Summary
The prohibition on duplicative suits, the prohibition on re-filing, and res judicata correspond to different states of the prior suit.
4.1The Standard by Which the Path Opens
A person who withdraws a lawsuit after a final judgment on the merits may not file the same lawsuit again. The previous section confirmed this rule, but the rule does not apply identically to every state of the preceding action. Plaintiff A rewrote in a new complaint the same demand as that in a lawsuit pending against Defendant B. Absent the state of the preceding action, the reason for blocking the new lawsuit also goes wrong. The questions are whether pendency, withdrawal, and finality can be treated as a single bar, and what the criterion is by which the gateway to this remedy opens, depending on what that state is.
The relevant provisions divide the reason for preclusion according to the state in which the preceding lawsuit stands. First, as to a case pending in court, Article 259 of the Civil Procedure Act provides: "A party may not file a lawsuit again with respect to a case pending in court." The subject to which this provision refers is a party to the same case; the act is the refiling of a lawsuit that overlaps with the case already pending; and the condition is that the case is pending in court. Next, Article 267 of the Civil Procedure Act addresses the effect of withdrawal of a lawsuit, and in paragraph (2) thereof declares: "A person who withdraws a lawsuit after a final judgment on the merits may not file the same lawsuit again."
The reason the grounds for preclusion divide in this way is that the state of the preceding lawsuit leaves different traces. A case pending in court remains before the court, leaving intact the risk that duplicated examination and adjudication will overlap. By contrast, as to the withdrawn portion, Article 267 (1) of the Civil Procedure Act provides that the lawsuit is deemed not to have been pending from the outset, so if the time of withdrawal precedes the final judgment on the merits, the reason to bar refiling of the same lawsuit changes. When a final and conclusive judgment is reached, the res judicata addressed by Article 216 of the Civil Procedure Act—that is, the effect by which a final and conclusive judgment binds subsequent trials—newly becomes an issue. If these three are lumped together as a single bar, which state binds which subsequent procedure is erased.
From the standpoint of the parties, all three cases may look like a repetition of the same dispute, and under strict blocking of duplication the irreparable loss caused by a design error in the first lawsuit grows. Even so, the res judicata of a final and conclusive judgment cannot be conferred on a case pending in court. This answer rejects a design that confers in advance the effect of finality on a state that has not yet reached finality, without erasing the inconvenience the counterargument points out. Instead, it aligns the bar on refiling and res judicata confirmed above with their respective states, taking as the criterion not repetition itself, but which subsequent procedure the state of the preceding lawsuit binds.
Contrasting this criterion with the synthetic scene, the fact alone that Plaintiff A rewrote in a new complaint the same demand as that in a lawsuit pending against Defendant B does not complete the adjudication. In the records, only the preceding complaint, withdrawal form, final judgment, and the claim statement of the subsequent lawsuit are set; whether a withdrawal form exists, the time of the withdrawal, and which bar on refiling the subject of the subsequent lawsuit falls under are not determined by the scene. Accordingly, the gateway to this remedy opens where the state of the preceding lawsuit is pendency, withdrawal, or final judgment, and the subject of the subsequent lawsuit does not fall within the applicable bar on refiling. If it is confirmed whether the withdrawal came before or after the final judgment on the merits, the determination on the bar against refiling of the same lawsuit changes.
What this section permits is the judgment that, after applying respectively the reasons for preclusion suited to the state of the preceding lawsuit, a subsequent lawsuit not falling within the applicable bar on refiling may enter the gateway of this remedy with a specific claim statement. A conclusion that confers in advance the res judicata of a final and conclusive judgment on a case pending in court, or that treats a state not yet final as final, is not permitted. Matters not confirmed, such as the time of withdrawal of the preceding lawsuit or the subject of the subsequent lawsuit, remain undetermined.
4.2The Conditions That Block Relief
Where the state of the preceding lawsuit is pendency, withdrawal, or final judgment, and the subject of the subsequent lawsuit does not fall within the applicable bar on refiling, this remedy operates. In that case, is the new complaint blocked? The prohibition of duplicative filing, the prohibition on refiling the same lawsuit, and res judicata correspond to the different states in which the preceding lawsuit stands. Because the basis of the applicable bar differs depending on which state the preceding lawsuit being confronted is in, lumping the three into one bar misstates the reason for blocking the new lawsuit.
Article 259 of the Civil Procedure Act provides: "A party may not file a lawsuit again with respect to a case pending in court." Here, "a case pending in court" refers to a case still pending before the court and not finally disposed of, and the act blocked is a party's refiling of a lawsuit as to the same case. This provision defines the bar that operates when a subsequent lawsuit is filed while the preceding lawsuit is still pending in court. As to other states of the preceding lawsuit—for instance, one that has been withdrawn or has passed through a final judgment—this provision gives no direct answer.
