Summary
As to when a recommended decision and a judicial settlement take effect, service and objection must be considered separately from the statutory grounds for finality.
3.1The Standard by Which the Path Opens
The fact that the court has written out a solution does not mean that the parties' opportunity to contest it has also come to an end. Starting from the premise that conciliation is perfected by entering in the record the matters agreed between the parties, the question is whether a judicial settlement is finalized immediately upon the issuance of a decision recommending settlement. Plaintiff A and Defendant B have exchanged the text of an agreement, but they differ as to whether it is entered in the conciliation record and as to whether an objection to the decision recommending settlement is raised. In this situation, the occurrence of effect of the decision recommending settlement and of judicial settlement must be examined by separating service and objection from the statutory grounds for finality.
What a decision recommending settlement is is determined first by the text of the provision. Article 225 of the Civil Procedure Act provides that "the court, a commissioned judge, or a judge entrusted with the case may, ex officio, … issue a decision recommending settlement with respect to a case pending in a lawsuit" (Article 225 of the Civil Procedure Act). This wording limits the subject of the decision to the court, commissioned judge, or judge entrusted with the case; the act to the presentation of a solution ex officio; and the precondition to a pending lawsuit and a scope not contrary to the purport of the claim. This means that a decision recommending settlement is a statutorily prescribed resolution decision presented by the court ex officio. A decision recommending settlement is a statutorily prescribed resolution decision presented by the court ex officio.
Perfection by a court record and the occurrence of effect of a decision recommending settlement are not the same stage. Article 226 of the Civil Procedure Act provides that a party may raise an objection to a decision under Article 225 within two weeks from the date of service of the certified copy of the record or the written decision, and that such period is an invariable period (Article 226 of the Civil Procedure Act). Article 231 of the Civil Procedure Act provides that where no objection is raised, where an order of dismissal on procedural grounds has become final and conclusive, or where an objection is withdrawn or the right to object is waived, the decision has the same effect as a judicial settlement (Article 231 of the Civil Procedure Act). Where the agreement is entered in a court record, or where the grounds for the occurrence of effect are satisfied and the subject matter of performance is specified, the entrance to this remedy opens.
The reason this standard is exacting is that if the recommendation is contested again, the advantage of early termination disappears. A party who has received the decision may feel that the merits of a swift settlement are diluted by the burdens of form and of the period for challenge. Yet even to prevent such a loss, the date on which the decision is drawn up cannot be treated as the same day as the expiry of the objection period. The opportunity to raise an objection is separately guaranteed by the statutory text, and even where an objection is properly raised so that relief by virtue of the final and conclusive effect of the decision becomes unavailable, it is only the legal route that closes. The inconvenience of being unable to adjust the time of finality remains.
Taking the synthetic scene as the standard, Plaintiff A and Defendant B have exchanged the text of an agreement, but they differ as to whether it is entered in the conciliation record and as to whether an objection to the decision recommending settlement is raised. If it is entered in the record, the agreement has been transferred into a court document; if not, it remains a private promise. If an objection to the decision recommending settlement has been properly raised, the grounds for the occurrence of effect remain unestablished. However, since the date of service, the date of the objection, and the grounds for finality are not fixed in the scene, the fact of entry in the conciliation record and the propriety of the objection cannot be determined on the basis of this scene alone. If an agreement that had only a signature from negotiations is confirmed to have been entered in a court record, the classification of that document's effect changes.
What can be confirmed is only the standard at the entrance. Where the agreement is entered in a court record, or where the grounds for the occurrence of effect of the decision recommending settlement or a substitute decision are satisfied and the subject matter of performance is specified, the route to this remedy opens. Conversely, where it remains a private promise, or where, by reason of a proper objection, relief by virtue of the final and conclusive effect is unavailable, the entrance does not open. The effectiveness spoken of here is the opening of a route that connects the agreement to a performance having final and conclusive effect, not the actual result of payment, delivery, or recovery.
3.2The Conditions That Block Relief
Is a judicial settlement finalized immediately upon the issuance of a decision recommending settlement? To answer this question, the drafting of the decision itself and the point at which that decision acquires final and conclusive effect must be separated. In this scene, a decision recommending settlement means a statutorily prescribed resolution decision presented by the court ex officio.
The wording of that statutorily prescribed resolution decision is first examined within the limits already fixed. Article 225 (1) of the Civil Procedure Act provides that "the court, a commissioned judge, or a judge entrusted with the case may, ex officio," issue a decision recommending settlement with respect to a case pending in a lawsuit. In this wording, the subject is the court, commissioned judge, or judge entrusted with the case; the act is a decision recommending settlement made ex officio; and the conditions are a case pending in a lawsuit and a scope not contrary to the purport of the claim. The proposition that its effect is complete merely because the court presents a solution is not contained in this wording.
Whence, then, does the occurrence of effect come? Article 231 of the Civil Procedure Act provides that a decision recommending settlement "has the same effect as a judicial settlement if it falls under any of the following subparagraphs." The subparagraphs are: where no objection is raised; where an order of dismissal on procedural grounds on the objection has become final and conclusive; and where the objection is withdrawn or the right to apply is waived. Herein lies the reason for distinguishing the drafting of the decision recommending settlement from the occurrence of its effect. The provision in the preceding paragraph fixes the subject and scope for rendering the decision, while this provision separately enumerates the grounds on which that decision reaches the effect of a judicial settlement.
