Summary
The dispositive parts and the subjects of the claims in the earlier and later suits must be compared, and the scope of res judicata is not determined by the case titles alone.
4.1The Standard by Which the Path Opens
In determining whether the claim subject to set-off was established, there is a statutory exception limited to the amount asserted as a set-off defense. The everyday expression 'the same dispute' cannot stand in for what has already been adjudicated. Plaintiff A argues that, because ownership was stated in the reasoning of the earlier judgment ordering delivery, that the ownership determination has become final and binding also in the new lawsuit. Faced with such an argument, it remains in question whether the same case name means the same claim, and what the criterion is for opening the channel of this remedy. Carrying forward the conclusion of the preceding section as it stands, what must now be examined is not the coincidence of names but the content of the matter to be determined.
The provision of law that answers this question is Article 216, paragraph (1) of the Civil Procedure Act. Its text provides that "a final and conclusive judgment has res judicata only as to matters included in the dispositive part." The subject this text designates is the final and conclusive judgment; its act is the determination included in the dispositive part as pronounced; and the condition is that res judicata is limited to what is included in the dispositive part. Here, a final and conclusive judgment means a judgment that has become final and can no longer be contested, and res judicata means the effect by which the determination of a final and conclusive judgment bars renewed contest. Therefore, one cannot broaden the scope of res judicata on the basis of words written in the reasoning alone, without first confirming whether the matter is included in the dispositive part.
The link joining that provision of law with the conclusion of this section is the point that the limitation of the dispositive part is at the same time the limitation of the object. Where the objects of the earlier and later suits are compared and the range within which the later suit is bound by res judicata is divided from the range outside it, the path of remedy opens. Here, comparison of the object of the claim means a comparison of the performance or the confirmation demanded in the earlier and later trials. The limitation of the dispositive part noted above and the comparison just described are two distinct steps. One is to determine how far the scope of res judicata extends; the other is to compare what the earlier and later suits actually demanded. Only by distinguishing the two steps can one prevent determinations included in the dispositive part from being mixed with determinations that preceded it. It is not a matter of adding new requirements or exceptions, but of dividing the objects while keeping to the line drawn by the preceding provision of law.
Yet there is a counterargument that fine distinctions of objects may permit repetitive litigation. If the same issue is tried again, contradictory judgments and repeated costs arise. Dealing twice with a determination already made in the same dispute imposes repeated costs on the parties, and the court must also run the risk of handing down different determinations before and after. The answer is not one that eliminates that disadvantage. Even so, the mere fact that the case names are the same cannot establish a res judicata bar. The convenience of reducing repeated costs cannot become a criterion that goes beyond the limitation of determinations included in the dispositive part. Rather, comparing what the earlier and later suits demanded before establishing a res judicata bar, instead of veiling that disadvantage, addresses it within the established range.
The synthetic scenario addressed in this section is one in which the argument continues on the basis of the ownership written in the reasoning alone, without the objects of the earlier and later suits having been confirmed. Comparing this scenario with the preceding conditions, it remains unconfirmed whether the performance, parties, and conditions demanded were specified in the claim and prayer for relief, and whether the right of the chosen suit can be defended. One must examine the records, such as the earlier and later complaints, the dispositive parts and reasonings of the final and conclusive judgment, and the scope of the set-off argument; and where it is unconfirmed what the earlier suit determined by its dispositive part, that determination remains undetermined. If it is confirmed that what the earlier suit dealt with was a preliminary question and not an object of its dispositive part, the res judicata assertion as to it is withdrawn. The scenario alone cannot establish either the identity of the claims or the success of the remedy.
The conclusion permitted by this section goes no further than this: after comparing the objects of the earlier and later suits and dividing the range bound by res judicata from the range outside it, one confirms the performance, parties, and conditions specified in the claim and prayer for relief, together with the defensibility of the chosen suit. What is not permitted is to assert outright that the two claims are the same merely because the titles of the earlier and later suits are the same, and accordingly to establish a res judicata bar. A new adjudication outside the determined objects opens only where the objects of the earlier and later suits have been compared, and it is barred where a new determination is demanded that conflicts with the object of the dispositive part of the final and conclusive judgment in the earlier suit or with the scope of the statutory set-off determination. At that boundary this question ends.
4.2The Conditions That Block Relief
Where, as noted above, the objects of the earlier and later suits have been compared and the range within which the later suit is bound by res judicata is divided from the range outside it, this remedy operates. To examine this argument, one must first ask what the earlier judgment determined by its dispositive part. Does the same case name mean the same claim? This question leads on to the next passage.
The text that answers this question is found in Article 216 of the Civil Procedure Act. Its paragraph (1) declares: "(1) A final and conclusive judgment has res judicata only as to matters included in the dispositive part." (Article 216 of the Civil Procedure Act) In this text the subject is the final and conclusive judgment, the act is the granting of res judicata, and the condition is that the object is included in the dispositive part. In other words, circumstances written elsewhere in the judgment do not equally bar a renewed hearing. The text takes inclusion in the dispositive part as its criterion.
