What are the Implications of Withdrawing a Lawsuit (訴えの取下げ) in Japan?

Japanese Attorney at Law - Bengoshi L.L.

30 May 2025 • 8 min read

Initiating a lawsuit is a significant step, but circumstances can change during the course of litigation, leading a plaintiff to reconsider pursuing their case to a final judgment. In Japan, a plaintiff has the option to terminate the proceedings they started by "withdrawing the action," an act known as Uttae no torisage (訴えの取下げ). While this provides flexibility, the implications of such a withdrawal – particularly regarding the possibility of re-filing the same claim and the requirement of the defendant's consent – are governed by specific rules under Japanese civil procedure. Understanding these rules is crucial for both plaintiffs contemplating withdrawal and defendants responding to such a move.

I. Understanding "Withdrawal of an Action" (Uttae no torisage) in Japan

A. Definition and Purpose

Uttae no torisage is a unilateral procedural act by which the plaintiff voluntarily terminates a lawsuit they have filed, before a judgment on that lawsuit becomes final and binding. The primary purpose is to allow a plaintiff to discontinue litigation if, for example:

They reassess the merits of their case and find it weaker than initially thought.
They discover new evidence that is unfavorable.
The dispute is resolved through an out-of-court settlement.
The cost or burden of continuing the litigation becomes prohibitive.
The objective of the lawsuit has been achieved through other means.

B. Legal Basis (Code of Civil Procedure, Arts. 261-263)
The procedures and effects of withdrawing an action are primarily stipulated in Articles 261, 262, and 263 of Japan's Code of Civil Procedure (Minji Soshō Hō 民事訴訟法).

C. Manifestation of Party Disposition (Shobunken-shugi - 処分権主義)
The ability of a plaintiff to withdraw their action is a reflection of the principle of party disposition (shobunken-shugi), which grants parties control over the initiation and termination of civil proceedings concerning their private rights. However, this control is not absolute and is balanced against the procedural interests of the defendant once they have engaged with the lawsuit.

A. When Can a Lawsuit Be Withdrawn?
A plaintiff can generally withdraw their action at any time before the judgment on the action becomes final and binding (kakutei hanketsu 確定判決). This means withdrawal is possible:

During the trial in the court of first instance.
While an appeal is pending before a High Court or the Supreme Court.

B. Defendant's Consent: When is it Required?
The most critical procedural aspect of withdrawal is whether the defendant's consent is necessary. This depends on the stage of the defendant's engagement in the lawsuit (Code of Civil Procedure, Art. 261, Para. 2):

Consent Not Required:
The plaintiff can withdraw the action unilaterally, without needing the defendant's consent, if the defendant has not yet taken any of the following steps concerning the merits of the case:
- Submitted a preparatory document (jumbi shomen 準備書面) that addresses the substance of the case.
- Made oral arguments on the merits in open court.
- Made statements on the merits during formal preparatory proceedings (benron jumbi tetsuzuki 弁論準備手続).
  Essentially, if the defendant has not yet substantially defended against the claim, the plaintiff retains full freedom to withdraw.
Consent Required (Art. 261, Para. 2):
If the defendant has performed any of the acts listed above (i.e., has substantively engaged in their defense), their consent becomes mandatory for the plaintiff's withdrawal to be effective.
- Rationale: This requirement protects the defendant who has already invested time, effort, and potentially significant legal costs in responding to the lawsuit. The defendant may have a legitimate interest in having the court issue a judgment on the merits, which could, for example, result in a favorable ruling with res judicata effect, preventing the plaintiff from suing again on the same grounds.
- Obtaining Consent: The plaintiff must seek the defendant's consent. If the defendant refuses, the plaintiff cannot withdraw the action and the litigation will continue.
- Deemed Consent (Dōi no gisei 同意の擬制) (Art. 261, Para. 5): If the plaintiff notifies the defendant of their intention to withdraw the action, and the defendant does not raise an objection within two weeks of receiving such notification (or within a period otherwise specified by the court if service of the notification was made by publication), the defendant is deemed to have consented to the withdrawal. This prevents a defendant from unreasonably withholding consent by simply remaining silent.

