Summary
The portion withdrawn or adjudicated in the prior suit must be specifically compared with the demand in the later suit.
6.1The Standard by Which the Path Opens
If a lawsuit that overlaps only in part is called a repeat lawsuit in its entirety, the remaining rights disappear as well. Plaintiff A wrote the same demand as in the lawsuit already pending against Defendant B into a new complaint. In this scene, the issue is the extent to which, while the earlier lawsuit is still pending, the performance demanded by the prayer for relief of the later lawsuit overlaps. The mere fact that a bar on duplicative litigation has been avoided does not create an interest in confirmation. What scope, then, may be newly litigated? This question does not stop at whether the later lawsuit newly filed avoids the bar on refiling; it looks for a reason to keep different claims separate rather than bundling them wholesale into one. The partial-claim comparison begins at that point.
The first text addressed in this section concerns the effect of withdrawal of a lawsuit. Article 267 (1) of the Civil Procedure Act provides that "with respect to the withdrawn portion, the lawsuit is deemed never to have been pending," and paragraph (2) provides that "a person who withdraws a lawsuit after a final judgment on the merits has been rendered may not file the same lawsuit." This text points to the withdrawn portion, that is, the scope omitted from the earlier lawsuit, and states that, as to that portion, the state of pendency is treated as never having existed. Conversely, one must examine what condition the same lawsuit reached in order to determine whether the restriction in paragraph (2) applies. How the demand of the later lawsuit meshes with the claim of the earlier lawsuit is a separate matter to be compared outside this text.
The link joining that text to the conclusion of this section is the provision on the scope of res judicata. Article 216 (1) of the Civil Procedure Act provides that "a final and conclusive judgment has res judicata only as to matters included in the operative part," and paragraph (2) provides that "a determination as to whether the claim asserted for set-off is well-founded or not has res judicata only as to the amount set up in set-off." Only by reading together the point that the scope determined is limited to the operative part and that amount set up does it become clear why the withdrawn or adjudicated portion and the remaining portion are not treated as the same. On the basis of this distinction, when the pendency, withdrawal, or final judgment status of the earlier lawsuit and the subject of the later lawsuit do not fall within the bar on refiling in question, the gateway to this relief opens.
If this distinction is drawn narrowly, there remains the counterargument that the bar on repeat litigation can be circumvented by fragmenting and altering claims. If overlapping portions are concealed by adding conditions to the claim little by little or by splitting the performance into separate items, the scope already litigated or withdrawn can come back into court. The judicial resources and the opposing party's burden of defense that the bar on duplicative litigation protects leak away through that gap, opening room for a dispute that should have been concluded to be repeated. Nevertheless, while acknowledging the loss pointed out by the counterargument, all different claims cannot be identified as one merely because they overlap in part. The overlapping and non-overlapping portions must each be examined, and distinct demands must be kept separate.
The facts confirmed in this scene are that the earlier lawsuit is still pending and that the later lawsuit wrote the same demand into a new complaint. The partial-claim comparison is the work of aligning the scope of performance handled by the earlier and later lawsuits, examining to what extent the performance, parties, and conditions stated in the claim of the later lawsuit overlap when measured against the complaint of the earlier lawsuit. However, the scene leaves undetermined the time of withdrawal, whether a final judgment has been rendered, the amount, and the accrual date. If it is confirmed whether the withdrawal came before or after the final judgment on the merits, the determination on the bar on refiling the same lawsuit changes, and which portions were actually withdrawn or adjudicated is likewise not confirmed on the record. Until those values are confirmed, whether the bar on refiling the same lawsuit applies remains undetermined.
What this section permits is the determination that the gateway opens where the subject of the later lawsuit, which does not fall within the bar on refiling, is specified in the claim and the right to the chosen lawsuit can be defended. What it does not permit is treating the entire claim of the later lawsuit as a repeat lawsuit merely because a portion overlaps. Since the mere fact of avoiding the bar on duplicative litigation does not create an interest in confirmation, this determination sets only the standard for the gateway; it neither grants the lawsuit nor decides a defeat.
6.2The Conditions That Block Relief
Since the mere fact that a bar on duplicative litigation has been avoided does not create an interest in confirmation, what remains is the work of separately identifying the scope in which the newly filed lawsuit overlaps with the earlier one. In that case, the conditions that block writing the same demand again differ depending on whether the earlier lawsuit is still pending or is a lawsuit withdrawn after judgment was already rendered. What the author asks here is precisely those blocking conditions.
Article 267 of the Civil Procedure Act prescribes the effect of withdrawal of a lawsuit in two paragraphs (Civil Procedure Act Article 267). Its text reads: "(1) With respect to the withdrawn portion, the lawsuit is deemed never to have been pending. (2) A person who withdraws a lawsuit after a final judgment on the merits has been rendered may not file the same lawsuit." In these paragraphs, the subject defined is the person who withdraws, the act is the withdrawal of the lawsuit, and the condition is whether the time of withdrawal falls after the final judgment on the merits. Paragraph (1) states the effect of treating the withdrawn portion as a lawsuit never pending, and paragraph (2) states the restriction that a person who withdrew after a final judgment may not refile the same lawsuit.
