PART II PROCEDURE IN THE FIRST INSTANCE
CHAPTER I ORDINARY PROCEEDING
Section 2 Preparation for Oral Argument
For purposes of oral argument preparation, parties shall submit to the court a pleading which indicates his/her means of attack or defense, and his/her responses to the opposing party's statements and means of attack or defense, and send a written copy or photocopy of the same directly to the opposing party.
When the opposing party disputes the successful delivery of a written copy or photocopy of the pleading provided in the preceding paragraph, the party submitting the pleading shall make a preliminary showing thereof.
The plaintiff's pleading made in preparation for oral argument shall indicate the following:
1. The facts and reasons on which his/her claim is based;
2. The evidence proving the disputed facts; in case of multiple evidence, all of them;
3. A statement either admitting or denying the facts and evidence alleged by the opposing party; in the case of denial, the reasons therefor.
The defendant's answer shall indicate the following:
1. The facts and reasons of his/her defenses;
2. The matters provided in the second and third subparagraphs of the preceding paragraph.
The matters provided in each subparagraph of the two preceding paragraphs shall be specified with particularity.
A photocopy of all documentary evidence referred to in the pleadings provided in the first and the second paragraphs shall be submitted to the court with a photocopy of the pleadings sent directly to the opposing party.
The defendant shall, if he/she considers it necessary to do so, submit his/her answer to the court, with a written copy or photocopy thereof sent directly to the plaintiff within ten days after receiving the complaint, and no later than five days prior to the oral-argument session if one has been designated.
Where any matter which should be notified to the opposing party in preparation of the case is not indicated in the complaint or answer, the parties shall submit to the court a preparatory pleading indicating such matter with a written copy or photocopy thereof sent directly to the opposing party within the period which the opposing party needs to prepare for such matter, and no later than five days prior to the oral-argument session if one has been designated.
The parties shall submit to the court the preparatory pleading, if any, to dispute or respond to the matters indicated in the pleadings provided in the two preceding paragraphs with a written copy or photocopy thereof sent directly to the opposing party within five days after receiving such pleadings as provided in the two preceding paragraphs, and no later than three days prior to the oral-argument session if one has been designated.
The presiding judge may, if he/she is of the opinion that the preparation for oral argument has not been completed, order the parties to submit a preparatory pleading or answer with complete indications in accordance with the provisions of Article 265 to Article 267 inclusive, within the period of time such judge designates, and may also order them to specify or state in detail the evidence which they propose to use with regard to a certain matter.
After a preparatory proceeding by exchange of pleadings has been completed in accordance with the provisions of the two preceding articles, the presiding judge or the commissioned judge shall promptly designate a date for the oral-argument session or the preparatory session.
The court shall require the parties to formulate and agree on simplifying the issues.
The presiding judge may, if necessary, order the parties to submit a pleading summarizing the result of the formulation of the issues within the period of time to be designated by the judge.
The pleading provided in the preceding paragraph shall be made in concise writing, in orderly itemized paragraphs, and must not make general reference to the previous statements presented in pleadings or orally.
Where a party either fails to submit pleadings or to state evidence in accordance with the provisions of Articles 267 and 268, and the third paragraph of the preceding article, the court may, on motion or on its own initiative, order such party to explain the reasons by pleadings.
Where the party fails to explain in accordance with the provision of the preceding paragraph, the court may apply the provision of Article 276 mutatis mutandis or take such fact as part of the entire import of oral argument in forming its decision.
The court may, prior to the oral argument, take the following measures if it considers it necessary to do so in order to expedite the closing of oral argument:
1. To order the parties or their statutory agents to appear in person;
2. To order the parties to produce documents and objects;
3. To notify witnesses or expert witnesses, and to send for documents or objects, or order a third person to produce documents or objects;
4. To conduct inspections, or order expert testimony, or request an agency or organization to conduct an investigation;
5. To require a commissioned judge or an assigned judge to take evidence.
In an action adjudicated by judges sitting in council, the court may, if necessary, appoint one of the judges to be the commissioned judge to conduct the preparatory proceeding.
The preparatory proceeding shall not proceed beyond the clarification of the relations involved in the action, except where the court has ordered that evidence be taken in the preparatory proceeding.