The loss incurred by this distinction cannot be ignored either. If the recommendation is contested again, the advantage of early termination disappears. Article 226 (1) of the Civil Procedure Act provides that a party may raise an objection to a decision under Article 225 within two weeks from the date of service of the certified copy of the record or the written decision, and paragraph (2) provides that such period is an invariable period. For a party who wished to conclude the settlement quickly, the burdens of form and of the period remain. Even so, the date on which the decision is drawn up cannot be treated as the same day as the expiry of the objection period. If the two dates were tied to the same day, the structure by which Article 231, subparagraph 1 takes the presence or absence of an objection as a ground of effect would be unsettled.
If the comparison is confined to the facts fixed in the synthetic scene, this distinction becomes clearer. Where an agreement remains a private promise, or where a proper objection is raised to the decision recommending settlement or a substitute decision so that relief by virtue of the final and conclusive effect of that decision is unavailable, if any one of the statutory requirements is not satisfied, the route to relief is closed. However, matters not confirmed, such as whether entry in the record was made or the status of objection and of occurrence of effect, remain undetermined.
In sum, a judicial settlement is not finalized immediately upon the mere drafting of a decision recommending settlement. An agreement for which the grounds of effect remain unsatisfied, or which remains a private promise, does not reach final and conclusive effect.
3.3The Boundary That Remains When There Is No Data
In this scene, neither the material for determining whether conciliation was perfected nor the material for determining whether the decision recommending settlement became final and conclusive as it stood has been obtained. It is premature to fix either the formation of the settlement or its impossibility on the sole ground that there is no material. The remaining question is whether the effect arises immediately at the point when the decision recommending settlement is issued, or whether the unconfirmed record and objection status must first be specified as materials for judgment.
Whether the matter can be contested on the sole fact that the recommendation was approved or drawn up is treated separately. Article 225 of the Civil Procedure Act makes it clear that a decision recommending settlement is generally presented "for a fair resolution of the case within the scope not contrary to the purport of the claim" (Article 225 of the Civil Procedure Act). In other words, the decision recommending settlement remains a proposal by the court, and its wording itself does not say that it functions as a finalized settlement. Conversely, Article 226 of the Civil Procedure Act provides that an objection is to be made "within two weeks from the date of service" (Article 226 of the Civil Procedure Act). Service is merely the starting point of the period; the structure does not say that effect arises on the mere fact of service.
The basis for the occurrence of effect is again divided by Article 231 of the Civil Procedure Act into three grounds. Only when any one of "where no objection is raised within the period," "where an order of dismissal on procedural grounds has become final and conclusive," or "where the party withdraws the objection or waives the right to object" is satisfied does an effect identical to that of a judicial settlement arise (Article 231 of the Civil Procedure Act). Herein lies the reason for distinguishing the ground on which conciliation is perfected by entry in the conciliation record from the grounds for the occurrence of effect of the decision recommending settlement. If which of the two applies has not been specified as material for judgment, one cannot even confirm whether the two grounds substitute for each other or concur. Even though the act of drafting took place on the date of drafting, matters not confirmed as to the presence or absence of an objection and the grounds for finality are left undetermined.
The strongest counterargument points out that if the recommendation is contested again, the advantage of speedy termination disappears. It is the concern that if one waits two weeks for objections to the signed text of the agreement, or if subsequent disputes arise, the benefit of early termination may diminish. The inconvenience of delay and double costs spoken of by the counterargument is hard to deny. Yet for that reason one cannot move forward the date on which the effect arises. The reason the invariable period for an objection is fixed lies in leaving the parties room to contest before finality. If the point at which the opportunity available to the party is closed is regarded as the same as the point at which the grounds for the occurrence of effect are satisfied, the significance of the statutory provisions having separated the two is lost.
Contrasting the scene confirmed again with the foregoing conditions, what A and B exchanged amounts to no more than the text of an agreement, and whether it is entered in the conciliation record and whether an objection to the decision recommending settlement is raised are each unconfirmed. On the mere fact that entry in the conciliation record is unconfirmed, one cannot conclude that the agreement was not entered in a court record. Likewise, on the mere fact that the presence or absence of an objection is unconfirmed, one cannot conclude that no objection was raised. Therefore, at present one can neither conclude that it has become final and conclusive nor conclude that it is impossible for want of any effect. Meanwhile, as a confirmed premise, if an agreement that had only a signature from negotiations is entered in a court record, the classification of that document's effect changes. Until then, it remains undetermined because the material for judgment has not been specified.
The conclusion of this section lies in not regarding a judicial settlement as finalized immediately on the sole fact that a decision recommending settlement has been drawn up. But the fact that it has not been finalized is itself not yet finalized either. What is now confirmed is only the exchange of the text of an agreement, and in a situation where entry in the conciliation record and the grounds of objection and of occurrence of effect are unconfirmed, what cannot be confirmed is left in an unverified state. What is now confirmed is only the exchange of the text of an agreement, the entry in the conciliation record, and the indeterminacy as to the objection; nor can one conclude at present that it has become final and conclusive. What is settled is only the standard of judgment that matters not confirmed as to material falling under the grounds for the occurrence of effect are left undetermined.
