The Principle of Party Presentation (Benron Shugi) in Japan: How Does it Shape Civil Litigation Strategy and What are Common Misapplications?
The Principle of Party Presentation, known in Japanese as Benron Shugi (弁論主義), stands as a fundamental pillar of civil procedure in Japan. It dictates that the responsibility for collecting and submitting the factual assertions and evidence necessary to support a party's case lies primarily with the litigants themselves, not the court. While seemingly straightforward, the application of Benron Shugi is deeply nuanced, revolving around three core tenets or "theses." A thorough understanding of these theses, along with their interpretative theories and interactions with other procedural principles, is crucial for effectively navigating Japanese civil litigation and avoiding common, yet potentially case-altering, misapplications. This article will explore these theses, their strategic implications, and their interplay with other key procedural concepts.
The Three Theses of Benron Shugi
Benron Shugi is traditionally understood through three distinct, yet interconnected, theses that delineate the roles of the parties and the court regarding the factual basis of a judgment.
Thesis 1: Facts Not Asserted by Parties Cannot Form the Basis of a Judgment
The first, and perhaps most central, thesis stipulates that the court cannot base its judgment on facts that have not been asserted by either of the parties during the proceedings. This principle underscores the parties' autonomy in defining the factual scope of their dispute.
- Scope of "Facts": This thesis primarily applies to what are known as "primary facts" (shuyō jijitsu, 主要事実). These are facts that directly correspond to the constituent elements of a legal rule necessary to establish a right or legal effect (often aligning with yōken jijitsu, 要件事実, or fact-categories). For instance, in a loan repayment claim, the "transfer of money" and the "agreement to repay" are primary facts.
The application of this thesis to "indirect facts" (kansetsu jijitsu, 間接事実) – facts from which primary facts can be inferred – or "auxiliary facts" (hojo jijitsu, 補助事実) – facts bearing on the credibility of evidence – is more contentious. The prevailing view limits the strict application of the first thesis to primary facts, largely to avoid undue restrictions on the court's ability to freely evaluate evidence and draw reasonable inferences (discussed later in the context of Jiyū Shinshō Shugi). - "Asserted by Parties": An assertion can come from either the plaintiff or the defendant. If a fact is put forward by one party, the court can consider it, even if it benefits the opposing party. This is known as the Principle of Commonality of Assertions (shuchō kyōtsū no gensoku, 主張共通の原則).
- "Not Asserted": This refers to facts not presented by parties as part of their formal allegations in pleadings or during oral arguments (kōtō benron, 口頭弁論). There's a critical distinction between "materials for oral argument" (soshō shiryō, 訴訟資料 – facts asserted by parties) and "evidentiary materials" (shōko shiryō, 証拠資料 – information derived from evidence like witness testimony or documents). Even if a fact comes to light during the examination of evidence, if it's a primary fact and neither party formally asserts it in their oral arguments, the court generally cannot rely on it for its judgment under this thesis. An older Supreme Court case (Supreme Court, July 8, 1958, Minshu Vol. 12, No. 11, p. 1740) suggested that a primary fact revealed only in evidence could be recognized, but this precedent has faced considerable criticism from both academics and practitioners.
A common misapplication of this first thesis occurs when a court, for example, considers the statute of limitations as a defense, even though the defendant never formally raised this defense in their pleadings or oral arguments, and the issue only surfaced implicitly from the evidence presented. Simply stating that the court considered an "unasserted fact" is insufficient argumentation; a proper analysis would involve identifying the statute of limitations as requiring an assertion of primary facts (e.g., the date the claim became due), confirming that no party made such an assertion in the oral argument phase, and noting that the court based its finding solely on evidentiary materials.
Thesis 2: The Court is Bound by Facts Not Disputed by the Parties (Judicial Admissions)
The second thesis dictates that the court must accept as true, and base its judgment upon, facts that are not disputed by the parties. This typically occurs when one party asserts a fact and the opposing party explicitly admits it (an express judicial admission - 裁判上の自白, saiban-jō no jihaku) or does not clearly contest it (giving rise to a deemed admission or gisei jihaku, 擬制自白, under Article 159 of the Code of Civil Procedure). Such undisputed facts do not require further proof. The implications of this thesis, particularly concerning different types of facts (primary, indirect, auxiliary), will be explored further when discussing its interaction with the principle of free evaluation of evidence.