The texts of these two paragraphs point to different states, and the author adopts that distinction as the criterion of decision as it stands. The treatment of the withdrawn portion as never having been pending is an effect limited to that portion, whereas the bar on refiling the same lawsuit is a restriction conditioned on the person having withdrawn after a final judgment on the merits. Accordingly, the portion withdrawn or adjudicated in the earlier lawsuit must be compared concretely with the demand of the later lawsuit. Here, the partial-claim comparison is the work of aligning the scope of performance handled by the earlier and later lawsuits. If the result of the comparison does not settle which applies, the channel for refiling the later lawsuit does not open.
The strongest counterargument is the possibility of circumventing the bar on repeat litigation. The worry is that claims can be fragmented and altered to evade the bar, and that strictly blocking duplication would make a design error in the first lawsuit irreparable. The loss aimed at by this counterargument is the inconvenience that the remaining rights not covered by the first lawsuit disappear, and the impairment of value when claims overlapping only in part are bundled wholesale as repeat litigation. The author's answer is that all different claims cannot be identified as one merely because of partial overlap. That is, partial overlap alone cannot make the demand of the later lawsuit wholly identical to the demand of the earlier lawsuit, and which portions actually overlap is determined through a comparison of the scope of performance. The circumvention risk flagged by the counterargument does not disappear, but on account of that risk one does not bar even the claims that have been distinguished.
In this scene, only the fact is established that Plaintiff A wrote the same demand as in the lawsuit pending against Defendant B into a new complaint, and it is not confirmed whether that earlier lawsuit is still pending or has already been withdrawn after a final judgment on the merits was rendered. If it is confirmed whether the withdrawal came before or after the final judgment on the merits, the determination on the bar on refiling the same lawsuit changes. Moreover, the extent to which the portion withdrawn or adjudicated in the earlier lawsuit overlaps with the demand of the later lawsuit—that is, whether the scopes of performance correspond—is likewise not settled on this scene alone. Where the time of withdrawal in the earlier lawsuit or the subject of the later lawsuit is not confirmed, no determination can be made.
The conclusion permitted by this section is narrow. Where the same case is pending and suit is filed again, or where the same lawsuit withdrawn after a final judgment on the merits is filed again, if even one of the statutory requirements is not met, the channel of relief is closed. Conversely, the channel opens only where, on aligning the demands of the earlier and later lawsuits through a partial-claim comparison, they do not fall within the bar on refiling in question. Yet to identify all different claims as one on account of partial overlap goes beyond this determination. The mere fact of avoiding a bar on duplicative litigation does not create an interest in confirmation, and separate determinations such as the scope of res judicata of a final and conclusive judgment remain outside the bounds of this section.
6.3The Boundary That Remains When There Is No Data
The preceding section confirmed that this relief is blocked where the same case is pending and suit is filed again, or where the same lawsuit withdrawn after a final judgment on the merits is filed again. Yet the scene in which Plaintiff A has written the same demand as in the lawsuit pending against Defendant B into a new complaint alone does not reveal what overlaps and what remains. This part, therefore, asks where to place the boundary that cannot be adjudicated for lack of material.
Article 267 of the Civil Procedure Act provides that "Article 267 (Effect of Withdrawal of Lawsuit) (1) With respect to the withdrawn portion, the lawsuit is deemed never to have been pending," and then provides that "(2) A person who withdraws a lawsuit after a final judgment on the merits has been rendered may not file the same lawsuit" (Civil Procedure Act Article 267). In the preceding paragraph, the subject and scope for which the withdrawn portion is treated as never pending are fixed, and the following paragraph draws the boundary of the same lawsuit that a person who withdrew after a final judgment on the merits cannot file again. On this text alone, it is not settled when the withdrawal occurred and which demand the later lawsuit targets.
This text requires the judgment to be divided into two stages. First, as Article 216 of the Civil Procedure Act states that "a final and conclusive judgment has res judicata only as to matters included in the operative part" (Civil Procedure Act Article 216), one determines what has already been adjudicated and closed within the scope of the operative part. Then the remaining demand is measured against the portion withdrawn or adjudicated in the earlier lawsuit to fix the scope the later lawsuit may newly litigate. Without this distinction, if the entire later lawsuit is called a repeat lawsuit as soon as partial overlap is found, there is no place for the partial-claim comparison—that is, the work of aligning the scope of performance handled by the earlier and later lawsuits.
The strongest counterargument targets the fact that the bar on repeat litigation can be circumvented by fragmenting and altering claims. If demands handled in the earlier lawsuit are split off into a later lawsuit with only the caption changed, the prohibitory provision sees no more than the shell, and the parties spend time and money repeating the same dispute. The inconvenience of cost and delay flagged by the counterargument is not erased. Yet all different claims cannot be identified as one merely because of partial overlap. Only the scope in which overlap is confirmed must be treated as closed, and the non-overlapping scope kept separate, so that the disappearance of the remaining rights along with it is prevented.
