations answer different questions. Grounds for retrial form the basis on which the request to reopen the final and conclusive judgment is accepted, and the determination of the outcome decides whether even the trial newly opened must still maintain the original conclusion. If the former is the qualification to open the door, the latter fixes the content of the disposition to be issued within that door. Accordingly, the mere fact that a defect is recognized does not immediately bring a grant of retrial; and if the justness of the judgment is recognized, the court must dismiss the claim for retrial.
If the outcome remains as it is even though the defect has come to light, the relief obtained by the claimant is visibly diminished. If, having spent time and money to claim a retrial, the effect of the original judgment is ultimately maintained, it appears that merely confirming the error is not enough, and the position of the opposing party remains exactly as it was. In the same vein, serious misjudgments outside the enumerated grounds for retrial are left with a relief gap to the very end. Retrial is a procedure for examining defects; it is not a procedure in which recognition of a defect is at once a declaration of victory, and the attitude of the statutory text, which distinguishes the ground for opening the door from the reason for changing the conclusion, remains as it stands.
On this scene, the fact that a final and conclusive judgment exists has been confirmed, but the nature of the new document, and the circumstances by which the result of the original judgment is rendered unjust on the basis of that document, cannot be taken as materials for adjudication. Among the antecedent materials—the final and conclusive judgment, the occurrence and awareness of the grounds, the course of any appeal, and the criminal finality—the necessary records have not been secured either. Accordingly, whether A's document falls within the grounds for retrial, and even if it does, whether the result of the original judgment is found to be just, cannot be adjudicated on this scene alone. If, even though there are grounds for retrial, the result of the original judgment is found to be just, the conclusion changes to a dismissal of the claim rather than a grant of the retrial.
The conclusion in this section remains narrowly as follows. Even if there are grounds for retrial, if the judgment is found to be just, the claim for retrial must be dismissed. By contrast, the conclusion that the recognition of grounds for retrial itself delivers final victory to the claimant, or the conclusion that, if the outcome is right regardless of the defect, the door to retrial itself closes, are not permitted in this section. The determination of the ground and the determination of the outcome are two stages each holding its own place, and the latter determination cannot take the place of the former.
6.8The Scope This Section Undertakes
Where there are statutory grounds in the trial underlying the judgment, the mere existence of an independent means of appeal does not exclude it from the grounds for retrial. Then, if grounds for retrial are recognized, must the original judgment necessarily be overturned? To answer this question, one must think separately about the conditions for reopening a final and conclusive judgment believed to be wrong, and the conditions for changing the conclusion once it has been reopened.
Article 460 of the Civil Procedure Act makes this distinction clear. Here the subject is the court adjudicating the retrial, the act is the determination of the claim for retrial, and the condition is the case in which, even where grounds for retrial exist, the judgment is found to be just. The provision states only the result of dismissal once this condition is met.
The conclusion of this section derived from this text is as follows. Thus, the determination of the outcome of a retrial is a stage of examining the justness of the judgment separately from the defect. The earlier stage asks whether there is a defect constituting grounds for retrial, and the later stage asks whether, even with that defect, the conclusion of the original judgment is right. Since the two questions are not the same, the recognition at the first stage does not already decide the conclusion at the second stage.
There is the objection that, if the outcome is maintained even though a defect is recognized, the significance of relief appears diminished. That is, if the claim is dismissed even though a serious defect constituting grounds for retrial has been confirmed, what is the value of the party's going through the procedure again? This inconvenience is not erased. If the ground for reopening the door and the ground for changing the conclusion are not the same, a new conclusion adverse to the opposing party cannot be given on the strength of confirming the defect alone.
Viewed against this question, this scene shows that plaintiff A obtained a new document after the final and conclusive judgment, but has not yet been able to explain under which ground for civil retrial the document falls. Neither can the mere acquisition of the new document be asserted as a ground for retrial, nor can it be asserted that it is not. Nor are the antecedent materials—the final and conclusive judgment, the occurrence and awareness of the grounds, the course of any appeal, and the criminal finality—assumed to have been secured. Only the condition that, if there are grounds for retrial but the result of the original judgment is found to be just, the outcome is changed to a dismissal of the claim rather than a grant of the retrial, remains, irrespective of the presence or absence of grounds, as the criterion of judgment in this section.