Article 267 (2) of the Civil Procedure Act provides: "A person who withdraws a lawsuit after a final judgment on the merits may not file the same lawsuit again." What this provision blocks is the case in which a person who withdrew after a final judgment on the merits files the same lawsuit again, and whether the time of withdrawal precedes or follows the final judgment on the merits distinguishes whether the bar on refiling is triggered. Although both a refiling while the same case remains pending and a refiling of the same lawsuit withdrawn after a final judgment on the merits block a new lawsuit, the grounds for blocking rest respectively on the pendency state of the preceding lawsuit and the time of withdrawal. If the two states are treated as the same bar, one cannot discern what, at which point, is at issue.
From the standpoint of the parties, both are repetitions of the same dispute, and a counterargument may be raised that strictly blocking duplication makes a design error in the first lawsuit irreparable. That loss is real. This is because a person who misstated the designation or the subject of the claim in the first lawsuit loses the way to litigate the same dispute properly again. Even so, one cannot confer the res judicata of a final and conclusive judgment on a lawsuit pending in order to answer this counterargument. Res judicata is the effect by which a final and conclusive judgment binds subsequent trials, and Article 216 (1) of the Civil Procedure Act provides that a final and conclusive judgment has res judicata only as to matters included in its operative part. To insert in advance an effect that attaches only to a final and conclusive judgment into a case pending in court would produce a state not found in the text. Accordingly, while the disadvantage the counterargument points out is acknowledged, it is not soothed by conferring the res judicata of a final and conclusive judgment on a pending judgment.
What is confirmed from the scene in which Plaintiff A rewrote in a new complaint the same demand as that in a lawsuit pending against Defendant B is that the preceding lawsuit is pending, that the demand of the subsequent lawsuit is the same as it, and that the parties are A and B. Contrasting these facts with the foregoing conditions of Article 259 of the Civil Procedure Act, it is a case in which a party files a lawsuit again with respect to a case pending in court. The scene, however, does not state whether the preceding lawsuit has a withdrawal form or a final judgment, nor exactly what range the prayer for relief of the subsequent lawsuit covers. Insofar as those records are unconfirmed, one cannot determine whether the bar on refiling the same lawsuit under Article 267 (2) of the Civil Procedure Act applies. If whether the withdrawal preceded or followed the final judgment on the merits changes, the bar on refiling the same lawsuit is re-adjudicated.
The conclusion this section permits is narrow: the judgment that this remedy is blocked where a refiling occurs while the same case remains pending, or where the same lawsuit withdrawn after a final judgment on the merits is filed again, and the distinction that the res judicata of a final and conclusive judgment cannot be conferred on a pending lawsuit. What this judgment does not permit is equally clear: asserting the bar on refiling the same lawsuit while the time of withdrawal is unconfirmed; explaining the three bars as one without looking at the state of the preceding lawsuit; and, going beyond the provision that res judicata is an effect attaching only to a final and conclusive judgment, recognizing that effect in advance for a pending judgment—these are not conclusions of this section.
4.3The Boundary That Remains When There Is No Data
This scene alone does not reveal whether the preceding lawsuit is still pending in court, has already passed through a final judgment on the merits, or has been disposed of by withdrawal. It asks how pendency, withdrawal, and finality each operate with respect to a preceding lawsuit in different states, and where the boundary lies that can be placed on neither side.
The first provision corresponding to this question is aimed at the state of pendency. Here the subject is the party, the act is the refiling of a lawsuit as to the same case, and the condition is that the case is pending in court. This provision prevents the same demand from being adjudicated again while the case remains pending; it does not at once define the separate bars arising from withdrawal of a lawsuit or the finality of a judgment.
Article 267 of the Civil Procedure Act divides the outcome according to the point in time at which the withdrawal took place. "The withdrawn portion is deemed not to have been pending from the outset" means that the pendency prior to the withdrawal is erased, and "a person who withdraws a lawsuit after a final judgment on the merits may not file the same lawsuit again" means that the bar on refiling remains only when the withdrawal came after the final judgment. Because of this distinction, the two points in time must be judged separately. The res judicata of a final and conclusive judgment is a separate bar, and, as Article 216 of the Civil Procedure Act provides that "a final and conclusive judgment has res judicata only as to matters included in its operative part," it operates only within the scope of the final and conclusive judgment.
The strongest counterargument touches the parties' lived perception. To the parties, whether in a lawsuit pending, a lawsuit ended by withdrawal, or a final and conclusive judgment, the same dispute flaring up again looks the same, and the loss that a misdesign of the first lawsuit closes off the path to recovery is also great. Yet a case pending in court lacks the requirement of finality, so conferring res judicata on that state would collapse the provision distinguishing the case where a judgment has become final and conclusive from the case where it has not. Accordingly, while the inconvenience the counterargument points out is left standing, within the limit that the res judicata of a final and conclusive judgment cannot be conferred on a pending judgment, the grounds for prohibiting refiling are sought separately according to the state of the preceding lawsuit.