What is confirmed in the synthetic scene is the fact that Plaintiff A wrote the same demand as in the lawsuit pending against Defendant B into a new complaint. That fact alone does not settle whether the earlier lawsuit is still pending, whether, if withdrawn, the withdrawal came before or after the final judgment on the merits, and which performance the claim of the later lawsuit contests. If the answer to whether the withdrawal came before or after the final judgment on the merits changes, the restriction on refiling the same lawsuit is adjudicated anew. Accordingly, where the time of withdrawal in the earlier lawsuit or the subject of the later lawsuit is not confirmed, the determination is left undetermined, and this is distinguished from the case where relief is blocked. This distinction does not reject the later lawsuit on the ground that there is no material, nor does it assert that the requirements for rejection are met. Undetermined is a provisional state contingent on the presence or absence of the record—the earlier complaint, the written withdrawal, the final judgment, and the claim of the later lawsuit—whereas relief being blocked is the state in which the requirements of filing suit again while the same case is pending, or refiling the same lawsuit withdrawn after a final judgment on the merits, are confirmed.
What this section permits is the determination that only the partial overlap of the later lawsuit is separately identified and excluded from the scope to be newly litigated, and what it does not permit is the determination of treating the whole of the later lawsuit as an identical claim on the basis of the fact of overlap alone. Nor is writing that relief is already blocked merely because of the absence of material a conclusion settled in this part.
6.4The Records Needed for Determination
The preceding section proceeds on the premise that boundaries that cannot be adjudicated for lack of material are left undetermined. From the scene in which Plaintiff A has written the same demand as in the lawsuit pending against Defendant B into a new complaint, this section asks what record is necessary for the work of aligning and comparing the scope of claims of the earlier and later lawsuits. This question is confined to discerning what the record should be that serves as the basis of the determination, and does not separately ask when the bar on repeat litigation arises or how an interest in confirmation is established.
The textual basis for this determination is Article 267 of the Civil Procedure Act. Paragraph (2) provides that "a person who withdraws a lawsuit after a final judgment on the merits has been rendered may not file the same lawsuit," and paragraph (1) provides that "with respect to the withdrawn portion, the lawsuit is deemed never to have been pending" (Civil Procedure Act Article 267). This text takes as conditions the time of withdrawal and the scope of the lawsuit affected. Accordingly, the written withdrawal and the final judgment are records showing when the withdrawal took place and which portion was withdrawn, and the earlier complaint and the claim of the later lawsuit are records setting out the scope of the two demands to be compared.
The reason these records are placed together is that the stages of the determination differ. What paragraph (2) of Article 267 of the Civil Procedure Act bars is the refiling of the same lawsuit withdrawn after a final judgment on the merits, while paragraph (1) establishes the effect of treating the lawsuit as never pending with respect to the withdrawn portion. Meanwhile, Article 216 of the Civil Procedure Act provides that "a final and conclusive judgment has res judicata only as to matters included in the operative part." Accordingly, to concretely compare the portion withdrawn or adjudicated in the earlier lawsuit with the demand of the later lawsuit, a record showing the time of withdrawal and a record showing the scope included in the operative part are each required. If that record is absent, the conclusion remains undetermined.
The counterargument this determination targets is the fact that the bar on repeat litigation can be circumvented by fragmenting and altering claims. By slightly changing the wording of the claim or splitting and setting out the scope of performance, room arises to refile the same demand as the earlier lawsuit while escaping the charge that it is the same lawsuit. The inconvenience left by such circumvention lies in weakening the definitive resolution of disputes that the norm of the bar on repeat litigation aims at. That said, all different claims cannot be identified as one merely because of partial overlap. This determination answers the counterargument only insofar as it aligns and compares the scopes of performance of the earlier and later lawsuits and then takes the result of that comparison as the basis of the determination.
The fact confirmed in the synthetic scene is only that Plaintiff A wrote the same demand as in the lawsuit pending against Defendant B into a new complaint. This scene presupposes a situation in which the complaint of the earlier lawsuit and the claim of the later lawsuit overlap at least in part, but it is not stated whether the earlier lawsuit is still pending or has been withdrawn and, if there was a withdrawal, whether it came before or after the final judgment on the merits. The earlier complaint, the written withdrawal, the final judgment, and the claim of the later lawsuit are needed, but their timing and scope are not confirmed. Accordingly, on this scene alone the establishment of the restriction on refiling cannot be determined, and the extent to which the scopes of claims of the earlier and later lawsuits are the same also remains unverified.
The conclusion permitted by this section extends only to the point that, to adjudicate whether the restriction on repeat litigation applies, the records known as the earlier complaint, the written withdrawal, the final judgment, and the claim of the later lawsuit must exist, and that if those records are absent the conclusion is left undetermined. This section does not assert that once those records are assembled refiling is immediately permitted or barred, nor does it treat the rights in the remaining scope as nonexistent on account of partial overlap of claims. The actual performance outcome or recovery results of a real case are also not the subject of this determination.
6.5Circumstances That Change the Decision
The question of what scope alone may be newly contested is intertwined with the issue of the interest in confirmation addressed earlier. Within the scene in which Plaintiff A wrote again, in a different complaint, the same demand as in the lawsuit pending against Defendant B, the problem now is the point at which the newly raised demand overturns the determination reached at the preceding stage.
