[1] The scope of disputes that affect the arbitration agreement

[2] In a case where the contract in question does not have an arbitration clause, and the content of other document including the arbitration clause is the content of the contract, whether the arbitration contract is concluded (affirmative)

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

[4] The meaning of "when an arbitral award is made with respect to an act prohibited by law" under Article 13 (1) 3 of the former Arbitration Act

[5] Interpretation of the arbitral award

[6] Whether ordering the performance of monetary obligations in an arbitral award and, at the same time, ordering the payment of damages for delay under Article 3(1) of the former Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings falls under Article 13(1)3 of the former Arbitration Act (negative)

[1] The arbitration contract shall have its effect not only on the contract itself with which the arbitration clause is expressly stated, but also on a dispute directly related to the formation and implementation of the contract and its existence and validity or closely related to the dispute.

[2] The arbitration contract itself does not specify the arbitration clause in the contract in question and it is permissible for the parties to accept other documents containing the arbitration clause so far as they are allowed as the contents of the contract.

[3] 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 therefor or where it is difficult to prove that the arbitral award is based on any factual or legal judgment because it is unclear even if the grounds are stated in the arbitral award, and where the reasons are stated in the written arbitral award, it is reasonable that the judgment should be based on fairness and regardless of the positive law. 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 not clearly emergency and contradictory, and it does not constitute an improper or incomplete reason for the judgment.

[4] Article 13 (1) 3 of the former Arbitration Act (amended by Act No. 6083 of Dec. 31, 1999) refers to a case where the obligation imposed on the respondent by an arbitral award violates compulsory law, public order or good morals.

[5] The content of the arbitral award can only be interpreted by a reasonable supplement only when it is unclear or incomplete as its own, and where the content of the arbitral award itself is clear, it may not be extended or analogically interpreted by other data.

[6] In a case where an arbitral award orders the performance of a monetary obligation, it cannot be deemed that the order for the payment of damages for delay based on the statutory interest rate under Article 3(1) of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings is a violation of compulsory law or an act contrary to public order or good morals.

[1] Article 2 of the former Arbitration Act (amended by Act No. 6083 of Dec. 31, 1999) / [2] Article 2 of the former Arbitration Act (amended by Act No. 6083 of Dec. 31, 1999) / [3] Article 13 (1) 4 (see current Article 36 (2) 1) of the former Arbitration Act (amended by Act No. 6083 of Dec. 31, 1999) / [4] Article 13 (1) 3 of the former Arbitration Act (amended by Act No. 6083 of Dec. 31, 199) / [5] Article 34 of the Arbitration Act / [6] Article 13 (1) 3 of the former Arbitration Act (amended by Act No. 6083 of Dec. 31, 199)

[1] Supreme Court Decision 91Da17146, 17153 decided Apr. 14, 1992 (Gong1992, 158) / [2] Supreme Court Decision 88Meu23735 decided Feb. 13, 1990 (Gong1990, 625), Supreme Court Decision 89Da20252 decided Apr. 10, 1990 (Gong1990, 1043), Supreme Court Decision 96Da24385 decided Feb. 25, 1997 (Gong197Sang, 866) / [3] Supreme Court Decision 88Da183, 184 decided Jun. 13, 198 (Gong1989, 1050, 197Da29897 decided Feb. 19, 197; Supreme Court Decision 2007Da19897 decided Aug. 19, 1997

[Judgment of the court below]

Defendant Lessee (Attorney Jin-Counterclaim et al., Counsel for the plaintiff-appellant)

Supreme Court Decision 97Da21918, 21925 Decided March 10, 1998

Seoul High Court Decision 98Na18102, 18119 delivered on January 21, 199

The part of the lower judgment against the Defendant (Counterclaim Plaintiff) regarding the part cited the enforcement of the arbitral award exceeding KRW 1,00,000,000 and damages for delay on the principal claim is reversed, and that part of the case is remanded to Seoul High Court. The remainder of the appeal against the Defendant (Counterclaim Plaintiff)’s principal claim and the appeal against the counterclaim are dismissed.

The grounds of appeal are examined.

