[1] Whether enforcement of the arbitral award may be refused by applying Article 5(2)(b) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards at the stage of a judgment of enforcement where a ground for objection arises after the establishment of a foreign arbitral award (affirmative)

[2] In a case where a set-off claim is rejected in a foreign arbitral proceeding, whether the enforcement of the arbitral award may be refused on the ground of the same set-off claim after the establishment of the arbitral award (negative)

[1] Article 26 of the Civil Execution Act, Article 5(2)(b) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) / [2] Article 26 of the Civil Execution Act, Article 5(2)(b) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention)

[1] Supreme Court Decision 2001Da20134 decided Apr. 11, 2003 (Gong2003Sang, 1148)

Mic chip Co., Ltd. (Law Firm LLC, Attorneys Lee Dong-han, Counsel for the plaintiff-appellant)

Succession Intervenor (Law Firm LLC, Attorneys Lee Dong-han et al., Counsel for defendant-appellant)

The administrator of the same mining pulp corporation, who is the supervisor of the same engineering corporation, who is the supervisor of the same engineering corporation, and the administrator of the same engineering pulp corporation, shall receive the lawsuit for the purification of housing (Law Firm Mappex, Attorneys Lee Ho-won et al., Counsel for the plaintiff-appellant

Supreme Court Decision 2006Da20290 Decided May 28, 2009

Busan High Court Decision 2009Na7618 Decided November 25, 2009

The appeal is dismissed. The costs of appeal are assessed against the defendant and the costs of appeal incurred by the intervention are assessed against the plaintiff's succeeding intervenor.

1. The grounds of appeal are examined.

A. As to the first ground for appeal

A judgment of execution, which grants executory power to a foreign arbitral award so that it may proceed to compulsory enforcement procedures under the laws of the Republic of Korea, is a judgment on the existence of executory power based on the time of the closing of argument. Thus, in a case where the circumstance that granting compulsory enforcement procedures based on a written arbitral award violates the basic principles of our law is revealed during the pleadings of a judgment of execution that granting compulsory enforcement procedures based on a written arbitral award would be contrary to the basic principles of our law, the court may refuse the enforcement of the said arbitral award on the ground that it constitutes a violation of public order under Article 5(2)(b) of the New York Convention (see Supreme Court Decision 2001Da20134, Apr. 11, 2003). However, if the obligor asserted that prior to the establishment of an arbitral award in an arbitral proceeding under an arbitration agreement on the ground of a separate claim subject to arbitration agreement against the other party, but has not accepted such set-off on the ground that it again constitutes a violation of the basic principles of Korean law or public order under Article 5(2) of New York Convention.

In full view of the evidence cited in the judgment of the court below, the court below acknowledged the fact that the defendant asserted a set-off of the claim of USD 5,190,00 as an automatic claim during the first arbitral award of this case, and the arbitrator in the first arbitral award of this case determined in the first arbitral award of this case that the whole of the Korean contract, including a part of the Korean contract asserted by the defendant as the ground for the occurrence of the claim of USD 5,190,000,00, was not binding, and on this premise, rejected the above set-off claim in each arbitral award of this case, including the second and the final arbitral award of this case. The court below held that in the lawsuit of this case seeking the enforcement of each arbitral award of this case, the defendant cannot refuse the enforcement of the arbitral award of this case as a set-off of the claim of USD 5,19,00

In light of the above legal principles and records, the above fact-finding and judgment of the court below are just, and there is no error of law such as misconception of facts or misunderstanding of legal principles as alleged in the ground of appeal in relation to set-off

B. Regarding ground of appeal No. 2

After compiling the evidence cited in the judgment, the court below found facts as stated in its reasoning. The plaintiff did not recognize the duty to pay USD 5,190,00 from the date of the 15th trial of the first instance trial of the lawsuit of this case, but it cannot be deemed that the plaintiff voluntarily recognized the duty to pay USD 5,190,000 upon the plaintiff's filing of the application for provisional disposition with the Korean language contract as supporting evidence, and the core of the fact recognized in the criminal judgment against the plaintiff's succeeding intervenor is merely the forgery of the bill beyond the scope of the complementary right agreed upon, and it does not recognize that the plaintiff has the duty to pay USD 5,190,00 against the defendant. Accordingly, the court below rejected the defendant's assertion, namely, each of the arbitral awards of this case, it is obvious that the defendant's exercise of right based on it is an abuse of right, or assistance in the exercise of right inconsistent with the final criminal judgment, and therefore, there is no violation of public order as stipulated in Article 5 (2) (b) of the New York Convention.

2. The plaintiff's successor's application for participation is examined.

According to the records, the plaintiff succeeding intervenor filed an application for intervention by succession to this court with the plaintiff's successor who acquired the claim under each of the arbitral awards of this case against the defendant, but the successor's participation in the court of final appeal, which is a legal trial, is not allowed (see, e.g., Supreme Court Decisions 98Da5169, Mar. 9, 2001; 2002Da48399, Dec. 10, 2002); and the plaintiff succeeding intervenor's application for intervention is unlawful.

3. Conclusion

Therefore, the appeal is dismissed, and the application for intervention by the plaintiff succeeding intervenor is dismissed, and it is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)