Summary
A decision may be made without agreement under the statutory requirements, but the conditions for objection and for taking effect must be maintained.
4.1The Standard by Which the Path Opens
A decision that fills the absence of an agreement nonetheless cannot eliminate the party's channel of opposition. Taking up the conclusion of the previous section—that the taking effect of a decision recommending settlement and of judicial conciliation must be examined by separating service and objection from the statutory grounds of finality—this time the question is the threshold at which a decision in lieu of conciliation may be chosen. That is, the question of what the criterion is for entering into the substitute decision the court renders in a case where there is no agreement.
Article 30 of the Judicial Conciliation of Civil Disputes Act provides: “The presiding conciliation judge may, with respect to a case in which no agreement has been reached or a case in which the judge finds the content of an agreement reached between the parties to be inappropriate, ex officio … render a decision.” Here the presiding conciliation judge takes the absence of an agreement itself as the ground for the decision, while observing the limit of not contravening the tenor of the applicant's application. In other words, the author of the substitute decision is the court, the act is a decision for the fair resolution of the case, and failure to reach an agreement or an inappropriate agreement serves as the premise in the wording.
This wording opens up only the possibility of a decision without an agreement, and places the question whether that decision leads to final performance in a separate stage of judgment. Article 34 of the Judicial Conciliation of Civil Disputes Act provides, with respect to a decision under Article 30, that “the parties may file an objection within two weeks from the day on which a certified copy of the record is served,” and provides that if there is no objection within the period, or the objection is withdrawn, or an order of dismissal on procedural grounds becomes final, the decision has the same effect as a judicial settlement. Accordingly, even though the entrance to this relief is opened by the absence of an agreement, the object of performance may be regarded as specified only where the relief, the parties, and the conditions are specified in the tenor of the claim, and the right of the action chosen can be defended.
Where opposition is anticipated, the practical benefit of the decision is small. For the advantage of an agreement swiftly concluded can vanish before the burden of a formal record and a peremptory period. Even so, the substitute decision cannot be converted into evidence that the parties actually reached an agreement. A substitute decision is a determination the court renders in place of an agreement because there is none; it is not a document such as an agreement signed by the parties. While not denying the disadvantage of opposition, the line this section maintains is not to rush to a conclusion without confirmation surrounding the two branches of objection and finality.
Plaintiff A and Defendant B exchanged draft agreement language, but whether it was entered in the conciliation record and whether objection was raised to the decision recommending settlement differ between them. The exchanged text may amount to no more than a private promise, and the agreement entered in the conciliation record and the grounds for the taking effect of a decision recommending settlement or substitute decision are confirmed from separate records. The same criterion also distinguishes the case where the object of performance is specified from the case where it is not, and if the entry in the record or the status of objection and taking effect is not confirmed, the channel of this relief remains undetermined. Because a synthetic scene alone cannot establish the performance record or the actual result of recovery, no assertion is made that final performance has been reached.
What this section permits is a judgment premised on the distinction between rendering a decision without an agreement under the statutory requirements and, where the object of performance is specified, proceeding to that performance. What it does not permit is the interpretation of treating the mere existence of a substitute decision as showing that an actual agreement existed, or of skipping confirmation of the entry in the record and of objection and effect and immediately recognizing final performance. For the same reason, the signing or exchange of an agreement document alone does not change the document's classification as to effect. Next, what can be performed according to the finalized wording as it stands becomes a separate question.
4.2The Conditions That Block Relief
The previous section summarized that this relief operates where the agreement is entered in an official record, or where it satisfies the grounds for the taking effect of a decision recommending settlement or substitute decision, and the object of performance is specified. In a scene where the entry in the record and the question of objection diverge in this way, it asks whether there is also a point at which the decision the court renders where conciliation is not reached is blocked.
Concerning a decision in lieu of conciliation—that is, the substitute decision the court renders where no agreement is reached and the like—Article 30 of the Judicial Conciliation of Civil Disputes Act provides that the presiding conciliation judge may, ex officio, “considering the interests of the parties and all other circumstances, and to the extent not contrary to the tenor of the applicant's application, render a decision for a fair resolution of the case” (Judicial Conciliation of Civil Disputes Act, Article 30). This wording takes as its object a case in which no agreement has been formed or in which the content of an agreement formed is found inappropriate. Accordingly, it is first clear that a substitute decision is not a document recording the parties' agreement but a decision set by the court.
In the same vein, Article 34 of the Judicial Conciliation of Civil Disputes Act provides that, as to a decision under Article 30, the parties “may file an objection within two weeks from the day on which a certified copy of the record is served,” adding, however, that an objection may also be filed before service (Judicial Conciliation of Civil Disputes Act, Article 34). And paragraph (4) of the same Article provides that the decision has the same effect as judicial conciliation only where there is no objection (application raising objection) within the period under paragraph (1), where the objection is withdrawn, or where the objection is not filed in due form and an order of dismissal on procedural grounds has become final. The reason these two stages must be distinguished is that the fact that an agreement was drawn up and the determination that the agreement has reached effect upon finality require different conditions. Where the matter amounts to no more than a private promise, or where a lawful objection is raised so that relief by virtue of the final effect of that decision cannot be obtained, this relief is blocked.
The strongest counterargument is that where opposition is anticipated the practical benefit of the decision is small. In that the advantage of an agreement aimed at ending a dispute swiftly may be replaced by the weight of procedure—the burden of signature and form, and the management of the period for objection—this counterargument squarely targets the delay and cost the parties actually bear. A substitute decision is a determination made by the court on the premise of the absence of an agreement, and its conclusion holds even upon conceding the reduction in practical benefit pointed out by the counterargument.
