(영문) 수원지방법원 2016. 9. 1. 선고 2016가단8295 판결

2. With respect to the case No. 1511-0209 of Arbitration No. 1511-209 between the Plaintiff (Counterclaim Defendant) and the Defendant (Counterclaim Plaintiff), compulsory execution based on the arbitral award (However, “applicant” shall be deemed “Plaintiff (Counterclaim Defendant)” and “Respondent” shall be deemed “Defendant (Counterclaim Plaintiff)”).

3. The costs of lawsuit are assessed against the Defendant-Counterclaim Plaintiff by aggregating the principal lawsuit and counterclaims.

4. Paragraph 2 can be provisionally executed.

Purport of claim

The main office is as set forth in Section 2 above.

Counterclaim: The Plaintiff (Counterclaim Defendant; hereinafter referred to as the “Plaintiff”) pays 75,818,504 won to the Defendant (Counterclaim Plaintiff; hereinafter referred to as the “Defendant”) at the rate of 15% per annum from the day following the delivery of a copy of the instant counterclaim to the day of complete payment.

Reasons

1. Basic facts

A. On August 25, 2014, the Plaintiff entered into an advisory contract with the Defendant to provide advice on strategic management and financing, such as financing of business funds, etc. for the construction of a factory to the 29-1, Yongsan Jeju Jeju Jeju Jeju District District District District Office (hereinafter “instant contract”), and provided advice on the method of raising business funds and appropriate utilization of funds according to the terms and conditions of the contract, but filed an application for arbitration with the Korea Commercial Arbitration Board on the ground that the Defendant did not receive KRW 30,800,000 out of the advisory fees.

B. In the document submitted to the above arbitration application case, the defendant extended KRW 1,840,00,00 to the citizen from the conduct and used KRW 300,00,000 among them as construction cost upon the plaintiff's advice, but the national bank knew that the funds borrowed from the land as construction cost were used as construction cost. Accordingly, the defendant was notified of the termination of the construction contract from the High Gold Integrated Construction Co., Ltd., which is the contractor (hereinafter referred to as " High Integrated Construction"), and the construction project was completed on September 20, 2015, which was scheduled to be completed on May 20, 2015. Accordingly, the plaintiff's wrong advice could cause damage between the defendant and High Integrated Construction Co., Ltd. due to the plaintiff's wrong advice, and the defendant did not have an obligation to pay the plaintiff the advisory fee in accordance with this contract.

C. On February 15, 2016, the arbitral tribunal of the Korean Commercial Arbitration Board rendered an arbitral award to the effect that the Defendant would pay to the Plaintiff KRW 30,800,000 and damages for delay as indicated in the attached Form (hereinafter “instant arbitral award”). The foregoing arbitral tribunal is insufficient to recognize that the cause of using KRW 300,000,000 out of the loans as construction funds was solely due to the Plaintiff’s wrong advice, and even if the Plaintiff’s wrong advice was found, it cannot be said that the Plaintiff failed to perform its contractual obligations under the instant contract merely due to the Plaintiff’s erroneous advice. The Defendant’s assertion was not accepted on the ground that the detailed statement of settlement of the settlement of the high- or high-tech comprehensive construction works submitted by the Defendant, the statement of construction cost accounts alone, lack of recognition of the Defendant’s principal assertion on the occurrence, cause, amount, etc. of damages.

[Grounds for recognition] The items of evidence Nos. 1 and 2, and the purport of the whole pleadings

2. Determination on the lawfulness of the counterclaim of this case

As to the Defendant’s assertion that the Plaintiff caused damages to KRW 75,818,504 due to the Plaintiff’s erroneous advice, the Plaintiff sought payment of the said counterclaim as the counterclaim of this case. The Plaintiff’s assertion is the same as the Defendant asserted at the time of the arbitral award of this case. As to the above assertion, the instant counterclaim of this case is unlawful as it is contrary to the purport of the Arbitration Act.

In a case where a lawsuit is brought in respect of a dispute which is the subject of an arbitration agreement, unless, or unless, the arbitration agreement has been null and void or has lost its validity, or it is impossible to carry out it, the court shall reject the lawsuit, if it has set up a defense that the arbitration agreement exists until the first pleading on the merits is made (Article 9(1) and (2) of the Arbitration Act).

The defendant did not submit a written answer even after being served with a duplicate of the complaint of this case.

On April 18, 2016, when the date of adjudication was designated as the date of April 21, 2016, the plaintiff submitted a written answer stating the purport that "before the institution of the lawsuit in this case, the plaintiff would wish to mediate as it requested to pay only KRW 20,000,000,000,000." Accordingly, this court submitted a written statement stating that "the plaintiff did not make a request as stated in the above written answer with respect to the designation of the date of mediation, and the defendant's reply was submitted for the purpose of delaying the lawsuit," the court cancelled the designation of the date of mediation and designated the date of pleading. The defendant presented a written counterclaim before the date of pleading, and the defendant presented a written counterclaim before the date of pleading, and as the written counterclaim in this case was submitted late, the plaintiff had already made a statement on July 1, 2016."

Examining the above facts in light of the provisions of the Arbitration Act as seen earlier, the content asserted by the Defendant as the counterclaim of the instant arbitral award constitutes a dispute which is the subject of an arbitration agreement rendered in the instant arbitral award, and there are no circumstances to deem that the instant arbitral award has no validity, such as invalidation, etc., such counterclaim is unlawful as it was filed against Article 9 of the Arbitration Act.

3. Judgment on the main claim

The facts that the arbitral award in this case was made are as recognized earlier, and the enforcement of the arbitral award shall be made by the judgment of a court, and the arbitral award made in the Republic of Korea shall be executed unless there is any ground for revocation of the arbitral award under Article 36(2) of the Arbitration Act (Articles 37(1) and 38 of the Arbitration Act). Therefore, compulsory execution based on the arbitral award in this case shall be permitted. The plaintiff's assertion to this purport is with merit.

4. Conclusion

Thus, the counterclaim of this case is dismissed, and the claim of this case is justified, thereby citing it.