Euro-Apex B.V. (Law Firm LLC, Attorneys Lee Young-seok et al., Counsel for the plaintiff-appellant)

New PP Co., Ltd. (Attorneys Kim Yong-sung et al., Counsel for the defendant-appellant)

January 28, 2016

Incheon District Court Decision 2012Gahap14100 Decided February 10, 2015

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

Purport of claim

In relation to arbitration cases in the Netherlands No. 3625, among the Netherlands between the Plaintiff and the Defendant, compulsory execution is permitted based on Paragraph 4, 5, 6, and 9 of the judgment of the non-party (English name omitted) on December 23, 201, as indicated in the separate sheet that the non-party (English name omitted) determined by the arbitrator.

Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Quotation, etc. of the judgment of the first instance;

The reasoning of this Court’s explanation concerning this case is as follows: (a) the pertinent part of the judgment of the court of first instance is modified as stated in the following 2; and (b) this court’s judgment on the Plaintiff’s assertion is added as stated in the reasoning of the judgment of the court of first instance, and thus, it is cited in accordance with the main sentence

2. Revised parts

(a) Change from five up to five pages “Defendant” up to five pages “registered” as follows:

On October 6, 2008, the Defendant filed a patent application (patent registration number 1 omitted, (patent registration number 2 omitted) with the India Intellectual Property Office on each invention relating to the “board heat exchange equipment” and “heat rat routs for heat exchange engines, ruptures, and their manufacturing methods.”

B. The 11th Amendment to the part from the issue of this case to the 11th “no.” of the 11th Amendment is made as follows:

피고는 이 사건 인도특허의 이전과 관련하여 원고와 협상하면서 특허 이전의 원인을 이 사건 중재판정의 집행이 아닌 매매로 하는 것을 포함하여 양도증서의 문안에 관한 모든 사항에 대하여 원고 대리인과 사이에 합의한 후 그 양도증서에 서명확인을 받았고, 네덜란드 법에 의하면 원고 대리인에 의한 최종 양도증서 확인은 본인인 원고에게도 그 효력이 미치므로 피고는 이 사건 인도특허의 이전에 필요한 행위를 모두 완료하여 적법하게 이행의 제공을 하였다고 보아야 한다. 그런데도, 원고는 피고의 신뢰를 악용하여 이행의 제공을 받을 당시부터 그 수령을 거절할 의사였음에도 이를 감춘 채 시간을 끌어 이 사건 인도특허가 외관상 이전되지 않은 상황을 만들어낸 뒤 그에 따른 간접강제 배상금을 청구하고 있는바, 이는 청구이의 사유인 권리남용에 해당할 뿐만 아니라 우리나라의 공공질서에 위배되는 경우에 해당한다. 또한, 피고는 Euro-Apex� Technology에 관한 특허출원에 새롭게 착수한 사실이 없어 이 사건 쟁점 중재판정 제6항을 위반한 사실이 없으므로 이에 관해서도 집행판결을 할 수 없다.

(c)in the 13th place below:

In addition, the defendant asserts that the scope of patent application prohibited by the application should be rejected in this respect, because the defendant ordered the suspension of all the "basic patent application" in the plaintiff's confidential technology that the plaintiff provided to the defendant. However, although the defendant's patent application examination process shows that the scope of patent application prohibited by the application can be determined by examining whether the patent applied by the defendant has a newness and inventive step in comparison with the plaintiff's confidential technology, as alleged by the defendant, even if the defendant uses a somewhat abstract expression that "basic" in the plaintiff's confidential technology as alleged by the defendant, it is difficult to view the specific result as immediately going against our good customs and other social order. Accordingly, the defendant's assertion on this part cannot be accepted.

(d) revise the 14th 12 statement “B 7” portion into “B 7 and 11.”

(e)in addition, on the right side, to the “satisfe fact” below 14:

In the arbitral proceedings from February 22, 2008 to February 22, 2013 (the end of the confidentiality period after the termination of the contract), the Plaintiff claimed at least 4,380,000 won in total as damages for the violation of the instant license agreement, 2,5,000,000,000,000,000,000,000,0000,000,000,000,000,000,000,000,000,000,000,000,000,000 or more, which was incurred by other competitors due to the violation of the instant license agreement (the end of the confidentiality period) by the Defendant’s illegal sales, 365,584,985,45,000,000,0000,000 won in total,000,000,000,000,000,00.