The fact that, in the synthetic scene, whether the conciliation record contains the entry and whether objection was raised to the decision recommending settlement each differ shows that the two preceding conditions operate independently. The mere fact that draft agreement language was exchanged does not allow a determination whether it goes beyond a private promise, and whether an objection was raised likewise divides the conclusion. Still, this scene alone cannot establish the actual time of entry in the record or the outcome of service and performance. The condition that an agreement bearing only the signature of negotiation, once entered in an official record, changes the document's classification as to effect, is nothing more than a contrast that alters the criterion of adjudication, not a fact of the present scene.
Accordingly, this relief is blocked at the moment an agreement amounts to no more than a private promise, and at the moment a lawful objection is raised to a decision recommending settlement or substitute decision so that final effect is not reached. The fact that the court may render a decision without an agreement does not of course entail the final effect of that decision, and the conditions of objection and of the taking effect must remain as they are.
4.3The Boundary That Remains When There Is No Data
The distinction of the previous section is that where the matter amounts to no more than a private promise, or where a lawful objection is raised to a decision recommending settlement or substitute decision so that relief by virtue of the final effect of that decision cannot be obtained, this relief is blocked. Yet before adjudging that earlier stage, a stretch remains where the material is empty. What must first be asked in this scene is whether a decision that fills the absence of an agreement—that is, a decision in lieu of conciliation—is possible even without an agreement. Yet even after that possibility is confirmed, there remains the question: where lies the boundary that cannot be adjudged because the material is lacking?
First consider the basis on which the court may conclude a case without an agreement by a substitute decision. Article 30 of the Judicial Conciliation of Civil Disputes Act provides: “The presiding conciliation judge may, with respect to a case in which no agreement has been reached or a case in which the judge finds the content of an agreement reached between the parties to be inappropriate, ex officio … render a decision for a fair resolution of the case” (Judicial Conciliation of Civil Disputes Act, Article 30). This wording confines the actor to the presiding conciliation judge, the act to a decision rendered ex officio, and the case to failure to reach agreement or inappropriateness of the content of the agreement, respectively. Accordingly, a substitute decision is not possible only where there is an agreement; it is possible under the statutory requirements even where there is none. However, since that wording does not itself set out the conditions for the filing of an objection or the taking effect, these must be separately confirmed from other provisions.
If so, the possibility of a substitute decision and the finality of its effect are distinct stages of judgment. Article 34 of the Judicial Conciliation of Civil Disputes Act provides that, as to a decision under Article 30, “the parties may file an objection within two weeks from the day on which a certified copy of the record is served,” and then provides that where there is no objection (application raising objection) within the period, or the objection is withdrawn, or an order of dismissal on procedural grounds in respect of an objection not filed in due form has become final, that decision “has the same effect as judicial conciliation” (Judicial Conciliation of Civil Disputes Act, Article 34). Accordingly, the two must be distinguished. The judgment of possibility—that a decision may be rendered even in a case without an agreement—and the judgment of the taking effect—that the decision has reached final effect—hinge on different requirements. A decision in lieu of conciliation means the substitute decision the court renders where no agreement is reached and the like, and this definition belongs to the judgment of possibility.
The reason the distinction is drawn narrowly is the counterargument that where opposition is anticipated the practical benefit of the decision is small. If the other party appears likely to raise an objection at once, and even if the formalities are observed the decision must pass through the peremptory two-week period and the procedures of service and objection, the complaint is that the decision only prolongs a skeptical intermediate state in place of a final conclusion. From the standpoint of the parties who have exchanged draft agreement language, if a substitute decision cannot immediately draw out actual performance by the other party, its practical benefit can only be small. That counterargument does not, however, confer the authority to skip the stage of adjudication. Leaving the disadvantage of the counterargument as it stands, it is not permitted to mix the judgment of possibility with the judgment of the taking effect and thereby substitute for the evaluation of evidence.
Examine that boundary using only the facts placed in the synthetic scene. The exchange of draft agreement language alone does not reveal whether the agreement was entered in an official record, whether an objection was raised to the decision recommending settlement, or whether that decision reached the grounds prescribed in Article 34. If even one of these three is unverified, the possibility of a substitute decision can be judged, but whether its effect has become final cannot be adjudged. Leaving that adjudication undetermined is a description of a state in which the material is insufficient, and it is a different state from the cases distinguished in the previous section—of amounting to no more than a private promise, or of being unable to obtain relief by virtue of final effect because of a lawful objection; that is, the case where relief is blocked. Thus, amid a situation that is neither confirmed as final nor blocked as to relief, the adjudication of that boundary remains undetermined for lack of material. An agreement bearing only the signature of negotiation, once entered in an official record, changes the document's classification as to effect.
What this section permits is only the distinction between the possibility that a decision in lieu of conciliation is available even without an agreement, and the fact that even when that possibility is confirmed, the taking effect is left to separate conditions. It is not permitted to declare, without more, that a state in which final effect is undetermined amounts to an inability to obtain relief, or to read a substitute decision as evidence of an actual agreement. The circumstance that there is no material is only a record of non-confirmation and does not take the place of the conclusion of the adjudication, and the state of non-confirmation is maintained as distinct from the case where relief is blocked.
4.4The Records Needed for Determination
Taking up the premise that the taking effect of a decision recommending settlement and of judicial conciliation must be examined by separating service and objection from the statutory grounds of finality, this stage asks about the record requirements surrounding a decision in lieu of conciliation. What remains to be determined in this scene is what material is needed for the judgment at this stage.