3.4The Records Needed for Determination
In this scene, the question whether a judicial settlement is finalized immediately upon the issuance of a decision recommending settlement, and the question "Which records are needed?" in order to determine that stage, are asked together. This distinction becomes the starting point for fixing the record requirements.
What a decision recommending settlement is is determined first from the wording of the statute. Article 225 (1) of the Civil Procedure Act provides: "The court, a commissioned judge, or a judge entrusted with the case may, ex officio, taking into consideration the parties' interests and all other circumstances, issue a decision recommending settlement for a fair resolution of the case within the scope not contrary to the purport of the claim" (Article 225 of the Civil Procedure Act). The subject fixed by this wording is the court, commissioned judge, or judge entrusted with the case; the act is a decision recommending settlement made ex officio; and the conditions are the pendency of the lawsuit and a scope not contrary to the purport of the claim. Accordingly, a decision recommending settlement is a statutorily prescribed resolution decision presented by the court ex officio.
The same wording does not record the drafting of this decision itself as a ground for finalizing the settlement. Instead, Article 226 of the Civil Procedure Act provides: "A party may raise an objection to a decision under Article 225 within two weeks from the date of service of the certified copy of the record or the written decision; provided, that an objection may be raised even before such certified copy is served," and makes such period an invariable period (Article 226 of the Civil Procedure Act). Accordingly, the date of drafting of the decision and the commencement of the period for examining an objection are placed at different stages. The former is the time when the court presented the solution in writing; the latter is the time when the procedural posture allowing the party to contest that document opened.
Article 231 of the Civil Procedure Act limits to three the grounds on which a decision recommending settlement has the same effect as a judicial settlement. One is "where no objection is raised within the period under Article 226 (1)," another is "where an order of dismissal on procedural grounds on the objection has become final and conclusive," and the remaining one is "where the party withdraws the objection or waives the right to object" (Article 231 of the Civil Procedure Act). What these grounds have in common is that there is a record showing that the objection procedure was in fact undergone, or that the parties chose not to undergo it. Therefore, the determination of the stage is made only on the basis of material recorded in the agreement text, the settlement or conciliation record, service, objection, grounds for finality, and performance records. Missing records are not filled in by conjecture.
Against this standard it may be argued that if the recommendation is contested again, the advantage of early termination disappears. This counterargument targets the inconvenience that the merits of a swift settlement may be lost to the burdens of form and of the period for challenge. If the parties, even after having already exchanged the text of an agreement, must pass through service and wait for objections, the practical benefit of early termination promised by the decision recommending settlement is diminished. Yet even without erasing the unfavorable part of this counterargument, the date of drafting of the decision cannot be treated as the same day as the expiry of the objection period. This is because the wording of Article 226, which takes the date of service as the point of commencement and fixes it as an invariable period, does not leave that place vacant.
The exchange of the text of an agreement is a fact confirmed in this scene, but by that alone no record arises that it was entered in the conciliation record or that there was no objection to the decision recommending settlement. Therefore, on this scene alone, one cannot determine on which side the stage of finalization of the settlement falls. The fact that an agreement that had only a signature from negotiations, once entered in a court record, changes the classification of that document's effect shows that the record of entry in the record is the condition that changes the judgment on effect. The interval in which entry in the record and the status of objection and of occurrence of effect are unconfirmed remains undetermined.
The conclusion this section permits is that a judicial settlement is not regarded as finalized immediately on the sole fact that a decision recommending settlement has been drawn up. The occurrence of effect of the decision recommending settlement and of judicial settlement must be examined by separating service and objection from the statutory grounds for finality, and the determination at each stage is bound to material recorded in the agreement text, the settlement or conciliation record, service, objection, grounds for finality, and performance records. What this does not permit is advancing finality by conjecturing the reason for the absence of a record, or converting the existence of the text of an agreement into the perfection of conciliation. A shortage of material is undetermined and does not immediately mean that relief is unavailable.
3.5Circumstances That Change the Decision
The standard remains that only an agreement entered in the record is regarded as effecting a mediation settlement. Under this standard, the question is when the point at which a decision recommending settlement is issued and the point at which the settlement becomes final coincide. The case read as immediate finality and the case in which room for contestation remains must be distinguished.
A decision recommending settlement is a decision presented, under Article 225 of the Civil Procedure Act, for the fair resolution of a case, in which "the court, the commissioned judge or the delegated judge may, ex officio, with respect to a case pending in court, taking into consideration the interests of the parties and all other circumstances". Here the actors are the court, the commissioned judge, and the delegated judge, and the act is the drafting of a decision recommending settlement by ex officio authority. That drafting is conditioned upon a case pending in court and upon remaining within a scope not contrary to the purport of the claim. What this text points to is the presentation of a solution, not the extinguishment of the parties' opportunity to raise an objection.
When this text and the provisions on objection are laid together, the determination divides into two stages. Article 226 of the Civil Procedure Act provides that a party may file an objection to the decision under Article 225 within 2 weeks from the date of service of a certified copy of the record or the written decision, and that this period is an invariable period. Accordingly, the mere fact that the decision has been drafted does not establish a conclusion as to its effect, and the confirmation of service and of whether an objection has been raised forms a separate stage of determination. In the same sequence, Article 231 of the Civil Procedure Act lists, as grounds for the arising of an effect equivalent to a judicial settlement, the absence of an application raising objection within the period under Article 226 (1), the case in which an order of dismissal on procedural grounds becomes final and conclusive, and the case in which a party withdraws the objection or waives the right to file an objection. Herein lies the reason why the two stages of drafting and arising of effect are distinguished.