F. 15 pages 6-7 up to 12 pages 15 up to 15 up to 15 up to the following modifications:

③ Although the Plaintiff sent an e-mail stating that his agent would not use any patent and be easily null and void, in arbitral proceedings, the amount of damages should be calculated at least 8,130,000,000 won and the damages claim based on the e-mail was made. However, the Plaintiff’s sending the above e-mail to his agent as seen below is not a patent itself but a technology under the License Agreement provided by the Plaintiff, and the Plaintiff’s sending of the e-mail is requested by the Defendant to notify a third party of the contents of the instant arbitral award. In order to publish that the Defendant’s patent would infringe the Plaintiff’s confidential technology, the Plaintiff’s patent transfer registration was made under the Plaintiff’s name on the ground of “the instant arbitral award,” and it seems merely to have agreed to prepare a draft transfer agreement on the ground of “trade” rather than “the instant arbitral award,” but it is not an economic value of patent or technology, and it is objectively determined that the Plaintiff could not use the e-mail in the instant arbitral proceedings even if the Plaintiff requested it.

(g)a modification to the parts of the 16th five parallels “non-existent” to the 16th parallels “non-existent” and 16th parallels as follows:

6. The court below held that the plaintiff's intent to deliberate on the value of the technology of this case, which serves as material material for calculating damages, is an important relation to the issue of the arbitral award of this case. However, although the arbitral award of this case constitutes the first arbitral award of this case and the second arbitral award of monetary compensation has been deferred by the second arbitral award of this case, it does not constitute the issue of the arbitral award of this case. Further, the defendant does not constitute the issue of the second arbitral award of this case, and the amount of damages due to the violation of the confidentiality clause of this case is not merely 50,500,000 won, 50,000 won, or only when the amount of indirect compulsory compensation can be calculated under the Korean Civil Execution Act, or only when the amount of compensation can be calculated under the Korean Civil Execution Act, and it cannot be seen that the plaintiff's act of deceitation of the damages of this case constitutes an important part of the arbitral award of this case. Thus, the court below's second arbitral award of this case is hard to find that the plaintiff's second arbitral award of this case did not constitute fraud of this case.

(h) revise the 18th five parallels from “in this case” to “18th six parallels”, as follows:

In the instant case, even according to the above Supreme Court Decision (2013Da50367) alleged by the Defendant, it appears that an indirect compulsory performance may be ordered at the establishment stage of enforcement title (other than the Defendant, the order of indirect compulsory performance in an arbitral award on the obligation to act in the military unit based on the above Supreme Court Decision is exceptionally permissible only in cases where it is evident that the obligor’s ex post facto compulsory performance does not bring sufficient compensation to the obligee for damages due to the obligor’s nonperformance of obligation. The arbitrator of the instant arbitral award issued an indirect compulsory performance without examining at all the time of the obligor’s nonperformance of obligation, and thus, the instant arbitral award is contrary to the public order in Korea. However, the above Supreme Court Decision, based on the Defendant’s reasoning, merely states that the ex post facto remedy such as damages upon the obligor’s nonperformance of obligation, may cause a gap in enforcement system due to the lack of sufficient compensation to the obligee, and thus, this part of the Defendant’s assertion cannot be accepted).

Furthermore, even if the instant case did not meet the requirements set forth in the Defendant’s assertion, insofar as the latter part of Article 261(1) of the Civil Execution Act explicitly recognizes compensation in indirect compulsory performance, it is difficult to deem that the specific outcome is contrary to the good customs and other social order of Korea when recognizing the enforcement of the part ordering the payment of compensation among the instant arbitral award.

(i) revise the 18th 10 parts of “not directly related,” as follows:

There is no direct connection (in particular, Section 111 of the instant arbitral award provides that the order to pay a certain amount of money is not an indirect compulsory compensation order under the instant arbitral award but an order to pay a certain amount of money if a party does not comply with a compulsory performance order);

(j)on the right side of 19 pages, the following shall be added:

In addition, Article 27(1) of the Civil Execution Act explicitly provides for the principle of prohibition of "the judgment of execution shall not examine the right and wrong of the judgment," and the so-called principle of prohibition of "on the examination of actual quality". Here, it is impossible to determine whether a foreign judgment, etc. is justified and wrong in light of the laws and regulations of the Republic of Korea, and it is impossible to determine whether a foreign judgment, etc. can be justified and wrong in light of the substantive and procedural laws of the relevant foreign country. As seen earlier, the arbitrator appears to have determined a reasonable amount of indirect compulsory compensation in consideration of all the circumstances. Thus, if the defendant's assertion is accepted and the Korean court re-examines the amount of compensation for indirect compulsory performance, this would contravene the principle of

