Summary
The establishment of a settlement or conciliation and its actual performance must be recorded as separate end points.
6.1The Standard by Which the Path Opens
The court's mark of closure is not a receipt showing that the promise has been kept. Starting from the interpretation adopted in the preceding section, that the status of a document as one having the same effect as a final and conclusive judgment and the specificity of the performance to be executed must be viewed separately, before the question whether, once the case ends, the harm is also remedied, one must separately ask for the criterion that distinguishes closure from remedy. Plaintiff A and Defendant B exchanged drafts of an agreement, but they differ as to whether the conciliation record contains an entry and whether objections to the decision recommending settlement have been raised. In this scene, the issue at hand is whether, although both parties hold the same draft agreement, only one party's situation leads to a channel for demanding performance. On the premise that the formation of a settlement or conciliation and its actual performance must be recorded as separate endpoints, this section first makes clear the criterion for the state in which the entrance to this remedy opens.
As to the original text relevant to this problem, Article 29 of the Judicial Conciliation of Civil Disputes Act declares, “Article 29 (Effect of Conciliation) Conciliation has the same effect as a compromise made in court.” What this provision directly establishes is the status of the document, namely that conciliation, as a form of case termination, has the same effect as a compromise made in court. The subject spoken of here is the parties who formed the conciliation; the act is that formation; and the condition is the fact that conciliation was formed. Article 56 of the Civil Execution Act, while listing titles other than judgments that may serve as the basis for compulsory execution, includes as one of them “5. A compromise made in court, an acknowledgment of claim, etc., and other matters having the same effect as a final and conclusive judgment,” placing it alongside “a payment order that has become final and conclusive” in subparagraph 3 of the same Article. That is, by recording the final and conclusive payment order and the document having the same effect as a final and conclusive judgment each as a separate title, the legislature left room to ask what materials qualify for the latter status.
The above provisions place the classification of the document's effect and the specificity of the performance to be executed at two distinct stages, and only by observing this distinction can one accurately examine which of the two elements remains satisfied. If the former concerns whether conciliation has the same effect as a compromise made in court, the latter concerns whether the performance, parties, and conditions demanded by the document bearing that effect are in fact specified. Satisfaction of one does not automatically satisfy the other. This section addresses the entrance to the channel that connects an agreement to a performance bearing conclusive effect; that channel opens where the agreement is entered in a court record, or where the grounds for a decision recommending settlement or substitute decision to take effect are met and the object of performance is specified. That the entrance is closed where the matter remains a mere private promise, or where a lawful objection is raised to a decision recommending settlement or substitute decision so that no relief under the conclusive effect of that decision is available, is the reverse side of the same criterion.
The counterargument this distinction is aimed at is the speed of dispute resolution. The concern that tracing matters through to performance may make it difficult to close a dispute refers to the burden of having a promise, which the parties to an agreement have barely reached after long and exhausting negotiations, pass through yet another round of recordation and formalities, and through the gateway of the period for objection. The observation that the advantage of a swift agreement may be lost to the burdens of form and the objection period is in itself a valid cost, and the conclusion of this section is not written in the direction of eliminating that cost. Even so, the cost cannot be avoided by converting the formation of conciliation into actual receipt of performance. That conciliation has the same effect as a compromise made in court does not mean that the performance demanded by the document was in fact rendered to the parties, and if the two endpoints are merged into one, the verification of materials for the latter is absorbed into the earlier classification of the document's effect. The disadvantage identified by the counterargument is left intact, and an answer is given only on the condition that formation and performance are not placed in the same position.
Returning to this scene, the mere fact that plaintiff A and defendant B exchanged drafts of an agreement does not confirm whether the conciliation record contains an entry or whether objections to the decision recommending settlement have been raised. The circumstance that entry in the conciliation record is not fixed corresponds, at the remedial stage of this section, to a state in which recordation in the record is unverified, which means only a lack of materials and does not immediately mean that no relief is available. The fact that objections to the decision recommending settlement differ by party is, regardless of what the grounds for a decision recommending settlement or substitute decision to take effect may be, a fact contrasted with the earlier condition that the availability of relief under the conclusive effect of that decision varies according to whether a lawful objection has been raised. In addition, the specificity of the object of performance must be confirmed separately from entry in the record, and on the circumstances stated in the scene alone, confirmation of performance, that is, whether there exist materials verifying that the performance stated in the record was actually rendered, is likewise not fixed. Accordingly, this scene does not permit a determination of which among entry in the conciliation record, the raising of objections, the specificity of the object of performance, and the record of performance is satisfied, and each item remains undetermined.
The conclusion this section permits is a narrow one. It can only be said that the entrance to this remedy opens where the agreement is entered in a court record, or where the grounds for a decision recommending settlement or substitute decision to take effect are met and the object of performance is specified. If an agreement that had consisted only of signatures from negotiations is confirmed to have been entered in a court record, the classification of that document's effect changes, and it is not placed in the same class as materials that remained a mere private promise. Conversely, to assert that the formation of conciliation means actual receipt of performance, or that the harm has already been remedied merely because the entrance is open, is a conclusion this section does not permit, and the confirmation of performance remains a separate matter of material verification.
6.2The Conditions That Block Relief
The conclusion up to that stage was that the interpretation is adopted whereby the status of a document as one having the same effect as a final and conclusive judgment and the specificity of the performance to be executed must be viewed separately. On the premise of that distinction, among the question whether, once the case ends, the harm is also remedied, the task is to clarify the conditions under which the channel of relief closes even though the agreement has taken its place within the court's procedure. Here the channel of relief refers to the route connecting an agreement to a performance bearing conclusive effect, and whether that route remains open is a matter for judgment that must be examined to the end.
