[1] Standard for determining whether the requirements for mutual guarantee under Article 217(1)4 of the Civil Procedure Act are satisfied

[2] The purpose of the enforcement judgment system under Article 26(1) of the Civil Execution Act and the meaning of "final judgment, etc. by a foreign court"

[3] In a case where the form and method of a specific performance order indicated in a final and conclusive judgment, etc. of a foreign court is different from that of the Korean judgment, measures to be taken by the Korean court, which is the executing country, to be taken by the Korean court

[4] In a case where a foreign court rendered a judgment ordering the payment of attorney fees and costs required in the lawsuit along with an order to perform a specific obligation, the standard for determining whether a judgment of execution is permissible in the part ordering the payment of attorney fees and costs

[1] Article 217(1)4 of the Civil Procedure Act provides that the requirements for recognition of a final and conclusive judgment, etc. of a foreign court include “mutual guarantee, or there is no substantial difference in the requirements for recognition of a final and conclusive judgment, etc. in the Republic of Korea and the country to which the foreign court belongs,” and “the requirements for recognition of a final and conclusive judgment, etc. are not significantly balanced, and there is no substantial difference in the important point of view.” According to the foregoing, the requirements for recognition of a same kind of judgment between Korea and foreign country are not considerably balanced, and the requirements prescribed in the foreign country are not excessive, and there is no substantial difference in the important point of view, the requirements for mutual guarantee under Article 217(1)4 of the Civil Procedure Act should be deemed to be satisfied. Such mutual guarantee is sufficient and it is not always necessary to conclude a treaty with the foreign country, and even if there is no case where the same kind of judgment

[2] Article 26(1) of the Civil Execution Act provides that "a compulsory execution based on a final judgment by a foreign court or a judgment with the same effect (hereinafter "final judgment, etc.") may be permitted by a judgment of execution in the foreign court of the Republic of Korea." Here, the judgment of execution system is based on a foreign judgment without the need to compel double procedures, such as filing a lawsuit in a case where compulsory realization of the rights of a party confirmed in a judgment by a foreign court having jurisdiction is intended in the Republic of Korea. However, although compulsory realization of a judgment is permitted in Korea, the request of a party who wants to smoothly realize the rights by examining and approving the judgment is in harmony with the exercise of exclusive and exclusive compulsory execution rights of the State and thus promoting appropriate balance among them. In light of these purport, the term "final judgment, etc. by a foreign court of the foreign country" as provided in the above provision refers to a judgment which is final in a procedure guaranteeing mutual examination between conflicting parties in relation to legal relations under its jurisdiction and is suitable for the realization of specific compulsory performance, etc.

[3] The U.S. court may issue a specific performance order, at the discretion of the court, in cases where damage claims cannot be an appropriate remedy to a creditor. In order to enforce a specific performance order, the contractual obligation under the contract must be sufficiently specific and unclear (see Article 3390 subparag. 5 of the California Civil Code). Examining the legal nature of the specific performance order and the legislative intent of the recognition and enforcement of foreign judgments under the Korean Civil Procedure Act and the Civil Execution Act, even if the form and method of entering a specific performance order indicated in a final judgment or a judgment with the same effect (hereinafter “final judgment, etc.”) are different from the form and method of entry in the Korean judgment, the Korean court, the executing country, in principle, provides legal remedy equivalent or similar to the execution of a final judgment, etc. under the Civil Execution Act.

However, if the contractual obligation subject to a specific performance order is not sufficiently specified, and it is difficult to realize the contractual obligation immediately without delay in the United States, which is the judgement state, the Korean courts should not permit compulsory execution.

[4] In a case where a foreign court rendered a judgment ordering the payment of attorney fees and expenses required for a lawsuit along with an order to perform a specific obligation, whether a judgment of execution is allowed on the part ordering the payment of attorney fees and expenses should be determined by examining whether the part itself satisfies the requirements under Article 27(2) of the Civil Execution Act, separate from the order to perform a specific obligation.

