Summary
The withdrawn portion is deemed never to have been pending from the outset, but the statutory prohibition on re-filing is examined separately.
2.1The Standard by Which the Path Opens
If one files an action again without knowing the effects left by a withdrawal, one is blocked from the very starting point. After the preceding section confirmed that duplicate filing with respect to a case that is pending is prohibited, Plaintiff A again set down in a different complaint the same demand as that in the action pending against Defendant B. In this scenario, in order to determine whether the newly submitted complaint can pass through the gate, one must first establish what state the prior action is now in. That is why the first threshold is made up of the status of the prior action—pending, withdrawn, or final judgment—and whether the subject matter of the subsequent action falls within the relevant restriction on re-filing. Here, a withdrawal of an action means the act by which a party withdraws a pending action.
Article 267 of the Civil Procedure Act provides that "as for the withdrawn portion, the action is deemed not to have been pending from the beginning." This text directly records the effect that a withdrawal of an action—that is, the act by which a party withdraws a pending action—attaches to the withdrawn portion. The criterion applied when a court adjudicates the effect of a withdrawal is that the action is deemed not to have been pending from the beginning, and its object is the withdrawn portion. On the wording, returning to a state in which there was no action points to the extinction of the action as to the withdrawn portion; it does not go so far as to also record that a new action to be filed is permitted unconditionally.
To link this wording with the conclusion of the preceding section, two determinations are examined separately. The fact that the pendency of the action was retroactively extinguished by the withdrawal restores the action to a state in which it never existed; the determination that the subsequent action is not caught by the restriction on re-filing tests whether that newly filed action lies outside the range the law bars. That is why the withdrawn portion is deemed never to have been pending from the beginning, while the statutory prohibition on re-filing is examined separately. Retroactive extinction of the pendency of the action cannot be converted into permission for every re-filing. If the two stages of determination are merged, one falls into the error of opening up at once even those portions not subject to extinction or the range the law separately bars.
One must not turn away from the discomfort this distinction produces. The counterargument that, if there was no action from the beginning, re-filing must always be open, is aimed at the loss that an error in the design of the first action should not be rendered irreparable. If a first action that understated the performance demanded, or that chose the parties wrongly, is withdrawn and a subsequent action is thereafter blocked as well, the party loses the door to the dispute forever through a single design error. The value that fears the same disadvantage is not erased. Even so, retroactive extinction of the pendency of the action cannot be converted into permission for every re-filing, and that discomfort is addressed, in place of unconditional permission, only by the criterion that the purport of the claim be specified and that the right of the action chosen be capable of defense.
Measured against this criterion, what can be confirmed in this scenario goes no further than that Plaintiff A again set down in a different complaint the same demand as that in the action pending against Defendant B. No Records have been presented as to whether the prior action is still pending or has already been withdrawn, and as to whether the subject matter of the subsequent action falls within the scope of the restriction on re-filing. The determination requires the prior complaint, the written withdrawal, the final judgment, and the purport of the claim in the subsequent action. Accordingly, from the scenario alone one can neither assert that the entrance is open nor that it is blocked, and the time of the withdrawal and the subject matter of the subsequent action remain undetermined. Only in so far as the conditions are set, whether the performance demanded, the parties, and the conditions are specified in the purport of the claim and whether the right of the action chosen is capable of defense operate as the criterion of determination.
The conclusion permitted in this section is a narrow distinction as to what disappears when an action is withdrawn: that, as for the withdrawn portion, the action returns to a state in which it was never pending from the beginning, and that such extinction does not immediately lead to permission for every re-filing. Conversely, concluding that a new action is unconditionally possible on the sole fact of a withdrawal is not permitted. It is also outside the scope of this section to regard as open the cases in which, while the prior action remains pending, the same demand is written again, or in which the same action withdrawn after a final judgment on the merits is filed again. If it is confirmed whether the withdrawal came before or after the final judgment on the merits, the determination on the restriction on re-filing of the same action changes.
2.2The Conditions That Block Relief
Under the determination that duplicate filing with respect to a case that is pending is prohibited, the present question asks what disappears when an action is withdrawn, and what conditions close that route. A withdrawal of an action is the act by which a party withdraws a pending action, and if Plaintiff A sets down in a different complaint the same demand as that in the action pending against Defendant B without examining the state left by that act, the very commencement of the new action is shaken. Therefore the effect of a withdrawal and the conditions under which that effect blocks a re-filing are examined separately.
Article 267 paragraph (1) of the Civil Procedure Act prescribes the effect of a withdrawal as follows: "① As for the withdrawn portion, the action is deemed not to have been pending from the beginning." (Civil Procedure Act Article 267) In this wording, the subject is the party who withdrew the action, the act is the withdrawal of the whole or a part of a pending action, and the object is the withdrawn portion. What is deemed with respect to the withdrawn portion is the non-existence of the pendency of the action. This is an effect limited to the withdrawn portion, and the pendency of the remainder remains as it is. The provision prescribes only the retroactive extinction of the pendency of the action as to that portion; it does not reach as far as whether an action may afterwards be filed again.
