The debate over the court's duty to clarify (seokmyeong) centers on whether "active clarification," which is tied to the principle of party presentation, should be recognized. To address the issues of whether active clarification can be included within the scope of the "power to clarify," and whether failing to exercise active clarification can be regarded as a breach of the "duty to clarify," this paper organizes the competing views, and further examines active clarification under mandatory provisions, considering the aspect that the power to clarify is recognized in order to maintain public trust in the judiciary, so that its exercise is a kind of public-interest requirement.

One position holds that the presiding judge must exercise only passive clarification, within the framework of the litigation relationship presented by the parties, in the direction of removing any unclearness, incompleteness, or contradiction in the parties' motions and allegations on factual and legal matters, and may not go beyond that scope to engage in active clarification that encourages the submission of new motions, allegations, or means of attack and defense. By contrast, clarification that, through the exercise of the power to clarify, encourages the submission of new motions, allegations, or means of attack and defense is called active clarification.

If a party keeps maintaining its earlier motions or allegations, there are cases where that party's defeat is certain. If, in such a case, the court on its own initiative engages in active clarification and the outcome is reversed as a result, the opposing party will perceive that it received an unfair trial because of the court's active clarification. This amounts to the court taking the side of one party in an adversarial relationship and helping it win, which is also contrary to the original purpose of the power to clarify, namely maintaining substantive equality between the parties by correcting the carelessness or errors of a party ignorant of the law relative to a party versed in the law, so as to guarantee a fair procedure. Therefore, the court must exercise care and be cautious in engaging in active clarification.

Another position, placing importance on discovering the substantive truth and on the propriety of trials, expands that scope so that the court may not only suggest an amendment of the claim but also prompt the submission of new means of attack and defense such as defenses and replies to defenses, and the additional joinder of a new claim, and, in urging proof, may even go so far as to prompt the submission of specific means of evidence. At the same time, it does not allow unlimited submission of new litigation materials; rather, new materials are submitted under a standard set so as not to lose fairness toward the parties.

With regard to the parties' allegations, if, judging from the litigation materials already submitted, there are circumstances suggesting that a party intended to make a statement, then pointing this out and asking for the party's statement is acceptable, even if the matter is not clearly expressed in the oral argument. Materials from which an intended statement can be inferred include facts revealed in the results of the examination of evidence, auxiliary facts and indirect facts (as opposed to main facts) appearing in the answer and preparatory briefs, and the purpose of proof stated in documentary evidence.

For reference, according to case law, the right to demand purchase of a building is recognized when a land lease for the purpose of owning a building or the like ends upon expiry of its term and the landlord refuses to renew the contract, and it is not recognized when the lease is terminated because of the tenant's non-performance, such as arrears in rent. The right to demand purchase is a formative right, so a sale is concluded the moment it is exercised, and clarification is based on Article 136 of the Civil Procedure Act. When extending active clarification to other cases, also consider whether it infringes the parties' right of disposition and whether it causes unexpected disadvantage to the opposing party.