C. Withdrawal in Appellate Stages
Similar rules regarding the opponent's consent apply if the withdrawal is attempted during an appeal. If the appellee (the party who won in the lower court) has already submitted appellate briefs or made arguments on the merits in the appellate court, their consent would generally be required for the appellant (plaintiff in the original action, if they lost and appealed) to withdraw the original action (which effectively means discontinuing the appeal and letting the lower court judgment stand, unless the withdrawal seeks to undo the entire litigation stream). The specifics can be complex depending on what is being "withdrawn" at the appellate level (the appeal itself, or the underlying action).

III. Method of Withdrawal

Written Motion: The most common method is for the plaintiff to file a written "Motion for Withdrawal of Action" (uttae torisage-sho 訴え取下書) with the court.
Oral Statement in Court: Withdrawal can also be effected by the plaintiff (or their counsel) making an oral statement to that effect in open court during a hearing (e.g., an oral argument date or a preparatory proceeding date). Such an oral withdrawal is then recorded in the court's protocol (chōsho 調書). If the defendant's consent is required and they are present, their consent can also be recorded.

IV. The Effects of Withdrawing a Lawsuit (Code of Civil Procedure, Art. 262, Para. 1)

A. Retroactive Extinguishment of a Pending Action (Soshō keizoku no sokyū-teki shōmetsu - 訴訟係属の遡及的消滅)

The primary effect of a valid withdrawal is that the lawsuit is deemed "never to have been pending from the beginning" (Art. 262, Para. 1).

This means the entire procedural history of that specific lawsuit is effectively erased. Any hearings held, evidence examined, or interim rulings made within that suit lose their procedural significance as part of that action.
The court file is essentially closed as if the case had not been pursued.

B. General Rule: No Bar to Re-filing the Same Lawsuit (Principle of "Without Prejudice")

Because the lawsuit is treated as if it never existed, a crucial consequence is that the plaintiff is generally free to file the same lawsuit again at a later date.

This is often likened to a "dismissal without prejudice" in common law systems.
The plaintiff can, for example, gather more evidence, refine their legal arguments, or wait for a more opportune time to re-initiate the action, provided the underlying substantive claim is not barred by other factors like the statute of limitations.

V. The Critical Exception: Prohibition of Re-litigation After a Final Judgment on the Merits (Saiso no kinshi - 再訴の禁止) (Code of Civil Procedure, Art. 262, Para. 2)

While withdrawal generally allows for re-filing, there is a very important exception designed to prevent abuse of the judicial process.

A. The Rule (Art. 262, Para. 2):
"A person who has withdrawn an action after a final judgment has been rendered with regard to the merits of the case (hon'an ni tsuite shūkyoku hanketsu ga atta nochi ni uttae o torisageta mono 本案について終局判決があった後に訴えを取り下げた者) may not file the same action again."

B. What Constitutes "After a Final Judgment on the Merits"?

This refers to a situation where the court of first instance (e.g., District Court) has already issued a "final judgment" (shūkyoku hanketsu 終局判決) that decides the substantive issues of the claim (e.g., finds for the plaintiff or dismisses the claim on its merits).
Importantly, this rule applies even if that judgment has not yet become "final and binding" (kakutei) in the sense of being unappealable. For example, if the District Court rules against the plaintiff, and the plaintiff, instead of appealing, withdraws the action while the appeal period is still running or an appeal is pending, this re-litigation bar applies.
It does not apply to withdrawals after purely procedural judgments (e.g., a judgment dismissing the action for lack of jurisdiction or other procedural defects without ruling on the merits).

C. Rationale for Prohibition:
This rule serves several important policy objectives:

Preventing Abuse of Process and "Judgment Shopping": It stops plaintiffs from testing the waters, obtaining an unfavorable judgment on the merits, and then simply withdrawing the action to erase that judgment and try their luck again, perhaps before a different judge or after further preparation.
Respect for Judicial Decisions: It discourages parties from treating substantive court judgments lightly. Once a court has invested resources in hearing a case and rendering a decision on its merits, that decision should carry significant weight.
Protecting Defendants from Harassment: It prevents defendants from being subjected to repeated litigation on a claim that has already been substantively decided once.

