(영문) 서울중앙지방법원 2016. 7. 14. 선고 2016가합513284 제28민사부 판결

With respect to the case No. 1511-0149 of the KCAB between the Plaintiff and the Defendant, the part against the Plaintiff out of the arbitral award made on December 9, 2015 shall be revoked.

Reasons

1. Basic facts

(a) Conclusion, etc. of a contract for construction works;

1) On June 15, 2010, CYA Co., Ltd. subcontracted the contracted LYD 26,140,000 of the construction work for new construction of a branch school for the purpose of the prevention of tax evasion at Libya-La-La-La-La-La-La-La-La-La-La-La-La-La-La-La-La-La-La-La-La-La-La-La-La-La-La-La-La-La-La-La-La-La-La-La-La-La-La-La-La-La-La-La-La-La-La-L

2) Since then, COSA changed its trade name to COSA Construction Co., Ltd., and on September 1, 2014, merged with the Plaintiff (hereinafter collectively referred to as “Plaintiffs”).

3) On January 201, 201, after Defendant and Defendant commenced the instant installation works, the Defendant came into existence at the home of Libybya, etc., and the said new installation works were completed at the site of the said new construction works. The instant installation works have been suspended until now.

(b) An arbitral award.

1) Article 36 (2) of the terms and conditions of the subcontract for construction works, which are a part of the contents of the instant subcontract, may apply for mediation to the Construction Dispute Mediation Committee under Article 69 of the Framework Act on the Construction Industry or the Subcontract Dispute Mediation Council under Article 24 of the Fair Transactions in Subcontracting Act, or apply for arbitration to the arbitration institution established under other Acts and subordinate statutes. In this contract, the "Korea Commercial Arbitration Committee" shall be deemed to be an arbitration institution.

2) On June 19, 2015, the Plaintiff: (a) filed against the Defendant on June 19, 2015, with the Korea Commercial Arbitration Board (“Korea Commercial Arbitration Board”); (b) the Defendant was unable to file a claim for the payment of the cost for the instant construction works pursuant to Article 537 of the Civil Act; and (c) thus, the advance payment already received shall be returned to the Plaintiff as unjust enrichment. Furthermore, even if the Defendant’s claim for the payment of the cost for construction works is not extinguished pursuant to Article 537 of the Civil Act, the instant subcontract is in an impossible state; (b) the Defendant was cancelled upon the Plaintiff’s agreement with the Plaintiff or upon the Plaintiff’s exercise of the Plaintiff’s right to rescission; and (c) the Defendant was obligated to return the advance payment as an obligation for restitution. However, the Defendant did not perform the construction works that may be seen as the origin of the instant subcontract, and thus, filed a claim for the payment of the said advance payment with the Plaintiff from May 1, 2015 (Article 15-1-14).

3) On December 9, 2015, the Korea Commercial Arbitration Board rendered an arbitral award stating that “the Defendant shall pay to the Plaintiff KRW 1,196,100,009 and the amount of KRW 6% per annum from July 3, 2015 to the service date of the written arbitral award of this case, and the amount of KRW 15% per annum from the next day to the day of full payment (hereinafter “instant arbitral award”).” (hereinafter “instant arbitral award”).

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 5, purport of the whole pleadings

2. The plaintiff's assertion

A. Article 29(4) of the Arbitration Act, which provides that the arbitral award of this case deducts expenses from advance payment to be returned to the Plaintiff by the Defendant on the ground of the legal principle of return of unjust enrichment, is in violation of Article 29(3) of the Arbitration Act, which provides that the arbitral tribunal orders the determination in accordance with the terms and conditions stipulated in the contract, and that the arbitral award may only be rendered on the basis of equity and prior basis, and that the conclusion may not be proven to be attributable to any judgment, and that the content of the award is clearly non-permanent and contradictory.

The grounds for revocation under Article 36 (2) 1 (d) of the Arbitration Act are in violation of paragraph (2).

B. In determining the scope of advance payment used by the Defendant, the instant arbitral award did not find any fact as to whether the requirements under the contract on the disbursement of money are met, but did not state any grounds therefor, or it was impossible to prove which factual or legal judgment was based on unclear information even if the grounds are indicated. Furthermore, even if the Defendant did not provide the Plaintiff with materials, equipment, etc. that it purchased as advance payment, the instant arbitral award constitutes a case where it is unreasonable and inconsistent with the determination that it did not receive a partial refund of advance payment due to such purchase, and constitutes a case where it was clearly non-permanent and inconsistent. This constitutes a violation of Article 32(2) of the Arbitration Act requiring the statement of grounds, which constitutes grounds for revocation under Article 36(2)1 (d) of the Arbitration Act.