Article 30 of the Judicial Conciliation of Civil Disputes Act reads: “The presiding conciliation judge may, with respect to a case in which no agreement has been reached or a case in which the judge finds the content of an agreement reached between the parties to be inappropriate, ex officio, considering the interests of the parties and all other circumstances, and to the extent not contrary to the tenor of the applicant's application, render a decision for a fair resolution of the case.” (Judicial Conciliation of Civil Disputes Act, Article 30) This wording designates a case in which no agreement has been reached as the object of a substitute decision. The actor of the decision is the presiding conciliation judge, and the act is a decision for a fair resolution rendered ex officio. As conditions, failure to reach agreement and inappropriateness of the content of the agreement are placed together in the wording. A decision in lieu of conciliation means the substitute decision the court renders where no agreement is reached and the like.
Connecting this wording with the distinction as to the taking effect handed down earlier, the judgment that a decision may be rendered without an agreement and the judgment that the decision possesses final effect are placed in different stages. Article 34, paragraph (4) of the Judicial Conciliation of Civil Disputes Act states that “a decision pursuant to Articles 30 and 32 has the same effect as judicial conciliation,” listing as its grounds “where there is no objection (application raising objection) within the period under paragraph (1),” “where the objection is withdrawn,” and “where the objection is not filed in due form and an order of dismissal on procedural grounds has become final as prescribed by Supreme Court Rules.” (Judicial Conciliation of Civil Disputes Act, Article 34) Accordingly, the adjudication is made solely on the material recorded in the agreement document, the judicial settlement or conciliation record, service, objection, the grounds of finality, and the performance record. The guiding rule of this judgment is not to fill absent records with presumptions.
At this point one confronts the counterargument that where opposition is anticipated the practical benefit of the decision is small. The content of that counterargument is the concern that the advantage of an agreement that can end matters swiftly is offset by the procedural burden of the form of drawing up the record and of the period for filing an objection. The counterargument targets the parties' time and cost, and the inconvenience of a protracted dispute. That inconvenience is not erased but left in place. Still, a substitute decision cannot be turned into evidence that the parties actually reached an agreement. Since the existence of a substitute decision presupposes the absence of an agreement, converting the decision itself into grounds for holding that an agreement existed is logically inconsistent.
Of the facts of the synthetic scene, only two bear on this judgment. Those are the fact that draft language was exchanged, and the fact that whether the conciliation record contains the entry and whether objection was raised to the decision recommending settlement have each gone unverified. The exchange of an agreement document is merely a trace of negotiation, and is distinct from an agreement entered in the conciliation record. Whether service took place, whether the period for filing an objection has elapsed, and whether the objection was withdrawn are unverified in this scene. Accordingly, this scene alone cannot establish whether the grounds for the taking effect are satisfied, and the unverified status remains unverified as it is. If it is confirmed that an agreement bearing only the signature of negotiation was entered in an official record, the document's classification as to effect changes.
The conclusion this section permits is that, while a substitute decision may be rendered without an agreement under the statutory requirements, its effect varies according to whether the objection and the grounds of finality are satisfied. Conversely, a conclusion that asserts, by reason of the existence of a substitute decision, that an agreement actually existed, or that fills in with conjecture the status of service, objection, and performance absent from the records, is not permitted. Whether the effect of finality obtains still depends on confirmation of the records.
4.5Circumstances That Change the Decision
On the premise that the entry into effect of a decision recommending settlement and of a judicial settlement must be examined separately from service and objection and from statutory grounds for finality, a decision that fills the absence of an agreement still cannot do away with the party's avenue of opposition. Two questions stand together: whether a decision taking the place of conciliation is possible in a case with no agreement, and what change overturns a stage determination that has already been rendered.
The statutory text first sets out the range of cases in which the conciliation judge may render a decision ex officio (by the court's own authority). Article 30 of the Judicial Conciliation of Civil Disputes Act provides that "with respect to a case where no agreement has been reached, or a case where the content of an agreement reached between the parties is found to be inappropriate, [the conciliation judge] may, ex officio (by the court's own authority), taking into consideration the interests of the parties and all other circumstances, make a decision for the fair resolution of the case, to the extent not contrary to the tenor of the applicant's application" (Article 30 of the Judicial Conciliation of Civil Disputes Act). Here, 'a case where no agreement has been reached' refers to a case in which no completed agreement exists between the parties, and 'a case where the content of an agreement reached is found to be inappropriate' refers to a case in which, independent of the actual existence of the agreement, the court regards its content as inappropriate. The subject of the decision is the conciliation judge, and the conditions for its exercise are attached in the same breath as the language of acting ex officio (by the court's own authority) and of remaining within the scope of the tenor of the application.
This language, while opening a pathway that fills the absence of an agreement, does not make the character of that pathway the same as that of an agreement. What Article 30 permits is that the court may render a substitute decision in a case without an agreement, and, in the author's application, this judgment is not a determination of the fact that an agreement existed. It is precisely at this point that the two stages diverge. One is whether the agreement actually exists; the other is whether a substitute decision can be rendered under statutory requirements.
The strongest counterargument aims at the practical benefit of the substitute decision. It regards the decision's practical benefit as small when opposition is anticipated. Without erasing the disadvantage that, if an objection (application raising objection) is filed, the advantage of seeking to bring the dispute swiftly to a close may disappear amid the burdens of formal requirements and the period for contesting the decision, one cannot convert a substitute decision into evidence that the parties actually reached an agreement. The substitute decision is nothing more than the court's judgment filling the absence of an agreement, and the boundary that it cannot function as evidence that an agreement was reached between the parties is maintained no matter how strong the counterargument.
