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    INTERNATIONAL ENCYCLOPEDIA OF COMPARATIVE LAW UNDER THE AUSPICES OF THE INTERNATIONAL ASSOCIATION OF LEGAL SCIENCE EDITORIAL COMMITTEE DAVID" ARISE HLEGAWA" TOKYOT R. GRAVESON LONDONY _V. KNAPP + PRAGUE He VON METIREN " CAMBRIDGE} _Y.NODA* TOKYO 8. ROZMARYN * WARSAIE V.M-TSCHCIIKVADZE + MOSCOW H.VALLADAO * RIO DE JANEIROT H.YNTEMA "ANN ARBOR + U.DROBNIG and K. ZWEIGERT ' HAMBURG RESPONSIBLE EDITORS VOLUME XVI CIVIL PROCEDURE MAURO CAPPELLETTI + CHIEF EDITOR} Chapter 9 Effects of Judgments (Res Judicata) ALBRECHT ZEUNER Professor (em.), Law Faculty, University of Hamburg (Germany) HARALD KOCH Humboldt University, Berlin (Germany) Professor, Law Fa INTERNATIONAL ENCYCLOPEDIA OF COMPARATIVE LAW UNDER THE AUSPICES OF THE INTERNATIONAL ASSOCIATION OF LEGAL SCIENCE EDITORIAL COMMITTEE eee ot RISt H-EGAWA\ TOKYO} R. GRAVESON: LONDON} V.KNAPP PRAGUE TCHR REHIREN * CAMBRIDGEL ¥. NODA? TOKYO} 8, ROZMARYN * WARSAW \MCTSCHCHIKVADZE’ MOSCOW H.VALLADAO ' RIO DE JANEIRO} HLYNTEMA ANN ARBOR U:PROBNIG and K. ZWEIGERT} ' HAMBURG” RESPONSIBLE EDITORS VOLUME XVI CIVIL PROCEDURE MAURO CAPPELLETTI * CHIEF EDITOR + Chapter 9 Effects of Judgments (Res Judicata) ALBRECHT ZEUNER Professor (em), Law Faculty, University of Hamburg (Germany) HARALD KOCH Profssoy Law Faculty, Humboldt University, Bern (Germany) Survey of Contents Section Page 1-51. General Overview 3 6-24 Il. General Effects of a Judgment 4 6 A. The Basic Function of Res Judicata 4 rs B. Res Judicata, Conclusiveness and Reviewabilty ofa Judgment 4 16-24 €. Significance and Consequences of the Different Approaces 7 III, How Res Judicata Achieves its Effects ‘A, Purposes of Res Judicata B. The Specific Manner i which Res Judicata Operates u 49-59 IV. Decisions Having a Res Judicata Effect » 49-54 A. Finality 9 35 B. The Impact of the Manner in which Decisions Have Been Reached 20 56-59 C. Decisions on the Merits and Procedural Decisions 21 60-105 V. Suibject Matter and its Limitation on Res Judicata 23 60 ‘A. Maers Covered by Res Judicata 23 61-4 B. The Principal Approaches 23 gs-10s ——_ C. Comparative Remarks a 06-145 VL. Personal Limitations on Res Judicata ” 106-107 A. Overview ” 108-131 1B. Decisions with Limited Eect ” ans C. Decisions Effective vised-vis Everybody 6 136-145 D. Comparative Remarks 65 146-163 VIL. The Constitutive Effect of a Judgment n tyociso, Ae The Constitutive Exfect and its Special Features mn 151-163 B. Specific sues Concerning the Constitutive Effect 1s List of Principal Works so Lise of Statutory Material a % Detailed Table of Contents © sos MOI SHEBIECK - TOBINGEN AND MAKINUS NIIHOFT PUBLISHERS + Chapter 9 EFFECTS OF JUDGMENTS (RES JUDICATA) Albrecht Zeuner and Harald Koch IPR 2OAZ/OACF os L, GENERAL OVERVIEW 1. Res judienta,~ The effects civil judgments produce may be divided into several general categories based upon heir purpose. Among the various categories, the one usually considered encompassed by the principle of rs judicata has overriding significance. Broadly speaking res ju- dicta refers to those effects that serve to termni= nate the litigation and to preclude further con- troversies concerning the subjece mater chat the Judgment decided. In light of their central im= portance, these effects will be the main abject of discussion in this chapcer 2. The constitutive ef of judgments. — In some legal systems, but by no means inal, a dstinetion js drawn between the ss judicata effect of a Judgment and ies constitutive effect. This latter term refers to the fit that certain court decisions are designed to modify an existing legal scuation and, in fact, do bring about a different legal sit- uation. A cypical example is a judgment of di- vorce, as resulrof which an existing marriage is terminated. The special nature of this effect of a Jjulgment and its relation to the rs judicata effect will be discussed in a separate section (ia 5.1465). 3. Secondary effets. ~ Certain judgments may hhave so-called secondary effects, One example of such a secondary effect isan extension in the limitation period affecting the right underlying the judgment, which occurs in certain legal systems as a result of a final judgment.’ Such secondary effects share a cominon feature with the constitutive effects ofa judgment. Asa result of a provision often considered belonging to substantive rather than procedural law, the Judgment becomes one of the elements of the legal rule that is now applicable. ‘Because of that common feature, the con- stitutive and secondary consequences of a judg * Gheg-cumnan CCS 197 par. tse. 3: FraLIAN CC at. 2983. For the situation in tran, see Mew, La prescription dae condnation revltant dv jage- dent: JCP. 1964.1. 0, 1655 "GL Blomeye, Zivilpeozebeche § 86 I. 2 paawen CC art 2123, bue ¢f Vinent and Guinhand 1n0.171 (p. 213). aL: CC ar. 2818, ¢. Capel ‘nd Peo 7.05), 250 9.123); Stand Psi ro. 121 (p. 21435) By way of contest, che analogous judgment lien under exnotas law (CCProc. § 86588) 's considered, consistent with the general Scheme of ‘ment have sometimes been grouped together under the heading of legal-factual consequences (in Geman, Tatbestandavirkungen).” There is, however, one difference: the constitutive effect is exprested in the judgment and is, indeed, its very purpose. By contrast, the secondary effects are noc addressed inthe judgment and are thus to be regarded merely additional, accessory effects In reeNcr and rraLian law, the judgment lien i ineluded among these secondary effects.) Since the secondary effects of a judgment depend es- sentially onthe rules concerning the basic subject matter involved, they will not be further dis ‘cused in this contribution+ 44. Enforcement. — Another effece of a judg ment is its enforceability, in other words, the possibility of bringing public force to bear to ‘ensure its execution, Of course, enforceability is relevant only in the ease of judgments requiring some action by one of the parties. Pure declar= tory judgments, for instance, are not enforce able by public force. This distinction will be discussed further in this volume inthe chapter on ‘enforcement of judgments (inf ch. 10). 5. Other effes. ~ Court devisions may have a number of effects beyond those already men= tioned. Thus, in some procedural circumstances, there may be a binding effece when a lower court decision has been reversed and remanded.” Alo worth mentioning is the effect that a {judgment may have between the principal party and an intervening party under Geman law.* ‘This effect of a judgment is not covered in the present chapter ince it can be explained only in the context of the particular procedural sit- uation. Also not included in the present chapter is the role of judgments as precedent in the |ANGLO-AMERICAN case law system. the crmman civil and procedural codes, part of the rules on the enforcement of judgmens. For 1A, ‘Sara and Pst (spn this n_) ao note a connection between the rules on the judgment lien and those on the enforcement of jadgrents, On the secondary effects of judgments, seein par- ticular Kunmer, Die prvatrechuichen Nebenvwirkun- igen der Zivilueile (Mnchen 1998. See as to cena la, CCPIO€ § $63 pat 2. © CCProe. § 68. 