Reading this text together with the preceding determination, one must compare the dispositive parts and the objects of the claims in the earlier and later lawsuits, and the scope of res judicata is not set by the case title alone. Here, comparison of the object of the claim means a comparison of the performance or the confirmation demanded in the earlier and later trials. This comparison and the sameness of the case name are determinations belonging to different steps. Where a new determination is demanded that conflicts with the object of the dispositive part of the final and conclusive judgment in the earlier suit or with the scope of the statutory set-off determination, this remedy is barred. The reason it is barred is that it demands a new determination contrary to the range the earlier judgment has already determined. Conversely, the mere fact that the case names are the same cannot detect such a conflict.
The counterargument that fine distinctions of objects may permit repetitive litigation is at its sharpest here. If one cuts the same dispute into small pieces and demands trial again, contradictory judgments survive side by side, the parties pay the costs once more, and the court must reread the same materials. These losses and inconveniences are not erased. The answer stands that, until one examines whether the demands contained under the same name are in fact the same performance or distinguishable confirmations, a conflict cannot be established.
Returning to the synthetic scenario, the crux is whether Plaintiff A's demand falls within the object of the dispositive part of the earlier judgment ordering delivery. The circumstance that ownership was written in the reasoning of the judgment ordering delivery alone does not reveal whether that ownership determination was already determined as far as the object of the new lawsuit is concerned. Above all, it is unconfirmed whether the earlier judgment ordered delivery by its dispositive part, or ordered some other performance. Where it is unconfirmed what the earlier suit determined by its dispositive part, no determination can be made.
The conclusion permitted by this section is narrow. Conversely, it does not permit a conclusion establishing a res judicata bar on the mere fact that the case names are the same. The two determinations can stand only when the earlier and later complaints, the dispositive parts and reasonings of the final and conclusive judgment, and the scope of the set-off argument are compared. Moreover, since res judicata takes the close of oral argument in the court of fact as its reference time, one must also compare, together with whether the subject matter of suit of the final and conclusive judgment in the earlier suit is identical with the subject matter of suit of the later suit, whether any ground arose anew after the close of oral argument in the court of fact.
4.3The Boundary That Remains When There Is No Data
One must ask whether the same case name means the same claim, and where the boundary lies that cannot be settled for want of materials. The preceding section handed over only the point that, in determining whether the claim asserted by way of set-off was established, there is a statutory exception limited to the amount asserted as a set-off defense. That exception is the starting point of the present question, but it does not by itself decide whether the claim in the later suit is barred by the earlier judgment.
The text of the governing provision corresponding to this question is as follows. Under Article 216 of the Civil Procedure Act, "(1) A final and conclusive judgment has res judicata only as to matters included in the dispositive part." This text makes clear that the object that becomes the subject of res judicata is a matter included in the dispositive part of the judgment. In other words, what the dispositive part determined as "perform this" or "confirm this" becomes the coordinate of the range that res judicata reaches. What paragraph (1) provides is only this limitation, and other issues such as the distinction between the dispositive part and the reasoning are left outside this paragraph.
The reason the text takes the dispositive part as the boundary is to make it possible to compare what was demanded in the earlier and later lawsuits. This comparison takes shape only when it is confirmed what the earlier suit determined by its dispositive part. Where it is unconfirmed what the earlier suit determined by its dispositive part, matters whose adjudicative materials are not specified are left undetermined, distinguished from an impossibility for which no remedy is available. That the materials are absent means that the matter cannot be determined, not that it must not be determined.
The counterargument that fine distinctions of objects may permit repetitive litigation aims at a practical inconvenience. If the same issue is tried again, contradictory judgments and repeated costs arise, and the hearing already invested in the earlier lawsuit and the parties' expectations come to nothing. The case title is nothing more than the caption of the complaint, and it does not tell what was demanded to be performed or confirmed. The cost the counterargument points to remains a task to be reduced, but the comparison of objects cannot be omitted on the ground of reducing that cost.
From this scenario alone it does not appear what the dispositive part of the earlier judgment determined to be delivered, nor what the later suit demands. With the records of the earlier and later complaints and of the dispositive parts and reasonings of the final and conclusive judgment not yet assembled, the scope of res judicata is not specified. Whether such confirmation is possible with the present materials, however, has not been determined.
Accordingly, the conclusion permitted in this question goes no further than this: the mere fact of identical case names cannot establish a res judicata bar, and an unconfirmed object remains undetermined rather than impossible. The path of a new adjudication opens only where the objects of the earlier and later suits are compared and the range within which the later suit is bound by res judicata is divided from the range outside it. Conversely, a new determination conflicting with the object of the dispositive part of the final and conclusive judgment in the earlier suit cannot be demanded.
