Chapter 2. Appendix: The records read

Does evidence investigated outside the court carry the same effect as investigation conducted in court?

To answer this question, we examine the record of the investigation, noting the place where the investigation took place and the judge who conducted it.

One interpretation holds that an investigation outside the court is also a court's evidence investigation, and that because the record is conveyed to the trial court, it can be examined within the same procedure.

It is also thought that, because a court that did not directly observe the investigation may assess it only on the record, the vividness of the investigative scene may vary.

To what extent may an investigation result conveyed through the record be treated as equivalent to investigation in court?

We reexamine the interpretation after reviewing the circumstances of the investigation and the contents of the record.

How is a witness examined in a proceeding to preserve evidence treated in the main hearing?

In these practice materials, the record of notice of the preservation hearing and whether the opposing party took part are examined.

One interpretation holds that where no reexamination is requested, reviewing the record of the earlier examination at the hearing is enough.

Another interpretation holds that once a party requests it, the court must examine the witness again, so the record alone cannot take its place.

In the main action, how should an examination held without the opposing party be distinguished from one held with that party present?

The matter is looked at again if the way notice of the preservation hearing was given or whether a request for reexamination was made at the hearing changes.

How can evidence and testimony located abroad be examined in a domestic proceeding?

To decide this question, materials are needed to identify the route of the foreign investigation, the record of the video examination, and the author and manner of preparation of the foreign documents.

Emphasizing that validity is retained provided that the requirements of domestic procedure are met, it is seen as examining with the domestic record at the center.

Emphasizing that the manner of proceedings abroad and the source of the documents must be considered first, it is thought to attach weight to the process of letters rogatory and inquiry.

When examining evidence from abroad, which material should be looked at first for the course of the procedure to become clearest?

If a reply from a foreign authority, a video record, or materials concerning the source of the documents changes, the matter is examined again.

Before which court is an application to preserve evidence filed, and where is its record sent?

In these practice materials, whether an action has been brought between the debtor company and its many suppliers is confirmed, along with the residence of the person to be examined and the location of the object to be inspected.

One interpretation holds that once the main action has been brought, the procedure should continue before the court of the instance that will use the evidence.

Another interpretation holds that where the matter is urgent, it is better for the district court near the person or the object to examine the evidence first.

Taking into account the route by which the record reaches the main action, before which court must the application be filed?

The matter is looked at again if a main action is newly brought or if the urgent circumstances change.

Can an application to preserve evidence be made even when the opposing party cannot be identified?

In these practice materials, the electronic records showing the movement of funds and the materials confirming where they are stored are examined together.

One interpretation holds that an application can be made even when the opposing party cannot be designated, so long as the evidence needs to be examined in advance.

Another interpretation holds that because the opposing party can hardly take part, safeguards such as appointing a special representative should be examined as well to keep the procedure fair.

When the remaining records do not reveal who is responsible, what must be settled first?

The matter is looked at again if the corporation to be named as the opposing party comes to light or the condition of the stored materials changes.

As what kind of evidence is a printout of accounting data from a company system examined?

In these practice materials, the form of the information stored in the computer system, how the printout was made, and how the information left on the storage media relates to the printout submitted in court are checked.

One interpretation holds that because a printout merely renders the data readable, the examination should be treated as an examination of the storage media themselves.

Another interpretation holds that once a printout is submitted, the printout itself becomes evidence and should be treated much like a document.

What more must be shown to establish that the stored information and the printout are the same?

The matter is looked at again if, on the court's order or the opposing party's request, the details of input and output are disclosed, or if the printing method or the state of storage changes.

When the physical condition of an object is itself the evidence, how is an inspection told apart from documentary evidence?

In these practice materials, the purpose of the inspection, the condition of the object, and the records of how it was submitted and kept are checked.

One interpretation holds that where the entries in a ledger are in issue, the ledger is treated as documentary evidence and its content is read.

Another interpretation holds that where the physical condition of the object is in issue, such as signs of alteration on the original ledger, it is treated as a matter for inspection.

What should decide whether the object of the inquiry is the content of a document or the physical condition of the object itself?

