Summary
Conciliation is established by entering in the record the matters agreed between the parties.
2.1The Standard by Which the Path Opens
The moment when the parties reach a meeting of minds in negotiations and the moment when a conciliation is formed that will lead to enforcement are different. The preceding section confirmed that the effect of a settlement and the like entered in an official record must be distinguished from the effect of a private agreement, and that distinction leads directly to the question: does a conciliation come into existence upon an oral agreement? Plaintiff A and Defendant B exchanged drafts of an agreement, but they differ as to whether the matter was entered in the conciliation record and as to whether an objection was raised to the decision recommending settlement. In this scene, the issue at present is whether it can be recorded that a conciliation was formed solely on the basis of the drafts of agreement exchanged by the two parties, or whether a separate standard for opening the channel of this remedy must also be met.
The relevant source text answering this question is as follows. Article 28 of the Judicial Conciliation of Civil Disputes Act provides that "a conciliation is formed by entering into a record the matters agreed upon between the parties" (Article 28 of the Judicial Conciliation of Civil Disputes Act). The subject indicated by this wording is the parties, their act is the entry of the agreed matters, and the condition is that such entry is made in an official record, a legally prescribed document. This provision makes the external form of the agreed matters being entered in a record, and not an oral agreement or a signed draft itself, the requirement for formation.
The conclusion reached through that wording is clear. A conciliation is formed by entering into a record the matters agreed upon between the parties (Article 28 of the Judicial Conciliation of Civil Disputes Act). The reason why the substance of the agreement must be distinguished here from the procedural effect of the formation of conciliation lies in the same context as the earlier division between the effect of a settlement and the like entered in an official record and the effect of a private agreement. At the same time, it is provided that a conciliation has the same effect as a judicial settlement (Article 29 of the Judicial Conciliation of Civil Disputes Act), confirming that the effect after formation stands in the same position as a judicial settlement. The entrance to this remedy opens where the agreement is entered in an official record, or where the grounds for the effect of a decision recommending or substituting for settlement are satisfied and the object of performance is specified.
However, the counterargument that a delay in preparing the record may shake an agreement already reached cannot be ignored. The advantage gained by swiftly reaching a meeting of minds in negotiations may disappear under the burden of the period for appeal or of formal requirements while the procedure for preparing the record is delayed. The parties expect swift closure the moment they reach agreement, and if that agreement is delayed until it acquires the procedural form of the court, there is a risk that the promise already made will itself be shaken. Even so, an oral agreement cannot be recorded as a conciliation formed without its entry in a record. Where the matter remains a mere private promise, or where a legally valid objection is raised to a decision recommending or substituting for settlement so that relief by virtue of the final and conclusive effect of that decision cannot be obtained, the agreement remains without passing through the procedural channel of the formation of conciliation.
Returning to this scene, Plaintiff A and Defendant B exchanged drafts of an agreement, but they differ as to whether the matter was entered in the conciliation record and as to whether an objection was raised to the decision recommending settlement. These facts alone do not establish which agreement was entered in the record or whether a legally valid objection was raised to the decision recommending settlement. Accordingly, at this point it cannot be asserted either that a conciliation was formed or that it was not, and the matter remains in the state where entry in the record, or the status of objection and effect, is unconfirmed. It is, however, a confirmed condition that once an agreement that had only a negotiated signature is entered in an official record, that changes the classification of the effect of that document.
What this section permits is the judgment of recognizing the procedural effect of the formation of conciliation for an agreement that has met the requirement of entry in a record. Recording as the formation of conciliation an agreement that has remained a mere private promise is not permitted, nor is it permitted to arbitrarily presume and fix an unconfirmed status of entry. What follows concerns the conditions under which an agreement leads to performance carrying final and conclusive effect and the question of the limits of that path.
2.2The Conditions That Block Relief
The effect of a settlement and the like entered in an official record must be distinguished from the effect of a private agreement. Although the preceding step set up that distinction, what must now be asked is the point at which that distinction actually bars the procedure. Does a conciliation come into existence upon an oral agreement? In this question, the real burden lies not in whether an agreement was exchanged, but in whether that agreement satisfied the statutory requirements for reaching the channel of relief. If that channel does not open merely by exchanging drafts of agreement, one must first determine under what conditions the channel remains closed.
A conciliation is formed by entering into a record the matters agreed upon between the parties (Article 28 of the Judicial Conciliation of Civil Disputes Act). This wording points to the parties who agreed as the subject of the formation of conciliation, the entry of the agreed matters in a record as the act, and the completion of that entry as the condition. Since the formation of conciliation is a procedural effect arising from the entry of the agreed matters in a record, the act required by this wording cannot be said to have occurred by words or signature alone. The reason entry in a record is required lies in placing the content of the agreement on the procedural record so as to fix its effect. This provision determines only the time and requirements of the formation of conciliation and says nothing of the separate route of a decision recommending settlement or an objection thereto.