The basis for answering this question is first drawn from the wording of the two provisions. Article 29 of the Judicial Conciliation of Civil Disputes Act declares that “conciliation has the same effect as a compromise made in court.” What this provision establishes is the rank of effect of conciliation as a mode of terminating a case; which subject must render what performance and when is not contained within this provision. Article 56 of the Civil Execution Act lists “5. A compromise made in court, an acknowledgment of claim, etc., and other matters having the same effect as a final and conclusive judgment” among the bases for compulsory execution. The subject addressed here is the creditor who seeks to make it an enforcement title; the act is compulsory execution seeking a specified performance; and the condition is that the document is one having the same effect as a final and conclusive judgment.
The reasoning connecting these two provisions is as follows. When conciliation is formed, it acquires the same effect as a compromise made in court under Article 29 of the Judicial Conciliation of Civil Disputes Act, and that effect may take the place of an enforcement title opened up by Article 56 of the Civil Execution Act. However, what the wording requires is merely a document bearing that effect, and whether the performance targeted by the execution is specified is a separate question. Hence the author's conclusion is that, where the matter remains a mere private promise, or where a lawful objection is raised to a decision recommending settlement or substitute decision so that no relief under the conclusive effect of that decision is available, the channel of relief is closed if any one of the statutory requirements is unmet. The reason the two stages must be viewed separately is that the earlier stage fixes the rank of the document's effect, while the later stage determines what may be obtained by that document. One does not substitute for the other.
The loss targeted by this conclusion is clear. The counterargument that tracing matters through to performance may make it difficult to close a dispute points out that the advantage of making the agreement authoritative and bringing matters to a swift close may disappear before the burdens of form and the objection period. The reason settlement and conciliation were preferred as means of resolving disputes lay in reducing procedure, and inquiring into the presence or absence of recordation and objections clouds that speed. Even so, the author's answer does not change. The formation of conciliation cannot be converted into actual receipt of performance. The fact that conciliation was formed and the fact that the performance stated in the record reached the creditor's hands are distinct endpoints, and a record confirming the former does not prove the latter as well.
Set against the above conditions, this fact shows that the mere circumstance of exchanging drafts of an agreement cannot be taken to mean that the channel of relief has opened. Whether the draft was entered in a court record, and whether a lawful objection was raised to the decision recommending settlement so that no relief under the conclusive effect of that decision is available, lie side by side, and either way the requirements for judgment differ. If an agreement that had consisted only of signatures from negotiations is confirmed to have been entered in a court record, the classification of that document's effect changes. To the extent that the actual records of service, objection, and performance remain unconfirmed, the matter is left undetermined, and the very circumstance of being undetermined does not immediately mean that no relief is available.
Accordingly, what can be confirmed is narrow. Where an agreement remains a mere private promise, or where a lawful objection is raised to a decision recommending settlement or substitute decision so that no relief under the conclusive effect of that decision is available, the channel of relief is closed if any one of the statutory requirements is unmet. Once that threshold is crossed, the classification of the document's effect changes, but that does not add the meaning that the performance stated in the record has already been rendered, so the confirmation of performance remains a separate matter. Confirmation of performance means the verification of materials showing that the performance stated in the record was actually rendered, and materials such as the written agreement, the settlement or conciliation record, service, objections, grounds of finality, and the record of performance support that verification.
6.3The Boundary That Remains When There Is No Data
When the case ends, is the harm also remedied? The preceding section held that where the matter remains a mere private promise, or where a lawful objection is raised to a decision recommending settlement or substitute decision so that no relief under the conclusive effect of that decision is available, this remedy is barred. Distinct from this, a gap in the materials remains. In this scene, where is the boundary at which nothing can be judged because the materials are absent?
Article 29 of the Judicial Conciliation of Civil Disputes Act provides that conciliation has the same effect as a compromise made in court (Article 29 of the Judicial Conciliation of Civil Disputes Act). This provision places the status of the document, where conciliation has been formed, in the same position as a settlement. The wording does not directly state who is taken as the subject or what state is taken as the condition of the effect. The state that conciliation was formed, the record that confirms that formation in writing, and what is entered in that record are each separate objects of confirmation. This section addresses only the question concerning the confirmation of whether an entry exists.
The mere fact that conciliation was formed does not determine whether the performance to be executed is written in that record. Subparagraph 5 of Article 56 of the Civil Execution Act lists matters having the same effect as a final and conclusive judgment, such as a compromise made in court, as enforcement titles, and for that performance to serve as the basis for compulsory execution the object of execution must be specified (Article 56 of the Civil Execution Act). Accordingly, the classification of the document's effect and the specification of the object of performance are judged separately. What is left unconfirmed for want of materials can be neither declared devoid of effect nor declared already effective. That place is left undetermined.
Attached to this distinction of the undetermined is the cost of keeping a dispute open for a long time. If matters are traced through to performance, the work of confirming whether the agreement was kept never ends, and for the parties who chose a swift agreement, the confirmation of form and the objection period again becomes a burden. Even so, the formation of conciliation cannot be converted into actual receipt of performance. The record of formation and the receipt of performance are confirmed only by different materials. A dispute closed by converting the unverified into the conclusive can only be reopened when those materials later appear.