From the synthetic scene, one draws out only the facts that the entry in the conciliation record and the presence or absence of an objection (application raising objection) to the decision recommending settlement stand differently in each respect, and contrasts them with the foregoing conditions. An agreement entered in the record and a written agreement that goes no further than signature do not belong to the same class of document, and accordingly the stage determination of the performance pathway that leads on to final and binding effect also differs. Conversely, where the written agreement remains a mere private promise, or where a lawful objection (application raising objection) is raised against the decision recommending settlement or the substitute decision so that relief by virtue of the final and binding effect of that decision is unavailable, the door to the performance pathway does not open, regardless of what wording the document contains. Items for which the entry in the record, or the status of objection (application raising objection) or entry into effect, is unverified remain undetermined.
What this section permits is the judgment that a decision may be rendered without an agreement under statutory requirements, and the conclusion that a decision taking the place of conciliation is possible even without an agreement. What is not permitted is treating that substitute decision as evidence that an agreement existed, or adopting an interpretation that skips over the conditions of objection (application raising objection) and entry into effect and immediately recognizes final and binding effect. Whether any wording whatsoever can be enforced once final effect alone exists is a question that remains to be dealt with anew outside this boundary.
4.6The Strongest Counterargument and the Answer
To the question whether a decision taking the place of conciliation is possible even without an agreement, the answer has been set down that, under statutory requirements, a decision may be made without an agreement, but the conditions of objection (application raising objection) and entry into effect must be maintained. What remains is how to answer the strongest counterargument, namely the view that when opposition is anticipated the decision's practical benefit is small. That counterargument worries that the burdens of form and of the period for contesting the decision may swallow up the advantage of a swift agreement.
The statutory text standing before this question is Article 30 of the Judicial Conciliation of Civil Disputes Act. The conciliation judge "with respect to a case where no agreement has been reached, or a case where the content of an agreement reached between the parties is found to be inappropriate, may, ex officio (by the court's own authority), taking into consideration the interests of the parties and all other circumstances, make a decision for the fair resolution of the case, to the extent not contrary to the tenor of the applicant's application" (Article 30 of the Judicial Conciliation of Civil Disputes Act). Here the subject is the conciliation judge, the act is a substitute decision made ex officio (by the court's own authority), and the conditions are the failure to form an agreement or the inappropriateness of the agreement's content. This provision presupposes that a substitute decision is rendered in place of the parties' agreement.
The link joining this language to the foregoing conclusion concerns the source of the substitute decision. A decision under Article 30 issues in a case where no agreement was reached or where its content was found inappropriate, and therefore the decision itself cannot serve as evidence of the fact that an agreement existed. The judgment that a substitute decision is to be rendered and the judgment that an actual agreement exists belong to two different stages. The former is a measure the court takes for the fair resolution of the case; the latter is a question of fact as to whether the parties exchanged the text of an agreement and had it entered in the record.
The strongest counterargument points out that this distinction turns its back on real costs. To obtain a substitute decision in a case where opposition is anticipated, one must await service and confirm whether an objection (application raising objection) is filed, and in the meantime the invariable period runs. The parties who sought to bring matters to a swift close end up bearing instead the burdens of form and time. The answer, however, is settled. The delay and the disadvantages of form identified by the counterargument are acknowledged as they stand, but on account of that inconvenience the source of the decision cannot be disguised as an agreement.
What can be confirmed in this scene is only the fact that there was an exchange of text, and that the status of the entry in the record and of the objection (application raising objection) diverges between the two. If the agreement is not entered in the conciliation record, that agreement remains a private promise, and if a lawful objection (application raising objection) is raised to the decision recommending settlement, relief by virtue of the final and binding effect of that decision is barred. Which of the two is the case must be confirmed through the records, and on the scene alone it remains undetermined.
The conclusion this section permits is narrow. A substitute decision is possible even without an agreement, and the distinction is recognized even to the point that the decision does not function as evidence of an actual agreement. What this section does not permit is the expansion of reading that decision as the agreement itself between the parties, and the leap of recognizing final and binding effect on the strength of the written agreement alone. For an agreement to lead to performance carrying final and binding effect, it must be entered in the statutory record or satisfy the grounds for entry into effect of a decision recommending settlement or a substitute decision, and the subject of performance must be specified. Even if the practical benefit of the decision grows smaller when opposition is anticipated, the size of that benefit cannot alter its evidentiary character.
4.7The Link to the Application and the Dispositive Part
The preceding section confirmed that a substitute decision cannot be converted into evidence that the parties actually reached an agreement. The mere fact that the text of an agreement was exchanged cannot establish that a determinate agreement exists between the two persons. Then, when the parties in the conciliation process ultimately fail to reach an agreement between themselves, the question of this section is whether the decision taking the place of conciliation that the court renders, not returning the case as it stands but for the sake of closure (a substitute decision rendered by the court in cases such as the failure to form an agreement), is possible even without an agreement.
What a decision taking the place of conciliation presupposes is directly specified by the relevant statutory text. Article 30 of the Judicial Conciliation of Civil Disputes Act provides that "the conciliation judge may, with respect to a case where no agreement has been reached, or a case where the content of an agreement reached between the parties is found to be inappropriate, ex officio (by the court's own authority), taking into consideration the interests of the parties and all other circumstances, make a decision for the fair resolution of the case, to the extent not contrary to the tenor of the applicant's application" (Article 30 of the Judicial Conciliation of Civil Disputes Act). In this language the subject is the conciliation judge, the act is a substitute decision made ex officio (by the court's own authority), and two cases are open at once. One is a case in which no agreement has been reached at all; the other is a case in which an agreement has been reached but its content is found inappropriate.