(k)be added below 19 pages 1:

⑹ 피고는, 우리나라 민사집행법상 간접강제는 다른 강제집행이 불가능할 때에만 허용되는데, 특허권의 이전에 관해서는 민법 제389조 제2항 전단 및 민사집행법 제263조 제1항 에 따라 의사표시에 갈음하는 재판에 의하여 강제집행이 이루어질 수 있으므로 간접강제가 허용될 수 없고, 따라서 이 사건 중재판정의 주문 제5, 9항은 우리나라의 강행법규인 민법과 민사집행법의 기본 원리에 위배되고, 헌법상 기본권인 인격권을 침해하는 것으로서 공공질서에 반한다고 주장한다.

In light of the following circumstances, it is difficult to view the specific outcome of the instant arbitral award to the extent that the enforcement of the indirect compulsory performance is acknowledged solely on the basis of the following circumstances, solely based on the circumstance alleged by the Defendant, where the enforcement of the said indirect compulsory performance is acknowledged solely on the basis of the following circumstances, it is difficult to view that the specific result is contrary to the good customs and other social order of the Republic of Korea.

In other words, Articles 5 and 9 of the arbitral award of this case orders a certain indirect compulsory performance when the Defendant violates paragraphs 1 and 7. Articles 1 and 7 order the Defendant to transfer the right to the Patent 2 of this case and India Patent to the Plaintiff within 30 days after the notification of the arbitral award of this case, and order the submission of relevant documents within 10 days or 3 days after the first request of the Plaintiff. Under its purport, where the obligation to transfer a patent is completely fulfilled, the submission of documents does not need to be done separately, but the above Articles 1 and 7 provide that the obligation to transfer a patent and the submission of documents are different in terms of the language and text, and thus, it cannot be deemed that the obligation to submit documents is not necessary from the beginning because both obligations are interpreted as separate obligations. (2) Although the obligation to submit documents falls under the duty to act on behalf of the military unit, it does not constitute an indirect compulsory performance of the obligation to transfer a patent right under the Civil Execution Act, which is an indirect compulsory performance of the obligation to transfer the patent right to the Republic of Korea.

⑺ 피고는, 이 사건 중재판정 제5, 9항은 제1, 7항이 이 사건 중재판정의 통지 시부터 효력 또는 집행력이 발생함을 전제로 하는 것인데, 이는 외국 중재판정은 집행판결을 얻어야만 집행력을 부여받을 수 있다고 규정한 강행법규인 민사집행법 제26조 제1항 에 반한다고도 주장한다.

However, the res judicata, formation power, etc., which is the remaining effect of the judgment, excluding executory power, becomes effective in Korea at the time when the judgment becomes effective in a foreign country, and the judgment of execution constitutes a formative judgment that newly grants the executory power of a foreign judgment in Korea. However, Articles 1 and 7 of the arbitral award of this case impose a duty to transfer the Patent of this case and the India Patent of this case on the Defendant. Articles 5 and 5 and 9 of the arbitral award of this case merely provide that the Defendant shall pay indirect compulsory compensation if he/she violates his/her respective obligation, and thus, Article 5 and 9 of the arbitral award of this case cannot be deemed to be a provision premised on the premise that the Defendant has an executory power in Korea from the time of notification of the arbitral award of this case.

⑻ 피고는 이 사건 중재절차에서 원고 측 법률전문가가 민사집행법 제21조 , 제261조 에서 간접강제는 대한민국의 제1심법원이 전속관할을 가진다고 규정하고 있어 간접강제를 포함한 이 사건 중재판정이 내려지더라도 승인·집행될 수 없다는 의견을 밝혔음에도 중재인이 이를 무시하고 이 사건 중재판정을 내리는 등 대한민국의 헌법적 가치와 민사집행법의 의사표시의무 집행제도를 부정하였으므로 그 승인이나 집행이 거부되어야 한다고 주장하나, 민사집행법 제21조 , 제261조 의 관할에 관한 조항은 대한민국 법원에서 간접강제 결정을 내리는 경우를 전제로 한 규정으로 보이는 점, 중재판정의 집행이 거부될 수 있다는 것은 집행 단계의 문제로서 집행 단계의 문제를 이유로 그전 단계인 중재판정에서 간접강제 배상금의 지급을 명할 수 없다고 볼 논리 필연적인 근거는 없는 점, 이 사건 중재판정의 중재인이 지적하는 대로 피고가 우리나라 외의 다른 국가에서의 집행 소송에서 간접강제 배상금의 이익을 가질 수 있는 점 등을 고려하면, 피고가 주장하는 사정만으로는 이 사건 중재판정의 집행을 거부할 수 있는 사유에 해당한다고 볼 수 없다.