Thesis 3: When Adjudicating Disputed Facts Based on Evidence, the Court Must Rely on Evidence Proffered by the Parties
The third thesis complements the first by stating that when facts are disputed and require evidentiary proof, the court must base its findings solely on the evidence duly proffered by the parties. The court is generally not permitted to seek out or introduce evidence sua sponte (on its own initiative) to resolve disputed primary facts. This reinforces the parties' role as the primary gatherers and presenters of the materials necessary for adjudication.
Benron Shugi vs. The Principle of Disposition (Shobunken Shugi)
It is crucial to distinguish Benron Shugi from another fundamental principle: the Principle of Disposition (Shobunken Shugi, 処分権主義), primarily enshrined in Article 246 of the Code of Civil Procedure. While both principles stem from the broader concept of party autonomy (tōjisha shugi, 当事者主義), they govern different aspects of the litigation.
- Principle of Disposition (Shobunken Shugi): This principle grants parties control over the initiation, scope, and termination of the lawsuit. It means that the court can only adjudicate matters that the plaintiff has brought before it (the subject matter of litigation, or soshōbutsu, 訴訟物) and can only grant relief within the bounds of what the plaintiff has requested. It essentially defines the "frame" or outer limits of the court's adjudicative power in a given case.
- Principle of Party Presentation (Benron Shugi): This principle operates within the frame established by Shobunken Shugi. It governs how the defined subject matter is to be proven, dictating that the factual and evidentiary "content" for the court's decision must come from the parties.
A common point of confusion arises when a court, for instance, makes an award based on a legal ground or a set of facts entirely different from what the plaintiff pleaded (e.g., awarding damages for loan A when the plaintiff sued for repayment of loan B). This scenario is primarily a violation of Shobunken Shugi, as the court has overstepped the "frame" set by the plaintiff's application. While it also involves the court considering facts not asserted by the plaintiff regarding loan A, the foundational error lies in adjudicating an un-pleaded subject matter. The logical order is: first, the frame is set by the parties (Shobunken Shugi); then, within that frame, the content is provided by the parties (Benron Shugi).
Nuances in Applying Benron Shugi: The Case of Unasserted Damage Items
The interplay between Shobunken Shugi and Benron Shugi can be particularly nuanced in claims for damages, for example, in tort cases. Japanese Supreme Court precedent for personal injury claims often treats the entire claim for damages arising from a single illegal act as a single, indivisible subject matter (soshōbutsu).
Consider a scenario where a plaintiff claims a total of ¥1,400,000 for damages from an accident, itemizing ¥400,000 for hospital fees, ¥800,000 for lost income, and ¥200,000 for pain and suffering. If the court ultimately awards ¥1,230,000, but includes in its calculation ¥60,000 for attendant care costs and ¥10,000 for transportation expenses—items the plaintiff never explicitly asserted—has a procedural principle been violated?
- From the perspective of Shobunken Shugi: If the total award of ¥1,230,000 is within the plaintiff's overall demand of ¥1,400,000, and if the soshōbutsu is indeed a single unit encompassing all damages from the tort, then Article 246 CCP may not have been violated. The court has stayed within the "frame" of the total amount claimed for that single injurious event.
- From the perspective of Benron Shugi: However, if the prevailing practice, which often involves calculating total damages by summing up individual damage items (個別損害額積み上げ方式 - kobetsu songaigaku tsumiage hōshiki), requires that each distinct damage item (like attendant care costs) be treated as a "primary fact," then the court awarding damages for an unasserted item could be seen as violating the first thesis of Benron Shugi. The court would be basing its judgment on a primary fact (the existence and quantum of attendant care costs) not alleged by the plaintiff. (Note: Damages for pain and suffering, or isharyō (慰謝料), are often treated differently, with the court having more discretion in their assessment, potentially falling outside the strictures of Benron Shugi for the specific amount ).
The distinction can also hinge on the nature of the damages. For example, if the unasserted item pertained to property damage while the asserted items were for personal injury, some theories argue that these constitute different soshōbutsu due to the different interests infringed, potentially implicating Shobunken Shugi if the court awards for an entirely separate (un-pleaded) category of harm.