[1] Article 217 (1) 4 of the Civil Procedure Act / [2] Article 26 (1) of the Civil Execution Act / [3] Article 217 (1) 4 of the Civil Procedure Act, Article 26 (1) of the Civil Execution Act, Article 25 (1) of the Private International Act / [4] Article 27 (2) of the Civil Execution Act

[1] Supreme Court Decision 2002Da74213 Decided October 28, 2004 (Gong2004Ha, 1937) Supreme Court Decision 2015Da207747 Decided January 28, 2016 (Gong2016Sang, 348) / [2] Supreme Court Decision 2009Da68910 Decided April 29, 2010 (Gong2010Sang, 980)

Ring-S U.S. et al. (Attorneys Shin Tae-gil et al., Counsel for the plaintiff-appellant)

Ging-ri and one other (Law Firm Namsan, Attorneys Cho Dong-jin et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2011Na27280 decided January 27, 2012

Of the lower judgment, the part concerning attorney fees and costs is reversed, and that part of the case is remanded to the Seoul High Court. The remaining appeals are all dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Details of the establishment of foreign judgment;

According to the reasoning and records of the first instance judgment partially admitted by the lower court, the following facts are revealed.

A. Defendant Ringfree Co., Ltd. (hereinafter “Defendant Company”) is a company holding a patent right related to the method and device to create ringbckne during the waiting time of telephone or mobile phone communications. On December 7, 2002, Defendant Company entered into an exclusive license agreement with Plaintiff Ringfree Es. (hereinafter “Plaintiff Ringfree Es.”) and the exclusive and transferable right to use, lease, sublease, etc. patent rights owned by Defendant Company in the United States and Canada (hereinafter “instant exclusive license agreement”).

B. On December 9, 2002, the non-party 1, the representative director of the defendant company, the defendant company, the representative director of the defendant company, and the non-party 2, the non-party 1, who is the representative director of the plaintiff RPS, drafted the letter of agreement in this case. According to the above statement of agreement, the defendant company: 44.5%, the plaintiff RPS 40%, the non-party 2%, the non-party 11%, and the non-party 1's joint venture company's share of 4.5% (hereinafter "the plaintiff RP 1") established the plaintiff RP 2, the plaintiff RP 2, the defendant company, the representative director of the defendant company, and the non-party 1, the non-party 1, who is the representative director of the plaintiff RPS 2, shall transfer all foreign and domestic patent applications and patent rights related to the patent application in this case, transfer, transfer and transfer of the patent rights in this case or re-issuance of the patent application in this case.

C. However, the Defendant Company filed a lawsuit against the Defendants seeking specific performance, attorney fees and expenses under the contract on the ground that the Defendants failed to perform their obligations under the instant agreement and exclusive license agreement and rather failed to perform the said agreement in accordance with the agreement, and rather notified the Plaintiffs, etc. to the effect that the instant agreement and exclusive license agreement are null and void. The Plaintiffs filed a lawsuit against the Defendants seeking the payment of both specific performance, attorney fees and expenses under the contract, on the ground that the Defendants failed to perform their obligations under the instant agreement and exclusive license agreement.

D. The instant U.S. court rendered a jury trial from August 19, 2008 to August 22, 2008, and from August 26 to August 28, 2008, and on August 28, 2008, the jury rendered a verdict that the Defendants breached their obligations under the instant agreements and exclusive license agreements and sustained damages to the Plaintiffs.

E. On October 21, 2008, the instant U.S. court accepted the Plaintiffs’ claim for a specific performance order, and on January 12, 2009, accepted the Plaintiffs’ claim for attorney fees and expenses.

F. On January 15, 2009, the U.S. court rendered a ruling that "the plaintiffs have the right to receive a specific performance order for the instant agreement and exclusive license agreement from the defendants ("the subject ruling of this case") ("the subject ruling of this case") that "the plaintiffs shall pay attorney fees and US$ 940,378.32 to the plaintiffs" ("the subject ruling of this case"). The subject decision of this case was finalized as is.