9-6 Il, GENERAL EFFECTS OF A JUDGMENT A. THE BASIC FUNCTION OF RES JUDICATA 16. In general. ~ As a comparative inquiry demonstrates, one of the principal functions of a civil lawsuit, quite generally, 3 to decide the legal relations and contentions that are the sub- Jject matter of the litigation in such a way that further legal disputes between the parties about the matter are excluded. This is the ultimate aim of the proceedings and is achieved by the court's decision, The binding character of the decision is the effect that is generally designated by the eerm res judicata? or a¢ least it the central core of the fdas to which one generally refers by that term. Tn the light of it purpose to end litigation, the res judicata effect ofa judgment appears as one of the basic elements of a modern civil Iawauit. However, as a closer examination shows, the rules on res judicata can serve both the general interest as well as the individual interests of the patties concemed. This double function of res judicata is well iustrated by ENGLISH law, which bases the principle on the two Latin maxims “interest rei publicae ut sit fins lt’ (iis in the public interest that lawsuits have an end) an Ehemo debet bis vexari pro sna et eadem causa (nobody may be twice disturbed for one and the same matter)" ‘Under what conditions these «wo effects of a judgment should occur, and what precise shape they should ake, can obviously vary depending fon one’s point of view; therefore, quite diverse solutions are to be found in the various legal systems An important factor in this connection the atstude one takes conceming the sel tionship between these two contrasting policies, ‘which seem to always ress full harmonization. ‘On one hand is the policy insisting on the substantive correctness and justice of the judg- ‘ment an, on the other hand, is the policy in- sisting on legal certainty and peace between the parties, Many features of the actual detailed rules ‘concerning res judicata are the result of pragmatic ‘considerations, Nevertheless, the problem due to the tension between these two policies is clearly of a universal nature, Ali known as Reise, aorité de la dose je, aia gino, cosa jsp isk Gf Halibury XM (Zudhemnan, Ci Proc) no. 1518, » Flow this achieved willbe explained later (se ira 18.61-94) "Op the relation between these two ines, see the 1B. RES JUDICATA, CONCLUSIVENESS AND REVIEWABILITY OF A JUDGMENT 1 The bac polo, ~ eis principal feature of the binding ect of dgment,expresed by the term re jai, tha it relates to 4 sub sunave conten, Ic precides the partes fom Contesting whether ox not the maces involved inthe igaon sci ar ax determined bythe deciion, However, viewing the decision 9 3 ‘Beam of tonnineang te Bagntion presse toa teraod tu tac b clndy ciSieen Geta cron of the scope of bier tabuansive pect Austen. The isu involves the question of the trent to which 2 deckion should be deemed Binding berween the pate even though may Ine be modified or evened by the same or 2 Giferenecoure The two coamaing unos so oor eee Ine to some eaten since the completely fal resolution of lea dispte ensured only once {revere or modification of he jdgment no longer posible and the Judgmeat har aio ber come Dring for subsequent Brgaon, i. Formal and Substantive Res Judicata 8. Basic novions. ~ Some legal systems deal with the relationship between, on the one hand, the extent ro which a judgment is binding on the partes as to is substantive content and, on the Dther hand, the extent to which a judgment is Subject to modification or reversal. These sys- tems do so by giving a judgment a binding effect jn'a new lawsuit concerning a mater already adjudicated in an easier lawsuit only ithe earlier decision is no longer subject w review by s0- called “ordinary” methods of review. In some Countries including GERMANY, ITALY and SPAIN, 2 judgment no longer subject to atack by ordi- hhary means is said t enjoy formal re judicata (in CunMan, fomelle Rectskraf, while the binding effec of an earlier judgment in new ligation i Said to involve its substantively binding effect Crater Recs." basic discussion in Batichr oss. and 668, See asco crnatan law, Rasenberg, Seva and Govt wald § 148 Ill; Muray and Stamr ch. 9 sub, Fea (p. 330); a8 to reatian law, Cappelli and Penlly §.9.13.;38 to sransst law, Méndez, Derecho procesal iil (Barcelona 1992) § 37 Il (P. 6698). 5 General Effet of a Judgment Ik follows from this desription chat formal res Jliata is precondition for the judgment’s Substansive res judicata effee in subsequent liti- fgation.”” In SWEDEN too, the substantively Dinding effece (ritkryf) comes into existence only onee a decision is no longer reviewable, a notion designated by the term Jaga loaf having the force of law). Tn the former soctatist legal systems, there exists a similar relationship be- ‘ween non-reviewability and the res judicata ef- fect ofa judgment." 9. Non-modifablty by the rendering court. — An. issue that, ina sense, precedes the question ofthe extent to which a judgment is non-reviewable is the question of the extent to which the court thar has rendered it ean modify it. Asa general rule, such a modification is not permissible once a judgment has become effective. The GiRMAN CCProc. § 318 expresly 40 states." OF course, there are some exceptions, e,. forthe correction ff obvious mistakes." Furthermore, as noted, the so-called formal res judicata does not mean ‘that judgment enjoying dis status is safe against all further atack, In legal systems that use this or fan equivalene concept, i€ may no longer be subject to attack by “ordinary” means of re~ view;7 however, it may still be subject to modification or reversal by so-called “extra- ordinary” methods of review. fi, Related Supplemental Rules 10, Effet ofthe pendency ofthe action. — Ural a judgment is final, meaning no longer subject to feview, another lawsuit involving the same subject matter is nonetheless prechided by the rulle that @ pending lawsuit prevents a further © See preceding n "Bel Byland wo, § 20 111 (p. 10288). However, elf does not agree that laa hf shouldbe called 3 condition for the existence ofthe re uate effec of a ddgment. "See Siler, Mana 319-3995 em, Res judicata 10 14; Posnif no, $23-525, 538: Stanko? 346-348; Sve cu and Zileri 524: Neva and Sauk 73 For trata law, of, Paglese oq. For the formerly sociaust legal sytem, ee Staley, Res judieta fio. 373-376; Mem, Manual, 31983, Pozi 00. 38; ‘Snkev 40; Sines and Zibertein 524; Buoy, A polgin)perrendurts mayyarizaa (Budapest 1976) fr 227 ho. (p. 1079) Gp cima CCProe. $319. and mrauian CCProe. att 287, There ate abo situations where procedural rules provide that 2 judgment may be Inoulfied or vacated and then the proceedings may Continue before the same cour. Examples under CcuunaN law aze, eg. the re-opening of a. defile Jpidgment (CCProc. § 338s, 343) oF the subsequent oun proceeding between the sme parties concerning the same subject matter" This principle p ‘vents the rendering of an inconsistent second judgment during the period between the time the first judgment has been rendered and the time it hs become non-reviewable By contra, theres no preclsive effect based on rs jadeata during this time. Thus, later lii- {ation could lad wo an inconsistent jdgment in 5 situation in which the second litigation does rot have the very sme subject matter asthe fine fone, but nonetheless involves a significant iste in the fis one. In such situations, inconsitent decisions could be avoided by obwning a stay of the second proceeding unt the judgment inthe fine proceeding has become non-reviewable. 14. The binding effet of a deson within the same proceding.