1. As to the ground of appeal on the legality of the counterclaim claim added by the court below after remanding

The method of defense against a claim seeking a judgment of execution by an arbitral award is limited to the scope of seeking dismissal of the claim by asserting and proving that there is a ground for revocation under each subparagraph of Article 13(1) of the former Arbitration Act (amended by Act No. 6083, Dec. 31, 1999; hereinafter the same shall apply) in the arbitral award.

Examining the reasoning of the judgment below in light of the records, the court below held that the plaintiff (Counterclaim defendant; hereinafter referred to as "the plaintiff")'s main claim was sought a judgment of execution by the arbitral award of this case, and that the plaintiff (Counterclaim plaintiff; hereinafter referred to as "the plaintiff")'s additional counterclaim claim was unlawful since it did not coincide with the main claim of this case or the method of defense and the scope of its deliberation because it did not coincide with the main claim of this case and the scope of its deliberation, and it did not err by failing to exhaust all necessary deliberations or by misapprehending the legal principles as to the requirements for the counterclaim. The ground for appeal pointing this out is not acceptable.

2. As to the grounds of appeal regarding the establishment of the arbitration agreement

In addition to the contract itself where the arbitration clause is expressly stated, the arbitration contract shall have its effect on disputes directly related to or closely related to the formation, performance, and validity of the contract (see Supreme Court Decision 91Da17146, 17153, Apr. 14, 1992). In addition, the arbitration contract shall be allowed so far as the parties accept other documents without stating the arbitration clause in the contract itself, so long as the parties accept them as the content of the contract (see Supreme Court Decision 96Da24385, Feb. 25, 1997).

According to the reasoning of the judgment below, the court below acknowledged the fact that the plaintiff and the defendant, etc. entered into a joint venture agreement for the implementation of the amusement park development project of this case on June 29, 1989, stating that "a dispute arising in connection with the above contract shall be settled finally by arbitration." On January 31, 1990, the agreement which the plaintiff and the defendant entered into again in relation to the implementation of the above joint venture agreement states that "any matter not specified in the agreement shall be governed by the joint venture agreement", and on the other hand, the dispute subject to the arbitral award of this case is a dispute concerning the return of the already paid amount on the ground that the defendant's failure to perform the obligation under the agreement on January 31, 190 and the agreement on the repayment of the agreed amount was cancelled, and determined that the dispute subject to the arbitral award of this case is directly related to or closely related to the implementation of the joint venture agreement specified in the above arbitration clause, and does not fall under the grounds for revocation of the arbitral award of this case between the plaintiff and the defendant.

Examining the above legal principles in light of the reasoning of the judgment below and the records, we affirm the above fact-finding and judgment of the court below, and there is no violation of the rules of evidence or the legal principles as to the establishment of an arbitration contract, thereby affecting the conclusion of the judgment. The ground for appeal

3. As to the grounds of appeal on February 25, 1992 relating to the validity of the agreement

According to the reasoning of the judgment of the court below, the above agreement was concluded on June 29, 1989 on the joint venture between the plaintiff and the defendant 2, that the above agreement was concluded on the condition that the non-party 3 and the defendant will not pay the remaining amount of 9 billion won of the value of the real estate under the condition that the non-party 4 and the non-party 2 would pay 9 billion won of the value of the real estate under the non-party 1 and the non-party 3 should pay the non-party 1 and the non-party 2's share of the non-party 9 and the non-party 4's share of the non-party 1 and the non-party 9's share of the non-party 1 and the non-party 2 should pay the non-party 3's share of the non-party 1 and the non-party 2's share of the above non-party 9's share of the non-party 1 and the non-party 3's share of the above value of the real estate.

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 indication in the arbitral award at all or even if the reasons are stated in the arbitral award, it is inconsistent with the case where it is impossible to find out which factual or legal judgment is based on the arbitral award because it is unclear even if the reasons are stated. 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 clear and detailed, and if it is possible to find how the arbitral award reaches the judgment without being required until it is made clear and detailed, and unless it is clearly and contradictory, it does not constitute a case where there is improper or incomplete points in the judgment without attaching reasons (see, e.g., Supreme Court Decisions 88Da183, Jun. 13, 198; 200Da1980, Jul. 19, 198).