Accordingly, the absence of an agreement is not a reason barring the decision but is rather one of the normal premises on which that decision rests. The conciliation judge may, ex officio (by the court's own authority), take into consideration the interests of the parties and all other circumstances, but may render a decision for the fair resolution of the case only to the extent not contrary to the tenor of the applicant's application (Article 30 of the Judicial Conciliation of Civil Disputes Act). That a decision may be made without an agreement while observing that limit is the first judgment; whether that decision carries the same final and binding effect as an agreement between the parties is a separate judgment. The reason these two must be examined apart is that neither the authority to render the decision nor the force by which the decision later carries through to enforcement is fixed wholesale from the outset by the conciliation judge.
Nor is this pathway merely convenient. The objection (application raising objection) and the formalities of its period remain, and the counterargument that the decision itself thereby loses practical substance strikes with the greatest force. It is pointed out that if the parties intend to oppose from the start, the advantage of swiftly drawing out an agreement returns instead as the cost of the objection (application raising objection) procedure and the invariable period. A substitute decision is a decision the court renders with respect to a case in which there is no agreement between the parties or in which, even if there is one, it is found inappropriate; it is not proof of the fact that the parties, in their own mouths, reached an agreement. The reduction in practical benefit identified by the counterargument remains as it is, but on account of that reduction the character of the decision cannot be reversed into evidence of an agreement.
Setting this scene against the foregoing conditions for comparison, the mere fact that the text of an agreement was exchanged does not establish that the agreement was entered in the statutory record or that the text was specified as the subject of performance. So long as it is unverified whether the entry in the conciliation record was made, whether it remained a private promise or an agreement leading to performance carrying final and binding effect remains undetermined. That the presence or absence of an objection (application raising objection) to the decision recommending settlement likewise differs is also a different matter. Only when it is confirmed whether an objection (application raising objection) exists, whether the objection has been withdrawn, or whether it was unlawful so that an order of dismissal on procedural grounds has become final, is one in a position to determine whether that decision has entered into effect.
The conclusion of this section is narrow. A decision taking the place of conciliation may be rendered by the court ex officio (by the court's own authority) in a case where no agreement was reached or where its content was found inappropriate, and its limits are the scope of the tenor of the application and of a fair resolution. That does not mean that the decision becomes, from the outset, an agreement bearing final and binding effect; the objection (application raising objection) and its period, and the grounds for entry into effect, must be maintained separately. The outcome of the actual case, won or lost, or the result of performance, cannot be judged at this point.
4.8The Scope This Section Undertakes
Is a decision taking the place of conciliation possible even without an agreement? Under statutory requirements, a decision may be made without an agreement, but the conditions of objection (application raising objection) and entry into effect must be maintained.
Article 30 of the Judicial Conciliation of Civil Disputes Act provides that "the conciliation judge may, with respect to a case where no agreement has been reached, or a case where the content of an agreement reached between the parties is found to be inappropriate," render a decision. This language limits the subject to the conciliation judge, the act to a decision made ex officio (by the court's own authority), and the conditions to the failure to form an agreement or the inappropriateness of the agreement's content, respectively.
On this basis the conclusion that a decision is possible without an agreement is established. However, that decision differs in nature from a written agreement prepared by the parties, and its effect is judged according to separate conditions. Because the objection (application raising objection) and entry-into-effect conditions do not alter the attribution of the substitute decision, the possibility of the decision and the arrival of final and binding effect must be examined apart.
That the advantage of a swift agreement may vanish under the burden of formalities and of the period for contesting the decision is the real cost of this system. That is because a substitute decision is rendered on the premise that there was no agreement.
In this scene, the existence of the written agreement did not lead to an entry in the conciliation record, and the presence or absence of an objection (application raising objection) is also not settled. Accordingly, it falls under the case where the entry in the record or the status of objection (application raising objection) or entry into effect is unverified, and the classification of that document's effect remains undetermined.
What this section permits is the judgment that, under statutory requirements, a substitute decision is possible without an agreement. What is not permitted is substituting that decision as evidence of the parties' actual agreement, and asserting that it is enforceable without the conditions for final and binding effect.
4.9Application of the Text of the Provisions and the Holdings of Precedents
To distinguish an agreement that is no more than a private promise from an agreement that is recorded in court proceedings and leads to a performance vested with conclusive effect, one must first ascertain which wording opens that channel. On the premise that the taking effect of a decision recommending settlement and of a judicial settlement must be examined separately with respect to service, objection, and statutory grounds of finality, plaintiff A and defendant B exchanged drafts of an agreement, but they differ as to whether the agreement was entered in the conciliation record and whether an objection was raised to the decision recommending settlement. In this scene, the agreement document alone does not suffice to determine whether the agreement has reached a performance vested with conclusive effect. Before asking whether a decision in lieu of conciliation is possible even without an agreement, one examines how that wording specifies the conditions that connect the agreement to that channel.