The facts appearing in the synthetic scene are two. There is a lawsuit pending between Plaintiff A and Defendant B, and the same demand has been rewritten in a new complaint. Yet whether this demand is the same as the claim of the preceding lawsuit, and what range the subject of the subsequent lawsuit covers, are unconfirmed, and whether the preceding lawsuit was withdrawn before or after the final judgment on the merits is not settled either. Neither the pendency requirement of Article 259 of the Civil Procedure Act nor the time of withdrawal under Article 267 of the Civil Procedure Act can be fixed on these records, so it cannot be determined which bar applies. However, since it is clear that whether the requirement of finality demanded by Article 216 of the Civil Procedure Act is satisfied also cannot be judged here, this matter remains undetermined, with the materials for judgment not yet specified, rather than meaning that the remedy is impossible.
The conclusion permitted in this section is that, depending on the state of the preceding lawsuit, the grounds for the prohibition of duplicative filing and the bar on refiling diverge, and if the matter can be placed on neither side it is left undetermined. Conclusions not permitted are to declare at once that a matter on which the materials are empty is impossible, or to overlay the res judicata of a final and conclusive judgment even on a case pending in court.
4.4The Records Needed for Determination
Can pendency, withdrawal, and finality be treated as a single bar? And which records are needed to adjudicate that stage? Even if it has been determined up to the preceding section what disappears when a lawsuit is withdrawn, this question separately asks which state of the preceding lawsuit the grounds for blocking the new lawsuit correspond to. If the state differs, the applicable norm differs as well.
Article 259 of the Civil Procedure Act prohibits duplicative filing of lawsuits, and its text provides: "A party may not file a lawsuit again with respect to a case pending in court" (Article 259 of the Civil Procedure Act). Here, a case pending in court refers to the state in which the lawsuit is still pending before the court and has not been concluded, and a party means a person belonging to that case. The act of filing a lawsuit again is reopening the same case with a new complaint. This provision responds only to the state of pendency of the case and does not take the existence of a final judgment as a requirement.
Article 259 is aimed at the state of pendency because a case pending in court has no final and conclusive determination yet. The effect by which a final and conclusive judgment binds subsequent trials, that is, res judicata, attaches only to a final and conclusive judgment (Article 216 of the Civil Procedure Act). Withdrawal of a lawsuit, by contrast, is dealt with differently by Article 267. After providing that "the withdrawn portion is deemed not to have been pending from the outset" (Article 267 of the Civil Procedure Act), it states that "a person who withdraws a lawsuit after a final judgment on the merits may not file the same lawsuit again" (Article 267 of the Civil Procedure Act). Although pendency, withdrawal, and finality appear to yield the same result in blocking a new lawsuit, their grounds and conditions differ. Therefore, which state it is must first be determined.
From the standpoint of the parties, all are repetitions of the same dispute. If it appears that the claim of the first lawsuit has been rewritten, it looks like a repetition of the same argument whatever stage it was at. Strictly blocking duplication also produces the loss that a design error in the first lawsuit becomes irreparable. The bar in the state of pendency is handled by Article 259, and the res judicata of a final and conclusive judgment remains a matter of Article 216. The state distinction cannot be erased in order to remove the disadvantage the counterargument targets.
This scene alone does not settle whether the preceding lawsuit is pending, or has been withdrawn, and whether that withdrawal came before or after the final judgment on the merits. The stage adjudication is made solely on the materials recorded in the preceding complaint, withdrawal form, final judgment, and prayer for relief of the subsequent lawsuit. If the time of withdrawal recorded in the withdrawal form meshes with the existence of the final judgment on the merits, the bar on refiling under Article 267 becomes an issue; if that record is absent, the stage remains undetermined. Gaps where there is no record are not filled with presumptions.
The conclusion this section permits is that the state of the preceding lawsuit is confirmed by settled records, and that the norm to apply diverges according to which state it is. What it does not permit is conferring the res judicata of a final and conclusive judgment on a case pending in court, and filling an unconfirmed time of withdrawal or subject of the subsequent lawsuit with conjecture. The path for filing a new lawsuit depends on which state—pendency, withdrawal, or final judgment—the preceding lawsuit is in, and on whether the subject of the subsequent lawsuit falls within the applicable bar on refiling.
4.5Circumstances That Change the Decision
Even if the same dispute is expressed across overlapping earlier and later lawsuits, the legal ground for blocking the new lawsuit changes according to the status in which the earlier action now stands. The preceding section left standing only the point that a person who withdrew an action after a final judgment on the merits may not bring the same action. The present question, within that frame, is whether the existing blocking determination can be left as it is when the timing of the withdrawal changes.
Civil Procedure Act Article 259 provides: "With respect to a case pending in court, a party may not bring an action again." This provision takes as its condition the state in which a case is pending in court—that is, the earlier action is still before the court and has not been concluded. Under that condition, it prevents the party, as the relevant actor, from again bringing an action on the same case. Civil Procedure Act Article 267 paragraph (2) provides differently: "A person who has withdrawn an action after a final judgment on the merits has been rendered may not bring the same action." Here, the point in time of withdrawal after the final judgment on the merits becomes a separate condition.