The conclusion this section permits is that the recognition of grounds for retrial and the review of the justness of the result of the original judgment must be separated, and that if the latter is recognized, the claim for retrial is dismissed. The conclusion this section does not permit is that, on the sole ground that grounds for retrial are recognized, the original judgment must necessarily be overturned and the claimant prevails. The existence or absence of other grounds, and questions of time limits, lie outside the scope of this section.
6.9Application of the Text of the Provisions and the Holdings of Precedents
On the premise that, where there are statutory grounds in the trial underlying the judgment, the mere existence of an independent means of appeal does not exclude it from the grounds for retrial, plaintiff A obtained a new document after the final and conclusive judgment but has not yet been able to explain under which ground for civil retrial the document falls. On this scene, the question is how the relevant text figures in the retrial adjudication of a final and conclusive civil judgment.
The relevant text is the following clause of Article 460 of the Civil Procedure Act: "Even if there are grounds for retrial, where the judgment is found to be just," the court shall dismiss the claim for retrial. In this text, the subject is the court that has received the claim for retrial, the act is the determination of the claim, and the condition is the case in which grounds for retrial exist while the judgment is nonetheless found to be just. Here, other paragraphs or other language of this provision are not explained.
This text does not ask the recognition of the ground and the alteration of the outcome as a single stage. Even if grounds for retrial are assumed to already exist, as the text presupposes, the court may separately examine whether the judgment is just and then dismiss the claim. The reason this distinction is necessary is that the defect that opens the door is a procedural requirement for access, whereas the alteration of the conclusion is a determination that must reexamine the justness of the result of the original judgment itself. Between the recognition of the defect and the alteration of the outcome lies this stage of determination.
If the outcome is maintained even though the door was opened by a defect, the significance of relief appears diminished, and the complaint also remains that a relief gap is left for serious misjudgments outside the enumerated grounds. Even without erasing such losses and inconveniences, final victory cannot be secured on the strength of recognition of the grounds for retrial alone. The determination recognizing grounds for retrial and the determination securing a final outcome favorable to the plaintiff are different questions, and the relevant text provides that as to the latter, if justness is recognized, the claim is to be dismissed.
On this scene alone, whether there are grounds for retrial, and whether that ground will lead to a grant, both remain undetermined. However, if the antecedent materials—the final and conclusive judgment, the occurrence and awareness of the grounds, the course of any appeal, and the criminal finality—are confirmed, the matter can proceed to the determination of the outcome of the retrial; and if there are grounds for retrial but the result of the original judgment is found to be just, the conclusion changes to a dismissal of the claim rather than a grant of the retrial. As no year, amount, or starting date has been set otherwise, none is fixed.
The conclusion permitted in this section extends no further than using as the basis for the retrial adjudication of a final and conclusive civil judgment the text that, even if there are grounds for retrial, where the judgment is found to be just, the claim for retrial shall be dismissed. It is not permitted to extend to the reasons for judgment or to other paragraphs so as to manufacture new defects, exceptions, or effects, nor is it permitted to regard final victory as secured on the strength of recognition of the ground alone. Only the relevant source text is used as the basis for adjudicating retrial of a final and conclusive civil judgment.
6.10Fine Distinctions Within the Stage
The preceding step confirmed that even when grounds for retrial are recognized, the original judgment is not necessarily overturned. It must now be determined what parts are to be decided separately within a retrial of a final and conclusive civil judgment. In this scene, recognition of a defect and change of the outcome remain separate subjects of determination.
In its judgment on the result of the retrial, the court decides in accordance with the statutory wording that provides "the court shall dismiss the claim for retrial" (Civil Procedure Act Article 460). The actor designated by this Article is the court hearing the retrial case, the act is the dismissal of the claim for retrial, and the condition is the case in which, even though grounds for retrial exist, the judgment is found to be just. The justice of the judgment referred to here denotes a subject of reexamining the outcome of the original judgment, separate from whether a defect has arisen.