~ CB4MtAN and AUSTRIAN aw 280 deal with the Following special situation: when a ‘court mist decide a preliminary sue or render a ‘cision on pat of the merits and that decision isanecesary element ofthe final outcome ofthe case, then that decision binds the court during the course of the proceedings, even though it docs not have an official es judlta effect? ‘Accordingly, the court may not depart from that decision during the later parts of the lawsuit Jnvolved and must base is final decision oni “Tis binding effect of a pata decison, oc- curring in the coune ofthe same ligation, mist be ‘scinguised fom dhe ves julia effec that in- ‘volves binding eect in subsequent tigation. But Since that interim binding effects abo an aspect of the general problem of the binding character of ddeesions its closely related co sues of uaa 'Rcifference exiss only 38 to the conditions for such a binding effect and as to its scope." (contradictory) proceedings fllowing 2 copditiona (ex pare) judgment sn special proceedings based on negriableinstraments of other docoments (CCPro«. S soos). 7 See ctaan CCProc, § 705 and ALLAN CCProe. ar 324. 1 See 38 CARMAN law, CCPro«. § 261 pat 3 0. 1. "See as to GERMAN law, CCProc. § 148. See as 10 HALIAN Taw of, CCProc. at 337 pat. 2 and Pie 07s, See camman CCProc. $318 and ausrma CCProe. §416 par. 2 AS tothe various substantive implications of Geman CCProe. § 318 se Baier Bs 2 ur fora different view as tothe sue in ITALIAN law, see Plo 8o4s. He Tels that the rendering of a decision merely terminates the court's power to del with the ise involved in the decision, which can be distinguished fom the posible subwantive fect of the decision, However, he abo notes differing on fii, Other Approaches to Conclusiveness and Reviewability of a Judgment 12. Binding effec of decision not dependent upon non-reviewability. ~ There are legal systems that do not condition the binding effect ofa decision fon its non-reviewability. They grant a binding effect to a judgment that is intrinsically capable ‘of having stich an effect even though it may stil be subject to attack by ordinary methods of re view. Into this category fill the ANGLO-AMER ‘CAN and the FRENCH Tegal systems in particular a. The Anglo-American Model 13. Decision ow the merits. ~ The general rule in ENGUISH and AMERICAN law is chat any judicial decision on the merits has a res judicaa effect provided chat it is otherwise effective and is final decision.*® The requirement of finality in these systems does not mean that no further ‘means of review is available, such as an appeal in particular. Rather, finality implies simply that a ecision as a es dcata effect fi terminates the proceedings so thar nothing is left to be decided by the court that rendered i. "The requirement for the res judicata effect of a final decision is thus only thae ic fally enjoys “validity"™ (provided, of course, that by its nature itis capable of having such an effect). But there is no requirement that the decision should be safe against invalidation. This guarantee of continued effectiveness is normally present where “non-reviewability” is a condition of a decision’s binding effect. In fact, a decision ‘maintains its res judicata effect under ENGLISH and generally ako under anucan"® law even when an appeal is already pending. , The French Model 14. The bade ne, — In erenest law too a dect- sion, otherwise capable of being res judicata, is substantively binding (res judicata ~ Pautoité dela chose jugée) a8 soon a it has been rendered, even if itis sill reviewable." However, if the decision is © Gf Halary XML Zackeman, Civ.Proe) no. 1156 117i; Spomer-Bower and Tamer “no. 19. (. 188) pei item (piste Rettemene a ode cy 8G Spencer-Bower and Tuer no. 16438 (13288); Resacement ad Judgments § 13 Comment by f On this point, see Resaten 124. aho Spencer Bawer and Tumern0. 19 2° See Halsbury XIl Zckennan, Civ Proc) ewer Bower and Turner 30, 182 (p. 448). See Restatement 2d Judgment § 13 Comment € 1555 Effects of Judgments F stacked by one of the “ordinary” methods of review, that i, by appeal to the intermediate ap- pellate cour (pa) oF by request for re-opening a etal (opposition), the ns judiata effect ys pended.”? On the other hand, an “extraordinary method of review, which in tance includes an appeal tothe Supreme Court has no such effect > 15. The ration benweer non-reviewabiity and substantive rs judicata, ~ Regardless of whae has Just been sid, a connection x sometimes drawn bbeewoen the issue of reviewability and the sub seantively binding character of a decision, ‘Thus, itis occasionally stated thatthe concep of aoe dela chose jugée aso implies that a decision enjoys 4 temporary presumption of validity (alii) and. procedural correctness (guar). Fur- thermore, a terminological di ceming the binding efect ofa d based on the extent of its reviewabslty. Thus itis said that a judgment enjoys the avovit de fa chose Jue a8 soon as it has been rendered; it has the “face dela chose jugée when ie no longer is subject to review by “ordinary” means of review and it is intvocable once “extraordinary” means of re~ view also are no longer available ‘A farther sue in connection with problems related to finality in rRENCH law isthe principle of dessissement du jug. This principle means that a judge who has rendered 4 decision, gen= erally speaking, no longer may deal with the Imaters that were decided and thus may not Iodify the decision already rendered.” This terminology docs not, however, appear to make the shap sjtenaic|dinton erween the {cnsured) continued effectiveness of a judgment and its substantively binding rs judicata effec, Which is expressed by the contesting GtRMAN terns formelle Rehiskraf and matrelle Recher, explained above (ups. 8) "The terms autoité de Ta chose jugée, force de la chose jugie and inévocabilté express the’ gradually increasing certainty inherent in a judgment These terms apparently convey the notion that the binding character of a judgment gradually increases between the time when i is fendered by the court of first instance (and is sil fully © snvcnt CC art 1358. » Tide 0. 54 See Vinent and Guinchard no. 180 (p: 230); Hébmaud ‘and Reynaud, Jorispradence trangise en matitre de “roitjudiciaie privé: Rev arimde.v. 1968, 181-204. See: Vinent and. Guinchand no. 181, 185; Glason, ‘Tisier 4.0. 83 (90. 766); Ganonnet and César-Bra, Précis de procédute civie IX (1933) 413 (00. $67). 