This connects the present wording with the preceding distinction. The reason for dividing a private agreement from an official record is that the procedural effects produced by the two documents differ. A conciliation has the same effect as a judicial settlement (Article 29 of the Judicial Conciliation of Civil Disputes Act). This effect attaches after the matter has been entered in a record and the conciliation has been formed; it does not arise merely from the fact that an agreement was exchanged. Where the matter remains a mere private promise, or where a legally valid objection is raised to a decision recommending or substituting for settlement so that relief by virtue of the final and conclusive effect of that decision cannot be obtained, if even one of the statutory requirements is unmet, the channel of relief is closed. Relief by virtue of final and conclusive effect is the operating condition of the channel that connects an agreement to performance carrying final and conclusive effect, and an agreement that fails to meet that condition remains outside this channel.
The counterargument that a delay in preparing the record may shake an agreement already reached is aimed at the point that the gap between the moment of reaching a meeting of minds and the moment the entry is completed becomes a substantive loss to the parties. If the other party changes its mind, or if while the record is prepared late the parties are left only with what they conceded in negotiations without obtaining any status in the document, the advantage of a swift agreement may vanish under the burden of form and the period for appeal. The inconvenience identified by the counterargument remains, but that inconvenience does not alter the statutory requirements for the formation of conciliation. The conclusion lies not toward relaxing those requirements, but toward the position that an agreement failing to meet them is not connected through this channel.
In the synthetic scene, Plaintiff A and Defendant B exchanged drafts of an agreement, but they differ as to whether the matter was entered in the conciliation record and as to whether an objection was raised to the decision recommending settlement. From this scene alone, it cannot be established which agreement was entered in the record or which objection is valid. If the fact of entry in the record is unconfirmed, it cannot be judged whether that agreement met the statutory requirements for the formation of conciliation; if the validity of the objection is unconfirmed, it cannot be judged either whether relief by virtue of the final and conclusive effect of the decision recommending or substituting for settlement is available. Since it has not been determined which record exists among the agreement document, the settlement or conciliation record, service, objection, grounds of finality, and performance records, the undetermined matters remain as they are. If it is confirmed that an agreement that had only a negotiated signature was entered in an official record, the classification of the effect of that document changes.
What this section permits goes no further than the judgment that a conciliation is formed by the entry of the agreed matters in a record, and that the conciliation is clothed with the same effect as a judicial settlement. What it does not permit is recording as an already formed conciliation an oral agreement exchanged without entry in a record or a mere negotiated signature, nor is it treating a private promise as a document equivalent to performance carrying final and conclusive effect. A matter whose entry in a record, or whose status of objection and effect, remains unconfirmed is left undetermined, but that indeterminacy does not itself mean that relief is impossible. When a decision recommending settlement is issued, is the settlement finalized immediately?
2.3The Boundary That Remains When There Is No Data
On one side there is only an exchange of drafts with entry in a record unconfirmed; on the other, whether an objection was raised to the decision recommending settlement remains open. This question lies in distinguishing when the stage of reaching the meaning of an agreement and the procedural stage called the formation of conciliation diverge.
Under this wording, the subject of the formation of conciliation is the parties who agreed, and the matters they have settled become the object of entry in a record. The act required by the wording is not individual signatures on the agreement or the exchange of an agreement document but entry in a record, and the condition is that the effect of formation arises from that entry. This provision addresses only the time of the formation of conciliation in this paragraph. Article 29 of the Judicial Conciliation of Civil Disputes Act, concerning the effect of a formed conciliation, states that "a conciliation has the same effect as a judicial settlement," and this wording indicates the classification of the effect after formation.
Why must an agreement entered in an official record be distinguished from a private agreement? The formation of conciliation defined by Article 28 is a procedural effect arising from the entry of the agreed matters in a record, and it is Article 29 that provides that the conciliation thus formed bears the same effect as a judicial settlement. A private agreement may also carry the effect of a promise between the parties, but without the entry in a record being added it fails to satisfy the stage at which it is first formed as a conciliation. This distinction is a different matter from whether the content of the agreement is clear. However excellent the content, if entry in a record is unconfirmed it cannot be recorded that the procedural effect of the formation of conciliation has arisen. In this section, the formation of conciliation means the procedural effect arising from the entry of the agreed matters in a record.
A delay in preparing the record may shake an agreement already reached. Since the advantage of a swift agreement may vanish under the burden of form and the period for appeal, after the drafts are exchanged and while the record fails to follow, the parties may seem to lose the means of settling the intention they have already reached. This loss and inconvenience are not denied. The social value of an agreement often appears already realized at the moment of signature, and if the form of entry in a record delays that result, the party that kept its promise may instead be disadvantaged. The burden of form does not substitute for the requirements of formation, and deficient materials do not convert this circumstance into a judgment fixing it.