The provisions that answer this question are laid out in two paragraphs of Article 267 of the Civil Procedure Act. Paragraph (1) provides that "the action shall be deemed not to have been pending from the outset with respect to the portion that has been withdrawn," and paragraph (2) 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 again" (Article 267 of the Civil Procedure Act). In the preceding paragraph the subject is the person who withdrew the action, the act is the withdrawal, and that portion is treated as though it had never been pending. The following paragraph, by contrast, divides the time of withdrawal before and after the final judgment on the merits, and bars re-filing the same action only for a withdrawal made after the judgment.
The reason these two paragraphs must be placed side by side is that they attach different results to different conditions. If the withdrawn portion is as though it had never existed, that portion may be brought back. Yet if that withdrawal was made after the final judgment on the merits, paragraph (2) bars that portion from being re-filed as the same action. In other words, the restriction on re-filing the same action is bound not to the act of withdrawal itself but to the time of withdrawal. This determination can stand only after the records — the prior complaint, the written withdrawal, the final judgment, and the statement of claim of the subsequent action — are set against one another.
The counterargument that presses most strongly against this stage-by-stage distinction is the concern that, by amending a claim little by little, the bar on repetition can be circumvented to any extent. Indeed, if a claim is split into fine pieces and re-drafted, the statement of claim of the subsequent action may not appear identical to the prior action at all. It must also be kept in mind that, if such inconvenience is ignored, a person who designed the first action badly will lose the right irretrievably. Even so, not all distinct claims may be equated merely because part of them overlaps. If, on the sole basis that part overlaps, the two claims in their entirety are bundled together as the same, the result is that the remaining rights are erased as well.
The facts that can be determined in this scene are limited. Plaintiff A wrote the same demand against Defendant B, as in the lawsuit pending against that defendant, in a different complaint, and the partial-claim comparison here means matching the scope of performance handled by the preceding and subsequent lawsuits. Whether the prior action is still pending, whether it has already been withdrawn, whether — if it was withdrawn — that withdrawal came before or after the final judgment on the merits, and how far the demand of the subsequent action overlaps the portion withdrawn from or adjudicated in the prior action, none of this is fixed by the scene alone. Accordingly, before the records are confirmed, it must remain undetermined whether the way is blocked or the channel is open.
The conclusion this section permits is narrow. If it is confirmed whether the time of withdrawal fell before or after the final judgment on the merits, the existing determination is discarded and the matter is adjudicated anew from the beginning. Here, efficacy means the state in which the channel for re-filing the subsequent action is open, unobstructed by the status of the prior action — pending, withdrawn, or reduced to a final judgment — and by the subject matter of the subsequent action; it does not mean the actual results of payment, delivery, or recovery. By contrast, a determination that treats the two claims in their entirety as identical merely because part of them overlaps is not one this section permits.
6.6The Strongest Counterargument and the Answer
To avoid such a loss while observing the bar on repetition, the overlapping scope and the remaining scope must be examined separately. What the preceding stage confirmed is only that the mere avoidance of duplication does not by itself generate an interest in confirmation, and this sentence does not mean that a new object has arisen. If the bar on repetition can be avoided by dividing a claim into fine parts and re-filing it, up to what scope may the parts be regarded as distinct claims? What is to be determined in this scene is where the demand of the subsequent action overlaps the prior action.
Article 267 of the Civil Procedure Act is divided into two paragraphs and prescribes the effects of withdrawal of an action. Paragraph (1) declares that "the action shall be deemed not to have been pending from the outset with respect to the portion that has been withdrawn." The subject indicated by this language is the person who withdrew the action, and that person's act is the withdrawal of all or part of the claim. Read in accordance with its language, the result is that the withdrawn portion returns to a state in which the action was never pending. Paragraph (2) adds one further condition and 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 again." Here the subject is the person who withdrew after the judgment, and the prohibited act is the re-filing of the same action. Since the scope of "the same action" is what is at issue, there is no need to extend to other issues under the provision (Article 267 of the Civil Procedure Act).
Placed side by side, these two paragraphs determine whether the time of withdrawal opens or closes the prohibition of paragraph (2). The reason the stages divide in this way is that paragraph (1) deals with the extinction of the withdrawn portion, while paragraph (2) deals with the restriction on re-filing following a withdrawal made after the judgment. Here the partial-claim comparison means matching the scope of performance handled by the preceding and subsequent lawsuits. If the comparison is applied to the two paragraphs in order, the withdrawn portion can first be set aside, and the restriction on re-filing can then be examined as to the remainder. The language that a final and conclusive judgment "has res judicata only as to matters included in the dispositive part" (Article 216 of the Civil Procedure Act) is likewise read in the same direction. Only what is contained in the dispositive part obtains the effect of the judgment; the scope left outside remains, as it is, a separate object of adjudication.
A claim may be altered in fine increments to circumvent the bar on repetition. This concern arises from the design of the action. Where a plaintiff who set the scope of the claim improperly in the first action later seeks to contest the remaining portion separately, treating the whole as a repetitive lawsuit on the strength of the overlapping portion alone blocks any way to correct the design error. The loss that arises then is not procedural convenience but the extinction of the remaining right itself, and that inconvenience is difficult to reverse. The author's response, however, does not deny the concern. While leaving intact the irretrievability that the counterargument targets, the conclusion is maintained on the ground that the degree of overlap may serve as a criterion but cannot serve as a criterion for identity as a whole.