What is confirmed in the synthetic scene is only the fact that drafts of an agreement were exchanged, and the fact that whether the conciliation record contains an entry and whether objections were raised to the decision recommending settlement differ between A and B. The earlier conditions to be compared with this are the state of entry in the record or of objection and taking effect. If entry in the record is confirmed on one side, the classification of that document's effect changes; if a lawful objection is confirmed on the other side, the route under the conclusive effect of that decision closes. In this scene, however, neither fact is settled. Whether the object of performance has been specified also cannot be determined here.
What this section permits is, where the presence of an entry in the record, the presence of an objection, and the state of taking effect are not confirmed by materials, to leave that judgment undetermined and to record separately the cases in which objection and relief are barred. What it does not permit is converting the unverified immediately into no relief available, or converting formation into confirmation of performance. Confirmation of performance means the verification of materials showing that the performance stated in the record was actually rendered, and a lack of materials is not in itself a closure.
6.4The Records Needed for Determination
In this scene, the questions are whether the harm can be said to have been remedied by the mere fact that the text of a settlement was exchanged, and further what records are needed in order to judge how far this stage has been reached. The indication of closure and the confirmation of remediation each require different materials.
The textual provisions capable of answering this question are divided between two articles. Article 29 of the Judicial Conciliation of Civil Disputes Act provides that "conciliation shall have the same effect as a settlement in court." The subject to which this provision points is the party to a conciliation that has been concluded; the act is the concluding of the conciliation; and the condition is that the conciliation has been concluded. Article 56 of the Civil Execution Act, in subparagraph 5, lists "a settlement in court, an acknowledgment of a claim, or any other matter having the same effect as a final and conclusive judgment" as one of the bases of compulsory execution. What is addressed here is the type of title of execution, and among such titles the condition that a document having the same effect as a final and conclusive judgment may serve as the foundation of execution.
These two provisions aim at the same state of affairs from different sides. What Article 29 of the Judicial Conciliation of Civil Disputes Act governs is the classification of the effect of the conciliation document, whereas what Article 56 of the Civil Execution Act governs is whether that document may serve as the basis of execution. Yet the passage in which subparagraph 4 of Article 56 of the Civil Execution Act requires, for a notarial deed, a claim "intended to compel the payment of a certain amount of money or the delivery of a fungible thing or a certain quantity of negotiable instruments," indicates that the status of having the same effect as a final and conclusive judgment and the specificity of the performance to be executed are matters to be considered separately. The interpretation adopted at the preceding stage is precisely this distinction. Accordingly, the judgment must not be made on the classification of the document's effect alone; rather, the material specifying the performance and the material showing that it was actually rendered must each be confirmed in the records. Confirmation of performance means confirming, in the record, material showing that the performance was actually provided.
Yet the counterargument that carries the greatest weight is that if performance is traced as well, the dispute may become difficult to close. The counterargument points to the loss that the advantage of a swift settlement may disappear before the burdens of formal requirements and the period for raising objections. Even after the parties have reached the text of a settlement, they must still examine the entries in the record and whether any objection was raised; and if no record remains, an inconvenience persists in that even the fact that a settlement was reached is difficult to judge. This disadvantage cannot be erased, because the record of formation and the record of performance are each distinct endpoints, and the former cannot be substituted, as a presumption, for the latter.
Comparing this scene with the conditions, Plaintiff A and Defendant B exchanged the text of a settlement, but whether the conciliation record contains an entry and whether an objection to the decision recommending settlement was raised differ between them. If it is confirmed that an entry appears in the conciliation record, the classification of effect under Article 29 of the Judicial Conciliation of Civil Disputes Act can be applied, but if there is no record of performance, one cannot reach the confirmation that the performance stated in the record was actually provided. Conversely, even if a record of performance exists, unless that record is made specific as to which document and which performance it concerns, the question of the specificity of the performance to be executed remains. Since the synthetic scene does not contain the result of any objection or grounds for finality, whether the effect failed to arise because of an objection to the decision recommending settlement cannot be judged from this scene alone.
Accordingly, the conclusion permitted in this section is to judge the stage solely on the basis of the materials recorded in the settlement document, the settlement or conciliation record, service, objections, grounds for finality, and the record of performance, and not to fill in missing records by presumption. Only where the matter has been entered in the record, or the grounds for the effect of a decision recommending settlement or a substitute decision have been satisfied and the object of performance has been specified, does the passage linking the settlement to a performance bearing final and conclusive effect open. Where the matter remained a private promise, or where, by reason of a lawful objection, one cannot rely on the final and conclusive effect of that decision, the passage is closed. Where the record entry or the state of objection and of arising of effect cannot be confirmed, the matter is left undetermined, and a lack of material is not converted at once into a want of remedy.
6.5Circumstances That Change the Decision
Under the interpretation that the status of a document as having the same effect as a final and conclusive judgment and the specificity of the performance to be executed must be considered separately, the formation of a settlement or conciliation and its actual performance must be recorded as separate endpoints. Faced, then, with the question whether the harm too is remedied once the case ends, what first becomes an issue is which change reverses a stage judgment already rendered.
The textual provisions capable of answering this question are found in two articles. Article 29 of the Judicial Conciliation of Civil Disputes Act provides that "conciliation shall have the same effect as a settlement in court," thereby determining what legal status the very formation of conciliation possesses. Article 56 of the Civil Execution Act lists, under the caption "compulsory execution may be carried out on the basis of any one of the following," and in item 5, "a settlement in court, an acknowledgment of a claim, or any other matter having the same effect as a final and conclusive judgment" as one of the titles of execution. What these provisions point to is the legal classification of the document, not whether the actual performance was delivered.