D. "Same Action" (Dōitsu no uttae - 同一の訴え):
For the re-litigation bar to apply, the subsequent lawsuit must be the "same action." This is generally interpreted to mean an action involving:

The same parties (or their legal successors/privies).
The same subject matter of litigation (soshōbutsu 訴訟物 – the specific legal claim or right asserted).

E. Effect is "With Prejudice" in Specific Circumstances:
This provision effectively means that a withdrawal after a judgment on the merits operates "with prejudice," barring future litigation of that same claim.

VI. Partial Withdrawal (Ichibu torisage - 一部取下げ)

If a plaintiff has joined multiple distinct claims in a single lawsuit, or if a single claim is divisible into parts (e.g., a claim for multiple overdue payments), it is generally possible to withdraw only a part of the action.

The rules regarding timing and the defendant's consent apply to the specific part being withdrawn.
The remainder of the lawsuit continues for the non-withdrawn claims or parts.
The re-litigation bar under Article 262(2) would also apply to the withdrawn part if there had been a final judgment on the merits concerning that part.

VII. Allocation of Court Costs (Soshō hiyō no futan - 訴訟費用の負担)

When an action is withdrawn, the general rule is that the plaintiff who withdrew the action is responsible for bearing the court costs (soshō hiyō) incurred by both parties up to the point of withdrawal (as per the Act on Costs of Civil Procedure, etc.). This includes the defendant's legitimate legal fees and expenses, up to a certain statutory limit or as assessed by the court.

Parties can, however, agree otherwise on the allocation of costs, often as part of an out-of-court settlement agreement that leads to the in-court withdrawal.

VIII. Strategic Considerations for Litigants

A. For Plaintiffs:

Consider Reasons for Withdrawal Carefully: Is it due to a reassessment of the case's strength, new evidence, financial constraints, or has the dispute been resolved extra-judicially?
Timing is Critical:
- Withdrawing before the defendant has substantively engaged (submitted preparatory documents, argued on the merits) avoids the need for their consent and generally allows re-filing without restriction (unless an underlying statute of limitations has run).
- Withdrawing after a judgment on the merits has been rendered (even if not yet final and binding) triggers the re-litigation bar under Article 262(2). This is a very serious consequence.
Negotiating Consent: If the defendant's consent is required, this may become a point of negotiation. The defendant might agree to the withdrawal in exchange for certain concessions (e.g., payment of their costs, an agreement not to re-file even if not legally barred).

B. For Defendants:

Decision to Consent or Object: If a plaintiff seeks to withdraw after the defendant has engaged on the merits, the defendant must decide whether to consent.
- Reasons to Consent: May save further litigation costs if the plaintiff is likely to lose anyway, or if an out-of-court settlement has been reached.
- Reasons to Object: If the defendant believes they have a strong case and wants a definitive judgment on the merits (which would have res judicata effect, preventing future suits on that claim), they might refuse consent to force the case to a conclusion. This is especially true if they suspect the plaintiff intends to withdraw tactically to re-file later when better prepared.
Utilizing "Deemed Consent": If notified of withdrawal, failure to object within the prescribed period will result in deemed consent.

Conclusion

Withdrawing a lawsuit (Uttae no torisage) in Japan is a plaintiff-driven procedural tool that offers flexibility but comes with significant legal implications. While generally allowing for the termination of proceedings as if they never occurred (akin to a "without prejudice" dismissal), the critical exception under Article 262, Paragraph 2 – prohibiting re-litigation of the same claim if withdrawn after a final judgment on the merits – serves as a crucial safeguard against abuse of process. Both plaintiffs and defendants must carefully consider the timing, consent requirements, and particularly the potential preclusive effects of withdrawal when making strategic decisions in the course of Japanese civil litigation.