C. Although the Defendant claimed that advance payment was reduced from KRW 3.377 billion to KRW 2.7 billion in the arbitral proceedings, it constitutes grounds for revocation under Article 36(1)1 (c) of the Arbitration Act, since the Defendant’s reduction of the initially claimed expenditure would address a dispute not arising between the parties, including the scope of the determination of the arbitral award, or would address a matter beyond the scope of the agreement. Furthermore, the procedure for arbitral proceedings did not follow the agreement between the parties, and did not state any of the grounds for such determination, and thus constitutes grounds for revocation under Article 36(2)1 (d) of the Arbitration Act.

D. The instant arbitral award, despite the Plaintiff’s claim on May 10, 2015 that the date on which the date of calculating damages for delay for the return of advance payment was filed by the Defendant, was determined as July 3, 2015, following the delivery of the duplicate of the written arbitral application, without any reason, and falls under the grounds for revocation under Article 36(2)1(c) of the Arbitration Act, as an obvious omission of judgment and omission in the reasoning.

A. The defendant's assertion

The Arbitration Act provides that an arbitral award may be partially set aside only where the part concerning the subject matter of the agreement can be separated from the non-subject matter. The instant arbitral award does not fall under the scope of the arbitral award, and thus, it is not allowed to seek revocation of only a part, not the whole arbitral award. Furthermore, as alleged by the Plaintiff, even though the revocation of the arbitral award is allowed in a case where the grounds for revocation of the arbitral award partially pertains to a large number of claims, or where only a part of the claim is divisible, as alleged by the Plaintiff, the grounds for revocation alleged by the Plaintiff are both applicable to the part against which the Plaintiff lost and that part of the claim is divisible. Accordingly, the instant lawsuit seeking revocation of only the part against the Plaintiff out of the instant arbitral award is unlawful and dismissed.

B. Determination

A lawsuit for setting aside an arbitral award shall be recognized only in the case of formation with the intention to have the arbitral award null and void passively. Article 36 of the Arbitration Act stipulates the subject of setting aside as an arbitral award and does not explicitly stipulate that a lawsuit for setting aside an arbitral award may be brought in part of the arbitral award.

On the other hand, Article 36 (2) 1 (c) of the Arbitration Act explicitly provides that if an arbitral award can be separated from the part concerning the subject matter of the arbitration agreement and the part concerning the non-subject matter of the arbitration agreement, only the non-subject matter of the arbitral award may be set aside, and the appropriate, fair, and prompt resolution of disputes under private law shall be made, in consideration of the purpose of the Arbitration Act, the reasons for setting aside multiple claims.

A part of the arbitral award may be revoked if only a part of the claim exists. However, even if only a part of the arbitral award may be revoked on the above ground, it is premised on the court’s decision that there exists a ground for revocation only for a part of the arbitral award, and it is difficult to deem that a party to the arbitral award is allowed to seek revocation by specifying only a part of the arbitral award in the final and conclusive judgment. This is because, in a case where a party who has lost a part of the arbitral award seeks revocation only for a part which has been lost through a lawsuit for revocation of arbitral award, the court is bound to revoke the arbitral award only within the claims in accordance with the disposition authority principle even if the grounds for revocation alleged by either party exist in excess of the scope for revocation. This is because, at the request of a party, there is a concern that the scope of revocation of the final and conclusive judgment and the same effect will change the legal relationship of the parties to the dispute, and this result not only damages the purport of allowing a lawsuit for modification of existing legal relations and formation of a legal relationship, but also violates the purpose of appropriate and fair resolution of arbitral proceedings.

Furthermore, even if it is possible to seek the revocation of only a part of the arbitral award, the arbitral award concerns multiple claims in quality, and the grounds for the revocation of the arbitral award exist only for some claims, or where it is possible to clearly distinguish the part where there exists grounds for the revocation of the arbitral award with respect to the claim for divisible damages from the part where the grounds for revocation exist, and where the arbitral award in this case concerns the cancellation of the instant subcontract agreement concluded between the Plaintiff and the Defendant and the obligation to return the advance payment therefrom, and it is difficult to view that the Korea Commercial Arbitration Board has a qualitatively different claim, and on the premise that

Since the purpose of the instant subcontract agreement and the legal doctrine on return of unjust enrichment determined the scope of advance payment to be returned by the Defendant, if there exist grounds for revocation of defective reasoning, etc. as asserted by the Plaintiff, this is inevitable to exist as well as the part against the Plaintiff of the instant arbitral award as well as the part against the Plaintiff in favor of the Plaintiff. Therefore, it cannot be deemed that the grounds for revocation

Therefore, the plaintiff's claim for the cancellation of only the part against which the plaintiff lost among the arbitral awards of this case is not allowed under law. Thus, the lawsuit of this case must be dismissed as unlawful.

4. Conclusion

Since the lawsuit of this case is unlawful, it is decided to dismiss it and it is so decided as per Disposition.