Connecting these two passages, a matter having the same effect as a settlement in court may serve as a basis of execution; but the fact that such status has been obtained and the fact that the performance to be executed has been specified and actually received stand at different stages of judgment. On the basis of this distinction, the author takes the view that when a settlement that had only been signed in negotiation is entered in a court record, the classification of that document's effect changes; and once such a specified change is confirmed, the prior judgment of blocking or effectiveness is discarded and the stage is judged anew. Conversely, the mere fact that the document's classification has changed cannot show that the promise was kept.
Yet what the counterargument that if performance is traced as well the dispute may become difficult to close most sharply targets is the swiftness of closure. The advantage that a fast settlement brings is low cost and the end of uncertainty; it is pointed out that if one also examines the formal requirements of the record and the period during which an objection may be raised, that benefit is blurred. Yet while this inconvenience is acknowledged, the conclusion of a conciliation cannot be converted into actual receipt of the performance. The fact that the status of a court document and the actual arrival of the performance are different items is not erased merely because closure has become difficult to hasten.
In the synthetic scene, Plaintiff A and Defendant B exchanged the text of a settlement, but whether the conciliation record contains an entry and whether an objection to the decision recommending settlement was raised differ between them. Since these two states are each the marks distinguishing whether the document obtained an entry in the court and whether a lawful objection was raised to the decision recommending settlement or the substitute decision so that the final and conclusive effect is maintained, they are tied to whether the specified change is confirmed and become premises of the stage judgment. Yet items for which no material remains, for example confirmation of the actual record of performance or of the grounds for finality, remain undetermined, and this does not at once mean a want of remedy.
Accordingly, what can be confirmed in this section extends no further than the point that if the classification of the document's effect changes, the prior stage's judgment of blocking or effectiveness cannot be maintained as it stands; it does not advance to the conclusion that the changed status led on to actual performance. The status of having the same effect as a final and conclusive judgment, the specificity of the performance to be executed, and the actual provision of that performance remain as distinct items.
6.6The Strongest Counterargument and the Answer
From this observation today's question opens. If performance is traced as well, the dispute may become difficult to close. This question must be considered together with the opening observation. If the former asks what the mark affixed by the court determines, the latter asks whether the performance of the promise has arrived. The two may seem to overlap, but in fact they point elsewhere. What remains now is the criterion that separates the two.
Article 29 of the Judicial Conciliation of Civil Disputes Act, in fixing the effect of conciliation, states that "conciliation shall have the same effect as a settlement in court." What this provision confers is the status in the documents that attaches to the closure of the procedural case that is conciliation. The subject the provision addresses is the party who constituted the procedure; the act it designates is the formation of the legal event that is settlement; and the condition is the time when that formation is confirmed within the procedure. On the other hand, Article 56 of the Civil Execution Act, within its enumeration of titles of execution, gives "a settlement in court, an acknowledgment of a claim, or any other matter having the same effect as a final and conclusive judgment" as a basis of compulsory execution. What this article prescribes is which documents may be taken as the starting point of execution; it does not go so far as to prescribe the actual provision of the performance. These provisions stand between the opening observation and today's question. The one speaks to the status of formation; the other to the qualification as the starting point of execution; and neither substitutes for the arrival of actual performance.
The reason these two stages of judgment must be kept apart is already contained in the interpretation that the preceding section inherited. The interpretation is adopted that the status of a document as having the same effect as a final and conclusive judgment and the specificity of the performance to be executed must be considered separately. The judgment that a document has acquired the qualification of a title of execution forms a pair with the judgment that the performance written on that document has been specified, but the former does not substitute for the latter. Likewise, the judgment that the performance has been specified does not produce the judgment that the performance was actually provided. This confirmation is a distinct endpoint separated from the record of formation, and therefore the formation of a settlement or conciliation and its actual performance must be recorded as separate endpoints. Since this distinction is clear, an interpretation that promotes formation into performance cannot be accepted.
The strongest counterargument targets such a loss: if performance is traced as well, the dispute may become difficult to close. What the counterargument seeks to protect is the advantage of a swift settlement, and that advantage may be lost to the burdens of form and of the period for objections. If the parties who exchanged a settlement wish to lay the dispute to rest even now, an interpretation that says the dispute is not closed by the record of formation alone leaves behind the inconvenience of delaying that closing. The counterargument preserves the conclusion without erasing the loss. Even if reading formation as performance is swifter, so long as it is confirmed that the record of formation and the verification of the material of performance are different things, substituting the former for the latter is not permitted. The slowness of the closing remains, and the prohibition on substitution remains.
This scene is examined against this question. If this fact is compared with the case where a settlement is entered in a court record or where the grounds for the effect of a decision recommending settlement or a substitute decision are satisfied and the object of performance has been specified, it becomes apparent that the presence or absence of a record entry is the point that separates the status of formation. Which of the materials—the settlement document, the settlement or conciliation record, service, objections, grounds for finality, the record of performance—confirms the performance, the scene does not determine. Thus the scene permits comparison of the conditions of formation, but leaves undetermined whether the performance was actually provided.
The conclusion this section permits is narrow: not to merge the formation of conciliation and its actual performance into a single endpoint, and to record that the former does not turn into the latter. The conclusion this section does not permit is equally clear: the reading whereby the status of the document at once establishes receipt of the performance, and the closing that establishes remediation without verification of the material of performance. Unverified material remains unverified; but that does not make the narrow distinction void.
6.7The Link to the Application and the Dispositive Part
Although the preceding section accepted the premise that the conclusion of a conciliation cannot be converted into actual receipt of the performance, that premise does not automatically settle the situation that follows the end of a settlement or conciliation. Attached to this question is the answer that the closure in the documents and the provision of the actual performance must be recorded as two distinct endpoints. The separation of these endpoints is a judgment as to the method of reading the case record, not a task of inventing a new requirement in a separate matter.