The Interplay: Benron Shugi and the Principle of Free Evaluation of Evidence (Jiyū Shinshō Shugi)
The Principle of Free Evaluation of Evidence (Jiyū Shinshō Shugi, 自由心証主義), enshrined in Article 247 of the Code of Civil Procedure, grants judges considerable discretion in assessing the probative value of evidence and forming their convictions about the facts of the case. This principle inevitably interacts, and sometimes clashes, with the tenets of Benron Shugi. The resolution of these clashes often involves a balancing act to ensure both party autonomy and the pursuit of substantive truth.
Tension with Thesis 1 (Facts Not Asserted)
As mentioned earlier, the prevailing view restricts the first thesis of Benron Shugi to "primary facts." A key reason for this is to preserve the efficacy of Jiyū Shinshō Shugi. "Indirect facts" (kansetsu jijitsu) are crucial for inferring the existence or non-existence of primary facts; they function much like evidence in the inferential process. For example, if the primary fact is "money was handed over," an indirect fact might be "the defendant suddenly started spending lavishly after the alleged handover date".
If the first thesis were to apply strictly to such indirect facts, a judge who became aware of an indirect fact solely through witness testimony (and not through a party's formal assertion in oral argument) would be barred from using it in their reasoning process. This would unnaturally constrain the judge's ability to form a comprehensive and reasoned conviction based on all available information, potentially hindering the discovery of substantive truth. Thus, by limiting Thesis 1 to primary facts, the system allows judges to freely consider and weigh indirect facts (and auxiliary facts) as part of their inferential reasoning under Jiyū Shinshō Shugi.
Tension with Thesis 2 (Undisputed Facts/Admissions)
The second thesis states that courts are bound by facts not disputed by the parties (i.e., judicial admissions). However, this binding effect is also generally limited to primary facts. According to prevailing case law (e.g., Supreme Court, May 25, 1956, Minshu Vol. 10, No. 5, p. 577; Supreme Court, September 22, 1966, Minshu Vol. 20, No. 7, p. 1392) and scholarly opinion, judicial admissions regarding indirect facts or auxiliary facts do not have the same binding force on the court.
If a court were bound by an admission of an indirect fact, it might be forced to draw an inference about a primary fact that contradicts other evidence or leads to an unnatural or unreasonable conclusion. This, again, would impinge upon the judge's free evaluation of the overall evidentiary picture. Therefore, for indirect and auxiliary facts, even if admitted, the court retains the discretion to evaluate them in light of all other evidence and circumstances. The "prevention of surprise attacks" function of Benron Shugi is considered sufficiently served if parties are bound by admissions concerning primary facts, as these are the ultimate facts determining the legal outcome.
Thesis 3 (Party-Proffered Evidence) and Co-litigation: The Principle of Commonality of Evidence
The third thesis requires courts to use only party-proffered evidence. An interesting interaction occurs in ordinary co-litigation (通常共同訴訟 - tsūjō kyōdō soshō). Under Article 39 of the Code of Civil Procedure (Principle of Independence of Co-litigants - 共同訴訟人独立の原則, kyōdō soshōnin dokuritsu no gensoku), each co-litigant's case is, in principle, treated separately, and Benron Shugi applies to each individually.
However, despite this principle of independence, the Principle of Commonality of Evidence (shōko kyōtsū no gensoku, 証拠共通の原則) is almost universally recognized in Japanese practice and scholarship. This means that evidence submitted by one co-litigant can be considered by the court for the benefit or detriment of other co-litigants in the same proceeding, even if those other co-litigants have not formally adopted or referred to that evidence.
This might seem to conflict with the third thesis of Benron Shugi (which suggests each party must proffer their own evidence). The justification for the Principle of Commonality of Evidence lies heavily in Jiyū Shinshō Shugi: the court should be able to form a single, coherent view of the facts based on all evidence legitimately before it in a single proceeding, rather than being forced into potentially contradictory findings for different parties based on artificial divisions of evidence. Additionally, since all co-litigants are part of the same proceeding, they typically have the opportunity to scrutinize and respond to evidence submitted by any other party, mitigating concerns about procedural fairness. This principle significantly aids in achieving de facto uniformity in judgments among ordinary co-litigants, even if legally distinct outcomes are possible due to differing assertions or admissions on primary facts.