The matter is looked at again if the condition of the object changes or new facts about its submission come to light.

How can we make clear which passage of the documentary evidence everyone at trial is looking at?

The statement needs to confirm the marks attached to the copy of the documentary evidence, the surrounding sentences of the passage they point to, and the range displayed on screen.

If we check the marks attached to the copy of the documentary evidence together with the surrounding sentences, the listeners can be taken to be viewing the same passage.

Because the same mark may lead to different passages depending on the edition or the layout of the screen, there is also room to view it differently.

If the listeners were viewing a different passage, from which part of the explanation can we say that the meaning became unclear?

If the surrounding sentences that the listeners read change, or the range of the document displayed on screen changes, we reconfirm the location indicated.

Is what a party says in person in court an admission or evidence?

In these practice materials, the remarks recorded in the hearing record and in the party examination record, and the record of whether an oath was taken, are looked at together.

One interpretation holds that remarks made during a party examination, even where they match what the other side asserts, remain evidence only and cannot be treated as an admission.

Another interpretation holds that remarks made during an examination should be treated as an admission, in the same way as an acknowledgement at a hearing, where the intention to accept the other side's assertion outright is clear.

Which remarks amount to an admission made in court and which remain only material from which the court forms its view?

The matter is looked at again if the examination record shows differently whether an oath was taken or sets out the gist of a statement differently.

In small claims cases, how does evidence taking led by the judge differ from the ordinary procedure?

In these practice materials, who led the questioning of witnesses and how the written statements were submitted are checked.

One interpretation holds that because the judge may take evidence on the court's own motion, question witnesses directly and accept written statements instead, the center of the procedure has moved to the judge.

Another interpretation holds that taking evidence on the court's own motion, questioning by the judge and written statements only simplify the method, while the parties' applications and statements of opinion remain its backbone.

How should one decide whether the judge's lead or the parties' statements of opinion set the course of the procedure?

The matter is looked at again if the person questioning the witness changes or the way of confirming who submitted a written statement is disputed.

When can the court examine evidence on its own?

To resolve this question, material is needed that shows the content of the submitted evidence, the state of the judicial mind, and the occasion and the point in time at which the ex officio measure was raised.

We read that the court's scope for acting on its own opens only within the limits of filling the shortage in the submitted evidence.

Even where the court may act on its own, it remains difficult to say that the position in which evidence must be produced has shifted.

Must the gap in the submitted evidence and the occasion for the ex officio measure first be tested against each other to see whether they interlock?

If the state of the submitted evidence or the circumstances that occasion it change, there is room to look again.

Could the court refrain from examining the sole evidence among the items submitted for examination?

In practice materials of this kind, the asserted facts, the materials offered to support them, the scope of examination already conducted, and the reasons for that scope are set out together.

If the court finds the submitted materials unnecessary, it may continue the proceedings without examining them.

If the materials are the sole ones supporting the asserted fact, their omission from examination appears impermissible.

By what criterion can one determine whether the remaining materials are the sole ones supporting the asserted fact?

We revisit this once the time for examination becomes clear, or once applications for new materials are settled.

If the appraisal costs are not prepaid, is the order for examination of evidence revoked?

In practice materials of this kind, the order for examination of evidence, the order to prepay costs, and the record showing whether the prepayment was made are reviewed together.

It is read to mean that if the costs are not prepaid, the order for examination of evidence may be revoked.

It is understood that the question of prepayment and the final burden are determined at separate stages.

Does it remain to be established to whom the prepayment was ordered and whether the failure to prepay is confirmed?

We revisit the matter if the record of prepayment made after the order to prepay, or the question of revocation of the order, changes.

When are arguments and evidence submitted after the close of the preparatory hearing cut off?

The record shows whether the preparatory hearing was closed, and the timing and substance of the late arguments and requests for evidence.

It is held that late submissions are in principle not accepted, so as to prevent delay in the litigation.

It is understood that where circumstances warranting it are shown, late submissions may also be accepted.

How should the filing times shown in the record be checked against what was shown to justify them?

We will revisit this when new arguments or requests for evidence arise, or when the record on the submission timing differs.