The commissioned judge may not be ordered to take evidence except in the following cases:
1. If it is necessary to take the evidence at the place where such evidence is located;
2. The evidence shall be taken outside the courthouse pursuant to the applicable laws;
3. Taking the evidence in the oral-argument sessions may result in the destruction or loss of such evidence or the obstruction of its use, or it is manifestly difficult to do so;
4. Both parties agree to have the evidence taken by the commissioned judge.
The provisions of the first and the second paragraphs of Article 251 shall apply mutatis mutandis to the preparatory proceeding.
For the purpose of clarifying the relations involved in the action, the commissioned judge may conduct the following activities without holding a session in public:
1. To order the parties to explain the matters indicated in the preparatory pleadings;
2. To order the parties to make statements with regard to the facts, documents, or objects;
3. To formulate and simplify the issues;
4. Other necessary matters.
In conducting the proceeding provided in the preceding paragraph, the commissioned judge may excuse himself/herself or a party from the proceeding temporarily if he/she considers it appropriate to do so, or order the parties to reach an agreement, within a period of not more than seven days as he/she may designate, on simplifying the issues alleged or other matters which can expedite the litigation and make a joint report to the court. Notwithstanding, the parties shall be ordered no more than two times to reach such an agreement.
The parties shall be bound by their agreement reached, if any, in accordance with the provisions of subparagraph of the preceding paragraph with regard to the issues they alleged, except where they have agreed on an amendment to said agreement, or where reasons exist not imputable to the parties, or other circumstances render such binding agreement manifestly unfair.
The transcript of the preparatory proceeding shall indicate the following matters:
1. Each party's statements and the means of attack or defense he/she uses;
2. Reponses to the opposing party's statements and means of attack or defense;
3. The matters listed in each subparagraph of the first paragraph of the preceding article and the conclusion to formulating the issues.
The provisions of the two preceding articles shall apply mutatis mutandis to cases which are adjudicated by a single judge.
The provisions of Article 44-4, Article 49, the first to the third paragraphs inclusive of Article 68, the first paragraph of Article 75, Article 76, the third paragraph of Article 77-1, the first sentence of the first paragraph of Article 94-1, the first paragraph of Article 120, the first and the second paragraphs of Article 121, Article 132, Articles 198 to Article 200 inclusive, Article 203, Article 207, Article 208, the first and the second paragraphs of Article 211-1, the second paragraph of Article 213, Article 213-1, Article 214, Article 217, the proviso of the first paragraph of Article 249, the proviso of the second paragraph of Article 249, the fourth paragraph of Article 254, Article 268, the third paragraph of Article 268-1, the first paragraph of Article 268-2, the first to the fourth subparagraphs inclusive of Article 269, the first and the second paragraphs of Article 371 and Article 372 with regard to the authorities of the court or the presiding judge, shall apply mutatis mutandis to the commissioned judge in conducting the preparatory proceeding.
The first paragraph of Article 96 and Article 99 with regard to the authorities of the court shall apply mutatis mutandis to cases where the commissioned judge is to conduct the preparatory proceeding and the parties consent to the exercise of such authorities by the commissioned judge.
Where a party does not appear in the preparatory session, the preparatory proceeding nevertheless shall be conducted for the appearing party and the transcript shall be served upon the party who failed to appear.
In the case provided in the preceding paragraph, unless it is necessary to designate another session, the commissioned judge may conclude the preparatory proceeding.
The conclusion of the preparatory proceeding shall be notified to the parties and indicated in the transcript.
The commissioned judge or the court may order the reopening of a preparatory proceeding which has been concluded.
The parties shall state the purport of the preparatory proceeding in the oral-argument sessions following the preparatory proceeding. Notwithstanding, the presiding judge may order the court clerk to read aloud the preparatory proceeding transcript instead.
Except for the following, no matter that has never been alleged in the preparatory proceeding may be alleged in the oral-argument session following the preparatory proceeding:
1. Matters which the court shall investigate on its own initiative;
2. Matters which will not delay the litigation;
3. Matters which could not be alleged in the preparatory proceeding due to reasons not imputable to the parties;
4. Matters which must be alleged or it would be manifestly unfair under the circumstances.
A preliminary showing shall be made as to the reasons provided in the third subparagraph of the preceding paragraph.