4.4The Records Needed for Determination
Yet the mere circumstance that the same case name was attached does not decide whether the two claims are the same, nor how far the earlier judgment has already determined anything. To decide the res judicata bar of the later suit, one must examine the content of the performance demanded, and to do so a criterion is first needed as to what must be read as the basis. The question of this section lies not in the coincidence of case names but in fixing the range of records used for the stage-by-stage determination.
The text answering this question lies in Article 216, paragraph (1) of the Civil Procedure Act. Its original text writes that it has res judicata "only as to matters included in the dispositive part" (Article 216 of the Civil Procedure Act). The subject designated by this text is the final and conclusive judgment, the object is a matter included in the dispositive part, and the condition is precisely that scope of inclusion. Thus what the judgment determined by its dispositive part forms the boundary of res judicata. A mention written in the reasoning does not thereby become something included in the dispositive part, so one must separately confirm whether that part was made an object of the dispositive part. This paragraph deals only with the limitation of the scope of res judicata and does not address other issues such as appeal or retrial.
Joining this text with the conclusion established above makes the criterion for the stage-by-stage determination clear. To judge only on the materials recorded in the earlier and later complaints, the dispositive parts and reasonings of the final and conclusive judgment, and the scope of the set-off argument is to place the work of confirming what entered the dispositive part and the work of reading what was written in the reasoning at separate stages. If the two stages are mixed, the narrative of the reasoning leads directly to the settlement of the dispositive part, and the limitation set by Article 216, paragraph (1) collapses. The fact that ownership was written in the reasoning of the earlier judgment ordering delivery does not mean, in itself, that the ownership determination in the later suit was fixed by the dispositive part. Also, the premise of not filling absent records with presumptions means not filling unconfirmed items in one's favor, not that the records are immediately absent.
Even so, the counterargument that fine distinctions of objects may permit repetitive litigation carries weight. If the comparison of the objects of the claims, that is, the comparison of the performance or confirmation demanded in the earlier and later trials, is drawn narrowly, the same issue is heard several times, and each time contradictory judgments and repeated costs may arise. In particular, where the later suit demands again under a different name a matter already substantially dealt with in the earlier judgment, the values of procedural economy and the one-time resolution of disputes are impaired. Yet the persistence of that inconvenience does not permit establishing a res judicata bar on the mere fact of identical case names. The coincidence of names is not a record that can substitute for the comparison of the objects of the claims, and the cost problem raised by the counterargument does not change the criterion for the range of records.
What can be confirmed in this scenario is that Plaintiff A points to the fact that ownership was written in the reasoning of the earlier judgment ordering delivery, and that on this basis he argues that in the new lawsuit that ownership determination has been determined. Contrasting this fact with the condition of Article 216, paragraph (1), the question narrows to whether that mention of ownership was included in the dispositive part of the earlier judgment. Yet the synthetic scenario does not specify the statement of claim in the earlier complaint, the dispositive language of the earlier judgment, or the scope of the set-off argument. So long as it is unconfirmed what the earlier suit determined by its dispositive part, one cannot divide the range within which the later suit is bound by res judicata from the range outside it, and that determination remains undetermined.
Accordingly, the permitted conclusion is narrow. Only after comparing the materials recorded in the earlier and later complaints, the dispositive parts and reasonings of the final and conclusive judgment, and the scope of the set-off argument can the range of binding effect on the later suit be delimited; and at the point where those records are unconfirmed, establishing a conflict on the basis of the coincidence of case names is not permitted. Nor is it permitted to overturn the same conclusion on the strength of mentions in the reasoning alone, or to fill in the unconfirmed dispositive part of the earlier suit by conjecture. This determination does not rewrite the meaning of the earlier judgment itself, nor does it deal with the effect of a settlement document or of enforcement procedure.
4.5Circumstances That Change the Decision
In the preceding section, it was accepted as a premise that this determination rests on the pre- and post-complaints, the dispositive part and reasons of the final and conclusive judgment, and the scope of the set-off allegations, and that if that record is absent the conclusion remains undetermined. What is fixed in the scene is only the shape of these allegations, and what the prior judgment actually adjudicated in its dispositive part must be confirmed from the record. On this premise, the question arises whether the same case name means the same claim.
In answering this question, the relevant text is as follows. Article 216 of the Civil Procedure Act provides that "a final and conclusive judgment has res judicata only as to matters included in its dispositive part." The subject to which this provision refers is the final and conclusive judgment; its object is the matters included in the dispositive part; and the condition is the fact that the matter is included in the dispositive part. Accordingly, the first task is to distinguish, among the matters recorded in the written judgment, those that entered the dispositive part from those that did not, and the name of the case serves as no criterion whatsoever for this distinction.