Article 29 of the Judicial Conciliation of Civil Disputes Act, in addressing the effect of conciliation, declares that "conciliation shall have the same effect as a settlement in court" (Article 29 of the Judicial Conciliation of Civil Disputes Act). The subject to which this provision points is the party to the conciliation procedure; the act is the conciliation itself as formed in court; and the condition is that the conciliation has been formed. What the provision confers is the identity of the legal status of having the same effect as a settlement in court. Article 56 of the Civil Execution Act, in enumerating other titles of execution, places "5. a settlement in court, an acknowledgment of a claim, or any other matter having the same effect as a final and conclusive judgment" (Article 56 of the Civil Execution Act) among the bases of compulsory execution. The two articles speak to the classification of the document's effect.
The link between the provisions quoted above and the conclusion of this section lies in distinguishing the two stages of judgment. The formation of a settlement or conciliation is the point at which one asks whether that document has the same effect as a final and conclusive judgment; actual performance is the point at which one asks whether the performance stated in that document was actually provided to the party. That Article 56 of the Civil Execution Act enumerates, in its list of titles of execution, matters that have effect does not mean that the performance has already been received. Therefore, if the formation of a settlement or conciliation and its actual performance are merged into one, the records that the two points respectively leave in their own directions are lost.
Nevertheless, what the counterargument that if performance is traced as well the dispute may become difficult to close most directly targets is the swiftness of the case's closure. If, even though the case has been closed as concluded by conciliation, one must continue to verify performance, the point that the advantage of a swift settlement may be lost to the burdens of form and of the period for objections is identified as that loss. The inconvenience follows that a case that ought to close remains open at length, and that a procedure that took settlement as a means of promoting conciliation degenerates into a procedure of document verification. Recording a state in which the performance has not been paid as though it had been paid is a distortion this counterargument cannot accept, and the separation of the two endpoints serves only to preserve the fact that the end of the case and the fact that the promise was kept are different things.
The mere exchange of the text of a settlement does not distinguish a private promise from a document entered in a court record, and whether the performance was entered in the conciliation record has not been confirmed in this section. Whether an objection was raised to the decision recommending settlement so that the final and conclusive effect of that decision arose is likewise not indicated by the scene, and therefore it cannot be judged whether the settlement satisfies the grounds for the effect of a decision recommending settlement or a substitute decision. Whether the object of performance has been specified, and whether there is material showing that the performance stated in the record was actually provided, likewise remain undetermined for lack of material. Even applying the test whereby a settlement that consisted only of signed negotiations changes the classification of that document's effect when entered in a court record, the change in classification takes effect only once the presence or absence of an entry in this scene is confirmed. Accordingly, what is fixed in this scene is only the distinction that the criteria of formation and of performance differ from one another.
What this section permits is the judgment that the formation of a settlement or conciliation and its actual performance are to be recorded as separate endpoints. This judgment does not deny the formation of the conciliation itself; it requires distinguishing the record that the case ended by formation from the record that the promise was kept. What this judgment does not permit is converting the formation of a conciliation into actual receipt of the performance, and treating the results of actual payment, delivery, or recovery as confirmed on the strength of the document's effect classification alone. Materials that remain undetermined because the record entry or the state of objection and of arising of effect cannot be confirmed do not lead to a conclusion of want of remedy.
6.8The Scope This Section Undertakes
On this premise, the question whether harm is also recovered once the case ends addresses the gap between closure and recovery. Whereas the preceding section examined the status of the document, the present stage stays with the task of separately recording where the formation of a settlement and its actual performance each reach.
The provision corresponding to this question, Article 29 of the Judicial Conciliation of Civil Disputes Act, provides: "A conciliation shall have the same effect as a settlement in court." This wording indicates that when the procedural event of conciliation is formed, the resulting conciliation is placed in the position of having the same effect as a settlement in court. Here the subject is the parties to the conciliation, the act is the formation of the conciliation, and the condition is that the conciliation has been formed. Since this Article does not state completion of performance as a requirement, the conferral of effect and the actual provision of performance are, in terms of its wording, distinct matters.
In the same direction, Article 56 of the Civil Execution Act lists as one of the enforcement titles that serve as the basis for compulsory execution "a settlement in court, an acknowledgment of claim, etc., and other matters having the same effect as a final and conclusive judgment." Accordingly, the formation of a settlement or conciliation is a requirement that opens the entrance to the enforcement channel, whereas confirmation of performance is a separate point of arrival consisting in the documentary confirmation that the performance set out in the record was actually provided. If the former requirement fixes the point at which the document has effect, the latter confirmation looks to whether that performance has reached reality. To merge the two stages into one would amount to converting the formation of a conciliation into the actual receipt of performance, and so the two must be recorded separately.
This distinction, however, is not costless. The more one leaves records of service, objections, grounds for finality, and performance, the more the point of closure is delayed; and the substance of the objection aimed here is the concrete loss that the advantage of a swift settlement may be eroded amid the burdens of form and periods for challenge. This disadvantage remains unerased. Even so, the author's answer is the same. The benefit of earlier closure cannot serve as grounds for assuming the arrival of performance.