The facts confirmed in the synthetic scene are only the exchange of drafts and the mismatch in the accompanying matters of entry and objection. As to the side on which entry in the conciliation record is unconfirmed, no material has been specified for judging whether the requirements for formation under Article 28 were met; as to the side on which whether an objection was raised to the decision recommending settlement is unconfirmed, there is no material for determining whether the final and conclusive effect of that decision arose. This state of deficiency is distinct from impossibility. Because declaring a matter for which materials are lacking to be beyond relief would block the way to reconsider the judgment once the status of entry in the record or objection is revealed, matters for which the materials for judgment are not specified are left undetermined. Conversely, if an agreement that had only a negotiated signature is entered in an official record, the classification of the effect of that document changes.
The judgment permitted as the formation of conciliation is limited to cases where the fact that the agreed matters were entered in a record and the procedural effect flowing therefrom are confirmed. An agreement that has remained a mere private promise cannot be recorded as having been formed as a conciliation, and a matter whose entry in a record, or whose status of objection and effect, is unconfirmed must be left undetermined. This indeterminacy means the absence of materials and is not a declaration that relief is impossible. For the channel connecting an agreement to performance carrying final and conclusive effect to open, the agreement must be entered in an official record, or the grounds for the effect of a decision recommending or substituting for settlement must be satisfied and the object of performance specified; where the matter remains a mere private promise, or where by reason of a legally valid objection relief by virtue of the final and conclusive effect of that decision cannot be obtained, the channel is closed.
2.4The Records Needed for Determination
Adopting from the preceding stage of analysis the premise that the effect of a settlement and the like entered in an official record must be distinguished from the effect of a private agreement, this section now examines the stage of transferring that distinction to the record. Carrying forward the premise established earlier as it stands, the next question is what remains after an agreement has been made in words. To answer this question, one must first determine what records must be examined in adjudicating whether an agreement has been formed.
Article 28 of the Judicial Conciliation of Civil Disputes Act provides: "Article 28 (Formation of Conciliation) A conciliation is formed by entering into a record the matters agreed upon between the parties" (Article 28 of the Judicial Conciliation of Civil Disputes Act). This wording points respectively to the parties as the subject of the formation of conciliation, the entry of the agreed matters in a record as the act, and the completion of that entry as the condition. That is, the requirement for formation is not words or a meeting of minds in itself, but the transposition of the agreed matters into a record. Since the range indicated by the wording ends here, the issues arising after the formation of conciliation are not addressed in this paragraph.
The distinction between the act of entry in a record and the intention underlying an agreement forms the standard of judgment in this paragraph. Article 29 of the Judicial Conciliation of Civil Disputes Act provides: "Article 29 (Effect of Conciliation) A conciliation has the same effect as a judicial settlement" (Article 29 of the Judicial Conciliation of Civil Disputes Act). Formation and effect belong to different stages. The stage is adjudicated solely on the materials recorded in the agreement document, the settlement or conciliation record, service, objection, grounds of finality, and performance records. The stage is determined only by the established records, and absent records are not filled in by presumption. The formation of conciliation means the procedural effect arising from the entry of the agreed matters in a record.
The counterargument that a delay in preparing the record may shake an agreement already reached is aimed at the loss whereby the advantage of a swift agreement may vanish under the burden of form and the period for appeal. Even after the parties have exchanged drafts and reached a meeting of minds, if circumstances change while the preparation of the record and service follow, the substance of the agreement may be shaken, and the delay and burden in the meantime are borne by the parties. This answer does not erase the inconvenience of delay; it merely draws the line that the inconvenience does not alter the requirements for formation.
From these facts alone it cannot be adjudicated whether the agreed matters were written into the record, nor whether that entry was completed. The stage varies with what materials remain in the records, and the segment where the fact of entry is unconfirmed remains undetermined. The mere fact that an agreement document was exchanged cannot fix the formation of a conciliation, and conversely, the mere fact that entry in a record is unconfirmed cannot negate its formation. The only contrary fact assumed is the single condition that if an agreement that had only a negotiated signature is entered in an official record, that changes the classification of the effect of that document.
What this section permits is the judgment of determining the stage solely on the materials recorded in the established records and, where those records show the entry of the agreed matters in a record, recognizing the formation of conciliation. What this section does not permit is a judgment recording the formation of a conciliation on the basis of words or the exchange of drafts alone. The work of confirming what remains in the agreement document, the settlement or conciliation record, service, objection, grounds of finality, and performance records has meaning only within that boundary.
2.5Circumstances That Change the Decision
At this stage, the question is under what conditions, once this distinction is confirmed, the existing determination of blockage and effect is discarded and the assessment is redone from the stage onward. If these two items are reversed, what document effects can be recognized changes as well.
Here the actor is the parties, the act is the drafting of the agreed terms, and the condition is that those terms are entered into a record. The term 'conclusion of conciliation' means the procedural effect that arises from the entry of the agreed terms into a record. Accordingly, the textual requirement for conclusion is not the agreement itself but the entry of the agreed terms into a record, and this condition is a limited criterion of judgment regarding the time at which conciliation is concluded.