Connecting this text with the question opened above leads to the conclusion of this section: the scope of res judicata is determined only within the boundaries of the dispositive part. The reason for separating these two stages is that determining what has already been adjudicated and determining how to treat a claim falling outside that established scope require different judgments. This judgment adds no new requirement or exception; it is a limitation of scope that can be constituted only after the dispositive part has been distinguished from preliminary issues.
The strongest counterargument targets the point that this distinction may permit repeated litigation. If the same issue is tried again, contradictory judgments and duplicative costs arise, and the time and effort of retrying a matter the prior court has already examined remain a burden on the parties. These disadvantages do not disappear. Between the costs that arise from holding to the boundaries of the dispositive part and the distortion that arises from binding as established matters not contained in the dispositive part, the foregoing answer chooses to avoid the latter distortion.
Returning to the facts of the synthetic scene, the claim of Plaintiff A rests on the single circumstance that ownership was written in the reasons of the prior judgment ordering delivery. Yet comparison of the subject of the claim means a comparison of the performance or confirmation demanded in the pre- and post-proceedings. One must place side by side what performance the dispositive part of the judgment ordering delivery demanded and what performance or confirmation the new lawsuit demands. Whether ownership was adjudicated as an object of the dispositive part in the prior action, or whether it was treated only as a preliminary issue to the performance of delivery, cannot be determined from the scene alone. To the extent that it remains unconfirmed what the prior action adjudicated in its dispositive part, that portion remains undetermined.
What this section permits is a distinction as to claims extending beyond the boundaries of the dispositive part, not the erasure of every meaning of the prior judgment. Conversely, even a determination written in the reasons, if confirmed to be included in the dispositive part, may become an object of res judicata within that scope. In the end, what is fixed is not the coincidence of case names but the narrow criterion of comparing the subject of the claim in the pre- and post-lawsuits.
4.6The Strongest Counterargument and the Answer
If one accepts the conclusion of the preceding stage—that in determining whether the claim to be set off is well founded there is a statutory exception limited to the amount asserted in opposition by way of set-off—the remaining question is what is the same when the case names are the same. On the ground that ownership was written in the reasons of the prior judgment ordering delivery, Plaintiff A asserts that that determination of ownership became final in the new lawsuit. To examine this assertion, one must first confirm the object demanded in the lawsuit and then consider whether that confirmation can go beyond the role of distinguishing what was adjudicated. Repeating, in different words, the conclusion of the preceding stage does not reach this question.
This time, the relevant text confines the scope of res judicata within the sentence itself. Article 216(1) of the Civil Procedure Act provides: "(1) A final and conclusive judgment has res judicata only as to matters included in its dispositive part" (Article 216 of the Civil Procedure Act). This text states, in order, that the subject of res judicata is the final and conclusive judgment, that its object is what is included in the dispositive part, and that the scope lies within that very limitation. Accordingly, what the text indicates is not the name of the lawsuit but the object of determination—that is, whether the matter is included in the dispositive part. Issues concerning other paragraphs of the provision or other provisions are not treated here.
The link connecting that text with the conclusion reached above is this: without the work of comparing side by side the performance or confirmation demanded in the pre- and post-lawsuits—that is, without comparing the subject of the claim—one cannot ascertain what is included in the dispositive part. The author views this comparison as distinct from whether the case names coincide. It is the same attitude that the preceding section used when placing a statutory exception on the determination of whether the claim to be set off is well founded. That is, what the author takes as the object of determination is not the name of the claim but the performance or confirmation demanded. Even if the two stages present different faces of the same matter, the criterion is the same in either case: the scope of the object is not fixed by the mere label of the case name.
Nevertheless, it does not erase the point that a fine-grained distinction of objects may open the door to repeated litigation. The counterargument that retrial of the same issue produces contradictory judgments and duplicative costs targets precisely this loss. If a later action re-examines a matter already tried in the prior action, the courts may render different determinations, and the parties and the court must undergo the same trial twice. The author's answer does not deny this loss, but holds that res judicata bar cannot be established on the sole fact that the case names are the same. It leaves untouched the point that the adverse consequences identified by the counterargument may in fact occur, and says only that the way to prevent those consequences is not to be found in the coincidence of case names. Even if the effect arises that the finer the comparison of objects, the narrower the scope of the later action becomes, the conclusion here is that such precision does not carry over into permitting repeated litigation.
In the synthetic scene, Plaintiff A relies solely on the fact that ownership was written in the reasons of the prior judgment ordering delivery. What can be confirmed from the foregoing conditions is only the fact that ownership was written in the reasons and the fact that Plaintiff A, on the strength of that fact, asserts its finality in the new lawsuit. There is no established record as to what the prior judgment adjudicated in its dispositive part or how the performance or confirmation demanded in the new lawsuit overlaps with the object of the dispositive part of the prior judgment. The condition that, if what the prior action treated is confirmed to have been a preliminary issue rather than an object of the dispositive part, the res judicata assertion as to it is withdrawn, is itself a test premised on this indeterminacy. From the scene alone, one cannot say whether this condition has been satisfied.