The disadvantage of opposing this distinction lies in the reduction of the benefit of early termination. If the recommendation is contested again, a case that could have been concluded by settlement must pass through an additional objection procedure, and the prompt conclusion the parties expected is pushed behind the burdens of formality and the period for contesting. A 2-week invariable period running from the date of service is separately stated, and whether that period has expired is interlocked with the ground for effect under subparagraph 1 of Article 231 of the Civil Procedure Act. The disadvantage pointed out by the counterargument remains as it is, but it cannot be resolved by reading the two dates as coinciding.
All that can be confirmed in this scene is the exchange of the text of settlement, while whether it was entered in the mediation record and whether an objection was raised to the decision recommending settlement stand as different states. If this change is confirmed, the existing determination of blocking and effectiveness is discarded, and the route connecting the settlement to performance carrying final and conclusive effect is re-adjudicated from the stage onward. However, because the synthetic scene contains no year, amount, or date of commencement, the expiry date of the objection period, the presence or absence of an objection, and the time of service cannot be ascertained. Items not confirmed by the records remain undetermined.
The conclusion this section permits is that the point in time when a decision recommending settlement is drafted and the point in time when an effect equivalent to a judicial settlement arises must be viewed separately. A conclusion that declares immediate finality upon drafting alone, or that disregards the objection period and treats the drafting date as the expiry date, is not permitted. Conversely, if the specified change is confirmed, one must not pass over it while maintaining the existing determination of blocking and effectiveness, but must re-adjudicate the stage determination from the beginning.
3.6The Strongest Counterargument and the Answer
The strongest counterargument confronting this question is that if the recommendation is contested again, the benefit of early termination disappears. At its basis lies the concern that the advantage of a swift settlement may be lost to the burdens of formality and the period for contesting. What this section addresses is how the point of finality should be fixed, while acknowledging that loss.
A decision recommending settlement means a statutory resolution decision presented by the court ex officio. The text stipulating the authority to render such a decision is Article 225 of the Civil Procedure Act. It provides: "The court, the commissioned judge or the delegated judge may, ex officio, with respect to a case pending in court, taking into consideration the interests of the parties and all other circumstances, within the scope not contrary to the purport of the claim, make a decision recommending settlement for the fair resolution of the case." The actors this text designates are the court, the commissioned judge, and the delegated judge; the act is the presentation of a decision recommending settlement; and the conditions are a pending case and a scope not contrary to the purport of the claim. Here the separate issue of the time when effect arises is not addressed.
The reason why the rendering of the decision recommending settlement must be distinguished from the arising of its effect is that the text regulating the objection procedure is separately laid down. It provides: "A party may file an objection to the decision under Article 225 within 2 weeks from the date of service of a certified copy of the record or the written decision. However, the party may file an objection even before service of that certified copy." The same Article designates that period as an invariable period. Since a period commencing from service is separately prescribed, the date of drafting of the decision and the date of expiry of the objection period belong to different stages. That distinction precisely supports the conclusion of this section, that the arising of effect must be viewed by distinguishing service, objection, and the statutory grounds for finality.
The inconvenience targeted by the counterargument is real. While the objection period is awaited, the dispute continues, and if an objection is raised, the benefit of early termination to be gained by a swift settlement is diminished. There is also the concern that the requirements of form and the burden of the period for contesting may erode the substance of the settlement. However, acknowledging that loss does not permit altering the point in time. Article 231 of the Civil Procedure Act provides that a decision recommending settlement has an effect equivalent to a judicial settlement where no objection is applied for within the period under Article 226 (1), where an order of dismissal on procedural grounds of the objection becomes final and conclusive, and where a party withdraws the objection or waives the right to file an objection. The point of finality is bound to the grounds thus prescribed, and the date of drafting of the decision cannot be treated as the same day as the expiry of the objection period.
In the synthetic scene, two facts bear on this question: the fact that A and B exchanged the text of a settlement, and the fact that whether it was entered in the mediation record and whether an objection was raised to the decision recommending settlement are different. A state in which only the settlement document changed hands cannot, when compared with the decision recommending settlement under Article 225 of the Civil Procedure Act or the grounds for effect under Article 231 of the Civil Procedure Act, be regarded as achieving finality in itself. However, from the mere record that the presence or absence of an objection differs, it cannot be adjudicated which ground applies to each. The progress of service and objection, and the presence or absence of entry in the record, remain undetermined. The fact that a settlement that had only been signed in negotiation changes the classification of that document's effect once it is entered in the statutory record is likewise merely a condition that determines whether the grounds for effect are satisfied, and does not speak to the fact of finality.
The conclusion this section permits is narrow. It is the judgment that the mere fact that a decision recommending settlement has been rendered does not mean that the settlement at once becomes final and conclusive, and that the point of finality cannot be advanced to the date of drafting of the decision. By contrast, this section does not determine whether the effect of the decision recommending settlement has already arisen, whether the objection period has in fact elapsed, or which objections are procedurally valid. Those items remain matters to be confirmed from the records of service, objection, and grounds for finality.