Returning to the synthetic scene, Plaintiff A and Defendant B exchanged settlement drafts, but whether the settlement was entered in the conciliation record and whether an objection was filed against the decision recommending settlement differ between them. The classification of effect varies according to what is confirmed among the settlement document, the compromise or conciliation record, service, objections, grounds for finality, and performance records. Where the settlement is entered in a court record, or where the grounds for the effect of a recommendation or substitute decision are satisfied and the object of performance is specified, the channel connecting the settlement to performance with final and conclusive effect opens. By contrast, where it remains a private promise, or where, by reason of a lawful objection, relief under the final and conclusive effect of that decision cannot be obtained, the channel is blocked. Segments in which the entry in the record or the state of objection or of taking effect is unconfirmed remain undetermined. When a settlement that had only been signed in negotiation is entered in a court record, that changes the classification of the document's effect.
Accordingly, the conclusion this section permits is only to record the formation of a settlement or conciliation and its actual performance as separate points of arrival, and not to read the case's mark of closure as a token of recovery from harm. Conversely, this section does not permit one to conclude on the basis of the mere formation of a conciliation that the performance set out in the record has been provided, or to record in its stead that recovery has already occurred. A state in which the materials are insufficient is undetermined, not an inability to obtain relief.
6.9Application of the Text of the Provisions and the Holdings of Precedents
This question departs from the recognition that the formation of a settlement or conciliation and its actual performance must be recorded as separate points of arrival. In a situation where settlement drafts were exchanged, the issue at this stage is what the court's mark of closure signifies.
Among the relevant source text, Article 29 of the Judicial Conciliation of Civil Disputes Act declares: "Article 29 (Effect of Conciliation) A conciliation shall have the same effect as a settlement in court." This wording establishes that when the institution of conciliation is formed, it has the same effect as a settlement in court. Here the subject is the formation of the conciliation, the act is the conferral of effect that follows that formation, and the condition is the state in which the same effect as a settlement in court is recognized. This Article prescribes only what documentary status the conciliation obtains; it does not go so far as to address whether the performance entered in the record has actually been performed. This section comprises Article 29 and Article 56; other provisions and the reasons of judgments are not treated here together.
Article 56 of the Civil Execution Act, in the same section, enumerates the titles that may serve as the basis for compulsory execution and lists as one of them "5. A settlement in court, an acknowledgment of claim, etc., and other matters having the same effect as a final and conclusive judgment." This wording establishes that a settlement in court or other matter having the same effect as a final and conclusive judgment may become an enforcement title. Yet the determination that the qualification of an enforcement title has been conferred, and whether the performance set out in that title has been specified as to its object and actually provided, are questions of a different stage. Herein lies the reason why the foregoing interpretation fixed that the status of the document and the specificity of the performance to be enforced must be viewed separately. The two provisions form the basis of the channel by which a settlement leads to performance with final and conclusive effect, but they decide without merging the confirmation of formation with the confirmation of performance.
What the objection—that tracking all the way through to performance may make it difficult to close a dispute—most strongly targets is the advantage of a swift settlement. The substance of this objection is that the benefit of hastening the end of a dispute through settlement may disappear before the burden of satisfying formal requirements and observing periods for challenge. Yet this section cannot convert the formation of a conciliation into the actual receipt of performance. The reason the court's mark of closure cannot become a receipt showing that a promise was kept is that formation determines the effect of a document, while receipt confirms the fact of performance. The difficulty of closure pointed out by the objection remains, but on account of that inconvenience the two stages cannot be intermingled.
In the synthetic scene, the facts relevant to this question are the exchange of settlement drafts and the point that, between Plaintiff A and Defendant B, whether the settlement was entered in the conciliation record and whether an objection was filed against the decision recommending settlement differ. Whether the settlement was entered in the record, and whether a lawful objection was raised against the decision recommending settlement, cannot be determined from this scene alone. Accordingly, here confirmation of performance—that is, the documentary confirmation that the performance set out in the record was actually provided—is left as a separate point of arrival. If a settlement that had only been signed in negotiation is confirmed to have been entered in a court record, the classification of that document's effect changes; but whether that condition was satisfied in the actual scene has never been confirmed. The state of being unconfirmed is recorded as undetermined, not as an inability to obtain relief.
The conclusion this section permits is to use only the wording of the relevant source text as the basis for adjudging the channel that connects a settlement to performance with final and conclusive effect, and to apply it only within that scope. The conclusions it does not permit are substituting actual performance for formation, or recording that performance has been received on the basis of the mere formation of a conciliation. Not extending the determination to the reasons of a judgment or to other items also falls within this boundary.
6.10Fine Distinctions Within the Stage
Within the question of this section—whether harm is also recovered once the case ends—this question proceeds on the premise that the formation of a settlement or conciliation and its actual performance must each be recorded as different points of arrival, and fixes what part is to be separately adjudged within the channel connecting a settlement to performance with final and conclusive effect. The channel here means the path by which a private promise reaches the status of a document that can be enforced, and the units to be adjudged within that path must be separately determined.
There are two source texts corresponding to this issue. Article 29 of the Judicial Conciliation of Civil Disputes Act declares: "Article 29 (Effect of Conciliation) A conciliation shall have the same effect as a settlement in court. [Enacted in its entirety, March 31, 2010]". Article 56 of the Civil Execution Act provides: "Compulsory execution may be carried out on the basis of any one of the following," and among that list names "5. A settlement in court, an acknowledgment of claim, etc., and other matters having the same effect as a final and conclusive judgment" as an enforcement title (Article 29 of the Judicial Conciliation of Civil Disputes Act; Article 56 of the Civil Execution Act). The subjects indicated by this wording are the creditor who applies for execution and the opposing debtor; the act is the compulsory execution that follows the formation of a conciliation or a settlement in court; and the condition is the case in which such a document has the same effect as a final and conclusive judgment. Other issues of the wording are not addressed here.