Article 30 of the Judicial Conciliation of Civil Disputes Act provides that "the judge in charge of conciliation may, with respect to a case in which no agreement has been reached or a case in which he or she finds that the content of an agreement reached between the parties is inappropriate," render a substitute decision (Article 30 of the Judicial Conciliation of Civil Disputes Act). This wording makes cases in which no agreement has been reached and cases involving an inappropriate agreement the subjects of the decision. Article 34 (4) of the Judicial Conciliation of Civil Disputes Act lists as the reasons why a decision under Article 30 has the same effect as a judicial settlement: "1. where no objection (application raising objection) is filed within the period under paragraph (1)", "2. where an objection (application raising objection) is withdrawn", "3. where an objection (application raising objection) is unlawful and an order of dismissal on procedural grounds has become final in accordance with the Supreme Court Rules" (Article 34 of the Judicial Conciliation of Civil Disputes Act), and paragraph (1) sets that period as "two weeks from the date on which the transcript of the record is served" (Article 34 of the Judicial Conciliation of Civil Disputes Act). The actors designated by the wording are the judge in charge of conciliation and the parties, the acts are the substitute decision and the objection (application raising objection), and the conditions are the non-formation of an agreement, the inappropriateness of its content, and the non-filing, withdrawal, or final dismissal of an objection (application raising objection). These provisions merely designate the conditions under which an agreement leads to a performance vested with conclusive effect, and set forth no further reasons.
When this wording is applied as the basis for judging the channel that connects an agreement to a performance vested with conclusive effect, the availability of a decision under Article 30 and the taking of effect under Article 34 must be examined separately. Article 30 determines in which cases a substitute decision may be rendered, and Article 34 determines the time at which, and the reasons for which, that decision has the same effect as a judicial settlement. Accordingly, the mere circumstance that drafts of an agreement were exchanged cannot be treated as satisfying the conditions for the taking of effect. The effect of a substitute decision depends on the statutory grounds that no objection is filed, that the objection is withdrawn, or that an order dismissing the objection on procedural grounds becomes final, and it leads to a performance only where the subject of performance has been specified. Only by distinguishing these two stages can one separately determine the existence of an agreement and whether that agreement acquired conclusive effect through the statutory form. That wording alone provides the basis for the distinction.
If objection is anticipated, there is a concern that the utility of the decision is slight. Once a swift agreement bears the procedural burdens of formal requirements and the period for an objection (application raising objection), the loss is concrete: the advantage of speed that conciliation originally sought may be diluted. As parties, in a scene where the mere exchange of drafts already makes the dispute appear resolved, they must endure the inconvenience of waiting for the entry in the record and for service. Yet eliminating this inconvenience does not allow a substitute decision to be converted into evidence that the parties actually reached an agreement. A substitute decision is an ex officio (by the court's own authority) resolution by the court of a case in which no agreement was reached or the content was inappropriate, and it does not itself constitute evidence of an agreement between the parties. The reduction in utility pointed out by the counterargument is acknowledged, but that reduction cannot justify bypassing the conditions for the taking of effect prescribed by the wording.
The only fact established in the synthetic scene of this section is that plaintiff A and defendant B exchanged drafts of an agreement but differ as to whether the agreement was entered in the conciliation record and whether an objection was raised to the decision recommending settlement. If the existence of an agreement document is compared with the presence or absence of an entry in a settlement or conciliation record, the exchange of drafts is a circumstance distinct from the formation of an agreement under Article 30, while the entry in the record is an element connected to the activation of effect under Article 34. Since the status of service, objection, and grounds of finality is unverified, this scene alone cannot establish whether the agreement has reached a performance vested with conclusive effect. So long as the record entry and the status of the objection remain unverified, the determination remains undetermined.
The conclusion of this section is as follows. Under the statutory requirements, a substitute decision can be made even without an agreement, but the conditions of objection and of the taking of effect must be maintained, and the wording of Articles 30 and 34 of the Judicial Conciliation of Civil Disputes Act constitutes the sole basis for that determination. Extending beyond this wording to the reasons for the judgment or to other provisions leads to the result of converting a substitute decision into evidence of an actual agreement, and is therefore not permitted. The channel that connects an agreement to a performance vested with conclusive effect opens when the entry in the record, the grounds for the taking effect of the decision recommending settlement, and the specification of the subject of performance are all in place, while an agreement that is no more than a private promise cannot reach that channel. Cases in which the record entry or the status of the objection is unverified must be left undetermined and cannot be declared beyond relief.
4.10Fine Distinctions Within the Stage
Within this scene, the question opens as to whether a decision in lieu of conciliation is possible even without an agreement, and how far extends the conclusion that, under the statutory requirements, a decision can be made even without an agreement but the conditions of objection and of the taking of effect must be maintained.
The first wording corresponding to this question is Article 30 of the Judicial Conciliation of Civil Disputes Act. That provision stipulates that "the judge in charge of conciliation may, ex officio (by the court's own authority), with respect to a case in which no agreement has been reached or a case in which he or she finds that the content of an agreement reached between the parties is inappropriate, … render a decision for a fair resolution of the case" (Article 30 of the Judicial Conciliation of Civil Disputes Act). Here the actor is the judge in charge of conciliation, the act is a decision made ex officio (by the court's own authority), and the condition is a case in which no agreement has been reached or the content of the agreement has been found inappropriate. In other words, the scope of the wording that the court may render a substitute decision even without an agreement is determined first.
Even under these conditions, a substitute decision does not immediately become a performance vested with conclusive effect. Article 34 of the Judicial Conciliation of Civil Disputes Act provides that "the parties may file an objection (application raising objection) to a decision under Article 30 or Article 32 within two weeks from the date on which the transcript of the record is served" (Article 34 of the Judicial Conciliation of Civil Disputes Act), and further provides that "where no objection (application raising objection) is filed within the period under paragraph (1) … the decision under Article 30 and Article 32 has the same effect as a judicial settlement" (Article 34 of the Judicial Conciliation of Civil Disputes Act). Accordingly, the detailed distinctions within the stage are limited to the conditions of the case where it operates, the case where it is blocked, and the case where it remains undetermined. The channel opens only where the agreement is entered in the statutory record or the grounds for the taking of effect of the decision recommending settlement or the substitute decision are satisfied and the subject of performance has been specified; it is blocked where the agreement is no more than a private promise or where, by reason of a lawful objection (application raising objection), relief by virtue of the conclusive effect of that decision cannot be obtained. Where the record entry or the status of the objection and of the taking of effect is unverified, the matter remains undetermined.
