Withdrawing a Lawsuit in Japan: What Are the Procedural Steps and Can It Be Done Unilaterally?

Japanese Attorney at Law - Bengoshi L.L.

01 Jun 2025 • 10 min read

A plaintiff initiates a lawsuit with the expectation of seeing it through to a judgment. However, circumstances can change during the course of litigation: new evidence might emerge, a settlement might become attractive, or the plaintiff might simply reconsider the viability or necessity of continuing the action. In Japanese civil procedure, the mechanism by which a plaintiff can terminate a lawsuit they started before a final judgment is reached is known as "withdrawal of an action" or "withdrawal of a complaint" (訴えの取下げ - uttae no torisage).

Understanding the procedural steps for withdrawal, and critically, whether it can be done unilaterally or requires the opponent's consent, along with the significant consequences of such a withdrawal—including the possibility of re-litigation—is essential for any party involved in the Japanese legal system.

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

A. Definition and Legal Nature

Withdrawal of an action is a formal procedural act by which the plaintiff unilaterally (under certain conditions) or with the opponent's consent, declares to the court their intention to terminate the pending lawsuit with respect to all or part of their claims. By doing so, the plaintiff relinquishes their request for a judicial determination (a judgment) on those claims within that specific lawsuit.

This act is a clear exercise of the Principle of Party Disposition (shobunken-shugi), which grants the plaintiff control over the initiation and, to a large extent, the termination of their own lawsuit. It is distinct from other methods of concluding a lawsuit without a full merits judgment, such as:

In-court settlement (裁判上の和解 - saibanjō no wakai): A mutual agreement between parties to resolve the dispute, recorded by the court.
Waiver of claim (請求の放棄 - seikyū no hōki): The plaintiff formally abandons their claim, leading to a judgment with similar effect to losing on the merits.
Acknowledgment of claim (請求の認諾 - seikyū no nindaku): The defendant admits the plaintiff's claim, leading to a judgment for the plaintiff.

B. Timing of Withdrawal (CCP Art. 261(1))

A plaintiff can withdraw their action at any time until the judgment in the lawsuit becomes final and binding (判決確定まで - hanketsu kakutei made). This means withdrawal is, in principle, possible:

During the first instance proceedings (e.g., in the District Court).
During the appeal instance (控訴審 - kōso-shin in the High Court).
Even during the final appeal instance (上告審 - jōkoku-shin in the Supreme Court), though withdrawal at such a late stage has specific consequences regarding re-litigation (see Section IV.B).

The ability of a plaintiff to unilaterally withdraw their action is not absolute. It depends on the stage of the proceedings and the extent to which the defendant has engaged with the merits of the case.

A plaintiff can withdraw the action unilaterally (without the defendant's consent) if the withdrawal occurs before the defendant has taken any of the following steps in response to the lawsuit:

Submitted a substantive written brief (such as an answer or other preparatory document) addressing the merits of the case (準備書面の提出 - junbi shomen no teishutsu).
Made statements on the merits of the case during official preparatory proceedings for oral argument (弁論準備手続における申述 - benron junbi tetsuzuki ni okeru shinjutsu).
Presented oral arguments on the merits of the case in open court (口頭弁論 - kōtō benron).

Essentially, if the defendant has not yet formally engaged with the substance of the plaintiff's claims, the plaintiff retains full freedom to withdraw.

Once the defendant has engaged with the merits of the case in any of the ways listed above, the plaintiff must obtain the defendant's consent for the withdrawal to be effective (CCP Art. 261(2)).

Rationale: This requirement protects the defendant's interests. Once a defendant has invested time, effort, and resources in preparing and presenting their defense on the merits, they acquire a legitimate procedural interest in having the dispute resolved by a judgment or, at least, in having some control over its termination. Allowing the plaintiff to unilaterally withdraw at this stage could be prejudicial to the defendant (e.g., the plaintiff might withdraw to avoid an imminent unfavorable judgment, only to re-file later when circumstances are more advantageous, after having seen the defendant's entire defense strategy). This provision ensures procedural fairness to the defendant.

Express Consent: The defendant can explicitly inform the court or the plaintiff that they consent to the withdrawal.
Deemed Consent (Gisei Dōi) (CCP Art. 261(5)): To prevent a defendant from unreasonably or indefinitely blocking a withdrawal by mere inaction, the CCP provides for deemed consent. If the plaintiff files a written motion for withdrawal and it is served on the defendant, and the defendant does not raise an objection to the court within two weeks from the date of service of that document (or from the date the plaintiff orally notified the defendant of the withdrawal in court, if the defendant was absent from that hearing), the defendant is deemed to have consented to the withdrawal. This two-week period is crucial.