2. As to the ground of appeal on the requirements for recognition of foreign judgment

A. Article 217(1)4 of the Civil Procedure Act provides that the requirements for recognition of a final and conclusive judgment, etc. of a foreign court are “mutual guarantee, or there is no substantial difference in the requirements for recognition of a final and conclusive judgment, etc. in the Republic of Korea and the country to which the foreign court belongs,” and Article 217(1)4 of the same Act provides that “The requirements for recognition of a same kind of judgment, etc. do not lose balance significantly, and the requirements prescribed in the foreign country are not excessive, and the requirements prescribed in the foreign country are not excessive, and there is little difference in important points, it shall be deemed that the requirements for mutual guarantee under Article 217(1)4 of the Civil Procedure Act are met. Such mutual guarantee is sufficient and it is not necessary to conclude a treaty with the foreign country, and even if there is no case where the foreign country has approved the same kind of judgment specifically in the Republic of Korea, it is sufficient to expect actual approval (see, e.g., Supreme Court Decisions 2002Da74213, Oct. 28, 2016>

B. The court below held that since the part concerning a specific performance order under the agreement and an exclusive license agreement of this case (hereinafter “the part concerning the specific performance order of this case”) does not fall under the judgment ordering or dismissing a certain amount of monetary payment, the Uniform Foreign Monetary Judgment Approval Act (hereinafter “Joint Approval Act”) adopted in Articles 1713 through 1724 of Chapter III, Chapter III, of the California Civil Procedure Act of the United States is not subject to the Uniform Approval Act (hereinafter “Joint Approval Act”) and the Uniform Approval Act provides that the recognition of a foreign judgment is not prohibited by the general principles of good faith, such as divorce, support, etc. among the non-money judgment of a foreign country, it does not fall under the part concerning the specific performance order of this case. Accordingly, the part concerning the specific performance order of this case cannot be deemed as a mutual guarantee between the State of California and the Republic of Korea.

However, while Article 1723 of the Uniform Approval Act provides that “The recognition of a foreign non-money judgment shall not be limited in accordance with the principle of good faith, etc.” under Article 1723 of the Uniform Approval Act provides that “The recognition of a foreign court’s non-money judgment shall not be limited.” Accordingly, the California federal court has the jurisdiction over the relevant case based on the general principles of good faith based on common law, ① a foreign court has a human and material right, ② the pertinent foreign court has received a fair judgment in accordance with appropriate service and due process, ② the pertinent foreign court’s litigation proceedings, ③ the result of the judgment was not unlawfully acquired, ④ the recognition and enforcement of the foreign non-money judgment is allowed in the event that it does not violate the public order of the U.S. or California.

Nevertheless, based on its stated reasoning, the lower court determined that there was no mutual guarantee regarding the part of the instant specific performance order. In so determining, the lower court erred by misapprehending the legal doctrine regarding the requirements for mutual guarantee among the requirements for recognition of foreign judgments.

3. As to the ground of appeal on the eligibility of executive title of the specific performance order

A. Article 26(1) of the Civil Execution Act provides, “A compulsory execution based on a final judgment by a foreign court or a judgment with the same effect (hereinafter “final judgment, etc.”) shall be permitted by a judgment of execution in the foreign court of the Republic of Korea.” Here, the final judgment system is based on a foreign court’s judgment without the need to compel double procedure, such as filing a lawsuit in a case where compulsory realization of the rights of a party confirmed in a judgment by a foreign court having jurisdiction is intended in the Republic of Korea, but only on the basis of a foreign court’s judgment without the need to enforce double procedure, and in order to achieve appropriate balance among the parties’ requests seeking smooth realization of the rights by examining whether compulsory realization of the judgment is permissible in the Republic of Korea. In light of this purport, the term “final judgment, etc. by a foreign court” as provided in the above provision refers to a judgment by a foreign judicial agency having jurisdiction over the legal relations under its jurisdiction, which is final in the procedure of mutual examination between the parties concerned, and is suitable for the realization of a specific compulsory performance, etc. (see Supreme Court Decision 2009Da6909).