The above wording does not combine the recognition of grounds with the determination of the outcome. Grounds for retrial are the requirement for reopening the door, and the justice of the judgment is the standard by which it is decided whether to change the outcome once inside the opened door. Because the two are separated, where the statutory grounds for retrial, the requirements of prior finality, and the time limit or its exceptions are satisfied and the justice of the outcome of the original judgment can also be examined afresh, the court proceeds to the judgment on the result of the retrial. Conversely, if the judgment is found to be just, recognition of the grounds alone does not lead to the granting of the retrial. This distinction is confined to the fine distinctions falling within the conditions for cases in which it operates, cases in which it is blocked, and cases that remain undetermined, and creates no other new steps.
The objection that relief may seem weak when only a defect is recognized touches upon actual loss. The plaintiff expended time and materials to obtain a new document, yet if the outcome of the judgment is maintained, that effort may in the end come to nothing. Moreover, the criticism that a gap in relief remains for serious misjudgments outside the enumerated grounds does not disappear either. However, where there are no statutory grounds, or where the restriction on failure to assert grounds on appeal or the time limit applies and the corresponding exception does not, leaving only a fresh grievance, the retrial is closed. Because, even if grounds are recognized, where the judgment is found to be just the case returns to a dismissal of the claim, final victory cannot be established merely by the recognition of grounds for retrial.
The facts confirmed in the synthetic scene are the final and conclusive judgment, the new document obtained afterward, and the fact that no explanation of the grounds has yet been given. Because the point in time at which the plaintiff obtained the document and the circumstances under which the plaintiff became aware of it have not been confirmed, the time of learning of the grounds remains undetermined. Cases in which the preceding conditions for finality relating to a crime cannot be confirmed are likewise undetermined. Accordingly, on this scene alone the grounds have not been established, nor has it been determined whether the court has reached the examination of the justice of the outcome of the original judgment. Until the underlying materials—the final and conclusive judgment, the occurrence and awareness of the grounds, the course of the appeal, and the criminal finality—have been assembled, that determination cannot be fixed.
What this section permits is to decide the recognition of grounds and the determination of the outcome separately in accordance with the conditions; what it does not permit is to fix the outcome on the recognition of grounds alone or to insert steps outside the conditions. Because the facts, service, and results of performance of the actual case have not been revealed, victory or defeat and the fruits of recovery cannot be asserted here either.
6.11Synthesis of Effectiveness, Blockage, and Undetermination
On the premise that, where a statutory ground exists in the trial underlying the judgment, the existence of an independent method of challenge does not by itself exclude a ground for retrial, the question is how to distinguish the effect of a retrial of a final and conclusive civil judgment, its blockage, and its undetermined state. This scene separately examines the conditions under which the door of retrial opens, the conditions under which it is blocked, and the conditions under which judgment must still be reserved.
Civil Procedure Act Article 460 opens with the wording "Article 460 (Dismissal of Retrial Where the Outcome Is Just) Even where grounds for retrial exist, if the judgment is found to be just," and prescribes the measure the court should properly take (Civil Procedure Act Article 460). The actor designated by this wording is the court hearing the retrial case, the act is the dismissal of the claim for retrial, and the condition is the case in which, even though grounds for retrial are recognized, the original judgment is found to be just. What is addressed here is the condition for determining the outcome prescribed by this single Article, and other issues set alongside the text are not included within the scope of this question.
Linking the wording of this Article with its conclusion, it becomes clear that the recognition of a defect and the change of the outcome are distinct stages of determination. The judgment on the result of a retrial denotes a stage of examining the justice of the judgment separately from the defect, and if, in that determination, the judgment is found to be just, the court shall dismiss the claim for retrial (Civil Procedure Act Article 460). In other words, even where a defect opens the door of retrial, once through that door the justice of the outcome of the original judgment is examined separately, and if justice is recognized in that examination, the result determined is not the granting of the retrial but the dismissal of the claim. Without this distinction it might be read as though final victory is established by the recognition of grounds for retrial alone, but such establishment is not permitted.
What the objection that relief seems to mean little where the outcome is maintained despite the door having been opened by a defect targets most strongly is the loss suffered by the parties, the inconvenience of wasted effort, and the value that an erroneous judgment ought to be corrected. From the standpoint of the party who has obtained a new document, that party may expect that, resting on the recognized defect, the outcome will change as well, and when that expectation is frustrated the reward of undergoing the retrial procedure fades. Even so, the conclusion stands: the court cannot establish final victory on the basis of grounds for retrial alone, and a separate examination of the justice of the outcome of the original judgment is required. This answer does not erase the unfavorable aspects of the objection. The point that the outcome may be maintained even though a defect is recognized remains as it is.