⑼ 더욱이 설령 피고의 주장대로 이 사건 중재판정 중 간접강제를 명한 부분이 우리나라의 실정법에 어긋나는 부분이 있다고 하더라도, 앞서 본 바와 같이 같이 외국의 중재판정이 우리나라의 실정법상 강행법규에 위반된다고 하여 곧바로 집행 거부의 사유가 되는 것은 아니고, 해당 중재판정의 집행을 인정하는 경우 그 구체적 결과가 우리나라의 선량한 풍속 기타 사회질서에 반할 때에 한하여 집행을 거부할 수 있으므로, 단순히 우리나라의 실정법에 어긋난다는 사정만으로 이 사건 중재판정의 집행을 거부할 수도 없다.

(l) to the end of 19th 19th 19th 19th 19th 19th 19th 19th 19th 20

A) Determination on the assertion regarding the India Patent

The defendant filed an application with the India Intellectual Property Office for the India Patent of this case, and Paragraph 7 of the written arbitral award of this case should transfer all rights and interests to the plaintiff within 30 days after the notification of the arbitral award of this case to the defendant, and imposes an obligation to seal, conclude and submit all documents necessary for the effect of transfer of the above patent rights and interests in accordance with the requirements of the Indian Patent Act and the applicable humanitarian law within 3 days after the plaintiff's first request is made, as seen in the "1. Recognition" of the judgment of the first instance as revised and accepted by the court as above. In full view of the purport of oral argument in the statement No. 58, Article 20 Paragraph 1 of the India Patent Act (the Pats Act, 1970) provides that the plaintiff shall have the right to submit the written arbitral award of this case to the plaintiff under the name of the applicant or the defendant to whom the patent applicant or the defendant submitted the written arbitral award of this case by the method of transfer or contract, and that the plaintiff shall have the right to submit the written arbitral award of India to the plaintiff or the defendant's right to transfer.

However, in full view of the facts that Gap's evidence Nos. 31, 21, 25, 20, 30, and 43 (including serial numbers) were not disputed and the defendant's agent sent to the defendant's original copy of the deed of assignment No. 20 to the defendant's original copy of the deed of assignment No. 21, the agent sent the plaintiff's original copy of the deed of assignment No. 20 to the defendant's original copy of the deed of assignment No. 20 to the defendant's original copy of the deed of assignment No. 20 to the defendant's original copy of the deed of assignment No. 20 to the defendant's original copy of the deed of assignment No. 20 to the defendant's original copy of the deed of assignment No. 31, 2012. The plaintiff's agent sent the plaintiff's original copy of the deed of assignment No. 2 to the defendant's original copy without mentioning the plaintiff's original copy of the deed of assignment No. 21, the plaintiff's. 216.

However, on the other hand, in full view of the following facts or circumstances, Gap evidence Nos. 9, 10, 19, 21 through 25, 27, Eul evidence Nos. 7, 24, 28, 32, 35, 36, and 52, and each evidence Nos. 23, 47 through 51, 55, 56, and 57, each of the above facts and evidence Nos. 23, 47 through 57, 56, and 57, the agreement between the plaintiff and the defendant on the transfer of the India Patent of this case was reached, or the agreement between the plaintiff's agent and the defendant on the transfer of the India Patent of this case was invalid, or the defendant provided the plaintiff with a certificate of transfer that had been agreed between the plaintiff and the defendant on the draft, and there is no other evidence to acknowledge this otherwise. Therefore, this part of the defendant's assertion on the other premise is without merit.