3.7The Link to the Application and the Dispositive Part
In the preceding section it was confirmed that the date of drafting of the decision cannot be treated as the same day as the expiry of the objection period. Accordingly, the question of this section lies in separately examining whether a settlement becomes final and conclusive immediately upon the issuance of a decision recommending settlement.
In this text, the actor of the decision is the court, the commissioned judge, or the delegated judge; the object is a pending case; and the act is the pronouncement of a decision recommending settlement by ex officio authority. The conditions are the consideration of the interests of the parties and all other circumstances, and the limitation to a scope not contrary to the purport of the claim. However, this Article addresses only the basis of authority to the effect that a decision recommending settlement 'may be made'; it does not directly determine whether that decision at once produces an effect equivalent to a judicial settlement.
The time of arising of effect is separately prescribed in other provisions. Article 226 (1) of the Civil Procedure Act states that "a party may file an objection to the decision under Article 225 within 2 weeks from the date of service of a certified copy of the record or the written decision. However, the party may file an objection even before service of that certified copy," and paragraph (2) of the same Article provides that "the period under paragraph (1) shall be an invariable period" (Article 226 of the Civil Procedure Act). Accordingly, service is the point of commencement of the period for filing an objection, an objection is the party's expression of dissatisfaction filed within that period, and that period is an invariable period. Article 231 of the Civil Procedure Act states that "a decision recommending settlement shall have the same effect as a judicial settlement in any of the following cases," and lists "1. Where no objection is applied for within the period under Article 226 (1); 2. Where an order of dismissal on procedural grounds of the objection becomes final and conclusive; 3. Where a party withdraws the objection or waives the right to file an objection" (Article 231 of the Civil Procedure Act). The drafting of a decision recommending settlement and the arising of the effect of a judicial settlement are separate stages of determination, and the latter is adjudicated according to which of the three grounds for finality above obtains.
The strongest counterargument is aimed at the point that if the recommendation is contested again the benefit of early termination disappears; that is, that the advantage of a swift settlement may be lost to the burdens of formality and the period for contesting. The loss this counterargument identifies is real, and the parties, who have already exchanged the text of a settlement, may have to pass through the procedural form of an objection once more. Even so, the date of drafting of the decision cannot be treated as the same day as the expiry of the objection period. The period of 2 weeks after service for filing an objection is separately laid down as an invariable period, and where an objection exists within that period, the grounds for arising of effect under Article 231 are not satisfied. Therefore, even leaving the disadvantage of the counterargument as it is, the method of fixing the arising of effect on the date of drafting of the decision is not adopted.
As seen above, the exchange of the text of a settlement in itself cannot adjudicate whether an objection to the decision recommending settlement exists or whether the grounds for arising of effect are met. The prescribed record items are the settlement document, the conciliation or mediation record, service, objection, grounds for finality, and records of performance. Which of these have been secured, whether service took place, and whether an objection was applied for cannot be confirmed from the scene alone, and thus remain undetermined.
Accordingly, the issuance of a decision recommending settlement and the arising of the effect of a judicial settlement are determined separately, which leads to the conclusion that service and objection must be viewed apart from the statutory grounds for finality. What this conclusion does not permit is a judgment declaring that the settlement became final and conclusive at once upon the mere drafting of the decision recommending settlement, which is no different from treating the date of drafting of the decision as the same day as the expiry of the objection period. What this conclusion permits is a judgment that distinguishes the case in which the text of a settlement remains a private promise from the case in which it is entered in the statutory record, and, in the case of a decision recommending settlement, separately confirms whether the grounds for arising of its effect have been satisfied. If entry in the record or the status of objection and arising of effect is not confirmed, the matter remains undetermined; this is merely a state of insufficient materials and does not at once mean that no relief is available.
3.8The Scope This Section Undertakes
The question this section addresses is precisely that distance. When does the fact of having reached a settlement acquire an effect equivalent to a final and conclusive judgment? Can the mere circumstance that a document called a decision recommending settlement was drafted be said to produce the effect of a judicial settlement? The present question lies in distinguishing the time and the grounds of arising of effect.
This text defines a decision recommending settlement as a statutory resolution decision presented by the court ex officio. Unlike the criterion of the preceding section as to whether a settlement has been formed, here the starting point is not the agreement between the parties but the written decision drafted by the court. At what point such a written decision binds the parties is the subject of this paragraph.
The conditions for the arising of effect are prescribed by the provisions on objections. A party may raise an objection to the decision under Article 225 within 2 weeks from the date of service of a certified copy of the record or the written decision; however, the party may raise an objection even before service of that certified copy, and the same period is an invariable period (Article 226 of the Civil Procedure Act). Service is the procedure fixing the point of commencement of the objection period, and the presence or absence of an objection is a subsequent ground for determination. If the respective stages of drafting, service, and objection are taken as a single mass and finality is recognized at the point of drafting, the purport of the provision that sets an objection period disappears.