Only two facts appear in this scene: the fact that Plaintiff A wrote the same demand against Defendant B, as in the lawsuit pending against that defendant, in a different complaint, and the instruction that the scope of performance handled by the preceding and subsequent lawsuits must be matched. Placed within the comparison, what becomes decisive is how far the statement of claim of the subsequent action overlaps the subject matter of the prior action. However, whether the prior action is still pending now, whether it has been withdrawn, and whether — even if there was a withdrawal — it came before or after the final judgment on the merits, are all left unsettled by the scene. If it is confirmed whether the withdrawal came before or after the final judgment on the merits, the conclusion on the restriction against re-filing the same action changes. The records that must be compared are the prior complaint, the written withdrawal, the final judgment, and the statement of claim of the subsequent action, and the portions for which these records have not been obtained remain undetermined (Article 267 of the Civil Procedure Act).
The conclusion this section permits is as follows. If the portion withdrawn from or adjudicated in the prior action and the demand of the subsequent action are compared concretely, the overlapping scope and the remaining scope can be distinguished, and not all distinct claims are equated merely because part of them overlaps. Conversely, conclusions that are not permitted are a determination that an interest in confirmation arises from the mere fact of having avoided duplication, or a determination that rejects the subsequent action in its entirety as a repetitive lawsuit without any partial-claim comparison. The channel for re-filing the subsequent action is open where the status of the prior action — pending, withdrawn, or reduced to a final judgment — and the subject matter of the subsequent action do not fall within the relevant restriction on re-filing; it is blocked where a party 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.
6.7The Link to the Application and the Dispositive Part
After accepting from the preceding section the conclusion that not all distinct claims may be equated merely because part of them overlaps, this time the scope of disposition in the prior lawsuit and the scope of the demand in the new complaint must be placed side by side. What is at issue is how far that demand was dealt with in the previous action.
As the provision that determines the disposition of the prior action, Article 267 of the Civil Procedure Act provides that "the action shall be deemed not to have been pending from the outset with respect to the portion that has been withdrawn." In this language the subject is the person who withdrew the action, the act is the withdrawal, and the condition is precisely the portion that has been withdrawn. What remains here is the withdrawn portion, and as to that portion the state returns to one in which no action had ever been pending.
Paragraph (2) of the same Article draws the line that "a person who has withdrawn an action after a final judgment on the merits has been rendered may not bring the same action again" (Article 267 of the Civil Procedure Act). Accordingly, when a demand is said to be newly contested, one must first divide whether that demand was withdrawn from the prior action or was adjudicated by a final judgment on the merits, because withdrawal and a final judgment are treated differently. If the two are bundled and handled as one mass, the difference between these two routes is erased.
Once this comparison is made, the scope that may be newly contested narrows to the remainder not dealt with in the prior action. Conversely, the concern that a claim may be altered in fine increments to circumvent the bar on repetition points to a real inconvenience. If duplication is blocked strictly, a design error in the first action becomes irretrievable. The way to resolve the concern does not lie in calling the claim in its entirety the same, but in separately sifting out the overlapping portion.
Article 216 of the Civil Procedure Act confirms that "a final and conclusive judgment has res judicata only as to matters included in the dispositive part." This language means that the scope closed by the judgment is limited to what is included in the dispositive part, and, in the author's assessment, that limitation is carried over as it is into the comparison work for the subsequent action. What has been confirmed, however, is only the language and its scope; what records actually exist between A and B remains undetermined. The materials to be observed have merely been set as the prior complaint, the written withdrawal, the final judgment, and the statement of claim of the subsequent action.
What this section permits is that only the portion not dealt with in the prior action may be newly contested; what it does not permit is the repetition of a portion already dealt with in the prior action. That boundary does not speak of the result of a fixed judgment or a completed recovery; it is a matter of the criterion for adjudication that distinct claims will not be called one in their entirety. If the partial-claim comparison is carried out with the prior complaint, the written withdrawal, the final judgment, and the statement of claim of the subsequent action, that boundary can be confirmed. Whether a demand was absent from the prior action is determined only through that comparison.
6.8The Scope This Section Undertakes
The preceding stage is taken over only in this way. The question remaining in this scene is what scope alone may be newly contested. Even though the interest in confirmation is separately required, the scope of the claim is not thereby determined automatically. What is to be determined now is the breadth of the demands handled by the two complaints, preceding and subsequent.
The textual basis of this comparison is Article 267 of the Civil Procedure Act. That provision provides, “the action shall be deemed not to have been pending from the outset with respect to the portion that has been withdrawn,” and then draws the line that “a person who has withdrawn an action after a final judgment on the merits has been rendered may not bring the same action again.” The preceding sentence restores the withdrawn scope, while the following sentence bars the re-filing of the same action only for a withdrawal made after a certain point in time.