7 General Effet of a Judgment reviewable) and the gime when even review by the bighest court (ehe Cour de casaton) is m0 longer available ~ ether because it has already been pursued or because the time available for it has expired. By contrast, the concept of formal res judat foal Rechts) focuses separately fn reviewability, on one hand, and the sub- stantively binding res judicata effect, on the other. Teds ene hat the FRENCH concept of dessa sisement, according t© which a decision by a coure terminates the relevant phase of the Law= suit, has cern similarities with ehe rule ex presed in the Gexstan CCProc, § 318, which states that, generally speaking, a court may not modify or vacate its own judgments, However, in cenwan laws, that effect of a judgment is lated to the iste of non-reviewabilty; in other words, the question of the ensured continued existence of a judgment.” By contrast, the TMENCIL concept of dessisisement is sometimes viewed as related to the autorité de la chose ue effec of a judgment ~ that is its binding res jn iat eFect, sce i prevents a coure from ren= dering a new decision a eo a claim that already thas been adjudicated by it* Te would also seem that in reENeH LW, no sharp distinction is drawn between the sub- stantively binding rs dia effect ofa judgment expressed by the term used in nec CC ar 1331, aoité dela chose jug, on one hand and the term présomption de valde de rian fon the other; the latter term has occasionally been viewed as having a procedural character! and may perhaps bea separate notion bearing on the secure status ofa decision protected against subsequens impairment.” ©. SIGNIFICANCE AND CONSEQUENCES 4. The Relationship between Methods of Review and Res Judicata 16. Goneal remarks, ~ A comparative exami nation of the various solutions tothe problem of the effect of judgments, here proceeds from the point of view that the problem covers two issues. ‘The firs is the extent to which a judicial deci- sion has a preclusive effect preventing a renewal ‘of the litigation in another lawsuit. The seconds Gf Rosberg, Sha and Gottwald § 149 1 Bacher Soe Vincent and Guinchard no, 181 (p. 223. 2 See ide no. 180 (p. 220) ° Soe Hebwaud and Reynaud (up, 31) 191, who, in 9-17 the extent to which a judgment may be ques- tioned generally (and possibly impaired in its continued efficacy) ‘This examination also requires discussion of a collateral point: how ate the methods of review and re-examination of judgments structured in the procedural system involved? In other words, to what extent does a particular procedural sys- tem limit che possibilty forthe re-examination fof a judgmene by the pre-conditions it imposes for review, and by the procedural devices is uses for is review? Both of these issues, together with the rales fon the substantively binding, res judicata effec, thus ensure that a matter is finally concluded. "That question isa particularly significant aspect ‘of the tension that exits in all legal systems be= tween the policy that judgments should be fic- tually correct and just, and the policy that de~ ‘mands that legal relations be clear and certain, Concerning the detailed structure of methods forthe re-examination and review of judgments, the reader must, of course, be referred generally to the pertinent chapter of this volome.” The following merely emphasizes certain. matters related to the isle we ate addressing. 17. ‘The substantively binding character of judge ‘ments where review is limited. ~ As noted, in some Tegal systems a decision becomes binding in an~ other proceeding only once itis no longer sub= ject to atack by “ordinary” methods of review (pra s. 8-9). In these legal systems, attacks on Judgments ate generally posible only within the framework of a precisely defined set of legal remedies. The rule that a decision that is still subject to impairment by “ordinary” methods of review lacks a rs judicata effect counteracts the danger that a proceeding. chat may be tainted by substantive or procedural erors and still open to correction by one of the legal remedies available «will affect the decision in another proceeding, ‘On the other hand, decision that does have a binding effect beyond the proceedings in which it has been rendered, because it is no longer subject co attack by “ordinary” methods of re- view, offers atleast a limited guarantee that the dispute has been terminated once and forall in that legal system. Of course this guarantee is ot absolute since the judgment remains subject to atack by “extraordinary” means of review. To wha extent methods of review are deemed this context, refer to she avr fomelle (onal a= ‘thosty) of a judgment "GF Hero and Kal, Atachs on Judicial Decisions (opr this volume eh. 8. 9-18 “ordinary” o “extraordinary” indicates, for each Tegal system thar uses the diintion, sehether places higher value on the interes fi legal sa Ei and legal peace repose") or om the in= terest inthe eoriecnest an justice of decison 18. The Fen ln TheteeNct egal sytem snows, however that a scheme of prec Fem icy forthe review of judgment whic can thus lead to cour deions eventually becoming practically completly imnvane from Gera Eck does nt cently have tobe pated witha Situation in which decisions are subsantvely Binding only afer they are no longer subject 0 zack by “ordinary” means Tn aaNet ae the mes judi effect Of a deckion i not deferred {nl ahae ume hae pase. But in PUNCH aw, too, the review or re-examination of judgments ‘S‘posable only within a fixed famework of predefined remedies. The sequence of tems th nna rid cn fod Chose jute, inet ples helen of a foes Sedopment tat las 7 al {Enmation ofthe gation However, fom the point of view of the re- Tligadon should mean an aetual, peranene end to the contoveny involved, theres n0 real rater difference beowesn he anert leal System and howe systems tht give a jodgment 2 Binding efee in her Igation only on the time on when the judgment is no longer e~ Miewabily by “ordinary” means. A diffrence aso only 36 to the effect during the lnsted time period after it hs been rendered when i Gan all be aticked by “ordinary” methods of 1 Angl-Ameran law, ~ The tentment of the relation between revewabily andthe ondnuing effect ofjudgoent, wich as been dlseibed above (ups), xn distinct con tro solutions prevalent in the ANGLO-AMEn- teaw legal onba, There it offen posable to Guesoa the validity ofa jadgmene ant have viewed even ouside ofa specific, well defined nd regulated formal system of review.” The ihsic notion in these systems i tha judgment anno Eli inerentRantions i fe does noe comply ‘with cerain, minimal. preconditions, tspecily 3st the jutadcron of the render cour” According, its asned thatthe ex See supra. 108, and inf. 215 » See a6 to eNGUSH hi, Halshury XUL (Zuckerman, Civ-Proe) "no. 1143; Spener-Bower and Tamer no. (1355. (p- 9235), No. 36988. (p. 32386). See a8 (0 the lav of the UNITED staves, Restatement ad Judge ment ch. 2 (Valid). James, Hazard a. § 01.2; Haibury XM (Zuckerman, fects of Judgments s istence of these preconditions must always be ‘open to examination, Experience in the legal systems that permit attacks on judgments only within a precisely defined framework shows, however, that even within such a system it should be possible to create, by appropriate rules as eo methods of review, conditions safeguarding certain mini- ‘mum requirements once a final and conclusive termination of litigation is achieved!" In spite of the difficulty inherent in any attempe to provide a system which does justice to all conflicting interests, such a way of proceeding is probably t0 be preferred over a system of completely open reviewability, since the aim of preventing further disputes asco the subject matter of the litigation ‘ean be achieved with greater certainty in that ii, The Impact of When a Decision Obtains Res Judicata Effet 20. Goneal mars. ~ For those lea systems that permica re-examination of judicial decons ‘only within te famework ofa precisely defined scheme of remedies, amore deed dstusion Appropriate at this point conceming the different pont in time when a decision obi its sub> Santivly binding ms judicata effect. 