According to the above facts, the arbitral tribunal of this case rejected the defendant's assertion that the defendant's obligation to transfer ownership and the plaintiff's obligation to pay money are simultaneously performed in accordance with the agreement of February 25, 1992, and thus the above agreement remains in force by deciding that the agreement of this case was abolished. The reasons for the arbitral award of this case should be deemed to include an indication to the extent that it can be known how the arbitrator can determine how the agreement of this case was abolished. Thus, as to the defendant's assertion that the agreement of this case remains in force in the arbitral award of this case, it cannot be said that there were errors in the misapprehension of judgment or the omission of reasons.

Furthermore, insofar as the arbitral award in the instant case cannot be deemed to have been erroneous in the determination failure or omission, even if the Defendant alleged in the instant arbitral award that there was a ground for rejection of judgment or a ground for rejection of the Defendant’s assertion, such mistake does not affect the conclusion of the judgment, even if the lower court did not render a determination on the ground, although the Defendant asserted that the instant arbitral award had the ground for rejection of judgment or the ground for rejection. The grounds for appeal

4. As to the ground of appeal on the effect of rescission of the instant joint venture agreement

According to the reasoning of the judgment below, the court below found that Article 20 (1) of the joint venture agreement entered into between the plaintiff and the defendant, etc. on June 29, 1989 provides that "if one of the parties fails to perform his/her obligation for a certain period, the other party may terminate the joint venture agreement." Paragraph (2) provides that "if this agreement is terminated under the preceding paragraph, the party shall transfer the shares he/she owns to the other party or to a third party in accordance with the reasonable terms and conditions set by the board of directors." Under the above facts, the court below held that the joint venture agreement of this case shall not be returned to the plaintiff in the status of transfer of the joint venture agreement even if the contract is cancelled due to the reasons attributable to the plaintiff, even if the contract is terminated, it shall be presumed that the defendant's right to return the cultural property to the plaintiff as well as the original capital and management of the joint venture agreement is not allowed by the method of reduction of capital, and it shall still be assumed that the plaintiff's right to claim for the simultaneous venture development project shall still be transferred to the plaintiff's cultural property defense.

As seen earlier, it is reasonable that the arbitral award is based on fair and reasonable grounds regardless of the positive law, and there is sufficient grounds to know how the arbitral award reaches the judgment. In light of the reasoning of the judgment below and the records, the court below's assertion that the plaintiff seeks payment of KRW 2 billion, which was already granted to the defendant under the name of contract deposit, on the condition of transfer of ownership of land and trees within the resort development area of this case upon the application of the arbitral award in this case, includes the purport of seeking payment as compensation for damages arising from the defendant's non-performance of obligation. Therefore, the court below's determination that the arbitral award ordered the plaintiff to pay KRW 2 billion in compensation for damages to the defendant. In so doing, the court below did not err by misapprehending the legal principles as to compensation for damages due to the termination of contract, the grounds for rejection of the arbitral award, or the grounds for rejection of the arbitral award. This part of the grounds for appeal cannot be accepted.

5. As to the grounds of appeal regarding the denial of judgment on the counterclaim

According to the records, the defendant asserted that there was a ground for revocation under Article 13 (1) 5 of the former Arbitration Act, since the judgment of the court below on the claim for the agreed amount against which the defendant filed a counterclaim, but the court below did not make a decision thereon.

However, since the circumstance that there is a ground for revocation of the arbitral award on the counterclaim does not constitute a ground for revocation of the arbitral award on the counterclaim, the above argument by the defendant is without merit. Accordingly, even if the court below failed to render a decision on the above argument by the defendant, such mistake does not affect the conclusion of the judgment, and it is obvious that the judgment of remand of the case was not based on the ground for reversal of the part concerning the claim, which affected the conclusion that the judgment of reversal of the judgment on the counterclaim of the arbitral award in this case was erroneous in the misapprehension of the legal principles on the binding force of the judgment of remand or the judgment of execution. Accordingly, all of the grounds for appeal are not acceptable.

6. As to the ground of appeal on the illegality of the arbitral award

Article 13 (1) 3 of the former Arbitration Act provides that "When an arbitral award is to be prohibited by law" means a case where an obligation imposed on a respondent by an arbitral award is against the mandatory law or public order or good morals.