The reason the two sentences are separated is that the size of the scope they address and the time in question are different questions. Article 216 of the Civil Procedure Act provides that “a final and conclusive judgment has res judicata only as to matters included in the dispositive part,” thereby binding within the dispositive part the scope in which adjudication closes again. The application the author draws here is that these two are not merged into a single line. The work of placing separately and matching the withdrawn portion, the portion remaining after the judgment, and the portion newly demanded by the subsequent action — that is, the partial-claim comparison — is what is needed here. This comparison means matching the scope of performance handled by the preceding and subsequent lawsuits.
The counterargument that a claim may be altered in fine increments to circumvent the bar on repetition targets a substantive loss. If a claim is split up and re-filed under a new name, the parties can drag the same dispute on time and again, and the opposing party must prepare the same defense anew each time. There is also inconvenience in the direction of blocking duplication strictly: a design error in the first action may become irretrievable. So long as overlapping performance and non-overlapping performance are examined separately, the force that blocks repetition will not swallow the remaining rights as well.
What is confirmed in the scene between A and B is only the fact that the demands overlap in part and the fact that the prior action is pending. This record says only that the work of setting the prior complaint, the written withdrawal, the final judgment, and the statement of claim of the subsequent action against one another is possible; it does not tell what contents those documents actually contain. Accordingly, whether the restriction that bars the re-filing of the same action applies, or whether the matter may be newly contested within the non-overlapping scope, remains undetermined. From the scene alone that point in time is not fixed either.
The conclusion this section permits is narrow: the portion omitted from the prior action, the portion remaining, and the demand newly written in the subsequent action are set against one another in terms of the scope of performance; and the two claims in their entirety are not treated as the same merely because part of them overlaps. Beyond that, this section does not answer as to the effect of the claim in its entirety, the scope in which a final and conclusive judgment again bars contest, or whether the same case name necessarily means the same claim. Only after the overlapping scope has been narrowed down does the question remain whether the demand that is left can stand separately.
6.9Application of the Text of the Provisions and the Holdings of Precedents
The question remaining in this scene is whether a channel is opened for re-filing a subsequent action, and that determination is bound by the wording of the relevant text.
Among the relevant provisions, Article 267 of the Civil Procedure Act divides the effect of a withdrawal of action into two paragraphs. Paragraph (1) provides that "with respect to the withdrawn portion, the action shall be deemed not to have been pending from the outset," thereby defining the effect by which the action within the withdrawn scope retroactively ceases to have existed. Paragraph (2) provides that "a person who has withdrawn an action after a final judgment on the merits may not bring the same action," making it clear in its wording that whether the time of withdrawal falls after the final judgment on the merits is the condition for the bar against re-filing the same action (Article 267 of the Civil Procedure Act).
The basis linking this wording to the conclusion of this section is a comparison of which portion of the preceding action overlaps with the claim of the subsequent action, and that comparison is called the partial-claim comparison. The partial-claim comparison is the work of matching the scopes of performance handled by the preceding and subsequent lawsuits. Article 216, paragraph (1) of the Civil Procedure Act provides that "a final and conclusive judgment shall have res judicata only with respect to what is contained in the dispositive part," limiting the scope subject to res judicata to what is contained in the dispositive part (Article 216 of the Civil Procedure Act). Accordingly, the basis for determining whether the channel for re-filing a subsequent action is opened is limited to the wording of these two Articles, and is not extended to the reasons for the judgment or to other paragraphs.
If a claim is split and brought again, a way is opened to remedy the design error of the first action, but it is also noted together that the price is the loss that the rule prohibiting duplication may be rendered powerless. The counterargument demands that partial overlap alone should not treat an entire claim as identical. The preceding answer accepts that demand and draws a line that not all distinct claims can be equated merely because of partial overlap. However, that answer does not unconditionally open the channel for re-filing a subsequent action, and it leaves as is whether the conditions of the wording examined above are satisfied.
As materials for the determination, the preceding complaint, the written withdrawal, the final judgment, and the demand of the subsequent action are identified, but the scene does not fill in the contents of those materials. Accordingly, whether the preceding action is still pending, where the scope of the withdrawn portion lies, whether the withdrawal came before or after the final judgment on the merits, and which scope of performance the demand of the subsequent action overlaps with all remain undetermined. What this section determines is only the scope of application of the wording and the standard of the partial-claim comparison.
The conclusion this section permits is a determination of the channel for filing a subsequent action, limited to the wording of Articles 267 and 216 of the Civil Procedure Act, and the point that how the demand of the subsequent action meshes with the portion withdrawn or adjudicated in the preceding action is examined narrowly through the partial-claim comparison. The conclusions not permitted are a determination equating all distinct claims merely because of partial overlap, and a determination extending the application of the wording to the reasons for the judgment or to other paragraphs. Since the scene alone cannot determine the outcome of victory or defeat, the result of performance, or the recovery achieved, that place is left undetermined.
6.10Fine Distinctions Within the Stage
The basis is the wording of Article 267 and Article 216 of the Civil Procedure Act. Looking at the scene, Plaintiff A wrote the same demand as that of the lawsuit pending against Defendant B into a different complaint. Here the question is not whether the new action itself is admissible, but how far the scopes of performance handled respectively by the preceding and the subsequent action overlap. If partial overlap is read immediately as a complete repetition, then even as to the remaining rights that do not overlap, the place for re-dispute is closed off.