21. The eomsquene of the warns solutions for subsequent litigation. ~ As has already boen mon tioned, there is one specific advantage in de- laying the substantively Binding res jude effect ofa decision until is at eatin some measure, no longer reviewable Te prevents errors in 3 ‘cision that might sill be subjece to posible Correction by “ordinary” means of review, from having an impact on the deciion in another lawsuit. This abo avoids the quandary, which would arise if second decision were based on 3 Fire decision which is subsequently revened for this would deprive the second decision of its legal basis, “The difference between the two model sol- tions is dhs only whether the mere possbili of a fanher review prevents a decison fom havinga binding effet, or whether the initiation of an stl review i necessary for that parpore. ‘The practical consequences of that diference appear limited. Suppose that 4 party takes + pox Civ Proc) no, 1170. Thi may ao be the direction of more recent de velopmente inthe untrub StATIS; ee Restatement 2d Judgments eh, 2 (Validity) pom ming when 9 General Effie of a Judonent 9-33 sition in a second lawsuit tt isincomsistent with n judgment rendered in an earlier watt. Re- tardies whether that carice judgment asa rs judicata effect immediately upon being rendered, ‘or will acquire sch an effect upon becoming non-reviewable by “ordinary” means, it highly probable in either case that che party wil scck a review of the first judgment before the Second proceeding leads to 4 decision, and not afterwards, ruuncat law, where a judgment has binding effect as soon sit has been rendered, could provide a solution for this problem. Ie is the principle thatthe binding effect of a judg- iment is stayed (suspended) as soon as an “ordi nary" method of review is commenced. ‘Both alternatives thus produce esentally the same effect in the second wsuit. In other Words, even under the EN legal system, che danger seems small eat the devsion ina second Jnwsuic is influenced by thers judiata effect of an earlier judgment that i sil subject to review Sand which is ater vacated as a result of dhe i Cexponiion of an “ordinary” method of review. However, the vx judiate effect $s not coally absent, as tis in the systems characterized by che notion of formal res junta (fonmelle Rett), where this does not occur until a judgment be- comes non-reviewable (se sup 8). Con- Yenely, in the later stwtion, vhere a binding etfect accurs only on non-reviewability by “ordinary” means, Le. when judgment has ‘obtained formal res judiwa, he ris that between the time a judgment is rendered and the time i ‘becomes binding another inconsistent judgement is tendered that could not have been rendered alter the fine judgment had obtained ares judicata effect ao is smal 23, The significance ofthe various methods of e= sin ~ In ction hte oe diced above, the further question aries conceming ‘which methods of review are to be considered “ordinary”. “Ordinary” here means that the re jndicata effect of a judgment aries only after these methods of review are no longer avaiable ‘or, imany event, that such effet is stayed ifsuch 2 Method of review is commenced. Here, some Significant differences are noteworthy. Tn rniveat law, a petition for review by the highest court, the Cour de casaton, is not con sidered one of the “ordinary” methods of re- “See ausraan GCProe.§ 411 and the easifieation ‘ofthat orn of eview a pare of the method of review ‘generaly in part four ofthe Code of Civil Procedures See CCProc.§ soa See cena CCProc. § 705 and the casifieation of view, which stay the rey judicata effect of a judgment." In rrautaw law, on the other hand,** ‘nd in the more or less comparable systems for review by the highest courts in ausrata’® and GERMANY." a petition for review by that court is ‘deemed an “ordinary” method of review, which prevents a judgment from obtaining is pr clusve effect as long as review is stil available." Teis hus evident tha te different rules on the pine in time when a judgment obtains a rs ji tata effet in reas law are also coupled with different rules concerning the significance of the various methods of review and when such a prechusive should effect aise. This may be an indication cha che nuncit legal system considers the certainty chat a judgment will continue t be ‘effective a less important in connection with res judicata chan the legal systems jase mentioned, those legal systems that provide for it only upon the non-reviewability of the judgment by the court of last resort, It would not seem, however, that the manner of in which the two questions (of reviewability and preclusion) are connected, in terms of the actual approaches taken by the two contrasting systems, is really objectively necessary, 23. The prechusive effect of «judgment before iis non-reviewable. - Another isue must be men~ tioned here, namely the preclusive effect of an interlocutory or partial decision within an on= ‘going proceeding. In legal systems in which the mere rendering of a decision gives it such an effect, that effect extends abo to interlocutory. In reeicat law, for instance, the normal rules on res jicata apply in such a case." However, if such an effect occurs only at the time the deci- sion has achieved a degree of non-reviewabiliy, 4 certain period of time may elapse while the proceedings continue before the partial (inter Tocutory) decision obtains that effect. "To prevent a court from subsequently de- parting rom a decision it had earlier rendered, co provide a framework for the matters at iste, and to resolve a particular point, ausTaan and GERMAN law expressly bestow, as. mentioned (oupras. 11), a binding effect on such decisions, ‘but within the pending case only. This becomes ‘operative as soon as the decision has been re dered, In spite of the different legal approaches, there is, thus as far a the ultimate result 8 con review bythe highest cour (called Reson) part of. the other method of review inthe chird book of the Code of Civil Procedure; see ciaMAN CCP IOC S sia See apes. 14 © See Viner and Gaintand 0. 2 Effects of Judgments 9-24 ccemed, a considerable amount of similarity be- tween the two systems inder consideration ~ the and the GERMAN-AUSTHIAN, on one band, rnc, on the other. ‘A certain difference exists however to the extent that, under the rruven Tegal system, che binding effect of a decision is stayed, even for purposes of the same litigation, once an “o nary” method of review 1s interposed; while in the GERMAN-AUSTRIAN legal system, the effect of a decision on the further course ‘of the same litigation remains normally unimpaired. Bue that difference would appear to be of limited sig- nificance since a court is not likely to render a decision ina matter while an earlier inter Tocutory decision in the same matter concerning some significant issue is still pending before a higher cour Moreover, at a practical mate such a conflict wil be impposble in many stances since the orginal ile of che case wl (estsual in many civi-LaW legal systems) int tands of the cour reviewing the imcrlocutos 24. Conlsons drum fom a comparison oft French and Geman lea tons. ~ Tema be a in conclusion that the ruanen legal system, os tone band, and the legal systems cjing the resi dau effect ofa judgment to is nen-teviewe Ahilya character feature of cEnsan law, OF the other, will lea! co sinaar results in thei practical effet. Ie remains trie, however, tha the cumsan rules sppear, from 2 echnical poine of view, 10 offer a more highly structured legal system, See ae Me A 1 A. PURPOSES OF RES JUDICATA ‘The main plrpore inure nthe concep fs decided fuherconoveny oruncenainy shout itis claninated, This implc onthe procedenl level that the rendering of an inconsistent deci sion concerning the same subject matter must be prevented, For 3s long asthe possibilty remains tha ifeene judgment ay be eee na new proceeding, lel cetainy hes not yet been achieved and the Ingation nou yet Tal concluded. Z . fon ina sine prating. nthe ancLO- tna farther comport, Wh the plant has ther cls based upon the sme ft in 3 new proceeding. Ths i the rue agai sping» Ci ing i oo uloubtedly, the prevention of part claims is ako related tothe objective of finaly con lading the Bigaton and thus ensuring lea pes However when a who a 1 pra cies proven Gictory decisions. Rather, itis the policy of concentating all pecs of single controversy Bu no al lal systems stress the poicy of sal empha when they scek vo achieve the brain im of rs ud, ely Tegal peace Notably, co an ara et does not preclude the posiblity of saccenve pal woul B. THE SPREIFIC MANNER IN WitleH RES JUDICATA OPERATES. 