The conclusion permitted by this section is that res judicata bar cannot be established on the sole fact that the case names are the same, and that the dispositive parts and the subjects of the claim in the pre- and post-lawsuits must be compared. A determination that fixes the scope of res judicata by the case title alone, without that comparison, is not permitted. Conversely, this section does not determine whether matters written in the reasons are always outside res judicata, or what significance the reasons of the prior judgment have in another dispute. Comparison of the subject of the claim means comparing the performance or confirmation demanded in the pre- and post-proceedings, and it operates only to the extent that such comparison cannot be replaced by the coincidence of case names.
4.7The Link to the Application and the Dispositive Part
The preceding section gave the answer that res judicata bar cannot be established on the sole fact that the case names are the same, but that answer alone does not reveal which items have already been adjudicated. The remaining question, then, is a comparison of what the two lawsuits actually demanded. Does the same case name mean the same claim? The dispositive parts and the subjects of the claim in the pre- and post-lawsuits must be compared, and the scope of res judicata is not fixed by the case title alone. This question is posed as a comparison between the prior judgment ordering delivery and the new lawsuit.
The text that answers this question is Article 216(1) of the Civil Procedure Act. That text declares that "a final and conclusive judgment has res judicata only as to matters included in its dispositive part" (Article 216 of the Civil Procedure Act). Here, res judicata means the effect by which the parties may not, in a later action, dispute differently the determination of the final and conclusive judgment, and the dispositive part is the portion stating the conclusion the court reached on the case. The scope indicated by that text is the matters included in the dispositive part of the final and conclusive judgment; it is not a sentence that brings determinations extending beyond those matters within the same effect.
Accordingly, whatever the case may be called, the first task in ascertaining res judicata is to compare the dispositive parts and the subjects of the claim in the pre- and post-lawsuits. It is the work of placing side by side the delivery demanded in the prior lawsuit and the performance or confirmation demanded in the new lawsuit. Matters included in the dispositive part are objects that have been established; the language situated elsewhere stands at a different stage at which its effect has yet to be allocated. If the two stages are not distinguished, the dispositive part and the reasons are bundled into one mass, and the scope of what has been established expands at once to the entire text.
The counterargument that a fine-grained distinction of objects may permit repeated litigation aims at this distinction. The loss is that, if the same issue is tried again, contradictory judgments and duplicative costs arise. If a new lawsuit that does not regard the determination of ownership as already established is permitted, there may emerge findings of fact that conflict with the prior judgment, or the inconvenience of litigating the same dispute twice. Without comparing the dispositive part of the prior judgment ordering delivery with the object of the new claim, one cannot say that a bar is established merely because the duplicative costs are great.
Transposing the determination of this section through the assertion of Plaintiff A: he asserts that, because ownership was written in the reasons of the prior judgment ordering delivery, that determination of ownership has become final in the new lawsuit as well. The foregoing condition is to distinguish determinations written in the reasons from objects included in the dispositive part. However, because it has not been confirmed what went into the dispositive part of the prior judgment or what performance or confirmation the pre- and post-complaints demanded, one cannot determine here what scope of the later action res judicata binds. This is a deficiency in the material; it does not mean that the comparison itself is impossible. What is confirmed is only the criterion of comparison, and the result of the comparison remains dependent on the record.
What can be said in this section is that the dispositive parts and the subjects of the claim in the pre- and post-lawsuits must be compared, and that the scope of res judicata is not fixed by the case title alone. Establishing res judicata bar on the fact that the case names are the same is not permitted, nor is speaking of finality beyond the boundaries of the matters included in the dispositive part. Only, if it remains unconfirmed what the prior action adjudicated in its dispositive part, the examination of a new adjudication outside the established objects is left for what follows.
4.8The Scope This Section Undertakes
To examine this assertion, one must first determine what was adjudicated in the prior judgment. Even if the matter appears to be a single strand of dispute, what was demanded in each of the pre- and post-proceedings is a separate matter to be confirmed.
The Civil Procedure Act limits by its language the scope of res judicata of a final and conclusive judgment. That language recognizes res judicata "only as to matters included in the dispositive part" (Article 216 of the Civil Procedure Act). In this sentence, the subject is the final and conclusive judgment, the object is the matters included in the dispositive part, and the condition is whether the matter falls within that limitation. Accordingly, the party invoking res judicata must first specify what went into the dispositive part of the prior judgment. This language does not automatically draw in determinations written in the reasons rather than in the dispositive part.
The reason this language must mesh with the foregoing conclusion is that the seat of the determination differs. The case name is nothing more than the name affixed to the cover of the documents, while comparison of the subject of the claim is a comparison of the performance or confirmation demanded in the pre- and post-proceedings. If the two stages are not separated and a single indication of the same case name is taken to denote the same claim, there disappears the place at which to confirm whether the content of the performance demanded is in fact the same. The conclusion that the dispositive parts and the subjects of the claim in the pre- and post-lawsuits must be compared, and that the scope of res judicata is not fixed by the case title alone, issues from here.