Among the relevant provisions, Article 267 of the Civil Procedure Act first sets out the effect of a withdrawal of action in two passages. The first states that "with respect to the withdrawn portion, the action shall be deemed never to have been pending" (Article 267 of the Civil Procedure Act), restoring only the withdrawn scope to a state of never having been pending. The second states that "a person who has withdrawn an action after a final judgment on the merits may not bring the same action" (Article 267 of the Civil Procedure Act), barring the re-filing of the same action in cases where the time of withdrawal falls after the final judgment on the merits. Both passages do not address the action as a whole, but respond only to the limited objects of the withdrawn portion and the same action. This section reads only how these passages delimit the scope and timing of the withdrawal.
Meanwhile, Article 216 of the Civil Procedure Act provides that a final and conclusive judgment has res judicata only "with respect to what is contained in the dispositive part," and limits the determination on a set-off defense to having res judicata "only with respect to the amount asserted for set-off" (Article 216 of the Civil Procedure Act). The conclusion these two passages support is that the portion withdrawn or adjudicated in the preceding action and the demand of the subsequent action must be compared concretely. The reason comparison is needed is that the two stages of determination examined above answer different questions. Article 267 of the Civil Procedure Act separately asks which portion was re-opened in the preceding action, while Article 216 asks in which scope alone the preceding judgment has bound the parties. If these two distinctions are collapsed, the withdrawn portion and the adjudicated portion are treated as being in the same state.
The strongest counterargument targets the point that a claim can be finely split to circumvent the bar on repetition. If the plaintiff divides little by little the demand dealt with in the preceding action and writes it into several complaints, the concern is that the duplication bar slips past each sheet of paper and, in the end, the same dispute is repeated. Conversely, if duplication is strictly blocked, a person who once designed a claim wrongly can never again contest even the remaining rights, leaving the disadvantage that such a loss is difficult to reverse. Even so, this inconvenience alone cannot equate all distinct claims merely because of partial overlap. Here the partial-claim comparison remains a task of separately confirming the overlapping scope and the non-overlapping scope.
The fact confirmed in the synthetic scene is only one: that Plaintiff A wrote the same demand as that of the lawsuit pending against Defendant B into a different complaint. This scene alone does not determine whether the preceding action is still pending, what scope was withdrawn, or whether a final judgment on the merits has already been rendered. The materials set as the basis for determination are the preceding complaint, the written withdrawal, the final judgment, and the demand of the subsequent action. Accordingly, the result of the comparison varies according to how far the demand of the subsequent action overlaps with the portion withdrawn or adjudicated in the preceding action, and the scope for which materials are still lacking remains undetermined.
The conclusion this section permits is narrow. The partial-claim comparison means the work of matching the scopes of performance handled by the preceding and subsequent lawsuits, and the portion withdrawn or adjudicated in the preceding action must be compared concretely with the demand of the subsequent action. This task is not one of confirming whether the name of the claim or the designation of the case is the same, but one of matching which action asked for which scope of performance. A determination that calls the entire claim of the subsequent action a repeat lawsuit on the basis of partial overlap alone lies outside this comparison, and it is also not the case that the necessity of a new action is immediately recognized merely because overlap has been avoided. At that boundary, the next question continues as follows: How are the operation, the blocking, and the undetermined status of the channel for re-filing a subsequent action to be distinguished?
6.11Synthesis of Effectiveness, Blockage, and Undetermination
This is called the partial-claim comparison, and it means the work of matching the scopes of performance handled by the preceding and subsequent lawsuits. Only after that comparison is completed can one determine whether the channel for re-filing a subsequent action is opened or blocked. This question is one of what scope alone can be newly contested.
The relevant provision for this question is found in Article 267 of the Civil Procedure Act. Article 267, paragraph (1) provides that, with respect to the withdrawn portion, the action shall be deemed never to have been pending. In this passage, the withdrawn portion is the scope that the plaintiff had taken up as the subject matter of suit in the preceding action and then took back, and it refers to the retroactive effect of the withdrawal, namely the effect of being deemed never to have been pending. Paragraph (2) provides that a person who has withdrawn an action after a final judgment on the merits may not bring the same action. Here the actor is a person who withdrew after the final judgment, the act is the re-filing of the same action, and the condition is whether the time of withdrawal falls after the final judgment on the merits (Article 267 of the Civil Procedure Act).
Article 216, paragraph (1) of the Civil Procedure Act provides that a final and conclusive judgment has res judicata only with respect to what is contained in the dispositive part (Article 216 of the Civil Procedure Act). Linking these two passages separates the stages of determining the channel for re-filing a subsequent action. First, one confirms in advance the state of the preceding action: whether it is pending, whether it was dissolved by withdrawal, or whether it was closed by a final judgment. Second, one matches, through the partial-claim comparison, how the object of the subsequent action overlaps with the portion withdrawn or adjudicated in the preceding action. Third, one determines whether that overlap constitutes the same action under Article 267, paragraph (2), or falls outside what is contained in the dispositive part under Article 216. If one skips this third stage and opens or closes the channel on the basis of the effect of withdrawal under paragraph (1) alone, the withdrawn portion and the remaining portion cannot be distinguished.