If the defendant's consent is required but is not obtained (and is not deemed to have been given), any attempted withdrawal by the plaintiff is ineffective. The lawsuit continues as if no withdrawal attempt was made.

It's also important to note that if the defendant has filed a counterclaim (反訴 - hanso), the plaintiff cannot withdraw their original action without the defendant's consent, even if the defendant has not yet engaged with the merits of the plaintiff's main claim (CCP Art. 261(3)). This is because the counterclaim is linked to the main action, and the defendant has an interest in having their counterclaim adjudicated.

III. Procedural Steps for Withdrawal

Method: A withdrawal of an action can be effected by:
- Submitting a written motion for withdrawal (訴え取下書 - uttae torisage-sho) to the court.
- Making an oral statement of withdrawal during an oral argument session, which is then recorded in the court record.
Service: If the withdrawal is done by submitting a written document, that document must be served on the opposing party (CCP Art. 261(4)). If done orally in court in the presence of the opponent, separate service is not required. If done orally when the opponent is absent, they must be notified.

IV. Effects of a Valid Withdrawal (CCP Art. 262)

A valid withdrawal has two primary and very significant legal effects:

A. Retroactive Termination of Pending Status (CCP Art. 262(1))

"An action shall be deemed to have never been pending before the court with regard to the part for which it has been withdrawn."

This means the lawsuit, concerning the withdrawn claims, is treated as if it had never been filed. Its pendency is extinguished retroactively to the date of the original filing.
Any interim orders, procedural steps taken, or judicial determinations made within the context of the withdrawn claims become null and void (unless they have independent significance).

B. Prohibition of Re-litigation (Sai-so no Kinshi) in Certain Cases (CCP Art. 262(2))

This is a critical rule that plaintiffs must be acutely aware of:
"A person who has withdrawn an action after a final judgment has been rendered on the merits of the case may not file the same action again."

"After a final judgment has been rendered on the merits" (本案について終局判決があった後 - hon'an ni tsuite shūkyoku hanketsu ga atta nochi): This typically refers to a scenario where a court of first instance (e.g., District Court) has already issued a judgment addressing the substance of the plaintiff's claim (e.g., granting or dismissing the claim), and the plaintiff then withdraws the entire action while the case is pending on appeal (or even before the first-instance judgment becomes final if no appeal is filed but the withdrawal occurs after judgment).
"Identical action" (同一の訴え - dōitsu no uttae): This means an action involving the same parties and the same soshōbutsu (subject matter of litigation).
Rationale: This provision prevents abuse of the judicial process. It stops a plaintiff, who has already received a substantive (and perhaps unfavorable) judgment from a court, from nullifying that judgment through withdrawal simply to try their luck again by filing a fresh lawsuit on the exact same matter, possibly before a different judge or after a long delay. It upholds the finality and authority of judicial decisions that have addressed the merits.
Withdrawal Before a Final Judgment on the Merits: If a plaintiff withdraws their action before any final judgment on the merits has been rendered by a court (e.g., early in the first instance, or even after the defendant has engaged but with their consent, and no judgment on the merits exists), this re-litigation bar under Article 262(2) does not apply. In such cases, the plaintiff is generally free to file the same action again, subject, of course, to any applicable statutes of limitations.

V. Partial Withdrawal of an Action (Uttae no Ichibu Torisage)

A plaintiff can also withdraw only a part of their claims, provided the claims are divisible (e.g., withdrawing one of several monetary claims, or reducing the amount sought for a single claim).

The rules regarding the opponent's consent (CCP Art. 261(2)) apply to the specific part being withdrawn: has the defendant engaged with the merits of that specific part?
The remainder of the lawsuit concerning the non-withdrawn claims continues.
The re-litigation bar under Article 262(2) would apply to the withdrawn part if that part was withdrawn after a final judgment had been rendered on its merits (though partial final judgments on distinct parts of a claim are less common unless those parts constitute separate soshōbutsu).

VI. Withdrawal of an Appeal (Kōso no Torisage) vs. Withdrawal of an Action

It is important to distinguish the withdrawal of an action from the withdrawal of an appeal (e.g., 控訴の取下げ - kōso no torisage, governed by CCP Art. 292).

If an appellant withdraws their appeal, they are abandoning their challenge to the lower court's judgment. The effect is that the lower court's judgment becomes final and binding.
This is very different from withdrawing the entire action under Article 261, which (if done before a final judgment on the merits or without triggering the re-litigation bar) retroactively nullifies the lawsuit as if it never happened, leaving the parties as they were before the suit was filed (and allowing a new suit, subject to limitations).