Since the states blocked by the two provisions differ, the conclusion of this section is set by redetermining the stage-by-stage assessment. If the withdrawal occurred before the final judgment, the action is deemed never to have been pending as to the withdrawn portion, so it does not mesh with the condition of Article 259, which blocks only while the same case is pending. Conversely, if the withdrawal occurred after the final judgment, Article 267 paragraph (2) applies directly.
If the mistake in the first action becomes a permanently insurmountable barrier in the subsequent proceedings, the disadvantage arises that the party's own choice to bring the dispute to an end is constrained. Even so, the conclusion of this section does not change. Res judicata of a final and conclusive judgment cannot be conferred on a case that is still pending. Civil Procedure Act Article 216 provides: "A final and conclusive judgment has res judicata only as to matters included in the operative part," and here res judicata means the effect by which a final and conclusive judgment binds subsequent trials. If an effect attached to the status of finality were transferred wholesale to a pending case, there would cease to be any reason to distinguish the statuses.
What is confirmed in this scene is the fact that the action brought by Plaintiff A against Defendant B is pending, and that the same demand has been written again in a different complaint. That scene alone does not determine whether the earlier action was withdrawn, and if it was, whether before or after the final judgment on the merits. The records used for the determination are set as the earlier complaint, the written withdrawal, the final judgment, and the claim of the later action. So long as the timing of the withdrawal of the earlier action remains unconfirmed, it cannot be determined whether the pendency condition of Article 259 or the condition of Article 267 paragraph (2) is engaged. Accordingly, this point remains undetermined.
What this section permits is to bind to their respective conditions the determination that bars a re-filing of the same case if the earlier action is pending, and the determination that a person who withdrew the same action after a final judgment on the merits may not bring the same action again. What it does not permit is merging the two statuses into one and treating them as the same obstacle, or asserting the effectiveness of the bar while the timing of the withdrawal remains unconfirmed. Whether a route is opened for re-filing the later action is determined by the pendency, withdrawal, and final judgment status of the earlier action and by whether the subject matter of the later action falls within the corresponding re-filing restriction.
4.6The Strongest Counterargument and the Answer
After confirming in the preceding section that the restriction on re-filing the same action must be redetermined according to whether the withdrawal occurred before or after the final judgment on the merits, what is now asked is whether pendency, withdrawal, and finality can be regarded as the same obstacle. This scene alone does not make clear at what point the earlier action stands. Accordingly, the results of the change-in-circumstances examination seen above are carried over as they are, but the determination that bars the filing of the new action is established only after separately confirming the status in which the earlier action is placed. Without that distinction, the ground for the re-filing restriction would be directed at the wrong status.
To answer this question, one first checks the relevant provision. Civil Procedure Act Article 259 provides: "With respect to a case pending in court, a party may not bring an action again" (Civil Procedure Act Article 259). The actor barred by this Article is the party to the earlier case, the barred act is the bringing of an action again on the same case, and the condition is that the case is pending in court. That is, for the re-filing restriction to be triggered, there must first be the fact that the case is already pending trial. Without that fact, there is no occasion to apply the same provision.
Accordingly, the status of being pending and the status in which the case has become final and conclusive derive from different grounds. Civil Procedure Act Article 216 provides: "A final and conclusive judgment has res judicata only as to matters included in the operative part" (Civil Procedure Act Article 216), where res judicata means the effect by which a final and conclusive judgment binds subsequent trials. Res judicata is an effect attached to the completed status of finality, whereas the prohibition of duplicate litigation is a restriction attached to the incomplete status of pendency. Although the two statuses may overlap in the facts, their governing provisions differ; hence, if res judicata were conferred on a pending case, the requirements of finality would be newly created and this distinction would collapse.
From the party's standpoint, the counterargument appears well founded. Since all are repetitions of the same dispute, if the outcome diverges according to the procedural status, there is the concern that the person who designed the first action may bear an irreparable disadvantage. If Plaintiff A's writing the same demand again arose from a misunderstanding of a minor instruction, it may not appear different from the case where Civil Procedure Act Article 267 provides that "A person who has withdrawn an action after a final judgment on the merits has been rendered may not bring the same action" (Civil Procedure Act Article 267). Even so, in light of the above statutory language, to a pending case corresponds the prohibition of duplicate litigation, to a case withdrawn after a final judgment on the merits corresponds the prohibition of refiling, and to a final and conclusive case corresponds res judicata, each respectively. The inconvenience pointed out by the counterargument remains, but it does not furnish grounds for integrating the status-specific bases and conferring res judicata on a case prior to finality.
What is confirmed in the synthetic scene is only the fact that the current demand is the same as that of the action proceeding against Defendant B. If the expression "proceeding" is taken to refer to the state of being pending trial, Civil Procedure Act Article 259 applies, and whether the subject of the later action is the same as that case is determined by comparing the claim of the later action with the earlier complaint. However, since the presence or absence of records of the earlier complaint, the written withdrawal, and the final judgment has not been confirmed, it cannot be determined from this scene whether the earlier action is pending, whether there was a withdrawal, or whether there was a final judgment. Portions for which materials are lacking in this way remain undetermined, and if the timing of the withdrawal changes as before or after the final judgment on the merits, the restriction on re-filing the same action is redetermined.