The wording of paragraph (1) and the permissibility of a re-filing are separate stages of determination. The effect of deeming the withdrawn portion never to have been pending from the beginning stops at meaning that the pendency of the action as to that portion has retroactively vanished. The author takes the view that this point in time does not connect directly with the freedom of re-filing, so the requirements of the statutory prohibition on re-filing must be examined separately. Where the same case is still pending and suit is filed again, or where the same action withdrawn after a final judgment on the merits is filed again, if even one of the statutory requirements is not satisfied, the route of relief is closed. Retroactive extinction of the pendency of the action does not eliminate the separate requirements of the restrictions on re-filing.
The strongest counterargument is aimed at the point that even cases of faulty design of the first action are rendered irreparable. The contention that, if there was no action from the beginning, re-filing must always be open emphasizes the loss and the inconvenience that the only way to fill the gap left by the withdrawal is the new action to be filed, and if that route too is barred, the plaintiff can obtain no relief for a single error. Notwithstanding that counterargument, however, the conclusion holds. That the pendency of the action retroactively vanished and that the newly filed action does not fall within the prohibition on re-filing are separate questions, and one cannot open the route by invoking only the former effect while the statutory requirements given to the latter question remain unsatisfied.
The fact confirmed in the synthetic scenario is only that Plaintiff A again set down in a different complaint the same demand as that in the action pending against Defendant B. This fact touches upon the foregoing condition of duplicate filing while the same case is pending, and corresponds to the case in which the route for refiling the subsequent action is blocked. However, since the scenario contains neither a written withdrawal nor the time of the withdrawal, whether the prior action was withdrawn and when, and the records needed to judge the identity of the purport of the claim in the subsequent action, remain undetermined. Even if this condition changes, the present ground for blocking—the prohibition of duplicate filing—remains as it is.
The conclusion this section permits is that, even though the withdrawn portion is deemed never to have been pending from the beginning, that effect does not lead to permission for every re-filing, and that unless the statutory requirements are satisfied the route of the subsequent action remains closed. The conclusion not permitted is the judgment that a re-filing is unconditionally opened by the retroactive extinction of the pendency of the action alone. The definition of a withdrawal of an action and its retroactive effect operate only within this range, and the winning or losing of an actual case, or the result of performance, cannot be determined by this scenario.
2.3The Boundary That Remains When There Is No Data
Accepting that duplicate filing with respect to a case that is pending is prohibited, the analysis starts from the scenario in which Plaintiff A again set down in a different complaint the same demand as that in the action pending against Defendant B. This scenario is not a reproduction of an actual case but a synthetic premise. Now, in examining what disappears when an action is withdrawn, what fixes the place of this question is whether, separate from the scope of that retroactive extinction, any material for determination remains.
As to what disappears when an action is withdrawn, Article 267 of the Civil Procedure Act provides that "as for the withdrawn portion, the action is deemed not to have been pending from the beginning." The subject fixed by this wording is the party who withdrew the action, the act is the withdrawal of a pending action, and the object of the retroactive extinction is the withdrawn portion. That the wording places the qualifier "the withdrawn portion" and thus divides the scope means that the state that disappears differs according to whether the withdrawal erased the whole of that action or left a part of it. No expanded exposition is given here of other wording in this paragraph or of other requirements of the provision.
The limitation of that wording leads directly to the conclusion of this section. Retroactive extinction of the pendency of the action as to the withdrawn portion produces a state in which the action was never pending from the beginning, but that state does not immediately return as permission for every re-filing. The determination divides into two stages. First, one specifies the range corresponding to the withdrawn portion and fixes the object of the retroactive extinction. Second, one separately examines the statutory prohibition on re-filing and checks whether that object can be sued upon again. The reason these two stages must be distinguished is that the former is the effect of erasing the traces of the action, whereas the latter deals with the opening and closing of the route by which the same demand is brought out again. Even if the retroactive extinction erased everything, the latter does not open automatically.
The counterargument that, if there was no action from the beginning, re-filing must always be open aims here at the greatest inconvenience. If there was an error in the design of the first action, what remains is not recovery but the erasure of the starting point, and if duplicates are strictly barred that error becomes an irreversible loss. This loss is in fact weighty. Retroactive extinction is the criterion that fixes the state of the withdrawn portion; the permissibility of a re-filing separately requires the judgment of the statutory prohibition on re-filing. Without erasing the inconvenience the counterargument points out, the conclusion is maintained within a range that does not dispose of both determinations at a single stroke.
In the synthetic scenario, the only fact relevant to this question is that Plaintiff A again set down in a different complaint the same demand as that in the action pending against Defendant B. If this fact is set against the statutory prohibition on re-filing, it corresponds to the form of filing suit again while the same case is pending, and thus the route of the subsequent action is blocked. However, the scenario has not determined when the prior action was withdrawn, whether that withdrawal came before or after a final judgment on the merits, or whether the claim of the subsequent action covers exactly the same range as the prior action. If the answer changes as to whether the withdrawal came before or after the final judgment on the merits, the restriction on re-filing of the same action is determined anew. Therefore this portion, where the material for determination is not specified, is not asserted to be impossible but remains undetermined.