If a new judge re-examines a matter seemingly already dealt with in the prior lawsuit, the outcome may diverge, and the parties must again bear time and cost. Such loss cannot be taken lightly. Even so, res judicata bar cannot be established on the sole fact that the case names are the same, and the costs pointed out by the counterargument are a matter to be adjusted within the scope that remains after the new adjudication outside the established objects has been set apart.
In the scene treated in this section, the assertion of Plaintiff A takes the form of drawing the ownership written in the reasons of the prior judgment ordering delivery into the new lawsuit. The pre- and post-complaints, the dispositive part and reasons of the final and conclusive judgment, and the scope of the set-off allegations serve as the material for comparison, and here it must first be confirmed what delivery the dispositive part of the prior judgment ordered. Whether the description of ownership in the reasons is included in the dispositive part is determined by this record, and without that confirmation one cannot speak of the established scope. If it remains unconfirmed what the prior action adjudicated in its dispositive part, the determination remains undetermined.
What is permitted in this section is the judgment of comparing the dispositive part of the prior judgment with the object of the claim in the later action, and dividing the scope bound by res judicata from the scope beyond it; establishing that the two claims are barred on the sole fact that the case names are the same is not permitted. Even after the comparison, no new determination may be demanded that conflicts with the object of the dispositive part of the final and conclusive judgment in the prior action or with the scope of the statutory set-off determination.
4.9Application of the Text of the Provisions and the Holdings of Precedents
Is the same case name the same claim? If one overlooks this comparison and examines only what is written in the document of the earlier judgment, one cannot determine where, inside and outside the finalized object, the new adjudication reaches.
This question lies in how the text of the source provision is applied to a new adjudication outside the finalized object. The wording of Article 216 paragraph (1) of the Civil Procedure Act reads "only as to what is included in the dispositive part" (Civil Procedure Act Article 216). The subject indicated by this wording is the final and conclusive judgment, the act is a determination included in the finalized dispositive part, and the condition is that the determination be included in the dispositive part. Accordingly, what may be used as the basis of adjudication in the new adjudication does not go beyond the scope of this wording.
When the text of the source provision is applied to a new adjudication outside the finalized object, that wording takes only what is included in the dispositive part as the object of res judicata (Civil Procedure Act Article 216). Hence the finalized object must be divided from objects outside it. Depending on whether the determination of ownership in the earlier judgment ordering delivery was included in the dispositive part, or was handled only as a preliminary issue without being included in the dispositive part, the basis of adjudication in the new adjudication differs. The former takes its place as wording inside the finalized object, the latter as wording outside it. Observing this distinction is precisely the method of applying only the wording within the scope of the source provision.
The counterargument that detailed division of objects may permit repeated lawsuits targets the losses of inconsistent judgments and the costs of repetition. If the issue of ownership already addressed in the earlier judgment is examined again in the new adjudication, conflicting determinations may emerge on the same issue, and the parties and the court will repeat the same examination. However, a conflict with res judicata cannot be established on the mere fact that the case names are the same. Until what is included in the dispositive part of the earlier judgment has been compared, it remains undetermined whether the new adjudication lies within or outside the scope to which res judicata binds it. Thus, while the concern over repeated costs is acknowledged, the route of treating an identity of case names as the basis of adjudication in a new adjudication outside the finalized object is not opened.
Setting out only the facts relevant to this question from the earlier and later complaints, the dispositive part and reasons of the final and conclusive judgment, and the scope of the set-off assertion, it is confirmed that ownership was written in the reasons of the earlier judgment ordering delivery. However, what was included in the object of the dispositive part of the earlier judgment cannot be confirmed from this scene alone. The object of application of that exception and the finalized object of the present question are placed separately. The facts, service, and performance results of the actual case are absent from the synthetic scene and remain undetermined.
The conclusion this section permits is to use only the text of the source provision as the basis of adjudication in a new adjudication outside the finalized object, and not to extend it to the reasons for judgment or to other paragraphs. One cannot conclude, merely because the case names are the same, that the new adjudication is bound by res judicata or that it conflicts with it. Conversely, an interpretation that also places within the scope of finality of the earlier judgment matters confirmed only as preliminary issues outside the object of the dispositive part likewise falls outside the conclusions of this section.
4.10Fine Distinctions Within the Stage
What is the part to be separately determined and adjudicated within a new adjudication outside the finalized object? Its conclusion was that, in determining whether the claim set off is established, there is a statutory exception limited to the amount asserted in opposition on the ground that it should be set off. Now, in the scene where Plaintiff A argues that, because ownership was written in the reasons of the earlier judgment ordering delivery, that determination of ownership has also become final in the new lawsuit, the question is how far the part to be newly adjudicated outside the finalized object can be delimited.