In conclusion, res judicata of a final and conclusive judgment cannot be conferred on a case that is still pending; the prohibition of duplicate litigation, the prohibition of refiling, and res judicata operate on separate grounds according to whether the earlier action is pending, has been withdrawn after a final judgment on the merits, or has become final and conclusive. On the basis of circumstances whose status among these has not been confirmed, one can neither bar nor permit the new action. The route is opened for re-filing the later action where the pendency, withdrawal, and final judgment status of the earlier action and the subject matter of the later action fall outside the corresponding re-filing restriction; conversely, where the same case is pending and a new action is nevertheless brought, or where the same action withdrawn after a final judgment on the merits is brought again, that route is closed. The records for determination are set as the earlier complaint, the written withdrawal, the final judgment, and the claim of the later action. So long as the foregoing distinction is maintained, this conclusion does not waver.
4.7The Link to the Application and the Dispositive Part
In such a scene, one must determine whether the grounds for barring the later action can be gathered into one, or whether different restrictions are engaged according to the stage at which the earlier action stands. In the preceding section it has already been confirmed that res judicata of a final and conclusive judgment cannot be conferred on a pending case, and on that basis the question is asked whether pendency, withdrawal, and finality are the same obstacle.
The statute first addresses a pending case. This provision takes as the actor to be barred the party to that case, designates the barred act as bringing an action again, and sets as its condition the state in which the earlier case is pending in court. In other words, it is a prohibition that applies only while an action whose trial has not yet ended remains alive.
The same statute sets different rules according to how the action ended. Civil Procedure Act Article 267 provides: "As to the withdrawn portion, the action is deemed not to have been pending from the outset. A person who has withdrawn an action after a final judgment on the merits has been rendered may not bring the same action" (Civil Procedure Act Article 267). The former restores the withdrawn portion to a state without an action, and the latter bars re-filing of the same action only as to a withdrawal after a final judgment on the merits. Placing these side by side with the prohibition of Article 259 on a pending case reveals that the point in time of blocking and the object blocked differ from each other.
Consider what goes wrong if this distinction is abandoned and the three statuses are lumped together as one obstacle. From the party's standpoint, pendency, withdrawal, and finality may all appear to be repetitions of the same dispute. That inconvenience is real, but Civil Procedure Act Article 216 provides that "a final and conclusive judgment has res judicata only as to matters included in the operative part" (Civil Procedure Act Article 216), attaching res judicata to a final and conclusive judgment. Since res judicata is the effect by which a final and conclusive judgment binds subsequent trials, that effect cannot be conferred on a judgment still pending that has not reached finality. Thus the prohibition of duplicate litigation, the prohibition of refiling, and res judicata remain as restrictions corresponding respectively to the different statuses of pendency, withdrawal, and finality of the earlier action.
Returning to the synthetic scene, whether the later action can be barred depends on where the earlier action stands and what the demand of the later action is. If the demand that Plaintiff A wrote again in a different complaint concerns the same subject as the pending case, one examines whether the prohibition of duplicate litigation under Article 259 is engaged; if it is the same action withdrawn after a final judgment on the merits, one examines whether the prohibition of refiling under Article 267 is engaged. Yet since neither the timing of the withdrawal of the earlier action nor the subject of the later action has been confirmed in the scene, which restriction actually applies cannot be determined from this scene alone. At this point, the absence of materials does not mean that relief is impossible; it means that the facts necessary for the determination remain undetermined.
Accordingly, one must not read the matter as treating pendency, withdrawal, and finality as one and barring the new action across the board. The prohibition of duplicate litigation attaches to a pending case, the prohibition of refiling to the same action withdrawn after a final judgment on the merits, and res judicata to matters included in the operative part of a final and conclusive judgment. Which action may be re-filed is determined by the status of the earlier action and by whether the subject matter of the later action falls within the corresponding re-filing restriction.
4.8The Scope This Section Undertakes
The prohibition of duplicate litigation, the prohibition of refiling, and res judicata correspond to the different statuses of the earlier action. Yet from the party's standpoint, all may appear to be repetitions of the same dispute. If in this scene the new lawsuit is to be barred, the reason lies in the status of the earlier case. Then how does this conclusion connect with the premises received from the preceding section? On the premise of the conclusion of the preceding section, the present inquiry asks only about that seam.
Before answering this question, one first checks the relevant provision of this section. This provision specifies the actor as the party to the case concerned, the act as bringing an action again, and the condition as a case pending in court. This Article deals only with duplicate litigation in the status of pendency and does not extend to problems of other statuses.
