[2] The meaning of "when failing to attach the grounds for an arbitral award" under Article 13 (1) 4 of the former Arbitration Act, which is the grounds for the revocation of the arbitral award

[3] The meaning of "when a ground for retrial under Article 422 (1) 9 of the Civil Procedure Act, which is a ground for retrial, has been rejected in determining important matters that may affect the judgment"

[2] Article 13 (1) 4 of the former Arbitration Act (amended by Act No. 6083 of Dec. 31, 1999) provides that "when an arbitral award is not based on the grounds" refers to a case where there is no indication of the grounds or where it is impossible to find out the existence of the grounds for the arbitral award based on any factual or legal judgment because it is unclear even if the grounds are stated in the arbitral award, and it is reasonable that the judgment should be based on fairness as long as the reasons are stated in the written arbitral award is stated in the written arbitral award is reasonable. The reasons for attaching the arbitral award are sufficient to the extent that it is possible to find how the arbitrator has reached the judgment without requiring a clear and detailed judgment on the relationship of rights and duties which are the premise of the case in question, and it does not constitute a case where the judgment is unfair or incomplete unless it is clearly urgent and contradictory.

[3] The phrase "when a judgment was omitted on important matters that may affect the judgment," which are grounds for retrial under Article 422 (1) 9 of the Civil Procedure Act, refers to the method of attack and defense submitted by a party in a lawsuit, which have an influence on the judgment, and where a judgment is not clearly stated in the reasoning of the judgment. If there is a judgment, the reasons leading to the judgment are not clearly stated or the grounds for rejecting the party's claims are not individually explained, it shall not be deemed a deviation of judgment under the above Article

The court below accepted the judgment of the court of first instance, and acknowledged the facts as stated in its reasoning concerning the application for the arbitration procedure of this case and the appointment of the arbitrator and the progress of the arbitration procedure of this case as to the plaintiff's assertion that the arbitral award of this case should be cancelled in the arbitration procedure conducted by three arbitrators selected at will in accordance with the Commercial Arbitration Rules, although each party must appoint one arbitrator pursuant to Article 4 (2) of the former Arbitration Act (amended by Act No. 6083, Dec. 31, 1999; hereinafter the same shall apply) since the contract of this case is a civil arbitration to which the commercial arbitration rules are not applicable, and the parties did not agree on the appointment of the arbitrator. In full view of the above facts and overall circumstances, the court below acknowledged the facts as stated in its reasoning concerning the application for the arbitration procedure of this case and the appointment of the arbitrator and the mediation procedure of this case between the plaintiff and the defendant, which are not only general arbitration procedures but also included in the appointment procedure of the arbitrator, but also did not dispute the plaintiff's objection to the above arbitration procedure of this case.

Examining relevant evidence in light of the records, we affirm the fact-finding and judgment of the court below as just, and there is no error in the misapprehension of legal principles as to the appointment of arbitrator as otherwise alleged in the ground of appeal.

2. As to the assertion that an examination by the parties prior to the arbitral award was not conducted

The court below affirmed the judgment of the court of first instance that "the party must be examined before the arbitral award" under Article 8 (1) of the former Arbitration Act means that the arbitrator must submit the statement and evidentiary materials in the arbitral award, and if there is a representative of the party, it is not always required to examine the party concerned, and the attorney-at-law who is the representative of each party concerned may attend the pre-examination procedure and submit their arguments and materials, etc., and the arbitrator may also be found to have conducted the examination through each of the above agents. Thus, the court below held that the above fact-finding and decision of the court below shall not be deemed to be justifiable, and there is no error in the misapprehension of legal principles as to the omission of the party's examination procedure and the revocation of the arbitral award, etc., as otherwise alleged in the grounds for appeal.

3. As to the assertion that the order to pay damages for delay at the rate of 25 percent per annum is reasonable.

Article 13 (1) 4 of the former Arbitration Act provides that "when an arbitral award is not based on the grounds therefor" refers to cases where there is no entry of the reasons in the arbitral award or it is inconsistent with the case where it is impossible to prove that the arbitral award is based on any factual or legal judgment because it is unclear even if the reasons are stated in the arbitral award. As long as the reasons are stated in the arbitral award, it is reasonable to put the judgment on the basis of fairness regardless of the positive law. The reasons to be attached to the arbitral award are sufficient if it is not required until it is clearly and in detail, and it is sufficient to indicate how the arbitral award reaches the judgment, and unless it is clearly non-emergency and contradictory, it does not constitute a case where the judgment is unfair or incomplete (see Supreme Court Decision 98Da901, Jul. 10, 1998).

According to the records, ordering the return of advance payment and intermediate payment paid to the plaintiff by the defendant, and ordering additional payment of damages for delay at the rate of 25 percent per annum from the day following the date on which the arbitral award was rendered. Thus, the measure cannot be deemed to be contrary to good morals and other social order on the ground that there is no ground under the positive law. Further, the arbitral award of this case is calculated in addition to the amount of damages for delay if the plaintiff who is liable to pay the amount by the arbitral award fails to perform his obligations even after the date on which the arbitral award was rendered, and it is obvious that it is calculated in addition to the amount of damages for delay and its ratio. In so doing, as otherwise alleged in the ground of appeal, it cannot be deemed to fall under the case where it is impossible to prove that the arbitral award does not contain any factual or legal reasons or it is difficult to prove that it is based on any factual or legal judgment because it is unclear, and it is not appropriate to invoke the issue different from the scope of its application. Therefore, the grounds of appeal as to this part is not acceptable.

4. As to the allegation of omission of judgment of the court below

Article 422(1)9 of the Civil Procedure Act refers to a case where a judgment is not clearly stated in the reasoning of the judgment with respect to an attack and defense submitted by a party, which is a cause for a retrial under Article 422(1)9 of the Civil Procedure Act, as a means of attack and defense, which may affect the judgment. As long as the judgment is rendered, even if the reasons leading to the judgment are not clearly explained or the grounds for rejecting the allegations of the parties are not individually explained, it shall not be deemed a deviation of judgment under the above Act (see Supreme Court Decision 200Da193, 209, Jul. 6, 200).

According to the records, among the judgment of the court of first instance cited by the court below, the rejection of the plaintiff's assertion that there is a omission of judgment as to the argument inconsistent with the automatic cancellation of the sales contract in the arbitral award of this case shall be deemed to include the judgment rejecting the plaintiff's assertion in the court of first instance that there is a inconsistent reasoning in the arbitral award of this case. Thus, even though there is no express expression that the arbitral award of this case would be inconsistent with the reasoning, there is no error of omission of judgment affecting the conclusion of the judgment, as otherwise

5. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Jae-sik (Presiding Justice)