This connects the text with the rule of effect. Article 29 of the Judicial Conciliation of Civil Disputes Act provides that conciliation has the same effect as a court settlement (Article 29 of the Judicial Conciliation of Civil Disputes Act). Conclusion and effect are distinct stages of judgment. If entry into a record is confirmed at the conclusion stage, the classification of that document's effect changes; at the effect stage, that document is treated in the same manner as a court settlement. This is not a conclusion denying private agreement, but a distinction that asks that the effects capable of being recognized vary according to the stage the document has reached.
The strongest counterargument is that a delay in drafting the record may shake an agreement already reached. From the standpoint of parties who have swiftly reached a common intention, the formal procedure and the period for challenge that opens afterward appear as burdens that erode the advantage of negotiation. If plaintiff A and defendant B exchanged even the wording, the demand that the substance of the agreement prevail belongs to the same context. This loss and inconvenience remain as they are. However, an oral agreement cannot be recorded as a conciliation concluded without entry into a record. The premise that the effect of a settlement and the like entered in a court record must be distinguished from the effect of a private agreement does not, even in a case where the substance of the agreement is recognized, serve as grounds for conferring as well the procedural effect known as conclusion of conciliation.
Comparing the items relevant to this question on the basis of only the facts given in the synthetic scene, whether the terms were entered into a conciliation record and whether an objection to the decision recommending settlement was raised are different matters. Whichever side it is, if entry into a record is confirmed, the classification of that agreement's document effect is redefined; if it remained no more than a private promise, the conclusion of conciliation is not confirmed. As to whether there was an objection to the decision recommending settlement, unless the objection and the state in which the effect of that decision arose are confirmed, the availability of relief by force of its conclusive effect must remain undetermined. Whether the object of performance has been specified likewise cannot be decided on the basis of this scene alone. Accordingly, only in the part where the specified change is confirmed is the existing determination of blockage and effect discarded and the assessment redone from the stage onward.
In sum, conclusion of conciliation is a procedural effect that arises from the entry of the agreed terms into a record, and when an agreement that had only been signed in negotiation is entered into a court record, the classification of that document's effect changes. An oral agreement reached without entry into a record cannot be recorded as a conciliation concluded, and within the scope where an objection to the decision recommending settlement and the grounds for the arising of its effect are not confirmed, neither the conclusion nor the availability of relief is made definite.
2.6The Strongest Counterargument and the Answer
Adopting the premise, taken in the preceding stage of analysis, that the effect of a settlement and the like entered in a court record must be distinguished from the effect of a private agreement, this stage aims at a different question. If so, while the intention the parties have already assembled remains intact even as time is taken to draft the record, does conciliation come to be concluded once the agreement is made orally? This question is not about the genuineness of the content of the agreement, but about the time and the form of its conclusion. Accordingly, the time at which a common intention was reached and the time at which the conciliation was concluded are examined separately.
The text that answers this question is found in Article 28 of the Judicial Conciliation of Civil Disputes Act. That Article provides, "Conciliation is concluded by entering into a record the terms agreed between the parties" (Article 28 of the Judicial Conciliation of Civil Disputes Act). The actor indicated by this text is the party who filed for conciliation or appeared in the conciliation procedure, the act is the drafting of the terms agreed between those parties, and the condition is that those terms are entered into a record. Conclusion of conciliation is a procedural effect that arises from the entry of the agreed terms into a record, and what is made the requirement of conclusion is not the agreement itself but the form of entering the agreed terms into a record. Accordingly, the crux of the conclusion of conciliation is not the presence or absence of intention, but whether that intention was transferred into a record.
This connects the text with the judgment of conclusion. The reason the foregoing premise required that the effect of a settlement and the like entered in a court record be distinguished from the effect of a private agreement is that the two objects obtain effect under different conditions. A private agreement is concluded by the agreement itself once the parties reach a common intention between them, whereas conciliation is concluded only when the agreed terms are entered into a record. What governs the effect of a conciliation so concluded is Article 29 of the Judicial Conciliation of Civil Disputes Act, and that Article states, "Conciliation has the same effect as a court settlement" (Article 29 of the Judicial Conciliation of Civil Disputes Act). That is, only after the conciliation is concluded through entry into a record does the effect equal to that of a court settlement attach. Herein lies the reason the form of conclusion must be separated from the content of the effect.
What the counterargument that a delay in drafting the record may shake an agreement already reached aims at is time and inconvenience. Even after the parties have exchanged the wording of the agreement and reached a common intention, if they cannot proceed to the drafting of the record, there is the worry that the effort spent assembling the agreement may come to naught because of procedural form, and that the advantage of seeking to end the dispute swiftly may also disappear. Yet this worry does not alter the formal requirement of conclusion. The answer is that an oral agreement cannot be recorded as a conciliation concluded without entry into a record. However, since the burden of time pointed out by that counterargument does not disappear, this section also records that this is a procedure requiring both the wording of the agreement and the entry into a record.