The strongest counterargument is that a claim can be finely altered to circumvent the bar on repetition. If the plaintiff splits the amount in the demand or merely changes the labeling of the object of performance and divides the subsequent actions into several cases, the demands of the preceding and subsequent actions appear to differ slightly from each other, and the bar on re-filing slips away. In this way, through evasion of repeat lawsuits, disputes increase without end, and Defendant B bears the inconvenience and cost of having to respond again to the same dispute. However, the way to prevent this loss does not lie in treating all claims as one lump. Only the portions where the scopes of performance actually overlap should be limited so as to fall under the bar on re-filing, and the remaining non-overlapping portions must, as a result of the partial-claim comparison, be left as remaining rights.
What can be confirmed in this scene is only the fact that Plaintiff A wrote the same demand as that of the lawsuit pending against Defendant B into a different complaint. Whether the scope of performance of this demand is exactly the same as the portion withdrawn in the preceding action, or overlaps with what is contained in the dispositive part of the final judgment, or overlaps only in part, must be confirmed from the records. The records needed for the determination are the preceding complaint, the written withdrawal, the final judgment, and the demand of the subsequent action. However, the timing of the withdrawal is not established in this scene. Since neither the timing of the withdrawal in the preceding action nor the object of the subsequent action has been confirmed, the opening or blocking of the channel cannot be determined from this scene, and it remains undetermined.
Accordingly, the conclusions this section permits divide into three. Where the state of the preceding action—whether pending, withdrawn, or closed by a final judgment—is confirmed, and the object of the subsequent action does not fall under the applicable bar on re-filing, the channel is open. Where the same case is pending and suit is filed again, or where the same action is brought again after having been withdrawn following a final judgment on the merits, the channel is blocked. Where the timing of the withdrawal in the preceding action or the object of the subsequent action is not confirmed, the matter is undetermined, and that lack of materials is not immediately converted into a bar to relief. Conversely, the remaining rights must not be erased as repeat lawsuits merely because partial overlap alone has been confirmed.
6.12이 권의 결론과 남는 물음
The preceding section left behind a distinction: the channel for re-filing a subsequent action may be opened, or blocked, or remain undetermined, according to whether the preceding action is pending, withdrawn, or subject to a final judgment. The question that now remains is which portion can actually be contested after that channel is opened. In this scene, the overlapping scope and the non-overlapping scope must both be dealt with.
The relevant provisions for this question address the withdrawal of an action and the scope of a final and conclusive judgment, respectively. Article 267 of the Civil Procedure Act provides that "with respect to the withdrawn portion, the action shall be deemed never to have been pending." This passage denies the pendency of the action with respect to the withdrawn portion; the actor is the person who withdrew the action, and the act is the withdrawal. The condition is limited to the withdrawn portion. Paragraph (2) of the same Article provides that "a person who has withdrawn an action after a final judgment on the merits may not bring the same action," separately establishing the bar on re-filing arising from a withdrawal after the final judgment.
Together with this, Article 216 of the Civil Procedure Act draws a line that "a final and conclusive judgment shall have res judicata only with respect to what is contained in the dispositive part." This phrase states that the effect of a final and conclusive judgment is bound to the scope contained in the dispositive part. Accordingly, the portion withdrawn in the preceding action, whose pendency is denied, and the portion entering the dispositive part of the final and conclusive judgment and adjudicated, constitute different stages of determination. The former means that the action was never pending from the outset; the latter means that re-dispute is barred within the scope already adjudicated. These two cannot be bound together and judged as one. Hence, when comparing the demand of the subsequent action, one must distinguish whether it is a withdrawn portion or an adjudicated portion, and that distinction is precisely the partial-claim comparison.
The loss that clearly arises if this comparison is not deliberately divided is as follows. If a design that alters the claim little by little to repeat the same dispute is taken as a circumvention and the subsequent action is blocked in its entirety, then even the rights that were never dealt with in the preceding action, or that were withdrawn, are buried along with it. Yet if the bar on repetition is completely lifted, demands previously concluded come back to life in the pending lawsuit. The answer lies between these two. The overlapping scope is dealt with according to the steps set by each provision, while the non-overlapping scope is separately preserved.
The fact confirmed in the synthetic scene is only that Plaintiff A wrote the same demand, by another complaint, in the lawsuit pending against Defendant B. This fact alone does not determine which portion was withdrawn in the preceding action, which portion entered the dispositive part and was adjudicated, or which scope of performance the demand of the subsequent action indicates. Accordingly, the standard of determination left by this section remains conditional.
The conclusion this section permits is this: that the portion withdrawn or adjudicated in the preceding action must be compared concretely with the demand of the subsequent action. The conclusion this section does not permit is that of treating both claims as identical upon seeing only partial overlap. Depending on the result of the comparison, a scope for new dispute may remain, and bringing the remaining scope as a subsequent action is subject to separate requirements. Those requirements are not determined here and are passed to the next question. In the court of which location is a lawsuit commenced?
Statutes referred to
Questions left open
- How should the boundary of the dispute remaining after a partial withdrawal be clarified?
- At what moment does the need for a declaratory action disappear?
- How should the cost between restraint of repeat lawsuits and access to justice be allocated?