① On April 11, 2012, the Plaintiff’s agent requested the Plaintiff to send a copy of the Assignment Deed of the India Patent and to confirm it. On April 12, 2012, the Plaintiff, without giving prior notice to the Plaintiff, sent an e-mail to the agent requesting the Defendant to suspend the relevant discussion and to discuss only under the Plaintiff’s explicit approval. The Plaintiff’s assertion that it would be intended to purchase the products from the e-mail, which the Plaintiff acquired the right to the India Patent from the Defendant. Moreover, the Plaintiff refused to sign the Assignment Deed with the same purport.

② Accordingly, on December 3, 2012, the Plaintiff’s agent sent to the Defendant e-mail that the Defendant refused to sign the Assignment Deed on the ground that the cause of the transfer of the India Patent was changed to that of the instant arbitral award, even though the Plaintiff requested the enforcement of the instant arbitral award regarding the Assignment Deed, and sent the e-mail to that effect even on June 8, 2013.

③ On February 4, 2012, Plaintiff’s agent sent e-mail to the effect that the Defendant’s prompt transfer of the patent pursuant to the instant arbitral award does not mention the arbitral award. However, on February 3, 2012, the e-mail was sent by Defendant’s agent to the Plaintiff that the Plaintiff won the instant arbitral award and the Defendant’s patent right was judged to be illegal on February 3, 2012, it contradicts the confidentiality principle stipulated in the Financial Resources Rules of the Netherlands. As such, the e-mail includes the content that the Plaintiff has no choice but to prove the right by mentioning the content of the order issued in the instant arbitral award as the Plaintiff’s refusal to prove his right to a third party through information recorded in the public book. The purport that the Plaintiff wish not to mention the instant arbitral award does not mean that the instant arbitral award was not mentioned in the Assignment Deed, but rather that the Plaintiff did not request the Plaintiff to transfer the instant arbitral award to the third party.

④ Even after the Plaintiff received a transfer certificate from the Defendant, the Defendant asserts that the Plaintiff consented to the transfer certificate provided by the Defendant by failing to give any answer during the period from April 12, 2012 to December 3, 2012, and from December 11, 2012 to May 7, 2013. However, the Plaintiff’s side sent the draft of a new agreement, including the Defendant’s transfer of his/her right to the India Patent, to the Plaintiff within 30 days from the date of signature, on October 6, 2012, stating that he/she did not give any answer, and that the Plaintiff did not agree to the preparation of the agreement even if the Plaintiff did not give any reply during the period of reply, it cannot be concluded that the Plaintiff did not agree to the said transfer of the certificate.

⑤ Under the Private International Act, the relationship between the principal and his/her agent shall be governed by the law applicable to legal relations between the parties (Article 18(1)); the law of the country in which the principal’s business office is liable to a third party due to the act of his/her agent (Article 18(2)); and the same applies to the relationship between an agent without the right of representation and a third party (Article 18(5)); and the relationship between the Plaintiff and his/her agent is the Netherlands and the Plaintiff’s agent is determined by the law of the Netherlands where the Plaintiff and the Plaintiff’s agent are liable to the Defendant due to the act of the Plaintiff’s agent. Furthermore, according to the Netherlands’s law, if a person without the right of representation intends to take effect on the principal, a third party would have reasonably expected the existence of the principal’s right of representation; a third party’s reasonable expectation is required to be based on the principal’s act; in relation to the establishment of an expression agent, unlike the act in the litigation procedure, the other party bears the general duty of representation.