The counterargument that if the recommendation is contested again the benefit of early termination disappears accurately identifies the practical inconvenience. If procedures are repeated in court over a single text of settlement, the dispute is prolonged, and the strength of a decision recommending settlement—its swift settlement—is diluted. From the parties' standpoint, there remains the added burden that, although the document has issued, they must await its finality. So long as the above text separately guarantees the opportunity to file an objection, the convenience of early termination is settled as final and conclusive effect only after the requirements prescribed by the procedure have been met.
However, in this scene no year, amount, date of commencement, or result of performance is set. Whether the settlement was entered in the mediation record is a matter of the formation of a settlement; whether a procedurally valid objection was raised to the decision recommending settlement is a matter of the arising of effect. Superimposing the ex officio presentation under Article 225, the service and objection period under Article 226, and the grounds for finality under Article 231 upon this, the presence or absence of entry and the presence or absence of an objection each require different determinations. Yet since the timing of service or the legal effect of an objection cannot be ascertained from the scene alone, that part is left undetermined.
The conclusion this section permits is narrow. It cannot be held that a settlement becomes final and conclusive immediately upon the issuance of a decision recommending settlement alone, and the arising of effect is examined by dividing it into service and objection and the statutory grounds for finality. It is confirmed at the same time that a decision recommending settlement is a statutory resolution decision presented by the court ex officio. On the other hand, the interpretation that treats the date of drafting of the decision as the same day as the expiry of the objection period, or a conclusion proceeding so far as to equate a private settlement with a final and conclusive judgment, is not reached. Is a decision in lieu of mediation possible even where there is no agreement?
3.9Application of the Text of the Provisions and the Holdings of Precedents
The question of this section is narrowed to whether a settlement becomes final and conclusive immediately upon the issuance of a decision recommending settlement. Against those opposing circumstances, the point at issue is when the route leading to performance carrying final and conclusive effect opens.
Textually, the actors of that decision are limited to the court, the commissioned judge, and the delegated judge, and the act is a decision recommending settlement made ex officio. The conditions are the pendency of the lawsuit, the consideration taken into account, and the limitation of the purport of the claim, and no separate issue is further addressed.
That text makes it possible to render a decision recommending settlement but places the stage leading to finality separately. Article 226 (1) of the Civil Procedure Act provides that "a party may file an objection to the decision under Article 225 within 2 weeks from the date of service of a certified copy of the record or the written decision," with the proviso that "the party may file an objection even before service of that certified copy." Article 231 of the Civil Procedure Act connects only three grounds to "the same effect as a judicial settlement." Accordingly, the basis of adjudication is limited to the text of the three provisions and is not broadened to the reasons of the judgment or other paragraphs.
The most persuasive counterargument is aimed at the point that if the recommendation is contested again, the benefit of early termination disappears. The advantage of a swift settlement recedes before the burdens of formality and the period for contesting, and included in it is the loss that only those who sought to finish quickly are shaken. That point is not denied. Even so, the date of drafting of the decision cannot be treated as the same day as the expiry of the objection period. For the arrangement of the text, which separately places drafting, service, and the possibility of objection, cannot be disregarded.
From the synthetic scene, only the circumstance that the presence or absence of entry in the mediation record and the presence or absence of an objection each diverge is drawn out and compared. If the settlement has been entered in the statutory record, or if a recommendation or substitute decision satisfies the grounds for arising of effect and the object of performance is specified, that document enters the route leading to performance carrying final and conclusive effect. If it remains a private promise, or if a procedurally valid objection is raised so that relief by final and conclusive effect cannot be obtained, it lies outside that route. The confirmation of the grounds for finality and the unspecified content of performance remain undetermined.
This section explains only the criterion for adjudicating whether one enters the route leading to performance carrying final and conclusive effect, and does not address the formation of a decision in lieu of mediation or substantive recovery. The text that has completed the grounds for finality and the circumstances where those grounds are not yet confirmed must not be read as mixed together. The next question is not the outcome of performance after final and conclusive effect.
3.10Fine Distinctions Within the Stage
이 물음은 합의를 확정 효력 있는 급부로 잇는 통로 안에서 어느 시점과 어느 사유를 따로 판정할지를 정해야 비로소 답할 수 있다. 이 장면에서 합의문의 존재만으로 두 당사자가 같은 문서 위상에 놓였다고 볼 수 없다.
화해권고결정은 법원이 직권으로 제시하는 법정 해결 결정을 뜻한다(민사소송법 제225조). 그 조문은 법원이 "사건의 공평한 해결을 위한 화해권고결정을 할 수 있다"(민사소송법 제225조)고만 정한다. 즉 이 문언이 말하는 주체는 법원·수명법관 또는 수탁판사이고, 행위는 직권에 의한 권고결정의 제시이며, 그 범위는 청구의 취지에 어긋나지 않는 한정 안에 놓인다. 다만 이 항의 문언은 권고결정을 내리는 권한과 그 범위만 정할 뿐, 그 결정이 곧 확정 화해가 되는 시점을 함께 적고 있지는 않다.
민사소송법 제226조는 당사자가 제225조의 결정에 대하여 "그 조서 또는 결정서의 정본을 송달받은 날부터 2주 이내에 이의를 신청할 수 있다"(민사소송법 제226조)고 정하고, 그 기간을 불변기간으로 둔다. 민사소송법 제231조는 그 권고결정이 각호의 사유 가운데 어느 하나에 해당할 때 비로소 재판상 화해와 같은 효력을 갖는다고 정한다(민사소송법 제231조). 같은 조문 안에서 작성·제시와 효력 발생이 분리되는 까닭은, 전자가 법원의 행위를 정하고 후자가 그 행위에 대한 당사자의 대응과 법정 사유의 충족을 요구하기 때문이다.