The conclusion this section permits remains within a narrow range: retroactive extinction of the pendency of the action and the statutory prohibition on re-filing must be viewed separately, and matters for which the material is not specified are left undetermined, distinguished from impossibility. Conclusions not permitted are those in the direction of treating every re-filing as permitted on the basis of the withdrawal alone, or of turning unverified material straight into a state where no relief is available. Once the prior complaint, the written withdrawal, the final judgment, and the purport of the claim in the subsequent action are in place, the determination can be set up anew at that time.
2.4The Records Needed for Determination
The preceding section left the determination undetermined where the time of the withdrawal of the prior action or the subject matter of the subsequent action was unconfirmed, and distinguished this from cases in which relief is blocked. The next question is what that judgment relies on. Plaintiff A again set down in a different complaint the same demand as that in the action pending against Defendant B. In this scenario, what must one read in order to determine whether the court will bar the double filing of the action? What disappears when an action is withdrawn?
To answer this question, one first confirms the relevant wording. Article 267 paragraph (1) of the Civil Procedure Act provides that "as for the withdrawn portion, the action is deemed not to have been pending from the beginning." The subject indicated by this wording is the party who withdraws the action, the act is a withdrawal of an action, and a withdrawal of an action means the act by which a party withdraws a pending action. The condition is that the effect arises only under the qualifier "the withdrawn portion." Determinations as to portions not withdrawn, or as to other actions, lie outside the scope of this wording.
This wording prescribes only the effect of restoring the state of pendency of the withdrawn portion to non-existence. Yet the determination whether an action may be filed again does not end with that effect alone. The statutory prohibition on re-filing must be examined separately. This determination rests on the prior complaint, the written withdrawal, the final judgment, and the purport of the claim in the subsequent action. Only after confirming from the records whether the prior action is pending, when the withdrawal occurred, whether a final judgment on the merits preceded it, and what the subsequent action demands, is it fixed whether one falls within the restrictions on re-filing. If those records are absent, the conclusion remains undetermined.
Yet there is the counterargument that, if there was no action from the beginning, re-filing must always be open. It is the loss that, if retroactive extinction of the pendency of the action is strictly observed, a design error in the first action becomes irreparable. If a matter that ought to be contested by a subsequent action is closed merely because the first chance was missed, the inconvenience inflicted on the parties and the cost of the deferred conclusion are great. With the conditions left as they are—that duplicate filing while a case is pending is prohibited, and that the re-filing of the same action withdrawn after a final judgment on the merits is barred—the limit of accepting the counterargument is set within the range that what disappeared is only the pendency of the action, not that the freedom of re-filing is restored.
What is confirmed in the synthetic scenario is only the fact that Plaintiff A again set down in a different complaint the same demand as in the action then pending. Whether the prior complaint and the purport of the claim in the subsequent action contain the same demand can be read from this scenario. But the scenario has not determined whether the prior action is still pending, whether there is a written withdrawal, whether and when that withdrawal occurred, or whether there was a final judgment on the merits. Accordingly, the final determination as to whether the restrictions on re-filing of the same action attach is not fixed by this scenario alone. If the time of the withdrawal and the subject matter of the subsequent action are unconfirmed, as in the preceding section they remain undetermined.
When an action is withdrawn, the pendency of the action as to the withdrawn portion is treated as never having existed from the beginning, but no conclusion that the subsequent action opens or closes follows from that fact alone. Nor is the possibility of a re-filing fixed by the written withdrawal alone, nor is duplicate filing fixed by the prior complaint alone. This is why the four kinds of records must be cross-checked together. The state in which no determination can be made for want of records is distinguished from the state in which relief is blocked.
2.5Circumstances That Change the Decision
The fate of a later action cannot be determined without asking what disappears when an action is withdrawn. Repeated filing of an action on a matter already pending is prohibited. Faced with a second complaint containing the same demand, what the court must determine first is whether the first action is still pending, whether it has already been withdrawn, and whether that withdrawal took place before or after the final judgment on the merits. This section examines how these four state values alter the starting point of the later action.
The provision corresponding to this question is drawn from Article 267 of the Civil Procedure Act. Article 267, paragraph (1) provides that "with respect to the withdrawn portion, the action shall be deemed not to have been pending from the outset." The subject of this provision is the party who withdrew the action, the act is the withdrawal of an action, meaning the withdrawal of all or part of a pending action, and the condition is that such withdrawal has actually taken place. Here, withdrawal of an action means an act by which a party withdraws a pending action. What the statutory text confers as its effect is the retroactive extinguishment of the pendency of an action—that is, an operation restoring the state as if the action had never been pending, with respect to the withdrawn portion.
This retroactive operation and the adjudication of the statutory bar on re-filing occupy different stages. While examining the later action, the court must first confirm the scope and timing of the withdrawn portion, and then, on the basis of that result, separately determine whether the restriction on re-filing of the same action is established. This is why it cannot be asserted without qualification that re-filing is freed simply by the conclusion that the action is deemed never to have been pending. What a withdrawal of an action leaves behind is the erasure of a procedural trace, not a wholesale restoration of standing to file.