The wording relevant to this question is Article 216 paragraph (1) of the Civil Procedure Act, and that wording reads, "A final and conclusive judgment has res judicata only as to what is included in the dispositive part." This wording indicates that the subject possessing res judicata is the final and conclusive judgment, and that its object is the matters included in the dispositive part. Matters not included in the dispositive part do not fall within the scope of that res judicata under the wording of this paragraph. The mere circumstance that ownership was written in the reasons of the earlier judgment ordering delivery does not thereby convert the determination in those reasons into something included in the dispositive part.
Accordingly, the work of comparing the object of the earlier judgment with the demands of the new lawsuit — in other words, comparison of the objects of the claims, that is, comparing the performance or confirmation sought in the prior and later proceedings — must come first. This comparison is the criterion of adjudication within the procedure that fixes the scope of res judicata, and it explains the reason for distinguishing the object of the dispositive part of a judgment from its other parts. If the object of the dispositive part and preliminary issues are bundled together without being divided, one recognizes the effect of finality before confirming what has become final. The parts to be separately determined and adjudicated within the new adjudication are limited to three: the scope that conflicts with the object of the dispositive part of the prior action, the scope outside it in which a new dispute may be raised, and the scope in which the object of the dispositive part of the prior action itself has not been confirmed.
If objects are distinguished in such detail, it may be objected that this allows the same dispute to be litigated repeatedly, producing inconsistent judgments and repeated costs. If the earlier determination of ownership is examined afresh in the new lawsuit, there is a considerable risk that the earlier and later courts will reach different determinations, and the parties and the court will repeat the same arguments, spending time and money again. This loss and inconvenience can actually arise and must not be erased. Because the performance or confirmation demanded under the same case name may differ, the comparison work itself cannot be omitted merely on account of the risk of repeated lawsuits.
In this scene, what the dispositive part of Plaintiff A's earlier judgment ordering delivery determined to be delivered has not been confirmed. It can be compared through the earlier and later complaints, the dispositive part and reasons of the final and conclusive judgment, and the scope of the set-off assertion, but since what the object of the dispositive part is has not yet been finalized, it is likewise impossible to determine whether the other parts may be newly contested.
What this section permits is, after comparing the objects of the prior and subsequent actions and dividing the scope in which the later action is bound by res judicata from the scope outside it, to newly adjudicate the scope outside it. By contrast, a demand for a new determination that conflicts with the object of the dispositive part of the final and conclusive judgment in the prior action, or with the scope of the statutory set-off determination, is not permitted. The detailed subdivisions within the step are limited to the conditions of cases where it operates, cases where it is blocked, and cases that are undetermined; no additional step falling outside these is to be created and inserted.
4.11Synthesis of Effectiveness, Blockage, and Undetermination
What remained from the earlier determination was the linguistic habit of treating the claim as identical on the basis of the identity of the case names alone. Yet such a habit cannot take the place of the work of comparing what the prior and later lawsuits actually demanded. The question to be addressed now is therefore clear: how are the adjudication that is newly opened outside the finalized object, the adjudication that is blocked, and the cases in which the determination itself must be withheld distinguished from one another?
The principle that answers this question is stated first in the statute. The wording of Article 216 of the Civil Procedure Act declares, "① A final and conclusive judgment has res judicata only as to what is included in the dispositive part." Here the dispositive part means the final declaration put forward by the court in the final and conclusive judgment, and res judicata means the binding force by which, as to the matters contained in that declaration, they cannot be contested again in a later trial. Accordingly, the place where res judicata operates is limited to what is included in the dispositive part. This wording explains the premise that the performance or confirmation sought in the prior and later proceedings must be compared.
Comparison of the objects of the claims refers precisely to this comparative work: placing side by side the performance or confirmation sought in the prior and later proceedings and distinguishing the overlapping scope from the non-overlapping scope. If the object of the dispositive part of the earlier judgment ordering delivery was the existence or non-existence of the duty to deliver, the determinations of other legal relations may remain outside the dispositive part. The reason for observing this distinction is simple: if the dispositive part and the reasons outside the dispositive part are treated with equal weight, the limiting meaning of res judicata disappears, and only by binding together the dispositive part alone does room remain for new determination in the later action. The scope that opens and the scope that closes are divided in this way.
It may be objected that a detailed division of objects permits repeated lawsuits. This counterargument is not a light one, in that re-examining the same issue produces inconsistent judgments and repeated costs. If the same question of ownership is determined twice, there also arises the risk that two courts will give different answers. If, disregarding the limitation that only what is included in the dispositive part has res judicata, binding effect is fixed on the basis of the identity of case names alone, the scope that may be newly determined outside the dispositive part will be closed off as well. The cost of the counterargument is to be acknowledged, but that cost must not be calculated on the basis of the identity of case names alone.