The point at which these two bases and the conclusion of this section meet is this. The declaration that a conciliation has the same effect as a settlement in court fixes only the status of the document, and the question whether it may enter the list of enforcement titles likewise concerns whether a document having such effect exists. By contrast, whether actual performance was provided is judged separately as a matter of confirmation of performance—that is, the documentary confirmation that the performance set out in the record was actually provided. The reason these two must be distinguished is that the former determination is the task of fixing the classification of the document's effect, while the latter confirmation is the task of verifying with materials the existence of the performance provided. If the two tasks are bundled into one, one will take it that because the former determination has been completed, the latter confirmation has been completed as well. The conclusion of this section is to limit the detailed distinctions within the stage to the conditions of the operative case, the blocked case, and the undetermined case, and not to add a new stage.
The strongest objection is that tracking all the way to performance may make it difficult to close a dispute. Even where a conciliation record has been drawn up and its effect recognized, if one is required to continue confirming the provision of performance, the closed case remains long open, and the loss is that the advantage gained by a swift settlement disappears amid the burdens of formal requirements and periods for challenge. Yet the author's answer is that the formation of a conciliation cannot be converted into the actual receipt of performance. If the determination of formation is replaced by the confirmation of receipt, an unformed settlement will be taken as performed, or a performed settlement will be reversed as unperformed. The delay and burden pointed out by the objection remain as they are, but that alone cannot merge the two points of arrival into one.
Comparing these facts with the foregoing conditions: where the settlement is entered in an official record, or where the grounds for the effect of a recommendation or substitute decision are satisfied and the object of performance is specified, it is the operative case; where it remains a private promise, or where a lawful objection is raised so that relief under the final and conclusive effect of that decision cannot be obtained, it is the blocked case; and where the entry in the record or the state of objection or of taking effect is unconfirmed, it is the undetermined case. That the classification of the document's effect changes when a settlement that had only been signed in negotiation is entered in an official record is only a test that alters the condition; other amounts, deadlines, and wins or losses are not fixed in this scene and remain undetermined.
The conclusion this section permits is narrow. The part to be separately adjudged within the channel connecting a settlement to performance with final and conclusive effect is limited to recording, according to their respective conditions, the determination whether that document has the same effect as a settlement in court and the confirmation of whether that performance was actually provided. Inserting a new stage here is not permitted, nor is it permitted to regard the fixing of the classification of the document's effect as confirmation through to receipt. Meanwhile, neither whether actual records can be collected nor the outcome of performance can be determined in this section.
6.11Synthesis of Effectiveness, Blockage, and Undetermination
At the place left after the preceding stage separately viewed the status of the conclusive document and the specificity of the object of enforcement, the question whether harm is also recovered once the case ends is set down anew. Even if the case appears to have been closed by conciliation, that does not mean the performance has come into one's hands. On the premise that the formation of a settlement or conciliation and its actual performance must be recorded as separate points of arrival, the question here is when the channel connecting a settlement to performance with final and conclusive effect opens, when it is blocked, and when it remains undetermined.
Among the relevant source text, Article 29 of the Judicial Conciliation of Civil Disputes Act declares: "A conciliation shall have the same effect as a settlement in court." The subject established by this wording is the conciliation that has been formed; its act is the fixing of the settlement within court procedure, and the condition is read as the case in which the conciliation has been formed. This Article, however, speaks only of the kind of effect conferred on conciliation and does not address whether the performance contained in that effect was actually provided by the debtor. What the wording indicates is the legal status of the document, not the completion of performance. The formation of a conciliation and the receipt of performance remain distinct events.
In the same vein, Article 56 of the Civil Execution Act, in enumerating the titles that may serve as the basis for compulsory execution, lists as its subparagraph 5 "a settlement in court, an acknowledgment of claim, etc., and other matters having the same effect as a final and conclusive judgment." This enumeration fixes only the qualification of an enforcement title and does not make it an object of determination whether the performance set out in that title has been performed. Here the two stages diverge. The first is the stage at which the settlement is entered in the record or satisfies the grounds for the effect of a recommendation or substitute decision and thereby hardens into a document with final and conclusive effect; the second is the stage at which that document points to a specified object of performance. The condition for opening is the case in which both the foregoing document formation and the following specification of the object are in place; the condition for blocking is the case in which it remains a private promise or, by reason of a lawful objection, relief under the final and conclusive effect of that decision cannot be obtained; and the undetermined case is that in which the entry in the record or the state of objection or of taking effect is unconfirmed. If these three are not separated, the error arises that the mark of closure is immediately recovery.
The strongest objection this classification invites is that tracking all the way to performance may make it difficult to close a dispute. The loss is concrete: the advantage of a swift settlement disappears amid the burdens of formal requirements and periods for challenge. The parties would have wanted to end the dispute with the settlement drafts alone; inquiring into entry in the record and the presence or absence of objections, and gathering performance materials, delays the moment of closing the dispute. Yet at the price of removing this inconvenience, the formation of a conciliation cannot be converted into the actual receipt of performance. What a document with final and conclusive effect opens is the legal channel leading to compulsory execution, and whether performance was actually provided along that channel can be known only through a separate confirmation of performance—that is, only through the documentary confirmation that the performance set out in the record was actually provided.
These facts alone do not determine whose document was entered in the record, against whom an objection was raised, whether that objection was lawful, or whether the object of performance was specified. Thus what can be adjudged from this scene is limited. That the classification of the document's effect differs if one party's settlement was entered in an official record is clear, but whether such an entry actually occurred is unconfirmed. Unconfirmed items are not filled in with conjecture and remain undetermined. The results of service and performance in an actual case, and amounts and deadlines not set, lie outside the determination of this section.