Next, Civil Procedure Act Article 267 divides and sets out the effects of withdrawal of an action, and its paragraph (2) declares: "A person who has withdrawn an action after a final judgment on the merits has been rendered may not bring the same action" (Civil Procedure Act Article 267). Even for the same re-filing restriction, the condition changes from pendency to withdrawal after a final judgment. On the premise of the distinction between these two statuses, the author judges that the prohibition of duplicate litigation, the prohibition of refiling, and res judicata correspond to the different statuses of the earlier action. The conclusion of this section is that a person who has withdrawn an action after a final judgment on the merits may not bring the same action. Here, however, res judicata means the effect by which a final and conclusive judgment binds subsequent trials, and Civil Procedure Act Article 216 limits this, providing that a final and conclusive judgment has res judicata only as to matters included in the operative part (Civil Procedure Act Article 216).
From the party's standpoint, whether pendency, withdrawal, or finality, all may appear to be repetitions of the same dispute. Strictly barring duplication entails the loss that a design error in the first action becomes irreparable. Since res judicata is the effect by which a final and conclusive judgment binds subsequent trials, if that effect is applied in advance to the status of pendency that has not yet become final, the distinction between the two statuses collapses. The inconvenience pointed out by the counterargument remains as it is, but the conclusion is maintained within this scope.
This distinction is placed in the synthetic scene. From this fact alone it cannot be determined that the earlier action is in the status of pendency. Therefore, whether it falls under the condition targeted by the prohibition of duplicate litigation remains undetermined. Although the records for determination have been set as the earlier complaint, the written withdrawal, the final judgment, and the claim of the later action, it is not asserted that the actual records have been collected.
What this section permits is the determination that matches the status of the earlier action with the obstacle appropriate to that status. If pendency, withdrawal, and finality are lumped together and called the same obstacle, the grounds of the prohibition of duplicate litigation, the prohibition of refiling, and res judicata become intermingled. Conversely, if the status of the earlier action changes, the applicable restriction must also change. That said, this determination does not fix the specific records of the earlier action or the subject of the later action. How do the provisions of Civil Procedure Act Article 259, Civil Procedure Act Article 267, and Civil Procedure Act Article 216 support this conclusion?
4.9Application of the Text of the Provisions and the Holdings of Precedents
The earlier analytical step carries over only the brief conclusion that a person who withdraws an action after a final judgment on the merits may not file the same action again. What remains is the question of how the wording of the relevant provision divides the channels for such re-filing. The bar on duplicative litigation, the bar on re-filing, and res judicata each correspond to different states of the prior action, so transposing this wording onto the assessment of a later action is not a matter of choice.
The first wording responsive to this question targets duplicative litigation. This provision governs only that part, and separately provides neither the effect of a withdrawal nor the scope of a final and conclusive judgment.
Article 267 of the Civil Procedure Act sets out the results of a withdrawal in separate terms. Paragraph (1) states that "as to the withdrawn portion, the action is deemed not to have been pending from the beginning," and paragraph (2) states that "a person who withdraws an action after a final judgment on the merits has been rendered may not file the same action again." The distinction between these two passages is precisely the basis for dividing the states of the prior action. Because the doors to re-filing before and after differ according to when the withdrawal occurred, lumping pendency and withdrawal into a single bar erases which passage applies. Article 216 of the Civil Procedure Act provides in paragraph (1) that "a final and conclusive judgment has res judicata only as to what is included in its dispositive part," thereby limiting the object of res judicata to the dispositive part of the final and conclusive judgment. Res judicata means the effect by which a final and conclusive judgment binds subsequent adjudication, and it cannot be substituted for the bar on duplicative litigation that attaches to a case still pending.
The strongest counterargument against this distinction arises from the parties' experience. From the parties' standpoint, whether they file again while the action is still pending, file again after withdrawing it, or file again after it has become final and conclusive, all look like a repetition of the same dispute. If the return of the same claim and the same parties to court is divided according to each passage, what stands out is that the person who designed the first action badly suffers an irreparable disadvantage. The answer given above, however, is that res judicata of a final and conclusive judgment cannot be conferred upon a case still pending. If the effect of a final and conclusive judgment under Article 216 were layered onto a case not yet concluded, what Article 259 prohibits and what Article 216 limits would be exchanged for one another. The inconvenience of the design error that the counterargument points out remains as it is, but that inconvenience cannot be a reason to erase the distinction of states prescribed by the wording.
When this standard is set against the synthetic scene, only one fact remains. The scene fixed only that the prior action is in progress; it did not fix whether a final judgment on the merits had been rendered in that action, whether there had been a withdrawal, or, if there had been, whether that withdrawal came before or after the final judgment. Accordingly, at present, where only the pendency of the same case is confirmed, the point at which the wording of Article 259 of the Civil Procedure Act overlays can be seen. By contrast, the bar on re-filing under Article 267 paragraph (2) requires a time of withdrawal, and the res judicata under Article 216 requires that a final and conclusive judgment exist, so on this scene alone the application of those two passages remains undetermined. If it is confirmed whether the withdrawal came before or after the final judgment on the merits, the assessment of the restriction on re-filing the same action will differ, and this is not a fact newly arising in an actual case.
