[중재인선정][공2009하,1814]
In a case where an application for the appointment of an arbitrator is filed under Article 12(3) and (4) of the Arbitration Act, whether the court may dismiss the application for the appointment of an arbitrator on the ground that the parties to the dispute have no right to demand performance, after hearing the content of dispute (negative
In the event of an application for the appointment of an arbitrator under Article 12(3) and (4) of the Arbitration Act, if the relevant dispute is included in the subject matter of the arbitration agreement and satisfies the procedural requirements necessary for the appointment of an arbitrator, the court shall appoint an arbitrator immediately. The court shall not dismiss the application for the appointment of an arbitrator on the ground that the disputing party does not have the right to claim the payment of the dispute.
Article 12 of the Arbitration Act
Applicant Co., Ltd. (Law Firm Won, Attorneys Kim Jin-jin et al., Counsel for the plaintiff-appellant)
Respondent Co., Ltd. (Law Firm Shin & Yang, Attorneys Park Jong-soo et al., Counsel for the defendant-appellant)
Seoul High Court Order 2009Ra801 dated July 30, 2009
The order of the court below is reversed, and the case is remanded to Seoul High Court.
The grounds of reappeal are examined.
1. In the event of an application for the appointment of an arbitrator under Article 12(3) and (4) of the Arbitration Act, if the dispute is included in the subject matter of the arbitration agreement and satisfies the procedural requirements necessary for the appointment of an arbitrator, the court shall immediately appoint an arbitrator. The court shall not dismiss the application for the appointment of an arbitrator on the ground that the parties to the dispute have no right to demand the payment of the claims by the applicant.
2. According to the reasoning of the order of the court below, the re-appellant entered into a construction insurance contract with the respondent while receiving some orders from the Gwangju Metropolitan City subway Construction Headquarters for the construction work, and the above insurance contract provides that if a dispute arises between the parties, a third party holding a license selected by mutual agreement shall request an arbitration and comply with the arbitration. On January 25, 2001, the parties to the instant insurance contract did not reach an agreement on the appointment of an arbitrator after the occurrence of the instant insurance accident. Thus, the court below rejected the re-appellant's application on the ground that the instant construction machinery is not included in the insurance purpose of the instant insurance contract, and the instant accident does not constitute an insurance accident scheduled under the instant insurance contract, and even if it is assumed that the instant accident constitutes an insurance accident scheduled under the instant insurance contract, the right to claim for insurance of the re-appellant has expired.
3. Examining in light of the legal principles as seen earlier, the lower court’s dismissal of the application for appointment of arbitrator on the ground that the instant accident does not constitute an insurance accident scheduled in the instant insurance contract, and furthermore, the insurance claim expired by prescription, is obvious that it erred by misapprehending the legal principles on the appointment of arbitrator, thereby affecting the conclusion of the decision. The ground for reappeal
4. Therefore, the order of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Jeon Soo-ahn (Presiding Justice)