27. ~Inlegal theory, there ae diferent views fon the manner in which res judicata operates in © See as to ENGLISH law, Sponer-Bawer and Taner tno. 458 (p. 38055): fab to AMaICAN lw, Restate ‘ment 2d Judgments § 18,243. See abo ifs. 4, 8. "CF Rasher, Stab and Gornald§ 151 I ® See eg. Kabir, Der Prove alk Rechtsverbalnis (Manne 1885) 6, 111585 Paget, Zar Lehre 9-29 HOW RES JUDICATA ACHIEVES ITS EFFECTS order to fulfil its specific function. In particular, ‘within different legal systems, views differ as to the legal devices and consequences that are subsumed under the name of ws judicata Developments inthe Genman-Influenced Legal Systems and in aly Substantive and Procedural Theories Concering Res Judieata 28. Imducory. ~ Within the cunMAn Teg syem nee en of the 1h entry We ‘ging scholarly controversy as the mateo ress has developed beeween the adherents Fa "sbstantve law and those of "procedaral th theory n due couse of tine, that con- trovensy ako affected other counties, in pare- 30, The substantive tae theory, = The sub~ seantive law theory of uit the older one dnd sed 0 be very mich the dominant oe. [According to this theory, rs judkata Becomes dperaive by aecing subxancve legal rls “he pial expression of his view that ‘Becomes sew and independent legal basi for the legal consequences expresed the jud- ment! ‘Thus. i the judgment i objectively onrect, reinforces te existing egal station ithe judgment. objectively incorrect, Inodiies the existing legal situation — for = Stance by creating aright that should have been properly denied. Under that view a judge, who must again deal with he mater deat wit in an ate faced with legal sation that comstent ‘hth the coments of tha eater decision unless Sineguely change fas cure. Ad since sn aes in Ha ener deson, ‘MMeckion dite fom the eatier one iP ene Relate otis ia view found in evived ronan hr according to which the principle of re Jada creates the fison that the mates {ected in te judgment are objecively te Juicta pro eritte acpi). von der Matericllen Recrakeft (Berlin 1904), Pe cially a 98,3083 eee Sarigny, Systema. des heutigen Rmischen Rech VI (Dannvade 1849) 261,263: see ao Paglise 52 (788s) 9-30 30. The procedural law theory. ~The adherents of the procedural theory of res judicata object to the substantive law theory because, in their view, that theory amounts to an essential mis” understanding of che judicial function. They argue that iis not the judicial fmction eo change the legal situation, but to confirm icand to give t effect, except in the somewhat special case of a constitutive decision, such as a divorces gt infer sub-chapter VI _ ‘According to that view, the foundation of res Juiata is not a change in the legal situation on the basis of a rule of substantive law, bur in the fact chat re judicata, a8 a procedural principle, limits the powers of a judge dealing with the same matter 4 second time. According to the original version of the theory, this limitation of power means esentilly that a decision differing, from the first one may not be rendered.*? Thus, res judicata as such does not preclude the ren: dering of a second decision, but merely prevents thar second decision from contradicting the original one. Nevertheless, under this view a second judgment would stil be improper. For as the firs udgment has settled the matter ~ and no different result may later be reached in other litigation — there is no legitimate interest in bringing a second lawsuit. ‘A'more recent version of the procedural law theory of res judicata goes one step further. Irdoes not simply argue hat a second decision in the same matter differing from a first one is im- permissible, but rather that res judicata generally prohibits new proceedings and a new decision in the same matter. In line with the ROMAN law principle bis de eadem rene sit acto (there may not be two lawsuits in che same matter), that view is sometimes termed more briefly the ne bis in idem view (no double [action] for the same {mat- ter)).3* fa new lawsuit is started as toa mater for ‘which there already exists a decision enjoying a res judicata effect, the lawsuit must be dismissed ‘without a new decision on the merits: che reason is exudate, and not merely because there is no longer any legitimate interest in further liti- gation. ‘As to its effects, res judicata is thus analogized to the effects of “another lawsuit pending” about the same controversy. However, where a second subsequent litigation concerns different subject » See Stein, Uber die bindende Kraft richterticher Entscheidongen nach der newen tereichischen Civilprozeordnung.(Wient897) 5863 Gapp and Stein Die ZivilprozeGordnung. Sir das Deuche Reich (ed. § Tubingen 1901) §322 Ul; Helles, Rechiskrat 78. See Mather 12835; Rosner, Scusab and Gonna Effects of Judgments 2 ‘matter, but the subject matter ligated in the Criginal lawsuit i also a preliminary issue in the second! lawsuit, then, according to this view, res Jnudiata requires that the judge in the second lawsuit not render a substantive decision on this subject matter, but rather base the final decision fon the original judgment, as far as that mater is involved, b, Efforts to Harmonize the Substantive and Procedural Theories 3. ntoducory. ~The procedural hw theory cof es judicata has become the dominant theory in both curmany and rraty. Especially in. GH Many, the more recent version, under which no new Livi oF new decision is permissible, has become prevalent. Further discussions have not entirely been laid to res, however. 32. Gemmany. ~ In eenoeany, in panicular one question has repeatedly been rsed con Cernig dhe theoretical basis of es judas the principle chat res udiata prohibits new lidgation, Ind therefore anew decision on a mater already decided, appropriate when the subject matter of the new lawsuit isnot identical with the earlier lawsuit, but the earlier decision nonetheless rules, ‘on a preliminary ise in the new ligation? Scholars have discussed this particular ques~ sion, and specifically whether the principle that the second court must base its decision on a preliminary issue in the earlier decision (2s is- ‘cussed supra 8. 