This argument treats ownership as having become final merely because ownership is written in the reasons. What must be confirmed, however, is how the object of the dispositive part of the final and conclusive judgment in the prior action and the determination written in its reasons stand in relation to each other. Even here, however, if what the prior action determined in its dispositive part has not been confirmed, one cannot assert either that it has become final or that it is open. This case remains undetermined.
Accordingly, a new adjudication outside the finalized object must be read in three divisions. The case that opens is when the objects of the prior and subsequent actions are compared and the scope in which the later action is bound by res judicata is divided from the scope outside it; the case that is blocked is when a new determination is demanded that conflicts with the object of the dispositive part of the final and conclusive judgment in the prior action or with the scope of the statutory set-off determination. That, in determining whether the set-off claim is established, there is a statutory exception limited to the amount asserted in opposition on the ground that it should be set off, also belongs to the scope of this blocking. Undetermined remains the case where it has not been confirmed what the prior action determined in its dispositive part. The way of asserting finality merely because the case names are the same falls into none of these three divisions.
4.12Conclusion Carried Over to the Next Section
The question whether the same case name is the same claim remains a question not of the identity of titles but of what has already been placed before the judge for decision. The plaintiff's assertion can first be reviewed only after it has been ascertained where ownership is written in that earlier judgment. Accordingly, the work of comparing what was respectively demanded in the prior and later lawsuits is the first step that opens the question addressed in this section.
The statutory provision corresponding to this question is Article 216 paragraph (1) of the Civil Procedure Act. Its wording provides, "① A final and conclusive judgment has res judicata only as to what is included in the dispositive part" (Civil Procedure Act Article 216). Here the dispositive part means the concluding portion of the determination reached by the court in the final and conclusive judgment, and res judicata means the conclusive effect that prevents the matter in question from being contested again in a later lawsuit. The subject spoken of by this wording is the final and conclusive judgment, the act is the finalizing of the determination included in that dispositive part, and the condition requires that such a determination be included in the dispositive part. Matters not included in the dispositive part are placed outside the scope of res judicata as defined by the wording of this paragraph.
The limitation set by this wording directly shows why the case name and the object of the claim must be distinguished. The fact that the case names are the same makes the two lawsuits appear to concern the same dispute, but it cannot take the place of what has been finalized as the dispositive part. Against this, comparison of the objects of the claims means comparing the performance or confirmation sought in the prior and later proceedings. Without the work of placing side by side and comparing the content of the performance or confirmation the plaintiff sought to obtain in the prior action and what is newly demanded in the later action, one cannot determine what is included in the dispositive part. The answer to the question whether the same case name is the same claim is that the scope of res judicata cannot be fixed on the basis of the case titles alone. A newly sought adjudication outside the object that has already become final can have its scope determined separately within this limitation.
A detailed division of objects may permit repeated lawsuits. The fact that re-examining the same issue produces inconsistent judgments and repeated costs is the substantive inconvenience attending this division of objects. The loss that two judgments reach different determinations on the same matter, or that the costs of re-collecting the same facts and re-arguing them are repeated, is not light. Yet even so, a conflict with res judicata cannot be established on the mere fact that the case names are the same. If one skips the limitation set by the wording that res judicata extends only to what is included in the dispositive part and fixes the scope by the identity of titles, the result is that matters not included in the dispositive part are also treated as already finalized. The inconvenience remains, but the limitation cannot be omitted for that reason.
In the synthetic scene, only the fact that ownership was written in the reasons of the earlier judgment ordering delivery is confirmed; what that judgment determined in its dispositive part is not confirmed. Set against the preceding condition that only what is included in the dispositive part has res judicata, the mere circumstance that ownership is written in the reasons is not enough to determine whether that determination of ownership was included in the dispositive part. Only by comparing the earlier and later complaints, the dispositive part and reasons of the final and conclusive judgment, and the scope of the set-off assertion does the scope of the object of the dispositive part come to light. Where it has not been confirmed what the prior action determined in its dispositive part, that scope remains undetermined.
The conclusion this section permits is narrow. That the scope of res judicata can be fixed in accordance with the result of comparing the dispositive parts of the two lawsuits and the objects of their claims, and that the scope cannot be fixed on the mere fact that the case names are the same, are the conclusions of this section. Beyond these, the questions what the earlier judgment ordering delivery actually finalized in its dispositive part, whether that determination of ownership went no further than a preliminary issue, and whether the demands of the later action are bound by res judicata, are not resolved by this section. A new adjudication outside the finalized object has its door only where the objects of the prior and subsequent actions have been compared and the scope in which the later action is bound by res judicata has been divided from the scope outside it. Not only a final and conclusive judgment but also, where there is a record of settlement in a lawsuit or a record of waiver or admission of a claim, the same conclusive effect must likewise be compared under Article 220 of the Civil Procedure Act.