The loss and inconvenience are concrete: once an agreement intended to be concluded swiftly bears the burden of formal requirements and an invariable period, its convenience is offset. Yet the author's answer is that a substitute decision cannot be converted into evidence that the parties actually reached an agreement. While leaving in place the reduction in utility pointed out by the counterargument, a determination that substitutes the classification of the effect of a substitute decision for the existence of an actual agreement is not permitted.
The only fact established in this scene is that the exchange of drafts of an agreement, whether there was an entry in the conciliation record, and whether an objection was raised to the decision recommending settlement all differ from one another. On the condition that an agreement bearing only negotiated signatures comes to be entered in a statutory record and thereby changes the classification of the effect of that document, the status of the agreement document, the settlement or conciliation record, service, the objection, the grounds of finality, and the performance record has not yet been specified. The facts, service, and performance results of actual cases, and the year, amount, accrual date, and judgment outcome absent from the synthetic scene, remain unestablished.
The conclusions permitted by this section are that a decision in lieu of conciliation, as a substitute decision rendered by the court in cases where no agreement has been reached and the like, is possible under the statutory requirements, and that its taking of effect is determined separately by reference to objection and to the grounds of finality. What this section does not permit is the invention of additional stages and the conversion of a substitute decision into evidence of an actual agreement.
4.11Synthesis of Effectiveness, Blockage, and Undetermination
The preceding stage confirmed that, under the statutory requirements, a decision can be made even without an agreement but the conditions of objection and of the taking of effect must be maintained. The question now is how to distinguish effectiveness, blockage, and indeterminacy within the channel that connects an agreement to a performance vested with conclusive effect. Since the verification status of the two sets of records diverges, one must first determine which document acquired conclusive effect.
「Article 30 of the Judicial Conciliation of Civil Disputes Act」 provides that the judge in charge of conciliation may, 《ex officio (by the court's own authority), with respect to a case in which no agreement has been reached or a case in which he or she finds that the content of an agreement reached between the parties is inappropriate》, render a decision. In this wording, the judge in charge of conciliation is the actor, the non-formation of an agreement or the inappropriateness of the content of the agreement is the occasion for the determination, and the scope not exceeding the gist of the application is the limit. Thus it is revealed that a decision in lieu of conciliation is a substitute decision that is possible even without an agreement.
The question is the time at which, and the reasons for which, that substitute decision acquires conclusive effect. 《Article 34 of the Judicial Conciliation of Civil Disputes Act》 provides that 《the parties may file an objection (application raising objection) to a decision under Article 30 or Article 32 within two weeks from the date on which the transcript of the record is served》, while paragraph (4) of the same Article provides that, in the cases of 《where no objection (application raising objection) is filed within the period under paragraph (1)》, 《where an objection (application raising objection) is withdrawn》, and 《where an objection (application raising objection) is unlawful and an order of dismissal on procedural grounds has become final in accordance with the Supreme Court Rules》, the decision 《has the same effect as a judicial settlement》. Accordingly, the conditions that open the channel are that the agreement is entered in the statutory record or the grounds for the taking of effect of the decision recommending settlement or the substitute decision are satisfied and the subject of performance has been specified. The conditions that block it are that the agreement is no more than a private promise or that a lawful objection (application raising objection) is raised to the decision recommending settlement or the substitute decision, so that relief by virtue of the conclusive effect of that decision cannot be obtained. If the former is the channel of performance grounded in court records, the latter remains within the private relationship surrounding the agreement document and its performance.
The counterargument observes that if parties who sought to conclude the agreement swiftly bear the burdens of the record form and the objection period, the very advantage is lost. Yet that inconvenience is not a procedural cost that may be deleted. Since a judge's ex officio (by the court's own authority) decision and the parties' agreement differ in their basis and in the manner of their formation, treating the former as evidence of the latter would mix the opening condition of entry in the statutory record with the closing condition of a private promise. The reduction in utility pointed out by the counterargument remains in place, and what remains is the clarity of classification that is nevertheless gained.
What can be established in this scene is only the fact of the exchange of drafts of an agreement, and only the point that the presence or absence of an entry in the conciliation record and of an objection to the decision recommending settlement differ from one another is settled. If the agreement is entered in the conciliation record, then an agreement bearing only negotiated signatures, once entered in a statutory record, changes the classification of the effect of that document. If an objection (application raising objection) is raised to the decision recommending settlement, it must be verified whether it falls within the grounds for the taking of effect prescribed by Article 34 (4) of the Judicial Conciliation of Civil Disputes Act. Conversely, if any one of the non-filing of an objection (application raising objection), its withdrawal, or the finality of an order of dismissal on procedural grounds on an unlawful objection (application raising objection) is verified, the decision has the same effect as a judicial settlement. However, the specification of the subject of performance and the performance record are absent from the scene, and the matter therefore remains undetermined.
The conclusion permitted in this section extends no further than distinguishing the opening, blockage, and indeterminacy of the channel according to the record entry and the grounds for objection and for the taking of effect. The mere exchange of drafts of an agreement does not create a performance vested with conclusive effect, and a document that is no more than a private promise does not itself constitute grounds for enforcement. On the other hand, a state in which the record entry and the grounds for the taking of effect are unverified must not immediately be declared beyond relief. Whether any wording whatsoever can be enforced if it merely has conclusive effect is a question outside this distinction.