The counterargument that, if the action never existed from the outset, re-filing should always remain open, is aimed at substantive loss. It contends that a plaintiff who misdesigned the first action, if permanently halted before the barrier of the prohibition of duplicate filings, would be left in an irreparable state without properly exercising the right to litigate. This counterargument is not a light one. What the retroactive extinguishment of the pendency of an action actually erases is not a substantive right but a procedural state of pendency, and if that erasure is linked directly to a bar on re-filing, the price of a design error becomes excessively great. The across-the-board allowance demanded by the counterargument would call back the duplicate proceedings that the restriction on re-filing was meant to prevent.
As to the scene, Plaintiff A set down in another complaint the same demand as in the action pending against Defendant B, and the fate of that later action is bound to the current state of the earlier action. The route for re-filing the later action opens where the earlier action is in a state of pendency, withdrawal, or final judgment, and the subject matter of the later action does not fall within the applicable restriction on re-filing. If one files again while the same case is still pending, or re-files the same action after withdrawing it following a final judgment on the merits, this route is closed. If it is confirmed from the earlier complaint, the written withdrawal, the final judgment, or the statement of claim in the later action that the withdrawal occurred before the final judgment on the merits, the assessment of the blockage changes. If the timing of the withdrawal of the earlier action or the subject matter of the later action is not confirmed, the determination remains undetermined.
What this section permits is a conditional re-determination; what it does not permit is the freedom of unconditional re-filing. It is an error to read the later action as automatically permitted on the basis of the retroactive effect of the withdrawal alone. Conversely, to read the withdrawal itself as a permanent deprivation of standing to file is likewise an error that disregards the same retroactive operation. Matters that are not confirmed remain undetermined.
2.6The Strongest Counterargument and the Answer
In this scene, the question the court first confronts is which of the two actions is alive. If the preceding stage confirmed the retroactive extinguishment of the action, the issue now is how long that extinguishment keeps the other action open. The assertion that, if the action never existed from the outset, re-filing should always remain open is pressed most strongly at this point. This section asks whether that assertion is correct.
Article 267 of the Civil Procedure Act provides that "the action shall be deemed not to have been pending from the outset." The subject indicated by this provision is the party who filed the action, the act is the withdrawal of an action as to all or part of a pending action, and the condition is limited to the withdrawn portion. The retroactive extinguishment of the pendency of an action spoken of here is an effect that renders only the procedural pendency of the withdrawn portion as if it had never existed. The same provision contains no language granting the freedom of re-filing. Accordingly, the provision alone cannot be read as saying that the gap left by the withdrawal automatically receives every new action. Application and evaluation are distinct from this.
The above provision and the conclusion of this section are connected. The retroactive extinguishment of the pendency of an action is a determination dealing with the procedural status of the withdrawn portion, while the permissibility of re-filing is a determination dealing with whether the claim falls within the restriction on re-filing. These are not the same question. If the former asks where an object has disappeared, the latter asks whether a new object may be placed in that gap. That the earlier question—what disappears when an action is withdrawn—has been answered by retroactive extinguishment does not thereby also settle that the claim in the new complaint passes the statutory bar on re-filing.
The strongest argument against this distinction targets the elimination of any possibility of remedy. If the design of the first action was mistaken, the only route for undoing that error is the withdrawal of the action; and if that too is bound by the restriction on re-filing, the plaintiff must bear a single mistake forever. This argument accurately points out the loss and inconvenience that the stricter the prevention of duplication, the narrower the route of remedy becomes. Yet the answer does not change. The fact that a gap has arisen and whether a new claim may be received are adjudicated separately, and the disadvantage identified by the counterargument cannot serve as a reason to omit that adjudication.
The facts confirmed in the synthetic scene are only that the same demand as in a pending action was set down again in another complaint. Since duplicate filing of an action on a matter already pending is prohibited, whether the earlier action is still pending or has already been withdrawn is not determined by this scene alone. Points that cannot be fixed by the scene remain undetermined.
Accordingly, the conclusion permitted at this point is that the retroactive extinguishment of the pendency of an action cannot be transformed into permission for all re-filings. With respect to the withdrawn portion, the action is deemed never to have been pending, but the statutory bar on re-filing is examined separately. Withdrawal of an action means an act by which a party withdraws a pending action, and that act alone cannot be said to render a new complaint automatically acceptable. What is not permitted is an interpretation that reads the retroactive extinguishment as an unlimited opening of the route.
2.7The Link to the Application and the Dispositive Part
This passage, set out while summarizing in the preceding section the answer to the counterargument, is also the starting point of this section. Then what disappears when an action is withdrawn? This question does not stop at understanding the retroactive effect of a withdrawal, but leads on to a determination that decides whether an action may subsequently be filed again. With respect to the withdrawn portion, the action is deemed never to have been pending, but the statutory bar on re-filing is examined separately. If these two stages are handled at once, the premise of the preceding section and the standard of determination of this section become intermingled. Therefore, the preceding paragraph must first ask what change befalls the "withdrawn portion." Any separate restriction following the withdrawal is left as a matter to be examined separately after confirming what that portion has become.