이 구분이 다툼의 여지를 길게 둔다는 점은 부인할 수 없다. 송달을 기다리고 2주라는 불변기간을 지키는 동안 합의로 종결되었다는 안정감은 늦추어진다. 제226조가 송달받은 날을 기산점으로 삼고 제231조가 이의신청의 부재나 각하결정의 확정 같은 사유를 따로 요구하는 이상, 작성일을 곧 만료일로 읽으면 당사자에게 남겨진 이의신청의 여지가 문언상 사라진다. 조기 종결의 편의가 법정 이의 기회를 대신할 수는 없다.
이 기준을 장면에 놓아 보면, A와 B 사이에서 무엇이 확인되었는지에 따라 판정이 갈린다. 합의문 교환 사실만으로는 사적 약속과 법정 조서 기재를 가르는 근거가 되지 못하고, 권고결정에 대한 이의 여부도 제226조의 기간과 제231조의 사유에 맞추어 확인되어야 한다. 조서 기재 사실이나 이의신청·효력 발생 사유가 기록으로 확인되지 않는 한 그 부분은 미확정으로 남는다. 다만 협상 서명만 있던 합의가 법정 조서에 기재되면 그 문서의 효력 분류를 바꾼다는 점은 분명하다. 이 대조가 바꾸는 것은 문서의 분류이지, 장면 밖의 이행 성과가 아니다.
이 절이 허용하는 결론은 단계 안의 세부 구분을 작동하는 경우·막히는 경우·미확정인 경우의 세 조건에 한정한다는 것이다. 합의가 법정 조서에 기재되거나 권고·대체 결정의 효력 발생 사유를 충족하고 이행 대상이 특정된 경우에 통로는 작동하고, 사적 약속에 그치거나 적법한 이의로 그 결정의 확정 효력에 의한 구제를 받을 수 없는 경우에 막히며, 조서 기재나 이의·효력 발생 상태가 확인되지 않은 때에는 미확정으로 둔다. 여기에 네 번째 단계나 별도의 판단 관문을 더 만들어서는 안 된다.
3.11Synthesis of Effectiveness, Blockage, and Undetermination
이 물음은 앞 절에서 법정 조서에 기재된 합의로 조정이 성립한다는 결론을 받아, 그 뒤에 이어지는 확정 효력의 문을 따로 가리는 작업이다. (민사소송법 제225조)
법원이 제시하는 화해권고결정은 법원·수명법관 또는 수탁판사가 소송에 계속중인 사건에서 직권으로 작성하는 법정 해결 결정이다. 이 결정은 당사자의 이익과 그 밖의 모든 사정을 참작하되 청구의 취지에 어긋나지 아니하는 범위 안에서 사건의 공평한 해결을 위해 내려진다. 이 문언이 가리키는 주체는 법원·수명법관·수탁판사이고, 행위는 직권으로 하는 화해권고이고, 조건은 청구의 취지 범위 내의 공평한 해결이다. (민사소송법 제225조)
그 문언과 확정 효력은 구분된다. 당사자는 제225조의 결정에 대하여 그 조서 또는 결정서의 정본을 송달받은 날부터 2주 이내에 이의를 신청할 수 있고, 그 정본이 송달되기 전에도 이의를 신청할 수 있다. 그 2주는 불변기간이다. 화해권고결정이 재판상 화해와 같은 효력을 가지려면 이 기간 안에 이의신청이 없거나, 이의신청에 대한 각하결정이 확정되거나, 당사자가 이의신청을 취하하거나 이의신청권을 포기하는 사유 가운데 어느 하나가 있어야 한다. 권고결정과 재판상 화해의 효력 발생은 송달·이의와 법정 확정 사유를 나누어 보아야 하는 까닭이 여기 있다. (민사소송법 제226조) (민사소송법 제231조)
이 구분이 허용하는 절차적 결과는 다음과 같다. 합의가 법정 조서에 기재되거나 권고·대체 결정의 효력 발생 사유를 충족하고 이행 대상이 특정된 경우에만 확정 효력 있는 급부로 잇는 통로가 열린다. 사적 약속에 그치거나 권고·대체 결정에 적법한 이의가 제기되어 그 결정의 확정 효력에 의한 구제를 받을 수 없는 경우에는 그 통로가 막힌다. 합의문·화해 또는 조정조서·송달·이의·확정 사유·이행 기록은 이 구별을 확인하는 데 필요한 자료의 종류를 이룬다. (민사소송법 제231조)
그럼에도 결정 작성일을 이의기간 만료와 같은 날로 취급할 수는 없다. 전자는 이해관계인에게 미치는 손실과 불편을 설명하는 반론이고, 후자는 그 반론을 받아들여서도 안 되는 법적 경계다. 송달과 이의신청의 가능성이 남아 있는 시점에서 작성된 결정이 곧 확정된 화해로 분류되면, 당사자의 다툴 기회와 법정 확정 사유 사이의 구분이 무너진다. 반론이 지적하는 지연의 불이익을 지우지 않으면서도, 그 불이익을 이유로 효력 발생 시점을 앞당겨 읽을 수는 없다. (민사소송법 제226조)