4.12Conclusion Carried Over to the Next Section
앞 절에서는 합의가 법정 조서에 기재되거나 권고·대체 결정의 효력 발생 사유를 충족하고 이행 대상이 특정된 경우에는 작동하고, 사적 약속에 그치거나 권고·대체 결정에 적법한 이의가 제기되어 그 결정의 확정 효력에 의한 구제를 받을 수 없는 경우에는 막히며, 조서 기재 또는 이의·효력 발생 상태가 확인되지 않은 경우에는 미확정으로 남는다고 보았다. 그런데 정작 조정 과정에서 당사자 간에 합의가 이루어지지 않았다면 조정을 갈음하는 결정은 가능한가? 이 물음은 합의 없이도 내려지는 결정이 가지는 근거와 그 결정이 확정되려면 무엇이 필요한지를 차례로 묻는다. 따라서 이 절에서는 조정을 갈음하는 결정의 성립 요건과 그 효력 발생 조건이 각각 어디에 놓이는지 살펴보아야 한다.
조정을 갈음하는 결정의 근거가 되는 민사조정법 제30조는 “조정담당판사는 합의가 성립되지 아니한 사건 또는 당사자 사이에 성립된 합의의 내용이 적당하지 아니하다고 인정한 사건에 관하여 직권으로 당사자의 이익이나 그 밖의 모든 사정을 고려하여 신청인의 신청 취지에 반하지 아니하는 한도에서 사건의 공평한 해결을 위한 결정을 할 수 있다”고 규정한다(민사조정법 제30조). 이 문언에서 정해지는 주체는 조정담당판사이고, 행위는 직권에 의한 결정이며, 그 대상은 합의가 성립되지 아니한 사건 또는 성립된 합의의 내용이 적당하지 아니하다고 인정한 사건이다. 여기서 합의의 부재는 결정을 막는 요건이 아니라 오히려 결정을 열어 주는 요건의 하나로 기능한다. 다만 결정의 내용은 신청인의 신청 취지에 반하지 아니하는 한도 안에서 사건의 공평한 해결을 위한 것이어야 한다.
위 문언이 조정담당판사에게 합의 없이도 결정을 할 권한을 주는 것은 맞지만, 그렇다고 그 결정이 즉시 확정 효력을 갖는 것은 아니다. 이 구별은 민사조정법 제34조가 규정하는 이의신청 절차와 효력 발생 사유에서 드러난다(민사조정법 제34조). 법정 요건 아래 합의 없이 결정을 할 수 있다는 성립 단계의 판단과, 그 결정에 대한 이의 신청 기간이 지나거나 이의가 취하·각하되어야만 재판상의 화해와 동일한 효력이 생긴다는 효력 발생 단계의 판단은 서로 다른 것이다. 앞의 판단은 결정을 내릴 수 있는가에 관한 것이고 뒤의 판단은 그 결정이 확정 효력을 얻었는가에 관한 것이므로, 하나의 판단으로 다른 판단을 대신할 수 없다.
반대가 예상되면 결정의 실익이 작다는 비판이 제기될 수 있다. 당사자가 이미 합의 문안을 교환한 뒤에도 조정조서 기재 여부와 권고결정에 대한 이의 여부가 서로 달라 대립하는 원고 A와 피고 B의 사정을 고려하면, 신속한 합의의 장점이 형식 요건과 불복기간의 부담으로 인해 사라질 수 있다는 점은 부정하기 어렵다. 대체 결정은 합의가 성립되지 아니한 사건에 관하여 법원이 내리는 별개의 판단이므로, 그 결정이 존재한다는 사정만으로 당사자 사이에 실제 합의가 성립되었다고 인정할 수는 없다. 반론이 지적하는 비용과 불편은 유지한 채, 합의의 존재에 관한 증거 분류만은 흔들림 없이 지켜진다.
이 절의 앞의 조건에 비추어 보면, 원고 A와 피고 B가 합의 문안을 교환했다는 사정만으로는 그 합의가 확정 효력 있는 급부로 이어졌는지 판단할 수 없다. 합의문이 교환되었더라도 그것이 법정 조서에 기재되었는지, 권고결정이나 대체 결정에 대한 이의가 제기되었는지, 그리고 그 결정의 효력 발생 사유가 충족되었는지가 합성 장면에 기재되지 않았기 때문이다. 협상 서명만 있던 합의가 법정 조서에 기재되면 그 문서의 효력 분류를 바꾼다는 대조 조건을 놓고 보아도, 현재 장면만으로는 조서 기재 여부가 확정되어 있지 않으므로 작동과 차단과 미확정 중 어느 것으로 분류할지 확정할 수 없다. 따라서 이 절의 판단은 법정 요건 아래 합의 없이 결정을 할 수 있지만 이의와 효력 발생 조건을 유지해야 한다는 좁은 결론에 한정된다.
이 절에서 확인할 수 있는 것은 조정을 갈음하는 결정이 합의의 부재를 이유로 배제되지 않는다는 것과, 그 결정이 확정 효력을 얻으려면 이의신청과 효력 발생 사유라는 별도의 관문을 거쳐야 한다는 경계까지다. 이 경계를 넘어서서 대체 결정의 존재를 당사자 사이의 실제 합의의 증거로 삼거나, 조서 기재 여부와 이의 상태가 확인되지 않은 사안에서 효력의 유무를 단정할 수는 없다. 확정 효과만 있으면 어떤 문구도 집행할 수 있는가?