Limitations of Benron Shugi: Necessary Co-litigation
While Benron Shugi is a dominant principle, it is not absolute. It notably yields when it conflicts with the overriding requirement of "uniformity of judgment" (gōitsu kakutei, 合一確定) in cases of necessary co-litigation (hitsuyōteki kyōdō soshō, 必要的共同訴訟), as governed by Article 40 of the Code of Civil Procedure. Necessary co-litigation involves situations where the judgment must, by its nature, be the same for all co-litigants.
- Article 40, Paragraph 1: This provision states that a procedural act performed by one necessary co-litigant is effective for or against all co-litigants only if it is advantageous to all. Consequently:
- An admission of a fact (typically disadvantageous) by one necessary co-litigant is not binding on the others (or even on the admitting party) if other co-litigants contest that fact. This effectively negates the usual consequence of the second thesis of Benron Shugi within this context.
- Conversely, an advantageous factual assertion made by one necessary co-litigant benefits all co-litigants, even those who did not explicitly make the assertion. This represents a partial retreat of the first thesis (specifically, the requirement for each party to assert facts for themselves). The same logic applies to the proffer of evidence (Thesis 3).
- Article 40, Paragraph 2: This states that a procedural act performed by the opposing party against one necessary co-litigant is deemed to be effective against all necessary co-litigants. If the opposing party asserts a fact against one co-litigant, it is considered asserted against all. This significantly modifies the application of the first thesis (no need for assertion against each individually) and the third thesis (evidence proffered against one is considered proffered against all) within the framework of necessary co-litigation.
In essence, the imperative of achieving a single, unified judgment in necessary co-litigation scenarios overrides the individualistic aspects of party autonomy that underpin Benron Shugi.
The Court's Role in Supplementing Benron Shugi: The Duty to Clarify (Shakumei Gimu)
Although Benron Shugi places the primary burden of presenting factual and evidentiary material on the parties, the Japanese Code of Civil Procedure also equips the court with tools to address deficiencies or ambiguities in the parties' presentations. This is principally through the court's power (and sometimes duty) to clarify (釈明 - shakumei), as provided in Article 149. The presiding judge may ask questions or prompt parties to present proof on factual or legal matters to make the litigation relationship clear.
This power serves as a crucial supplement to Benron Shugi, aiming to prevent miscarriages of justice that might arise from a party's lack of legal skill, inadvertence, or incomplete presentation of their case. The exercise of this power, and when it becomes a duty (釈明義務 - shakumei gimu), involves a delicate balance.
- Prompting for Assertion of Statute of Limitations: Courts are generally, and traditionally, very cautious about prompting a party to assert the statute of limitations if the party has not done so, as this defense is seen as something the party must actively invoke.
- Prompting for Amendment of a Claim: In contrast, courts may be more inclined to prompt a party to amend their claim, especially if it appears the party has misidentified the correct legal basis for their actual grievance. This is particularly relevant in Japan where legal representation is not mandatory at all court levels, and lay litigants may struggle to frame their soshōbutsu appropriately. Such clarification helps align the litigated issue with the true substance of the dispute. This type of clarification interacts more with the Principle of Disposition (Shobunken Shugi) as it pertains to the definition of the subject matter of the litigation.
The court's intervention through clarification must always be balanced against the need for judicial impartiality and the foundational role of the parties in shaping their own case under Benron Shugi. An overly intrusive exercise of the power to clarify could be perceived as favoring one side.
Conclusion
The Principle of Party Presentation (Benron Shugi) is a defining feature of Japanese civil procedure, fundamentally shaping how lawsuits are conducted and decided. Its three theses establish the primary roles and responsibilities of the litigants in bringing forth the factual and evidentiary basis of their case. However, its application is far from mechanical. It requires a sophisticated understanding of its interplay with other crucial principles like the Principle of Disposition, the Principle of Free Evaluation of Evidence, the rules governing co-litigation, and the supplementary role of the court's power to clarify. For legal professionals, mastering these dynamics is essential for developing effective litigation strategies and accurately predicting judicial approaches in Japan.