The relevant textual provision is brief. Article 267, paragraph (1) of the Civil Procedure Act declares as follows: "With respect to the withdrawn portion, the action shall be deemed not to have been pending from the outset." The subject fixed by this provision is the party who withdrew the action, and the object is the "portion" that was withdrawn. The act is the withdrawal of an action—that is, an act by which a party withdraws a pending action—and by that act the withdrawn portion is incorporated into the state prescribed by law. The effect stated by the provision lies in "the action shall be deemed not to have been pending from the outset." However, this language does not directly speak to whether an action may be filed again. No commentary that exceeds the scope of the subject, act, and condition indicated by the language of Article 267, paragraph (1) is drawn in.
The bridge connecting the above provision with the conclusion of this section lies in distinguishing the status of the withdrawn portion from the permissibility of the later action. When an action is withdrawn, the action is deemed never to have been pending with respect to that withdrawn portion, so that the pendency of the pending action no longer remains as to that portion. Yet what that language confers is only a retroactive extinguishment of the status, and the extinguishment of that status does not itself mean that all re-filings are permitted. Because the statutory bar on re-filing is an impediment operating independently of this retroactive effect, the determination proceeds in two stages. First, it is confirmed whether the pendency of the action as to the withdrawn portion disappeared from the outset; next, it is examined whether an attempt to re-file the same action falls within the re-filing restriction that has been enacted. Only by separating the two stages can the conditions of the statutory bar on re-filing be preserved.
The strongest counterargument against this distinction is that, if the action never existed from the outset, re-filing should always remain open. The loss and inconvenience this counterargument targets are clear. Strict prevention of duplication renders a design error in the first action irreparable. A party who mistakenly framed the statement of claim or the scope of the request and then withdrew, if unable to file a new action, would forever lose the avenue for correcting the mistake. If the retroactive effect were changed into a full opening of the route for later actions, that effect would collide head-on with the value of suppressing duplication that the statutory bar on re-filing targets. Accordingly, while recognizing the possibility of remedy for the design error identified by the counterargument, the scope of that remedy is kept bound within the conditions set by the statutory restriction.
The discussion returns to the synthetic scene. What can be confirmed in this scene is the fact that the subject of the claim in the later action is the same demand as in the earlier action, which may correspond to a case where duplicate filing is prohibited while the earlier action is pending. The scene, however, did not fix the timing of the withdrawal of the earlier action or the concrete scope of the subject matter of the later action. The determination requires the earlier complaint, the written withdrawal, the final judgment, and the statement of claim in the later action; yet whether the withdrawal came before or after the final judgment on the merits, and whether the subject matter of the later action falls within the enacted restriction on re-filing, has not been confirmed. Therefore, no conclusion can be fixed by this scene alone, and it remains undetermined. One thing, however, is clear.
Accordingly, when asking whether one may file an action again after withdrawing an action, the provision that, with respect to the withdrawn portion, the action is deemed never to have been pending must not be read as a signal opening the route for all. That language retroactively erases the state of pendency of the action as to the withdrawn portion, and only clarifies what the erased state signifies. A party seeking to re-file the same action must, independently of the extinguishment of that state, pass the restrictions set by the statutory bar on re-filing. If the party does not fall within those restrictions, the route for re-filing the later action opens; if the party does, it is closed. The premise of the preceding section is maintained within this sentence.
2.8The Scope This Section Undertakes
Under the premise that duplicate filing of an action on a matter already pending is prohibited, Plaintiff A set down in another complaint the same demand as in the action pending against Defendant B. Whether the new complaint can take its first step depends on how the effect of the withdrawal and the subject matter of the later action interlock. What this section asks is what disappears and what remains when an action is withdrawn. If one looks only to the door of re-filing without clarifying what disappears upon withdrawal of an action, the order of determination is reversed. Accordingly, the effect of the withdrawal is settled first, and upon that basis the conditions of the bar on re-filing are examined separately.
The statutory language fixes the status of the withdrawn portion in a single sentence. Article 267, paragraph (1) of the Civil Procedure Act provides: "(1) With respect to the withdrawn portion, the action shall be deemed not to have been pending from the outset." Here, "the withdrawn portion" refers to the range reached by the withdrawal effected by the party who withdrew the action, and "the action shall be deemed not to have been pending from the outset" means a statutory deeming. Withdrawal of an action is an act by which a party withdraws a pending action, and within the range reached by that act the effect of the pendency of the action disappears retroactively. The provision does not directly prescribe here the requirements of a withdrawal or the possibility of re-filing; it only declares in what state the withdrawn portion is placed.
The reason this language and the question whether an action may be filed again must be viewed separately is that the two questions target different norms. The former determination deals with the effect of the withdrawal, retroactively erasing the existence of an action already pending, while the latter determination examines whether a separately established restriction on re-filing blocks the later action. From this arises the distinction that, with respect to the withdrawn portion, the action is deemed never to have been pending, but the statutory bar on re-filing is examined separately. The retroactive extinguishment of the pendency of an action erases the starting line of the procedure, while the bar on re-filing is a separate gatekeeper as to whether the same demand will be heard again. If these two are bundled into one mass, it becomes impossible to know which one has passed, and it cannot be accurately discerned which one is doing the blocking. The author's application is set to judge the possibility of re-filing while preserving this distinction.