VII. Impact on Statutes of Limitations (Prescription)

Since a valid withdrawal of an action under CCP Art. 261 means the lawsuit is deemed to have never been pending (Art. 262(1)), any effect the original filing of the lawsuit had on interrupting or postponing/renewing the statute of limitations (prescription – 消滅時効 shōmetsu jikō) is also generally nullified. The clock, in effect, is reset to where it was before the suit was filed.

However, there is a crucial saving provision under substantive law (e.g., Article 147, Paragraph 1, Proviso, and Paragraph 2 of the Civil Code, which deals with postponement and renewal of prescription due to a judicial claim):

If a lawsuit is withdrawn (or dismissed for reasons other than a final judgment on the merits), prescription may still be deemed postponed/renewed as of the original filing date if the plaintiff takes further action, such as filing a new lawsuit on the same claim, within six months from the date of the withdrawal or dismissal.
This six-month window is critical for preserving a claim that might otherwise become time-barred due to the retroactive nullification effect of the withdrawal.

VIII. Comparing with Voluntary Dismissal in U.S. Federal Courts (FRCP Rule 41(a))

For US practitioners, the Japanese rules on withdrawal have some parallels and differences with FRCP Rule 41(a) governing voluntary dismissal:

Unilateral Dismissal Before Opponent Engages: Both systems allow a plaintiff to unilaterally withdraw/dismiss early in the proceedings before the defendant has substantially engaged (FRCP 41(a)(1)(A)(i) – before answer or summary judgment motion; Japan – before substantive brief or oral argument on merits).
Opponent's Role After Engagement: Both systems give the defendant a say after they have engaged. In the U.S., after an answer/SJ motion, dismissal is often by stipulation of all parties or by court order (FRCP 41(a)(1)(A)(ii) & 41(a)(2)). In Japan, it requires the defendant's consent (or deemed consent).
Presumption Regarding Re-filing: An initial dismissal under FRCP 41(a) is typically "without prejudice" (allowing re-filing) unless otherwise stated. Similarly, withdrawal in Japan before a final judgment on the merits generally allows re-filing.
Preclusion on Re-filing:
- Japan's CCP Art. 262(2) creates a bar ("with prejudice") if withdrawal occurs after a final judgment on the merits.
- The U.S. has the "two-dismissal rule" (FRCP 41(a)(1)(B)): if a plaintiff who previously dismissed an action voluntarily dismisses a second action based on the same claim by notice, that second dismissal is an adjudication on the merits (i.e., with prejudice). A court order dismissing an action can also specify whether it is with or without prejudice.
Court Involvement: Dismissal by court order under FRCP 41(a)(2) gives the U.S. judge discretion to set terms. In Japan, if consent is required and given (or deemed), court "permission" for the withdrawal itself is not the primary mechanism; the focus is on the defendant's consent.

IX. Strategic Considerations

Assess the Stage and Consent Requirement: Before considering withdrawal, determine if the defendant's consent will be necessary based on their level of engagement with the merits.
Negotiate Consent if Needed: If consent is required, approach the defendant. They might agree if they see little benefit in continuing or if the withdrawal is part of a broader settlement.
Beware the Re-litigation Bar (Art. 262(2)): This is the most critical consideration. Withdrawing an action after a court has rendered a judgment on the substance of the claim is a very serious step that generally prevents re-filing the same claim. This is often a point of no return.
Manage Statutes of Limitations: If withdrawing with the intent to potentially re-file (where permissible), be acutely aware of the original statute of limitations and the six-month window under Civil Code Art. 147 to potentially preserve the tolling/renewal effect of the original filing. Missing this window could mean the claim becomes time-barred.
Consider Costs: Withdrawing a lawsuit typically means the plaintiff bears their own costs and may, depending on circumstances and any agreements, also be liable for some of the defendant's costs incurred up to that point.

X. Conclusion

Withdrawing a lawsuit (uttae no torisage) in Japanese civil procedure is a plaintiff-driven act rooted in the Principle of Party Disposition, but it is governed by precise rules that carefully balance the plaintiff's autonomy with the procedural rights and legitimate expectations of the defendant, especially once the defendant has substantially engaged in the defense.

The requirement for the opponent's consent after such engagement, the critical distinction regarding the re-litigation bar if withdrawal occurs after a final judgment on the merits, and the nuanced impact on statutes of limitations all demand careful consideration. Any decision to withdraw a lawsuit in Japan should be made with a full understanding of these procedural steps and their potentially far-reaching consequences, ideally after thorough consultation with experienced Japanese legal counsel.