Examining the reasoning of the judgment below in light of the records, the court below is justified in holding that ordering the plaintiff to pay KRW 2 billion to the defendant is liable for damages due to the defendant's non-performance of ownership transfer on the defendant's land and trees in the amusement park of this case, and that the arbitral award of this case cannot be seen as falling under "when the arbitral award of this case concerns an act prohibited by law" under Article 13 (1) 3 of the former Arbitration Act, and there is no error in the misapprehension of legal principles as to damages due to the termination of the contract of this case, or in the misapprehension of legal principles as to the cancellation of the contract of this case, or in the misapprehension of legal reasoning as to the grounds as to the

7. As to the ground of appeal on an indivisible obligation

According to the reasoning of the judgment of the court below, the court below held that the arbitral tribunal of this case rendered an arbitral award that "the respondent (the plaintiff and the cultural property industry) shall pay 2 billion won and damages for delay to the applicants (the plaintiff and the cultural property industry)" but the plaintiff and the cultural property industry filed an application against the defendant for arbitration seeking payment of 2 billion won and damages for delay against each party as an indivisible claim, and the plaintiff stated that the reasons for the arbitral award of this case is the right holder to receive 2 billion won from the defendant. Thus, the arbitral award of this case is recognized as ordering the plaintiff and the cultural property industry to pay 2 billion won as an indivisible claim against the defendant.

However, the content of the arbitral award can only be interpreted by a reasonable supplement only when it is unclear or incomplete as its own, and if the content of the arbitral award itself is clear, it may not be expanded or analogically interpreted by other data.

According to the records, Article 1 of the arbitral award of this case provides that "the defendant shall pay 2 billion won and damages for delay to the plaintiff company and the cultural property industry". Thus, the claim against the plaintiff and the defendant in cultural property industry in accordance with the written arbitral award itself is obvious that it is a divided claim and its content is unclear or incomplete. Thus, in such a case, it cannot be interpreted that the claim against the plaintiff and the defendant in cultural property industry who were ordered in the written arbitral award cannot be interpreted as an indivisible claim in accordance with the purport of the application for the arbitral award or the reasons for the arbitral award.

Nevertheless, the court below judged this as an indivisible claim and rendered a judgment of execution of arbitral award ordering the plaintiff to pay two billion won and damages for delay against the defendant. Such a disposition of the court below is erroneous in the judgment of execution exceeding its scope against the order of the arbitral award.

Furthermore, according to the records, the plaintiff filed a lawsuit in this case as a joint plaintiff with the cultural property industry and the joint plaintiff, and the defendant filed a judgment of execution with the purport that he shall pay each of the plaintiff's KRW 2 billion and damages for delay, but at the fourth day of the first instance trial, "the defendant" part of the claim in this case "each of the plaintiffs" shall be corrected as "the defendant", and thus, the plaintiff and cultural property industry seek a judgment of execution with the purport that he shall pay 2 billion won and damages for delay as a divided claim. Thus, the plaintiff's claim in this case shall be deemed to have sought a judgment of execution with regard to the payment of KRW 1 billion and damages for delay. However, the court below's decision of execution with regard to the plaintiff's claim in this case shall be deemed to have violated the disposition right.

Ultimately, the court below erred in interpreting the purport of the arbitral award, and by misunderstanding the legal principles on the scope of the judgment of execution by the arbitral award, which affected the conclusion of the judgment. The part pointing this out in the grounds of appeal is with merit.

8. As to the ground of appeal on damages for delay

In the event that an arbitral award orders the performance of a pecuniary obligation, it cannot be deemed that the order for the payment of damages for delay based on the statutory interest rate under Article 3(1) of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings is a violation of compulsory law or an act contrary to public order or good morals.

In the same purport, even if the court below ordered the payment of the amount ordered by the arbitral award of this case at the rate of 25% per annum from the day following the delivery of the written arbitral award to the day of full payment, it is just to determine that the arbitral award under Article 13 (1) 3 of the former Arbitration Act shall not be deemed to constitute an act prohibited by law, and there is no violation of law by misunderstanding the legal principles of Article 3 (1) of the above Act. The grounds of appeal for this part shall not be accepted.

9. Therefore, the part of the judgment of the court below against the defendant as to the part accepting the execution of the arbitral award in excess of 1,00,000,000 won and damages for delay thereof, among the part concerning the claim on the principal lawsuit, shall be reversed, and this part of the case shall be remanded to the court below for a new trial and determination, and all appeals against the defendant's remaining appeal and counterclaim shall be dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Yong-woo (Presiding Justice)