조서 기재 여부가 확인되지 않으면 사적 약속에 머무는지 법정 조서에 기재되었는지 정할 수 없고, 이의 여부가 확인되지 않으면 이의신청이 있었는지 없었는지에 따라 제231조의 효력 발생 사유가 갈린다. 따라서 이 장면에서 통로의 열림은 확정할 수 없고, 미확정 상태로 남는다. 조서 기재 또는 이의·효력 발생 상태가 확인되지 않은 경우는 미확정이며, 이는 자료가 부족한 상태이지 곧바로 구제 불능을 뜻하지는 않는다. (민사소송법 제231조)
이 절이 허용하는 결론은 조건부 구별에 그친다. 합의가 법정 조서에 기재되거나 권고·대체 결정의 효력 발생 사유가 충족되고 이행 대상이 특정된 경우에 통로가 열리고, 사적 약속에 그치거나 적법한 이의가 제기되어 확정 효력에 의한 구제를 받을 수 없는 경우에 통로가 막히며, 조서 기재 또는 이의·효력 발생 상태가 확인되지 않은 경우는 미확정이다. 결정 작성일을 이의기간 만료와 같은 날로 취급하면 이 구분이 무너지므로 그 판단은 배제된다. 앞 절의 결론을 다시 논증하지 않는 범위에서, 화해권고결정의 작성만으로 확정 효력이 바로 생긴다고 보는 결론은 이 절이 허용하지 않는다.
3.12Conclusion Carried Over to the Next Section
앞 절에서는 합의가 법정 조서에 기재되거나 권고·대체 결정의 효력 발생 사유가 충족되고 이행 대상이 특정된 경우에는 통로가 작동하고, 사적 약속에 그치거나 적법한 이의로 확정 효력에 의한 구제를 받을 수 없는 경우에는 막히며, 기재와 이의·효력 발생 상태가 확인되지 않은 때에는 미확정으로 남는다고 보았다. 이 절의 물음은 그 작동을 전제로 화해권고결정이 나오면 즉시 화해가 확정되는가이다.
이 문언이 정한 주체는 법원, 수명법관, 수탁판사이며, 행위는 직권에 의한 화해권고결정의 선고이고, 조건은 계속 중인 사건과 청구의 취지에 어긋나지 않는 범위이다.
권고결정의 작성과 그 결정이 재판상 화해의 효력을 갖게 되는 시점은 같은 사건 안에서도 서로 나누어 보아야 한다. 전자는 민사소송법 제225조가 허용하는 법정 해결안의 제시이고, 후자는 민사소송법 제231조가 정한 "화해권고결정은 다음 각호 가운데 어느 하나에 해당하면 재판상 화해와 같은 효력을 가진다"는 요건의 충족이다. 따라서 작성 그 자체가 효력 발생을 뜻하지 않으므로, 화해권고결정이 나오면 즉시 화해가 확정된다는 답은 이 구별에서 성립하지 않는다. 효력 발생은 송달·이의와 그 밖의 법정 확정 사유를 따로 살핀 뒤 판단할 일이다.
가장 강한 반론은 조기 종결의 이점을 겨눈다. 권고가 다시 다투어지면 분쟁이 손쉽게 끝나는 장점이 사라지고, 신속한 합의의 이점이 형식과 불복기간의 부담 아래 묶일 수 있다는 점이다. 그러나 이 불편을 없애려고 결정 작성일을 이의기간 만료와 같은 날로 취급할 수는 없다. “당사자는 제225조의 결정에 대하여 그 조서 또는 결정서의 정본을 송달받은 날부터 2주 이내에 이의를 신청할 수 있다. 다만, 그 정본이 송달되기 전에도 이의를 신청할 수 있다”고 정하고, 그 기간을 불변기간으로 하므로, 작성일과 송달·이의 기간은 각자의 자리를 지킨다. 반론이 지적한 지연의 부담은 그대로 남지만, 그렇다고 기산점을 옮겨 효력 발생을 재구성할 근거는 되지 않는다.
이 장면에서 확인되는 것은 문안의 교환이고, 조정조서 기재 여부와 이의 여부가 서로 다르다는 사실은 화해 또는 조정조서·송달·이의·확정 사유·이행 기록이 있어야 대조할 수 있는 항목이다. 따라서 조서 기재 여부가 확인되지 않은 쪽의 합의는 사적 약속에 머무는지, 이의가 제기된 쪽의 권고결정은 제231조의 어느 사유에 해당하는지가 먼저 정해져야 한다. 어느 쪽도 장면만으로 확정되지 않으므로, 확정 효력에 이르렀다는 판단과 그러하지 않다는 판단 모두 이 자료만으로는 내리기 어렵다.
이 절이 허용하는 결론은 권고결정과 재판상 화해의 효력 발생을 송달·이의와 법정 확정 사유로 나누어 보아야 한다는 것이고, 작성만으로 화해가 즉시 확정된다고 보는 것은 허용되지 않는다. 그 밖에 효력 발생의 요건을 자유롭게 정하거나, 이의기간의 기산을 작성일로 옮기는 것은 이 구별이 허락하지 않는다.