What can be confirmed in the synthetic scene is only the condition of that distinction. The mere fact that wording was exchanged does not reveal whether entry into a record occurred, and therefore it cannot be determined from this scene alone whether conciliation was concluded. The determination of effect in this section is tied to the channel that links the agreement to a performance bearing conclusive effect, and that channel opens when the agreement is entered into a court record or when the grounds for the effect of a decision recommending settlement or substitute decision are satisfied and the object of performance has been specified. At present, where the state of entry into a record or of objection to the decision recommending settlement is unconfirmed, the matter remains undetermined.
In sum, the conclusion that conciliation is concluded by an oral agreement alone is not permitted. Conciliation is concluded by entering into a record the terms agreed between the parties (Article 28 of the Judicial Conciliation of Civil Disputes Act), and only a conciliation so concluded has the same effect as a court settlement (Article 29 of the Judicial Conciliation of Civil Disputes Act). Yet, so long as the fact that the wording of the agreement was exchanged and the presence or absence of entry into a record are not conflated, this does not mean that the agreement assembled in common intention did not exist in the first place. This question is limited to inquiring into the form of conclusion.
2.7The Link to the Application and the Dispositive Part
Although the preceding section gave the answer that an oral agreement cannot be recorded as a conciliation concluded without entry into a record, the present section starts from that sentence and asks only about the time of conclusion. At this point, it remains at issue whether the exchange of the wording of an agreement is itself the conclusion of conciliation, or whether another element must be added for conclusion.
Article 28 of the Judicial Conciliation of Civil Disputes Act sets out the requirements for the conclusion of conciliation in a single sentence. "Conciliation is concluded by entering into a record the terms agreed between the parties." This text designates, respectively, the basis on which conciliation comes to be concluded as the agreement between the parties, and the act that brings about the conclusion as the entry of those agreed terms into a record. Accordingly, the agreement alone does not reach conclusion; the stage of having the agreed terms entered into a record, a procedural document, must be passed through.
Under this text, conciliation is concluded by entering into a record the terms agreed between the parties. Here it must be made clear that agreement and entry into a record are two distinct stages. The agreement constitutes the content of the terms agreed between the parties, but so long as those terms are not entered into a record, the procedural effect known as conclusion of conciliation does not arise. As defined above, conclusion of conciliation is a procedural effect that arises from the entry of the agreed terms into a record; entry into a record therefore means the formation of the procedural document that is the starting point of conclusion. Article 29 of the Judicial Conciliation of Civil Disputes Act provides that a conciliation so concluded "has the same effect as a court settlement," thereby fixing the classification of effect after conclusion.
The counterargument that a delay in drafting the record may shake an agreement already reached aims at the point that the advantage of a swift agreement may be lost to the burden of form and of the period for challenge. The inconvenience of having an agreement shaken while awaiting entry into a record after the parties reached a common intention at the negotiating table, and the loss of having to negotiate again over an agreement that never reached conclusion, are concrete. While not denying that the form of entry into a record adds a burden upon the parties, one cannot move the requirement of conclusion forward to the agreement itself.
The mere fact that the wording of an agreement was exchanged decides neither which of the two parties' documents was entered into the conciliation record, nor, further, whether an objection was raised to the decision recommending settlement. So long as the presence or absence of entry into a record and of an objection is unconfirmed, it cannot be determined here whether that agreement is to be regarded as no more than a private promise or as a conciliation concluded. The unconfirmed state remains undetermined, and does not advance to the judgment that the requirements of conclusion examined above have been satisfied.
Mere oral agreement does not mean that conciliation has been concluded; conciliation is concluded by the entry of the agreed terms into a record. If an agreement remaining a private promise and a conciliation concluded are recorded as the same thing, this boundary collapses.
2.8The Scope This Section Undertakes
Only by locating precisely the point at which the two times diverge can one tell whether the legal channel has opened or whether the matter still remains a private promise. On the premise that the effect of a settlement and the like entered in a court record must be distinguished from the effect of a private agreement, the question now is when the fact of agreement acquires an effect equivalent to a final and conclusive judgment, and how far the scope of this section extends. Distinct from the propriety of the private agreement addressed in the preceding section, this section examines the conditions of procedural conclusion themselves.
The Judicial Conciliation of Civil Disputes Act nails down the requirements for the conclusion of conciliation in a single sentence. Article 28 provides, "Conciliation is concluded by entering into a record the terms agreed between the parties" (Article 28 of the Judicial Conciliation of Civil Disputes Act). The actor fixed by this text is the parties standing before the conciliation procedure, the act is the entry of the agreed terms into a record, and the condition is that the entry has actually been made. A scene that merely confirms an oral agreement cannot be taken as the conclusion of conciliation; only when what has been agreed is transcribed into the record of the court does the procedural event of conclusion arise.