30), is simply the flip side of the rule that farther ligation on an issue that has been decided is prohibited. According to one view the feu in such a case isactually due toa “positive” effect of sui, whic i diferent fom its “negative” one. ‘Beyond this, it has sometimes been argued that, from a theoretical point of view, it appears Somewhat inadequate € view res judiata as af fecting only procedural and not substantive matters, Viewing re judicata a such would mean thae the existing subsantive legal situation is supposed fo continue in existence after the Judgment, even though it is no longer legally enforceable (and therefore no longer relevant), while the procedural posture isignificant from a practical point of view, even if i is contrary £0 the pre-existing substantive position of the par~ § 150 IL 3 See along thore lines, eg. Gaul, Die Enewicklang, der Rechuskaflehre seit Savigny und der heutige Stand: Festichrift Flame 1 (Kiln 1978) 493-525, 51358; Niki, Zivlprozelreche (Tubingen 1950, Addendum 1952) 407 3 How Res Judiata Adhieves lis Eee O34 ties. In this regard and in support of the sub- santve law argument, i has ko been pointed ‘out thatthe parties are under a duty to comply with the easier judgment, and. therelore is binding effect goes beyond it influence on f= ture ligaion ‘One can thus say that i is a characteristic feacure of the procedural lw theory of jaca that it concems self with the instrumental ‘question of what precise technical legal (proce- ‘Soral) means acaalyreslt in constsining 3 eer court to abide by an earlier decision rendered on the same matt. Implicit in enitcim of that procedural view, however, is the much more feneral question of what overall theory can ex- pin the function of a judgment within the entice legal order” ‘Among the efforts in GHRMAN Law ro over- come the traditional diinetion between sub- Santive and procedoral theories, one shod _ention in particular the attempe in well-known Scholl writings to explain the effect ofr ju- data a8 one resuling from an ierebuteable presuniption.* This attempt has not received a Substantial flowing, however, and is often considered merely limited modification ofthe Substansve view of re juiata, Others to0 have ‘oceasinally atempted to combine substantive nd procedural views. In any event, it chk MANY today the debate as to the appropriate theory wnderlying the principle of re udial is ro longer conducted with the intensity 1 re= ceived in earlier periods, The subject is not, careenty, given the same amount of interest oer questions clearly receive greater atten 33. ‘The “nonst" theory. ~ One attempe 10 overcome the opposition between “substantive law” and “procediral aw” views concerning the essential nature of judgments and of theit es indicia effect has been made by de so-called See Niki (preceding mn.) 403,405: Stein and Jonas (cepa) § 322 00.3438 2 Tele worty of note that Bath, who reintroduced and develope the dheory in Gemany based on ne bis in idm, no way excluded an impact ofthe jadgment ‘onthe substansve legal situation, He merely consid- fered as decisive, forthe adoption of the procedural theory, thatthe re jdiat effect ofa ew judgments based on 3 specific procedural norm and ot on the former judgments substantive legal eect. According to Bonicer, the question whether judgments have a substantive effect is not a question concerning the Specific theoretical concept underlying es judi, Hather, according to him it isa. question coming within the ouch tiore general oveal theory of the legal onder. See Batiher 9586, 105, 138 “mont theories, which especially in r2aty are ccumently an object of dscusion. Involved here is in paricular the view, based on a. general theory on the fundamental nature of lw, that a legal order eally exists only to the extent it finds 2 concrete expresion. In the ease of a dispute, that concrete expresion is created only bY the Jjdgment so that, according to that theory, it only the judgment that ell “creates the aw. Similar thoughts had, a one time, been sog- gented in GeeMaNy as well but were not p= tnarly concemed with the question of what precise legal principle can justify giving a judg ‘ment a binding elect for a judge in later pro ceeding and did not havea basting influence there Tn raty one includes among the monist theories ako a theory abou the so-called “sub- stantvely prechsive” effect of a judgment. ‘According to that view, judgments have a pre~ clusive effect in terms of substantive law, which prevents any investigation as to the existence of an either conforming oF differen legal sit uation, somewhat in che simme way asthe run ning ofa limitation period or adverse possesion event an ing 5 the now are ight oF . Res Judicata ~ Mandatory or Waivable? 34. Germany. — For all practical purposes, both legal authors and court decisions in GER ‘Many are basically committed to the view that the principe of rs judicata serves the public in- terest, is therefore not waivable by the partis, and mast be observed by the court on its own ‘motion during every phase ofthe proceedings. ‘There i thus an empha on the procedural and public lw aspeets of the notion of res judi, Which is related to the procedural lw ex Planaton ofthat principle However, propo ® See Pie, Ober die Rechiskraft im Zivil~ und Swafprozes: LBL. 1957, 115-122, 113, 1178. © See. Like, Die widesholte” Unterassungklage: Fesschrift Schiedermair (Mitnchen 1976) 377-3901 Sci and Jonas (-Lepoli)§ 322 0.3486 See eg. Blomeyer, Zivprozetreche §88 IL 3 (p.4728): Sten and Joma (-Laold)§ 332 no. 368. ©°'Cf. Sane and Pa no. 2 (1088), 00.73 (12758), ro. 18 (20655); see also Pape 8395 See Bil Gesetz und Richtrame (Bedin 188 and reprint 1972; of Bind, Prozel und Recht (Leipzig 1935) and Boticer 1045, © See Pulse 8275. % See Roenhe, Shh and Gottauld§ 1511 See eg. Hell, System § 239 VI; idem, Rechts Ikft 108; Rosey, Schaub and Gora 151 9-35 eos ofthe view tht te principe of dete tat be ropected region of the peciy onenonse not linia the procedural aw Soren” 35 sia ~The avSEMAN Code of Cis cedure han expres provion seqiing he court ove the iu of ada 0 a thoton (CCoc.§ 411 Pat 2) 3. May Sn majriey of rian auibow gus dat the court muse roxpet the fe of une rears of the aeons of the partes tartan court decsons, however, pur fom tha view. They consider th he binaing efecto ssw must be expected by the coco s onge moon, rere of the frre elon, ony to te eat 4 decion vedere a pare of te ame proceeding (i “tol concerned The ulate tec Stafulgene rendered ifort proceeding Cette), howeven ns 2 mater Gren rungs, considered waable! emus thusbe respected by the court only stone of the pure inves such efece™ fi, France 37. Operation and significance of res judicata, ~ inet statutory law clasifies res judicata a part of the law of evidence. The basic provision on the topic is contained in the chapter of the Civil ‘Code entitled De la prenve des obligations et de celle du payment (on the proof of obligations and of payment). In accordance with the principle res judicata pro verte habetur (what has been ad~ judicated is to be considered as true), the prin iple of ves judicata in reance, following the teachings of Pothier, is given (in muncH CC art, 1350, 1351) the significance of a pre~ Sumption.® ‘The notion that the principle of res Judicata has the effect of either a presumption oF ‘of evidence, is thus still encountered frequently in the rencit legal literature.” More recently, however, that notion has re- peatedly been criticized as inadequate.” Thus it has been pointed out that the idea of a pre sumption cannot explain why a binding effect is accorded even judgments that obviously have Violated a rule involving public policy. Fur~ thermore, the notion of a presumption has also © See Pagentcer (pnt n.