The voice opposing this distinction is clear. It is the assertion that, if the action never existed from the outset, re-filing should always remain open. If a person who, through a design error, chose the wrong claim or miswrote the statement of claim is barred from the same ground again even after erasing the first action by withdrawal, the means of remedy left to that person disappear, and the price of preventing duplication becomes excessive. This counterargument emphasizes that the effect of a withdrawal should give a discouraged party the freedom to begin anew. The effect of a withdrawal is to extinguish the pendency of the action; it does not exempt the party from the separate re-filing restriction prescribed by law. While leaving in place the unfairness identified by the counterargument, the route of re-filing is limited to cases in which that restriction is not triggered.
Among the facts of the synthetic scene, the one bearing on this question is this. Under the premise that Plaintiff A set down in another complaint the same demand as in the action pending against Defendant B, the fate of the later action diverges according to whether the earlier action is still pending, has already been withdrawn, and whether that withdrawal came before or after the final judgment on the merits. Since duplicate filing of an action on a matter already pending is prohibited, the later action is caught while the earlier action is alive. So long as the timing of the withdrawal or the subject matter of the later action is not confirmed, it cannot be asserted whether the route has opened or closed, and the service and performance results of the actual case lie outside this scene and so remain undetermined.
Accordingly, the conclusion permitted by this section is the narrow determination that, when an action is withdrawn, the action is deemed never to have been pending with respect to the withdrawn portion, and no conclusion of freedom to re-file whatsoever can be linked to it directly. Conversely, it cannot be asserted without qualification that, although only the pendency of the action was erased by the withdrawal, a separate restriction on re-filing blocks the later action. Either way, the determination is bound to the state of pendency, withdrawal, or final judgment of the earlier action, and to whether the subject matter of the later action falls within that restriction.
2.9Application of the Text of the Provisions and the Holdings of Precedents
앞 절에서 넘겨받은 이 구분은 그대로 두고, 이번에 물어야 할 것은 소를 취하하면 무엇이 없어지는가 하는 점이다.
이 물음에 답할 근거는 민사소송법 제267조 제1항이다. 그 문언은 "①취하된 부분에 대하여는 소가 처음부터 계속되지 아니한 것으로 본다"라고 정한다(민사소송법 제267조). 이 문장이 직접 다루는 대상은 '취하된 부분'이고, 그 부분에 적용할 효과는 '처음부터 계속되지 아니한 것으로 본다'이다. 문언상 주체는 취하를 한 당사자이고, 행위는 소를 철회하는 소취하이며, 조건은 그 부분이 취하된 경우이다. 제1항의 다른 문구는 여기서 다루지 않는다.
제267조 제1항의 문언이 정하는 것은 취하된 부분에 대한 소송계속의 소멸이다. 조문은 그 부분에 관하여 소가 처음부터 계속되지 않은 것으로 보도록 지시하므로, 소급적으로 소송계속이 없는 상태가 된다. 다만 이 문언은 그 밖의 제한까지 함께 없앴다고 말하지 않는다. 그래서 취하된 부분은 처음부터 소가 계속되지 않은 것으로 보되, 같은 소를 다시 내려 할 때 따로 적용되는 법정 재소금지는 별도로 살피는 판단이 나뉜다. 문언이 소급적 소송계속 소멸만 정하고 재소의 허용까지 정하지 않았기 때문에 두 판단을 함께 묶을 수 없다.
가장 강한 반론은 그러한 소급 효과에서 재소의 자유가 따라 나와야 한다고 본다. 처음부터 소가 계속되지 않은 상태로 되돌아간다면, 첫 소의 설계 오류가 회복 불가능한 장애로 남는 것이 오히려 부당하다는 것이다. 당사자가 첫 소에서 청구의 범위나 표시를 잘못 잡아 취하한 경우, 그 잘못을 바로잡지 못하고 다툼을 포기해야 한다면 손실이 크다. 이 불이익은 지워지지 않는다. 이는 취하된 부분의 소송계속 상태와 법정 재소금지의 적용 여부를 각기 판단해야 하는 이유를 없애지 않는다.
여기서 이 절이 판정할 수 있는 것은, 취하된 부분에 대해서는 소가 처음부터 계속되지 않은 것으로 보는 효과가 적용된다는 것뿐이다. 그 취하가 본안 종국판결 전에 이루어졌는지 뒤에 이루어졌는지는 이 장면에 드러나지 않았다. 그래서 선행 소장·취하서·종국판결·후소 청구취지가 확인되지 않는 한, 후소가 법정 재소금지에 걸리는지는 미확정으로 남는다.
이 절이 허용하는 결론은 좁다. 민사소송법 제267조 제1항의 문언에 따라 취하된 부분은 처음부터 소가 계속되지 않은 것으로 본다. 이 판단만으로 후소가 언제나 허용된다고 말할 수 없고, 반대로 후소가 무조건 막힌다고 말할 수도 없다. 취하된 부분의 소송계속이 소급적으로 소멸함을 확인했더라도, 법정 재소금지는 선행 소의 계속·취하·종국판결 상태와 후소의 대상에 따라 따로 판정한다. 소취하는 이 판단에서 무엇을 뜻하는가?