Once conciliation is concluded, the character of its effect is also fixed. Article 29 provides, "Conciliation has the same effect as a court settlement" (Article 29 of the Judicial Conciliation of Civil Disputes Act). The reason these two stages must be distinguished is that while the former stage addresses the time and form of conclusion, the latter stage addresses what effect the conciliation concluded has. The act of entering the agreed terms into a record produces the conclusion of conciliation, and that conciliation concluded bears the effect equal to a court settlement; the channel through which power equivalent to a final and conclusive judgment arises must therefore, in the end, pass through entry into a record.
It is difficult to deny that if the drafting of the record is delayed, an agreement already reached may be shaken. Even though a common intention was reached at the negotiating table, if before the record is drafted the other party changes its position or a dispute arises over the wording of the record, the advantage of having agreed swiftly may be eroded within the burdens of the formal requirement and the ensuing procedure for challenge. Yet even if this inconvenience is acknowledged, an oral agreement cannot be recorded as a conciliation concluded without entry into a record. Rather than relaxing the requirements of conclusion, one accepts as the price of the certainty that the form secures the inconvenience left behind by the form of entry into a record.
The mere fact that the wording of an agreement was exchanged does not confirm the conclusion of conciliation; what is decisive is whether it was entered into a record. If entry into a record is confirmed on one side, that document is classified not as a private agreement but as a conciliation record, while the other side may remain a private promise. Whether there was an objection to the decision recommending settlement likewise cannot be judged on the basis of this question alone, and is left to a separate occasion asking whether the decision recommending settlement became final and conclusive. When an agreement that had only been signed in negotiation is entered into a court record, the classification of that document's effect changes.
The conclusion permitted by this section is a narrow one. Conciliation is concluded by entering into a record the terms agreed between the parties; that conclusion is a procedural effect arising from the entry of the agreed terms into a record; and only a conciliation that has passed through this obtains an effect equal to that of a court settlement. The fact of an oral agreement alone cannot be recorded as a conciliation concluded. Even if the written agreement remains and records of service and performance follow, in the span where entry into a record or the grounds for the effect of a decision recommending settlement or substitute decision is unconfirmed, one cannot assert summarily a performance equivalent to conclusive effect.
2.9Application of the Text of the Provisions and the Holdings of Precedents
The distinction confirmed in the preceding step between the effect of conciliation and the like entered in court records and the effect of a private agreement now moves to the work of directly comparing the conditions of formation prescribed by the text. Premised on this distinction, what must now be asked is concrete. Whether, on this scene, the agreement text that A and B exchanged alone can be said to have formed a conciliation, or whether other requirements must be added, remains at issue.
Among the relevant texts, Article 28 of the Judicial Conciliation of Civil Disputes Act provides as follows regarding the formation of conciliation: "Conciliation is formed by recording in a written record the matters agreed upon between the parties" (Article 28 of the Judicial Conciliation of Civil Disputes Act). This sentence specifies the subject as between the parties, the act as the writing up of the agreed matters, and the condition as recording in the written record. Accordingly, the text does not call the agreement itself formation. It says only that conciliation is formed at the moment the agreed matters are transcribed into the written record, the official court record. The fact alone that the parties have aligned their intentions by words or by signature cannot be regarded as satisfying this requirement.
Alongside this text, Article 29 of the Judicial Conciliation of Civil Disputes Act defines the effect of a conciliation that has been formed as follows: "Conciliation has the same effect as a judicial settlement" (Article 29 of the Judicial Conciliation of Civil Disputes Act). The reason these two texts must be read distinctly is that one deals with the time and requirements of formation, while the other deals with the effect of a conciliation already formed. The former text provides that conciliation comes into being only when the agreed matters are recorded in the court record, and the latter provides that the conciliation so formed has the force of a judicial settlement. The passage leading to a performance with the force of finality must be traversed through two stages in order, and the effect provision of the latter stage cannot substitute for the formation requirements of the former stage. For an agreement to ascend this passage, it must first obtain the classification of a conciliation formed through record in the court record.
The concern that comes first is that, if writing up the record takes time, an agreement already reached may be shaken. Even after the parties have aligned their intentions in negotiation and gone so far as to draft the agreement text, if the record is written up late or the entry is omitted, the agreement is not recorded as a product of court proceedings. If in the meantime the other party changes its position or raises an objection, the advantage gained in negotiation may disappear amid the burdens of formal requirements and objection procedures. This inconvenience is real and cannot be ignored. Even so, the conclusion confirmed in this inquiry is maintained. A record of a conciliation formed without entry in the court record does not accord with the requirements of formation prescribed by the relevant text, and it also runs counter to the conclusion of the preceding step distinguishing the effect of a private agreement from the effect of conciliation and the like entered in a court record.
The facts that can be confirmed on this scene are limited. On these facts alone it cannot be determined whether the agreement of the two parties satisfied the requirement of record under Article 28 of the Judicial Conciliation of Civil Disputes Act, or, further, obtained the classification of effect under Article 29. The single question of whether it is recorded in the court record moves the document from a private agreement to a formed conciliation. Accordingly, whether the agreement text of the scene was recorded in the court record, and whether a lawful objection was raised to the decision recommending settlement, were not confirmed by the record and therefore remain undetermined.