The conclusion this section permits is narrow: only the wording of the relevant source text may be used as the basis for adjudicating the channels for re-filing a later action, and only the wording within that scope may be applied. For a case still pending, Article 259 responds with its own wording; for a re-filing after a withdrawal, Article 267 responds; for a dispute after a final and conclusive judgment, Article 216 responds; and none of them substitutes for another. To go beyond this scope and read the effect of a final and conclusive judgment as extended to the reasons for the judgment or to provisions not addressed is a conclusion this section does not permit.
4.10Fine Distinctions Within the Stage
The distinction between a withdrawal after a final judgment on the merits and finality is at issue. In this scene, what divides the restrictions on re-filing is whether the prior action is still pending, whether it became never to have been pending by reason of a withdrawal, or whether it has become final and conclusive such that res judicata remains. Yet if those differences of state are bundled together at once as a single bar, it is not even settled which re-filing should be prevented. The question is therefore narrowed to how far within the channels for re-filing a later action the points should be separated for adjudication.
This passage takes as its object a case still pending and prevents a party from filing another action with respect to that case. What this provision requires, then, is the fact that the prior action is pending before the court and the point that the later action is a re-filed action containing the same demand. Whether this passage also prevents a re-filing after the state of pendency has ceased is not settled here. What the object of the later action is, and when the written withdrawal was prepared, cannot be known except from the confirmed records.
The reason for prevention indicated by this basis and the reason for preventing a re-filing after finality are placed in different states. The bar on duplicative litigation with respect to a case still pending seeks to preserve the very progress of the proceedings, whereas the bar on re-filing dealt with in Article 267 paragraph (2) of the Civil Procedure Act arises only after a particular course of events, namely a withdrawal after a final judgment on the merits. Res judicata means the effect by which a final and conclusive judgment binds subsequent adjudication, and Article 216 of the Civil Procedure Act provides that a final and conclusive judgment has that effect "only as to what is included in its dispositive part." Since a case still pending lacks the premise of finality, that effect cannot be conferred upon it in advance. The detailed distinctions within the channels for re-filing a later action are limited to the conditions of pendency, withdrawal before or after the final judgment, and finality.
From the parties' standpoint, whether it is a repetition of a case still pending or a re-filing after a withdrawal, both may look like litigating the same dispute twice. It is also a genuine inconvenience that if there was an error in the design of the claim and prayer for relief of the first action, the only place to correct that error is closed. Yet that inconvenience cannot be a reason to confer the res judicata of a final and conclusive judgment upon a case still pending. If the effect of finality were given to a judgment to which the requirement of finality does not attach, the very distinction that the statute kept by confining that effect to final and conclusive judgments would collapse. This disadvantage is to be left in place, but for that reason the detailed distinctions within the channels for re-filing a later action may neither be folded up nor expanded.
What can be confirmed in this scene is only the fact that Plaintiff A again wrote the same demand as the pending action against Defendant B in a different complaint. Whether that demand is the same as the claim and prayer for relief of the prior complaint, and what range the claim and prayer for relief of the later action covers, is not contained in the confirmed records. If there was a withdrawal, whether it came before or after the final judgment on the merits is also unsettled. In the present state, where the time of the withdrawal and the object of the later action are unconfirmed, this segment is left undetermined, and the mere lack of material is not immediately converted into an inability to re-file.
The conclusion this section permits is that, after comparing the state of pendency, withdrawal, or final judgment of the prior action and the object of the later action, one adjudicates whether it falls within the relevant restriction on re-filing, and blocks it only where an action is filed again while the same case is still pending, or where the same action is filed again after having been withdrawn following a final judgment on the merits. It must stop there; no adjudication may be affixed in advance to segments where the time of withdrawal or the object of the later action is unconfirmed, nor may new grounds be created in advance that would pass once confirmation occurs. The parts to be newly separated for adjudication are limited to the stated conditions.
4.11Synthesis of Effectiveness, Blockage, and Undetermination
Faced with this synthetic scene, the question is how to distinguish the channels for re-filing a later action as effective, blocked, or undetermined. Here, "effective" means that the way to file a new action remains open as it is, "blocked" means that a provision prevents the re-filing, and "undetermined" means that, owing to insufficient records, it cannot be determined which is the case. The following paragraphs first examine the wording corresponding to each channel.
This passage limits the controlling subject to the parties to the relevant case and the controlled act to filing another action with respect to the same case. The condition the wording requires is only that the prior case is pending before the court, and it sets no separate requirements such as the finality of a judgment or the identity of the claim. Accordingly, an action filed again while the same case is pending falls squarely within the wording of this provision.
This block, which corresponds to whether the same case is pending, must be distinguished from the separate assessment corresponding to whether an action may be filed again after an action has been withdrawn. This bar prevents the later action by taking the time of withdrawal and the identity of the action as its requirements and, unlike the preceding provision, operates after the prior action has already ceased to be pending. If its conditions are not met, the state remains one in which there is no wording to block the later action.