2.10Fine Distinctions Within the Stage
같은 요구가 이미 다른 소장에 담긴 이상 첫 소의 상태가 무엇을 남겼는지 먼저 확인해야 한다. 그리고 그 상태가 후소를 낼 통로를 여는지 닫는지가 문제이다. 이 물음은 소를 취하하면 무엇이 없어지는가에 대한 답에서 출발한다.
그 출발점을 놓고 법령은 이렇게 정한다. "①취하된 부분에 대하여는 소가 처음부터 계속되지 아니한 것으로 본다." (민사소송법 제267조) 이 문언은 소취하, 즉 당사자가 계속 중인 소를 철회하는 행위의 효과를 말한다. 문언이 지시하는 주체는 소를 취하한 당사자이고, 대상은 취하된 부분이며, 조건은 그 부분의 소를 처음부터 계속되지 않은 것으로 보는 데 있다. 조문의 다른 쟁점은 여기서 다루지 않는다.
이 근거가 가리키는 효과와 뒤에 따로 살필 판단은 서로 다른 두 단계다. 취하된 부분은 소급적으로 처음부터 계속되지 않은 것이 되어 소송계속이 소멸한다. 그런데 그 소급적 소멸이 곧바로 같은 소를 다시 낼 자유를 뜻하지는 않는다. 법정 재소금지라는 별도의 제한이 그 통로에 그대로 남는다. 따라서 두 단계를 구별하지 않으면 소송계속이 사라진 것만 보고 재소가 허용되었다고 서둘러 판단하게 된다.
가장 강한 반론은 이 구별이 남기는 손실을 겨냥한다. 처음부터 없었던 소라면 재소는 언제나 열려야 한다는 것이다. 첫 소의 설계가 잘못되었을 때 이를 되돌릴 길이 막히면 그 오류가 회복 불가능해진다는 점도 함께 지적된다. 같은 사건이 계속 중인데 다시 제소하거나 본안 종국판결 뒤 취하한 같은 소를 다시 제기하는 경우에는 재소 제한에 걸린다. 반론이 말하는 불편을 지우지 않으면서도 이 범위의 제한은 유지된다.
합성 장면을 놓고 보면 후소는 다른 소장에 적힌 같은 요구다. 그런데 후소 대상이 이 재소 제한에 걸리지 않고 선행 소가 이미 취하되었거나 계속되지 않은 상태라면 통로는 열린다. 반대로 선행 소가 계속 중이거나 취하의 시점이 본안 종국판결 뒤라면 통로는 막힌다. 취하의 실제 시점과 후소의 대상은 확인되지 않았다. 그래서 이 장면만으로는 재소의 허용 여부를 확정할 수 없고 미확정으로 남는다.
정리하면 이 절이 허용하는 것은 선행 소의 계속·취하·종국판결 상태와 후소 대상이 해당 재소 제한에 걸리지 않을 때 다시 소를 제기할 수 있다는 판단이다. 허용하지 않는 것은 같은 소가 계속 중이거나 본안 종국판결 뒤 취하한 같은 소를 다시 제기하면서 재소가 자유롭다고 보는 판단이다. 취하가 소송계속을 소급하여 소멸시킨다고 해서 재소 금지라는 법정 제한까지 함께 사라지지는 않는다. 그 밖의 사정은 확인 전에 미확정으로 둔다.
2.11Synthesis of Effectiveness, Blockage, and Undetermination
같은 요구를 새 소장에 옮겨 적은 후소가 열리는지 막히는지, 아니면 확인 전에 미확정으로 남는지를 나누는 기준이 이 절의 물음이다.
이 문언은 취하된 부분을 소급하여 처음부터 계속되지 않은 상태로 취급하는 주체와 범위를 정하는 단서다. 문언이 말하는 대상은 소를 철회한 당사자의 소취하 행위이며, 적용되는 범위는 철회된 소 중에서 취하된 부분이다. 취하되지 않은 부분이나 별도로 제기된 후소 자체의 적법 요건은 이 문언의 문장 밖에 남는다.
이 조문의 소급 취급을 그대로 이어 후소의 허용 여부까지 정해지는 것은 아니다. 취하된 부분이 처음부터 계속되지 않았다는 것과, 새로 낸 후소가 재소 제한에 걸리지 않는다는 것은 서로 다른 판단 단계다. 전자는 취하가 남기는 상태를 정하고, 후자는 선행 소가 계속 중이었는지, 취하가 본안 종국판결 전에 있었는지, 그리고 후소의 대상이 같은 요구를 담는지를 살핀다. 그래서 열리는 조건은 선행 소의 계속·취하·종국판결 상태와 후소 대상이 해당 재소 제한에 걸리지 않는 경우로 묶인다.
가장 강한 반론은 취하로 소송계속이 소급적으로 사라졌다면, 처음부터 없었던 소와 같으므로 재소는 언제나 열려야 한다고 주장한다. 이 주장이 노리는 가치는 첫 소의 설계 오류로 인해 영구히 회복되지 못하는 불이익을 막는 데 있다. 같은 사건이 계속 중인데 다시 제소하거나, 본안 종국판결 뒤 취하한 같은 소를 다시 제기하는 경우에는 막힌다. 반론이 말하는 회복 기회가 반론이 지우지 못하는 제한의 예외가 되지는 않는다.