The conclusion permitted in this section is narrow and clear. For an agreement to lead to a performance with the force of finality, the agreed matters must be recorded in a court record or satisfy the grounds for the effect of a decision recommending settlement or a substitute decision, and the object of performance must be specified. Where it remains no more than a private promise, or where, on account of a lawful objection, relief by the final and binding effect of that decision cannot be obtained, that passage does not open. At the same time, the conclusion this section does not permit also becomes clear. To record that conciliation was formed merely by the exchange of agreement texts, or to classify it as a conciliation formed without record in a court record, falls outside the scope of application of this text. Even if unconfirmed items remain, this narrow distinction already settled is maintained.
2.10Fine Distinctions Within the Stage
The conclusion carried forward from the preceding steps is only the single sentence that the effect of conciliation and the like entered in a court record must be distinguished from the effect of a private agreement. On this scene, within the passage connecting an agreement to a performance with the force of finality, what remains to be further divided and determined?
The statutory text corresponding to this inquiry is Article 28 of the Judicial Conciliation of Civil Disputes Act, which deals with the formation of conciliation. The Article provides: "Conciliation is formed by recording in a written record the matters agreed upon between the parties." This text designates, respectively, the subject of formation as the agreement between the parties, the act of formation as the recording in the written record, and the condition of formation as the existence of that entry.
Connecting this text to the stage determination, cases in which an agreement is recorded as a formed conciliation are limited to cases in which the agreement is recorded in the court record or satisfies the grounds for the effect of a decision recommending settlement or a substitute decision, and the object of performance is specified. Conversely, where the agreement remains no more than a private promise, or where a lawful objection is raised to a decision recommending settlement or a substitute decision so that relief by the final and binding effect of that decision cannot be obtained, the passage is blocked. Where record in the court record, or the status of objection or effect, is not confirmed, the matter remains undetermined. This distinction is the basis for dividing whether the parties agreed in words from whether conciliation has been formed, and it serves to determine, among these, the first two branches by conditions alone and without additional steps.
That is to say, that parties who have exchanged texts and aligned their intentions see the practical benefit of the agreement diminish while they await the subsequent recording procedure. This answer maintains the foregoing condition of recording the agreed matters in the court record as a requirement of formation, without erasing the burden of delay pointed out by the counterargument.
On this fact alone it is not determined whose agreement was recorded in the court record or against whom an objection was raised, so it cannot be settled into either the working case or the blocked case. The contrast that an agreement which had only a negotiated signature changes the effect classification of the document once it is recorded in the court record is only a test that alters a single condition, and cannot be regarded as something that actually occurred on the scene.
What this section permits is to limit the detailed distinctions within the passage connecting an agreement to a performance with the force of finality to the stated conditions of the working case, the blocked case, and the undetermined case; what it does not permit is to create and insert additional steps outside that distinction. Both raising an agreement that remains only a private promise to the formation of conciliation, and immediately concluding from an unconfirmed recording status that no relief is possible, fall outside this scope.
2.11Synthesis of Effectiveness, Blockage, and Undetermination
Premised on the need to distinguish the effect of conciliation and the like entered in a court record from the effect of a private agreement, Plaintiff A and Defendant B exchanged an agreement text, yet the question whether it was entered in the record of conciliation and the question whether an objection was raised to the decision recommending settlement differ as between the two. What must be confirmed on this scene is whether, for each agreement, the passage leading to a performance with the force of finality actually opened, was blocked, or cannot be judged on the record alone. Taking as its starting point the distinction of whether formation occurred, which the preceding section addressed, the analysis this time separately asks whether that agreement has hardened into an enforceable form.
The first text corresponding to this inquiry is Article 28 of the Judicial Conciliation of Civil Disputes Act, which provides: "Conciliation is formed by recording in a written record the matters agreed upon between the parties." This text sets the subject as the parties, the act as the entry of the agreed matters, and the condition as the court record, an official document. The procedural effect of the formation of conciliation does not arise merely from the fact that the parties have aligned their intentions; it arises only when the agreement passes through the form of being transferred into the record. Article 29 of the Judicial Conciliation of Civil Disputes Act provides that a conciliation so formed has the same effect as a judicial settlement, supporting the later judgment that a document possessing such form may carry the force of finality.
Taking these two texts as the basis and drawing the conclusion of this section, the opening of the passage is limited to cases in which the agreement is recorded in the court record or a decision recommending settlement or a substitute decision satisfies the conditions for taking effect, and the object of performance is specified. Here, specification of the object of performance means that the content of the agreed performance is in a state identifiable at the enforcement stage, and is a condition to be confirmed separately from record in the court record. Blockage is defined as cases where the agreement remains no more than a private promise, or where a lawful objection is raised to a decision recommending settlement or a substitute decision so that relief by the final and binding effect of that decision cannot be obtained. The formal requirements of formation and the connecting requirements for enforcement by the force of finality are determinations belonging to different stages; the fact that one side is satisfied cannot be taken to mean that the other has opened as well.