These facts alone do not confirm whether the grounds for retrial are satisfied, and therefore it cannot be determined whether the statutory grounds for retrial, the requirements of prior finality, and the time limit or its exceptions are satisfied. Thus all that can be determined at this scene is the distinction between the conditions for determination, while how the claim of plaintiff A will actually be concluded remains undetermined. By contrast, the contrast that even where grounds for retrial exist, if the outcome of the original judgment is found to be just the result shifts not to the granting of the retrial but to the dismissal of the claim is a fixed condition. Since years, amounts, or commencement dates not present in the scene, and the results of performance in an actual case, have not been set, they are not determined here.
The conclusion permitted by this section is that the conditions under which the door of retrial opens and the stage of reexamining the justice of the outcome of the original judgment must be distinguished, and that, if justice is recognized at the latter stage, the claim for retrial shall be dismissed (Civil Procedure Act Article 460). The conclusion not permitted is to regard the original judgment as necessarily overturned and final victory as established merely because grounds for retrial have been recognized. So long as the defect that reopens the door and the reason for changing the conclusion are read separately, the distinction among effect, blockage, and undetermined remains a matter of the conditions of determination.
6.12이 권의 결론과 남는 물음
In this scene, the conditions under which the door of retrial opens and the conditions under which the judgment must be overturned once that door has been opened are two different questions. What the preceding section confirmed concerns the former determination; what remains now is to ask after the latter.
To answer this question, the relevant text is Civil Procedure Act Article 460. Its wording provides that "even where grounds for retrial exist, if the judgment is found to be just, the court shall dismiss the claim for retrial" (Civil Procedure Act Article 460). The actor designated by this Article is the court that has received the claim for retrial, the condition is the case in which grounds for retrial are recognized while the judgment is nevertheless found to be just, and what the court does on that occasion is the dismissal of the claim. The Article says nothing about other stages of determination or other claims.
That wording furnishes the basis for distinguishing the recognition of a defect from the determination of the outcome. The judgment on the result of a retrial denotes a stage of examining the justice of the judgment separately from the defect. If the determination in the preceding section addressed the first stage, namely whether grounds for retrial exist, Article 460 asks the second stage, namely whether, even where grounds exist, the conclusion of the final and conclusive judgment is just. If these two stages are read together as one, the grounds for opening the door are mistaken for the grounds for changing the outcome.
The position that most strongly opposes this distinction says this: that if a defect is recognized but the outcome is maintained, the meaning of relief seems small. If a final and conclusive judgment contained a serious defect and, although the door of retrial was reopened on account of that defect, the conclusion remains as it was, the claimant feels that effort was wasted. Yet the preceding answer does not change. A defect is merely the condition that brings the judgment back into view; the reason for changing the outcome must be judged separately.
The present state of the scene remains at the earlier part of this distinction. Plaintiff A has obtained a new document, but as yet cannot explain which civil ground for retrial that document falls under. For that reason, having reached neither of the two stages of recognition of grounds for retrial and determination of the outcome, it also remains undetermined whether the underlying materials—the final and conclusive judgment, the occurrence and awareness of the grounds, the course of the appeal, and the like—will be assembled. Final victory cannot be established on the strength of a document alone whose corresponding ground has not been explained, nor is it permissible to make that document the basis for asserting that the outcome of the original judgment is unjust.
The conclusion permitted in this section is narrow. Even where grounds for retrial exist, if the judgment is found to be just, the court shall dismiss the claim for retrial (Civil Procedure Act Article 460). What is not permitted is to establish final victory on the recognition of grounds for retrial alone, or to bind the determination of grounds and the determination of the outcome into one. Conversely, the absence of a defect does not make the outcome necessarily just, and before the meaning of the new document is revealed, no determination in any direction can be asserted. Can every judgment that has been pronounced be executed immediately?
Statutes referred to
Questions left open
- Is a system needed to address misjudgments outside the enumerated grounds?
- How should responsibility for grounds not asserted on appeal be evaluated?
- How should the costs of preventing abuse of retrial and correcting errors be balanced?