Accordingly, the conclusion this section permits is confined to a conditional distinction. If the settlement is entered in an official record or satisfies the grounds for the effect of a recommendation or substitute decision and the object of performance is specified, the channel connecting it to performance with final and conclusive effect opens; if it remains a private promise or relief under the final and conclusive effect of that decision cannot be obtained by reason of a lawful objection, the channel is blocked; and if the entry in the record or the state of objection or of taking effect is unconfirmed, it remains undetermined. Reading the opened channel here as the actual result of payment, delivery, or recovery is not permitted. This classification, moreover, does not mean that it fixes the performance records of Defendant B, nor does it mean that unconfirmed materials amount to an inability to obtain relief.
6.12이 권의 결론과 남는 물음
On the premise that the formation of a settlement or conciliation and its actual performance must be regarded as separate matters, this section examines what the conclusion hands over. The issue is that the classification of the effect possessed by a document and the determination whether the performance stated in that document was actually rendered are separate matters, and this section treats, as a matter of the record, the gap between the legal status of the formation of settlement and conciliation and the actual receipt of performance.
The text bearing on this question is Article 29 of the Judicial Conciliation of Civil Disputes Act, which declares that "conciliation has the same effect as a judicial settlement" (Article 29 of the Judicial Conciliation of Civil Disputes Act). What this text prescribes concerns the classification of the effect of the event of formation called conciliation; once conciliation is formed, the document becomes subject to an effect identical to that of a judicial settlement. An express provision of the same nature appears in Article 56 of the Civil Execution Act, which lists that compulsory execution may also be carried out on the basis of "a compromise in an action, an admission of a claim, or other matters having the same effect as a final and conclusive judgment" (Article 56 of the Civil Execution Act). The subjects addressed by these two texts are the formed document and its qualification as an enforceable title, the act is the recognition of effect, and the condition is that conciliation and settlement have been formed. These texts do not, however, go so far as to specify the actual rendering of performance.
The connection between the above texts and the conclusion of this section becomes clear when two stages are distinguished. The first stage is the determination whether the agreement has been placed in a court document, that is, whether it has been entered in a conciliation record or whether the grounds for the effect of a decision recommending settlement or a substituted decision have been satisfied; the second stage is the determination whether the performance stated in that record is specified and was actually rendered. If the earlier stage is passed, the classification of effect spoken of in Article 29 of the Judicial Conciliation of Civil Disputes Act and Article 56 of the Civil Execution Act attaches, but the second stage requires a separate record. This is why it must be regarded as a separate procedure of performance verification, in other words, verification of materials showing that the performance stated in the record was actually rendered. If the two stages are mixed, one ends up saying that recovery has been accomplished by formation alone, and conversely, one ends up denying formation itself on the ground that recovery has not occurred. The confirmed conclusion is that passing the earlier stage cannot substitute for reaching the later stage.
If this distinction is maintained, one is met with the objection that the point at which the dispute is closed is delayed. If one traces matters through to performance, it may become difficult to close the dispute, and there is the inconvenience that the advantage of ending matters quickly through negotiation may vanish before the burdens of formal requirements or the period for challenge. From the standpoint of the party that actually suffered harm, the convenience of seeking to reduce the costs of the dispute through the agreement itself is frustrated, and the burden of continuing to manage the record even after the conclusion remains. Yet even if the unfavorable aspects of the objection are not erased, the answer does not go beyond the defined scope. If formation were the same as receipt, the place where a receipt confirming that the promise was kept should follow would be left empty, and the channel for remedying cases in which the performance is not specified or was not rendered would disappear. The objection that the value of speed is impaired remains, but that impairment cannot be remedied by merging the classification of effect and performance verification into one.
The first circumstance turns on the determination whether the conciliation record contains the entry, and the second circumstance turns on the determination whether that decision has reached conclusive effect. The exchange of the text of the agreement leaves room for being regarded as no more than a private promise, and once entry in the record is confirmed, the classification of the effect of that document changes. The entry itself does not, however, prove the rendering of performance, so performance verification remains a separate matter. If a valid objection has been raised against a decision recommending settlement, relief by virtue of its conclusive effect may be blocked, and whether the grounds for the effect arose without objection is a matter to be determined according to the record. If the presence or absence of the entry in the record, the presence or absence of an objection, and the status of the effect are confirmed, the determination may change accordingly, and relief cannot be regarded as impossible on the sole ground that there is no record of performance. The types of errors subject to correction of judgment cannot be fixed by this scene.
Accordingly, the conclusion permitted by this section is narrow. Even if conciliation and settlement are formed, thereby obtaining the same effect as a judicial settlement and being classified as having the same effect as a final and conclusive judgment, whether that performance was actually rendered is determined on the basis of separate materials of performance verification. The conclusions not permitted are to regard recovery as complete by the mere establishment of formation, or to deny the effect of formation solely because recovery has not been confirmed. The interpretation that the status of a document possessing conclusive effect and the specificity of the performance to be executed must be regarded separately is the basis of this distinction. So long as the formation of conciliation is not converted into the actual receipt of performance, this boundary holds. The question handed over next is not whether the promise was kept, but the problem of which errors in the stated content can be corrected. What errors does correction of judgment correct?
Statutes referred to
Questions left open
- How should the information gap at the time of agreement be reflected in conclusive effect?
- How is the specificity of non-monetary promises to be secured?
- What supplementation does the procedure treating silence in response to a recommendation as acceptance require?