§1) 34158; se also Pugliese 832, © Soc Pugliese 801, 80355; Capplet and Pele 254s, © That alo following that view are Sart and Pasi no. 1312 1455). oP emuscat CC. a. 1350 10. 3, See Vincent and Guinhand no. ¥72 (p- 214}: Roland aks, 1558 Effects of Judgments 4 been said 10 be incosineat withthe gen seep rn ae Ho vemiaibie © sxempe w@ prove cat judgments seta Cone. The follower of thar view paar’ cy that the base nate of ws judate Ba obscured by the reference’ t0.2\logal oe, sono, The inc oti i culty, bated on dhe societal need that ion tray wots cxided indefcncly,er ee ee tegan all over again Judgment eae tobe sword: be given the ne respec a an trier to prereve the wasquity choos tid ‘This development in the ideas as to dhe nature of jada abo thowe cata ciaae proetive, Conienng re falta oe *pepmguan show sconce tr he a Fetal, technical side of the lw. Eniphasing the socal pupow of the pine cereal tas onthe oti hand, ayy nodap emt techotcal legal means by whch that peal bring achieved In conection with Sat pl Ioever, no substantial changes Sc aco gl to lave comeed, The cfectot sda oa dkscrbed now, as it has ben inthe pas, By taping hat what hs ben deciod bye pe ipa Inving ar udkele cect may cokocge a the objet of ncw ltgpton by she Relea my become the bss of New dec by Somewhat in the sun anmectaste a nection with the procedl lw theory of adage, 1 diicson con lower AP cand a"noyatve” effect of jada The dance of jude wich perro the origin lewact fom obeinng Gane indaecty in 2 lotse roconiing weasel Tai Bas dee! him, do represen the nogulve per oft juleaa The pode ef te judas aid conan bo gag fcvantagesthae the victorious pay eam derive fe bat of wha bas been suchen am rout and inthe fact thet thee sightg and a waning cauiot be denied oe couse aaa He terns of technica egal aes, the pin of thas which lw once Uren detded ay at Sean be drawn int question simplemente By SSjing thar am objection against new Iaion % GF. Pemwt, Chose jugée no. 4; Plano, Ripert a. no, 1352 (p. 1015): Pugliese 7925. with Rather ef » See Pugie 793 » See Perot, Chose jugée no. 1 % Tide Vint al Cadned 99, 179 (p. 233 15 How Res Judieata Achieves lis Efets onan Based on resus a fn de non-core chat implies an obvace wo dhe imeoduction ofa law Res jin thus enables a party tins that a court may not deal again with the subject tnatter ofa deciion covered by eh principe. Fron theoretical point of view, this seems vo imply 2 procedural lw approach, which appears to have similarities tothe more recent form ofthe procedural theory of ves julia, according «© ‘which that principle amounts in essence to prohibition, derived fom che law of evil pro- Eedure, of new lavsuits and decisions. However, itshould be added that for msc legal scholars, theoretical questions ofthat kind are noe generally atthe center of their concems and discus 38. The mandatory or whl binding eft of res juice. ~ Tn spite of repeated objections t0 this view, the predominant view in RANGE is thatthe priniple ofr judi serves principally private interests, An objection of rs julia thus waivable: should not be addresed by the ‘court unless ome of the partes invokes it” An exception is made to that principle in the case of ecisions involving the same litigation at the same level and ao in swations where the parties may noe freely cispose of thee right, sc sin matters of persona status.” Unless one of these exceptions applies, tis generally abo smpossble to rake a violation of res Julizata for the fist time before the Cour decassaton.™ iii, The Former Socialist Leal Systems 39. The prevailing procedural view. ~ In the formerly soctatist legal systems, the prevailing view is that the principle of res judicata does not result in 4 modification of the substantive legal relations between the patties, since this would ‘contradict the basic aim ofa civil lawsuit co re= inforce, ensure and enforce the existing legal rights. Rather, res judicata is viewed as having a procedural function inthe sense that negatively a See Pana, Chose jugée no. ya; Vent and Guin hard wo. 184 (p. 225), > See Pao, Chose jugée no, 209. 7 Thde no, 211-313, 216. As to the Fist of hese ‘exceptions, ce alo in TALIAN Iw spt. 33 See Panot, Chose jugée 80. 217 2 See Stl, Kes judiata 40"s0; Prom no. $26. © See Stale, bide 109, 165-370; Neva and Sa 14 Stones and Zien $34 See State bien $3, 92-109, 120-123, 952-355, © See Sia, sem 115: Stee and Zien 536 © See Cob 87554; Habbury XI (Zuckerman, Proc) no. 1154 1168 See Color (preceding); Cart Zeiss Soifune v. Rayner and Reve, Lid (0.3), [1966] 2 AIVE.R 336 new decison on the sme matteris prevented (ne bis in idem), and positively the dechion, once rendered, hs to be taken foto account i sb= sequent proceedings. Sonne Russa and BULGARIAN legal scholars do not consider the procedural theories com= pletely adequate." in thi view, the essential ‘effect of rex judi sto mmpose onthe partes an obligation viene the State to reffain from farther litigation about dhe matter serted by the decision ( notion sometimes refered to a8 the declaratory ewence of re julia) and to requite them to act fir as their father substantive relations are’concerned, in a way that is con sistent withthe rulings contained in the judg tment (2 notion sometimes refered 10 3% the “regulatory exsence” of res judi). ‘The proce lal aspects of es judicata ate therefore viewed as a mere consequence of the principle sated In spite of the diferent views mentioned, there is general agreement in che formerly $O- ‘aatst leg systems that dhe principle of es ju- diaa must be observed by the court even On it ‘own motion, regandles of the actions of the parties iv, The Anglo-American Area 40. Basic notion, ~ In the ANGLO-AMERICAN area, the niles on res judicata have been developed ‘within the framework of the doctrine of es toppel? In terms of a systematic conceptual casification, there ae thus tie-ins tothe law of tevidence, somewhat in the same way asin the ‘nunca Code Civil" Te is, however, necessary to make distinctions according to the several coffects of rs judicata, 441- The itpact fe judicata on the cause of ation cordaim. ~ A firs aspect of res judicata concerns its effect on the basis and object of the litigation, or ‘what is commonly called the eauses of action or claims. Res judicata has the effect that the (HLL) (Lond Guest at 64, Lond pj 3572). Two points ae to be made here, Fin anarrower sense, dis effect atime sao viewed asthe eset tt of es fudiata. See 1g. Cah Sine v. Rayner and Kel, Lid. (no. 2) (preceding 1), (Lond Guest at 3648): Hopted 9. Fadel Commissioner of ‘Taxation, {1931} 29 CLR. 537 (S.Ct. Austra) (Figgins) a $1), Secondly, “ease of action” should ‘not be cane withthe term “action”. Case of ac tion isa dint legal lim made im awsuit~ a Tea proceeding. (There ea be mulkiple “causes of ation” Swithin one Lawauit) “Action” i often used inter changesbly with “nwwit™ (or "nit" To avoid confusion, we will se dhe term "Lawsuit for the egal proceeding. 9-42 plaints rele rom basing new vi Seatiomor cams ofthe eer lm, wheter he tte ie reed 2 judge or pli augment om the tee fr de Enda sop an «move recent plod, been sp Tavera whe he hers sa the ena prechsoin URES the ene te vers pind Seemed by ds npet oft om crn th engin cause of ston oF ca, Soe cl tse Senger” effec sine he eri Sfscdon or dim ised awe been

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