On the other hand, the U.S. court may, in accordance with equity law, issue a specific performance order that orders the performance of the obligations stipulated in the contract at the discretion of the court, if it cannot be an appropriate remedy for a creditor. In order to enforce a specific performance order, the contractual obligation subject to such order is not sufficiently specific and unclear (see Article 390 subparag. 5 of the California Civil Code). In addition, examining the legal nature of such specific performance order and the legislative intent on the recognition and enforcement of foreign judgments as stipulated in the Korean Civil Procedure Act and the Civil Execution Act, even if the form and method of the specific performance order indicated in the final judgment, etc. of a foreign court are different from the form and method of the text of the Korean judgment, the Korean court, the executing country, should provide legal remedy equivalent or similar to that of the execution by a foreign court's final judgment, etc. under the Civil Execution Act.

However, if the contractual obligation subject to a specific performance order is not sufficiently specified, and it is difficult to realize the contractual obligation immediately without delay in the United States, which is the judgement state, the Korean courts should not permit the compulsory execution.

B. According to the facts as seen earlier, the part of the instant specific performance order merely states that “the Plaintiff has the right to receive a specific performance order under the instant agreement and exclusive license agreement against the Defendants.” However, the content agreed to be transferred by the parties in the said agreement termination note, etc. is very comprehensive and broad, as it refers to a general network of “foreign and domestic patent applications, patent rights, etc.” If the subject of the instant specific performance is not sufficiently specific and clear, it cannot be said that the enforcement of the instant specific performance order is immediately feasible even in the United States, which is the country where the judgment was rendered, and thus, our courts cannot permit compulsory execution.

C. Although it is inappropriate for the court below to determine that the specific performance order of this case cannot be qualified as executive titles on the ground that the specific performance order of this case did not directly and specifically indicate the kind, content, scope, etc. of the benefits to be realized by compulsory execution under the Civil Execution Act of Korea, the decision of the court below to reject this part of the plaintiffs' claims is justifiable, and therefore, the decision of the court below

4. As to the ground of appeal on the attorneys’ fees and costs

A. In a case where a foreign court has rendered a judgment ordering the payment of attorney fees and expenses required for the suit along with an order on the performance of specific duties, whether a judgment of execution on the part ordering the payment of attorney fees and expenses is allowed should be determined by examining whether the part itself satisfies the requirements of Article 27(2) of the Civil Execution Act, separate from the order on the performance of specific duties.

Article 1717 (a) of the California Civil Code provides that “If the contract provides for the payment of attorney fees and costs incurred for the compulsory realization of the contract to one party or the winning party, the winning party has the right to receive the appropriate attorney fees together with the cost,” and Article 1021 of the California Civil Procedure Act provides that “Except as otherwise expressly provided in the law, the method and standard of compensating the attorney fees shall be governed by the explicit or implied agreement of the party concerned.”

B. In light of the above legal doctrine and the provisions of the California Civil Code and the Civil Procedure Act, it is difficult to view the part concerning attorney fees and expenses in the judgment of this case as subordinate to the judgment seeking a specific performance order, which is separate from the part seeking a specific performance. Therefore, separately from the part concerning a specific performance order, whether a judgment of execution on the above part is allowed should be determined by examining whether the requirements under Article 27(2) of the Civil Execution Act are satisfied.

C. Nevertheless, the lower court deemed otherwise as a judgment subordinate to the judgment on the merits, and determined that a judgment of execution on the attorney’s fees and costs is not allowed on the ground that compulsory realization of only the obligation to reimburse the expenses incurred in obtaining a foreign judgment is not allowed in Korea, in the event that compulsory realization of the obligation to pay the expenses confirmed in the judgment of a foreign court is not allowed in Korea. In so determining, the lower court erred by misapprehending the legal doctrine on the subject matter of a lawsuit and the enforcement of a foreign judgment, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of

5. Conclusion

Of the lower judgment, the part concerning attorney fees and expenses is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The remaining appeals are all dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-hyung (Presiding Justice)