The counterargument that, while the writing up of the record is delayed, an agreement already reached may be shaken, is aimed at the loss that the practical benefit of a swift agreement disappears before the burdens of formal requirements and the period for objection. From the parties' standpoint, there remains room for the other party's attitude to change while they wait, having aligned their intentions through negotiation, for the entry in the record or the determination of the objection; and the force of this counterargument lies in the point that the uncertainty in the interim may render the agreement itself useless. Even so, the answer this section maintains is clear. If the requirements of formation were recognized earlier on the ground of the inconvenience of delayed form, it would be impossible to explain whence the final and binding effect of conciliation derives.
On this scene there are two facts relevant to this inquiry. First, Plaintiff A and Defendant B exchanged an agreement text; this is only the starting point of a private promise, in a state where whether it was entered in the record has not been confirmed. Second, since the question of entry in the record of conciliation and the question of objection to the decision recommending settlement differ as between the two, even if for one party the record entry or the status of objection can be confirmed, for the other it may remain unconfirmed. The unconfirmed party falls under the case where the record entry or the status of objection or effect has not been confirmed, and remains undetermined. The contrasting condition that an agreement which had only a negotiated signature changes the effect classification of the document once it is recorded in the court record shows only that satisfying the formal requirements changes the classification, and does not newly create facts that have already occurred.
What this section permits is to distinguish, according to whether the conditions are satisfied, the case where the passage opens and the case where it is blocked, and the case left undetermined because it is not confirmed by the record; and this distinction is limited to the judgment of whether a performance with the force of finality has been formed. Conclusions not permitted are to regard enforcement or recovery as immediately available on the content of the agreement alone, or to convert unconfirmed records into established facts. Undetermined does not mean no relief is available; it remains a state awaiting further confirmation of the conditions.
2.12Conclusion Carried Over to the Next Section
As noted above, it was confirmed that the effect of conciliation and the like entered in a court record must be distinguished from the effect of a private agreement. This stage takes that distinction as its end point and narrows the gap between the intentions of the two parties agreed in negotiation and the conciliation that comes into being within the conciliation procedure. This gap becomes the criterion that divides the moment conciliation is formed from the effects arising after that moment. What this stage asks is the question whether conciliation is formed when the parties agree in words.
Article 28 provides that conciliation is formed by recording in a written record the matters agreed upon between the parties (Article 28 of the Judicial Conciliation of Civil Disputes Act). This text requires two elements for the formation of conciliation. One is that there exist matters agreed upon between the parties; the other is that those matters must be recorded in the written record. "Recording" means the act of fixing the content of the agreement in documentary form within the procedure. Without this entry, the agreement alone cannot be regarded as forming a conciliation. The formation of conciliation is a procedural effect that arises from the recording of the agreed matters in the written record.
The distinction between record in the written record and the agreement itself is central to determining the moment conciliation is formed. Even if there is an agreement, without entry in the written record conciliation is not formed; conversely, if there is entry in the written record, the conciliation procedure has thereby confirmed the existence of the agreement. This distinction connects with the provision of Article 29 of the Judicial Conciliation of Civil Disputes Act that conciliation has the same effect as a judicial settlement (Article 29 of the Judicial Conciliation of Civil Disputes Act). The effect provision governs the consequences after conciliation has been formed, and is a determination at a stage different from that of the time of formation. If the two stages are not divided, one may wrongly read it as though a final and enforceable force arises from the agreement itself.
If parties who have reached agreement swiftly must also shoulder the formal requirement of record in the written record and the subsequent procedural burdens, the benefit of reaching an agreement is diminished. To record that conciliation has been formed, entry in the written record is indispensable, and this requirement is not a matter of formal convenience but is also the ground on which conciliation comes to have the same effect as a judicial settlement. Where agreement has been reached but the written record has not been drawn up, the agreement remains in the state of not having been formed as conciliation.
What has been confirmed is that whether the matter is recorded in the written record is the criterion for determining the formation of conciliation. Only an agreement whose record entry is confirmed leads to the formation of conciliation; other agreements are classified as not having been formed as conciliation. Conversely, where the record entry is unconfirmed, or where other grounds for the effect to arise are unconfirmed, the formation of conciliation cannot be settled. Such conditional distinctions are judgments separate from the outcome or recovery results of an actual case, and do not establish the facts of an actual case.
If the moment conciliation is formed is placed not on the agreement but on the entry in the written record, then confirming whether that moment has arrived becomes the starting point for judging the effect of conciliation. Parties who have exchanged an agreement text and hold only an agreement not yet recorded in the written record are in a state where conciliation has not yet been formed. What effect the agreement has in this state is a matter to be judged separately, and cannot be determined as the formation of conciliation.