From the parties' standpoint, re-filing while pending and re-filing after a withdrawal may both look like the same bar, since both are a repetition of the same dispute. Article 216 paragraph (1) of the Civil Procedure Act provides that "a final and conclusive judgment has res judicata only as to what is included in its dispositive part." Res judicata is the effect by which a final and conclusive judgment binds subsequent adjudication, and it comes into existence only after the state of finality is established thereafter. Article 259 of the Civil Procedure Act prevents duplicative litigation on the state of pendency alone, so the basis of that bar cannot be moved to the res judicata of a final and conclusive judgment.
The facts confirmed in the synthetic scene are only that the prior action between Plaintiff A and Defendant B is in progress and that the same demand was written again in a different complaint. This fact corresponds precisely to the pendency requirement of Article 259 of the Civil Procedure Act, so the later action is blocked. The scene, however, did not fix whether the prior action was withdrawn, when that withdrawal occurred, or the target range of the claim and prayer for relief of the later action.
The conclusion this section permits is that, once the states of pendency, withdrawal, or final judgment and the object of the later action are confirmed, one adjudicates the channel according to each corresponding condition, blocks the later action if one of the blocking requirements is met, and leaves the matter undetermined if unconfirmed conditions remain. What it does not permit is bundling all re-filings into a single bar without distinguishing states, or reaching a conclusion that fixes either blocking or effectiveness while the time of withdrawal and the object of the later action remain unconfirmed.
4.12Conclusion Carried Over to the Next Section
Even if, in accordance with the conclusion of the preceding section, one accepts that the states of pendency, withdrawal, or final judgment of the prior action and the object of the later action are divided into cases that fall within the relevant restriction on re-filing, cases that do not, and cases that remain undetermined, what that distinction rests upon, and what the conclusion of this section hands over to the next question, must be addressed here. Whether pendency, withdrawal, and finality can be regarded as a single bar is the question now.
The reason the grounds for prevention divide according to the state of the prior action is that different provisions require different premises. As to a case pending before the court, it is provided that "no party may file another action with regard to a case pending in court" (Article 259 of the Civil Procedure Act). This passage defines the acting subject as 'a party', the prevented act as 'filing another action', and the requirement as 'with regard to a case pending before the court'. Accordingly, the bar on duplicative litigation is a restriction corresponding to the state of the prior action being pending.
A withdrawal of the action and a final and conclusive judgment correspond to yet other states. As to withdrawal of an action, it is provided that "as to the withdrawn portion, the action is deemed not to have been pending from the beginning," and that "a person who withdraws an action after a final judgment on the merits has been rendered may not file the same action again" (Article 267 of the Civil Procedure Act). The bar on re-filing takes not the withdrawal itself but the time of the withdrawal, namely whether it came after the final judgment on the merits, as its requirement. Meanwhile, res judicata here means the effect by which a final and conclusive judgment binds subsequent adjudication, and it is provided that "a final and conclusive judgment has res judicata only as to what is included in its dispositive part" (Article 216 of the Civil Procedure Act). Whereas the bar on duplicative litigation and the bar on re-filing prevent the institution of an action, res judicata binds subsequent adjudication with an adjudication that has become final and conclusive; on this point, the three correspond to the different states of pendency, withdrawal, and finality of the prior action.
From the parties' standpoint, all may look like a repetition of the same dispute. To a person who believes there was an error in the design of the first action, a rule that strictly bars duplication may feel like an irrecoverable loss, and reasserting the same demand may even appear fairer. The bar on duplicative litigation with respect to a case still pending is only a restriction upon a state not yet final and conclusive, and the wording of the res judicata provision governing final and conclusive judgments presupposes a final and conclusive judgment. While leaving the disadvantage pointed out by the counterargument in place without wavering, the effect of a judgment not yet final and conclusive cannot be raised to the effect of a final and conclusive judgment.
What can be confirmed in the synthetic scene is only the fact that Plaintiff A again wrote the same demand as the pending action against Defendant B in a different complaint. This scene shows the state of the prior action being pending, and in that case corresponds to the requirements of the bar on duplicative litigation. However, whether there was a withdrawal, whether, if there was, its timing was before or after the final judgment on the merits, and whether a final and conclusive judgment exists are not settled in this scene. Accordingly, the bar on re-filing and res judicata cannot be adjudicated on this scene alone and remain undetermined.
The conclusion this section permits is that the grounds for prevention divide according to the state of pendency, withdrawal, or finality of the prior action, and that the bar on duplicative litigation with respect to a case still pending cannot be replaced by the res judicata of a final and conclusive judgment. What this section does not permit is the interpretation that confers the res judicata of a final and conclusive judgment upon a pending judgment. This section does not assert matters that cannot be confirmed from the prior complaint, the written withdrawal, the final judgment, and the claim and prayer for relief of the later action. Even if the object of the new action differs, is there still a need for confirmation?