이 장면에서 후소는 진행 중인 소와 같은 요구를 다른 소장에 다시 적은 것으로 전제되어 있다. 다만 선행 소의 취하서가 언제 제출되었는지, 후소 청구취지가 어느 범위까지 같은 대상인지 확인되지 않았다. 이 두 가지가 확인되지 않은 상태에서는 열린다는 판단도 막힌다는 판단도 선행 소장·취하서·종국판결·후소 청구취지의 대조가 필요하다. 따라서 현재 장면만으로 판정할 수 없는 부분은 미확정으로 남는다.
이 절에서 허용되는 결론은 세 가지 상태를 구별하여 적어 두는 것이다. 소급적으로 취하된 부분이 처음부터 계속되지 않았더라도, 그 상태가 곧 모든 후소의 허용으로 이어지지는 않는다. 닫힌 결론은 선행 소가 계속 중인 때의 중복 제소, 그리고 본안 종국판결 뒤 취하한 같은 소의 재소다. 열림·차단·미확정을 하나의 문장으로 합쳐 확정하지 않는 한도에서, 취하의 소급 효과와 재소 제한은 나란히 검토한다.
2.12Conclusion Carried Over to the Next Section
계속 중인 사건에 대한 중복 제소는 금지된다는 전제 아래, 이 절에서 다루는 물음은 앞 절과 이어지면서도 한 걸음 더 나아간다. 바로 판결 뒤 취하가 다시 소를 낼 자유를 주는가이다. 이 물음은 취하의 소급 효과와 재소의 허용 여부를 나누어 생각해야만 제대로 마주할 수 있다. 취하가 무엇을 없애는지 모르고 후소를 설계하면 첫 소장 단계에서 막힐 수 있다.
이 물음에 답하기 위하여 먼저 해당 문언을 확인한다. 민사소송법 제267조 제1항은 “①취하된 부분에 대하여는 소가 처음부터 계속되지 아니한 것으로 본다”고 규정한다. 이 문언이 가리키는 대상은 소취하된 부분이다. 문언이 정하는 효과는 그 부분에 관하여 처음부터 소송계속이 없었던 것으로 본다는 기술적인 소급이다. 여기서 문언은 재소의 허용까지 직접 말하지 않는다.
위 문언은 취하된 부분에 관한 소급적 소송계속 소멸을 정할 뿐이고, 같은 법이 별도로 두는 재소 제한은 따로 살피도록 나누어져 있다. 그 구별이 왜 중요한지는 이 절의 결론과 맞닿는다. 소급 효과를 정한 조문은 ‘계속이 없었다’는 상태의 회복을 말하고, 재소 제한은 ‘다시 낼 수 있는가’라는 통로의 개폐를 말하기 때문이다. 전자가 후자의 허용을 자동으로 끌어내지 않는 이상, 판결 뒤 취하가 다시 소를 낼 자유를 주는지는 소급 문언만으로 확정되지 않는다.
가장 강한 반론은 이런 손실을 겨냥한다. 처음부터 없었던 소였다면 재소는 언제나 열려야 한다는 것이다. 그렇지 않으면 첫 소의 청구 선택이나 절차 설계에서 생긴 오류가 중복 제소의 엄격한 적용 탓에 영원히 회복 불가능해진다는 점에서, 당사자에게 가혹한 불편과 실체적 권리 구제의 축소가 남는다. 그러나 반론의 이 불리한 점을 지워서도 안 되면서도, 앞의 답은 유지된다. 소급적 소송계속 소멸을 모든 재소의 허용으로 바꿀 수는 없으며, 다시 낼 수 있는지는 재소 제한의 조건에 묶인 채로 판단한다.
이 사실만으로는 후소가 열리는지 닫히는지가 정해지지 않는다. 후소의 통로가 작동하려면 선행 소의 계속·취하·종국판결 상태와 후소 대상이 해당 재소 제한에 걸리지 않아야 하며, 같은 사건이 계속 중인데 다시 제소하거나 본안 종국판결 뒤 취하한 같은 소를 다시 제기하면 막힌다. 판단에는 선행 소장·취하서·종국판결·후소 청구취지가 필요하나, 장면에는 취하가 본안 종국판결 전인지 뒤인지도, 후소의 대상이 어느 범위인지도 확정하지 않았다.
이 절에서 허용되는 결론은 좁다. 취하된 부분은 처음부터 소가 계속되지 않은 것으로 보지만, 그 소급 효과가 곧바로 모든 재소를 허용하지는 않으며, 판결 뒤 취하가 다시 소를 낼 자유를 주는지는 별도의 재소 제한을 통과한 뒤에야 열린다. 소급적 소송계속 소멸을 모든 재소의 허용으로 바꾸는 결론은 여기서 허용되지 않는다. 반대로 재소 제한에 걸리지 않은 후소의 통로가 실제로 닫혔다는 결론도 이 절의 범위 밖이다. 자료가 부족한 채로 남는 사항을 구제 불능으로 바꾸지 않고 미확정으로 둔 채로 넘긴다. 판결 뒤 취하가 다시 소를 낼 자유를 주는가?