그런데 ㉠ 원고 측 대리인이 원고로부터 이 사건 인도특허 양도증서 작성에 관한 대리권을 명시적으로 수여받았다고 볼 만한 자료가 없는 반면, 앞서 본 대로 원고는 2012. 4. 12. 원고 측 대리인에게 원고에게 사전 통지를 하지 않은 채 원고로부터 제품을 훔쳐간 도둑으로부터 제품을 구매하려는 것이냐고 항의하면서 관련 논의를 중지할 것과 원고의 명시적 승인 하에서만 피고와 논의를 할 것을 요청하는 내용의 이메일을 보냈고, 이 사건 중재판정 주문 제7항에도 원고 측 대리인에게는 단지 이 사건 인도특허의 이전과 관련된 모든 서신의 사본만을 제공하도록 하였으므로 원고 측 대리인은 원고를 대리하여 피고와 사이에 이 사건 인도특허 양도증서에 관한 협상을 할 권한은 수여받지 못하였던 것으로 보이는 점, ㉡ 원고 측 대리인이 2012. 2. 4. 피고 측에 ‘원고가 오로지 원고 대리인을 통해서만 의사교환을 하고 원고의 대표 또는 직원에게는 직접 접촉하지 말 것을 요청하였다’는 내용의 이메일을 보내기는 하였으나, 이는 앞서 본 대로 피고가 원고에게 이 사건 중재판정의 내용을 제3자에게 알리지 말 것을 요구한 것에 대한 답변일 뿐 이 사건 인도특허의 이전을 위한 양도증서 작성에 관한 것이라고 볼 수 없고, 또한 원고 측 대리인이 2012. 3. 30. 피고 측에 싱가포르 중재와 인도특허 이전과 관련된 등록비용 부담에 대하여 원고가 동의하였다는 내용의 이메일을 보내기는 하였으나 이 이메일에도 양도증서에 특허 이전의 원인을 이 사건 중재판정이 아닌 매매로 하는 것에 대하여 원고가 동의한다는 내용은 기재되어 있지 않아 이와 같은 사정만으로 피고가 그 부분 대리권의 존재에 대하여 합리적인 기대를 할 수 있었다고 할 수는 없는 점, ㉢ 이 사건에서 원고 측 대리인과 피고 측 대리인 사이에 이루어진 이 사건 인도특허 이전에 관한 협상은 이 사건 중재판정의 집행의 일환으로 이루어진 것이 아니라 이전의무를 부담하고 있는 피고의 자발적 이행의 일환으로 이루어진 것이어서 소송절차 외의 행위에 해당하므로 일반적 기준이 적용되고, 따라서 법률행위의 상대방인 피고가 원고 측 대리인에게 대리권이 존재하는지를 확인할 의무를 부담하는데, 피고는 원고 측 대리인이 이 사건 인도특허의 이전을 위한 양도증서 작성에 관하여도 대리권을 가지는지를 확인하는 조치를 별도로 취하지 않은 점, ㉣ 앞서 본 대로 원고는 2012. 4. 12. 원고 측 대리인에게 양도증서의 내용에 대하여 항의하는 내용의 이메일을 보냈으므로 늦어도 2012. 4. 12.경에는 원고 측 대리인이 임의로 피고와 사이에 협상을 한 사실을 알게 되었음에도 그로부터 약 7개월이 경과한 2012. 12. 3.경에야 비로소 피고 측에 원고가 양도증서에 서명하는 것을 거절하였다는 내용의 이메일을 보냈으나, 네덜란드 법상 본인이 표현대리에 대하여 이의를 제기할 시한은 정해져 있지 않으므로 원고가 2012. 4. 12.경 즉시 이의 제기를 하지 않았다는 이유만으로 대리권이 존재한다는 사실에 대하여 합리적인 기대를 할 수 있다고 보기도 어려운 점(피고는 이에 대하여 네덜란드 법상 표현대리에 관하여 본인이 책임을 져야 하는지를 결정함에 있어서 본인이 즉시 이의를 제기하였는지가 중요한 요소라고 주장하나, 피고가 그 근거로 들고 있는 네덜란드 민법 제6:89조 및 판결들은 채권자가 오류를 발견하는 즉시 채무자에게 이의를 제기하지 않으면 오류가 있다고 주장할 수 없다는 내용으로서 직접적으로 표현대리와 관련된 것은 아니고, 네덜란드 대법원도 일방 당사자가 즉시 반응하지 못하였다는 사실만으로 상대방 당사자가 권리를 포기하였거나 무엇인가를 승인하였다는 합리적인 기대를 할 수 있다고 판단하는 데에 매우 주저하는 태도를 보이고 있다는 취지의 갑 제27호증의 기재 등에 비추어 피고의 위 주장은 받아들이기 어렵고, 을 제36, 60호증의 각 기재 역시 피고 소송대리인 측의 의뢰를 받은 네덜란드 변호사의 개인적인 의견 표명이나 판단에 불과해 보여 마찬가지로 쉽게 채용하기 어렵다) 등에 비추어, 양도증서의 작성과 관련하여 네덜란드 법상 원고 측 대리인이 한 행위의 효력이 원고 본인에게 미친다고 단정할 수 없다.

6) Based on the instant arbitral award, the Plaintiff filed an application for enforcement to seek the transfer of the India Patent. The India High Court stated that “The Defendant recognized the transfer of the India Patent according to the instant arbitral award and consented to the transfer and transfer of the patent application and the patent right related thereto to the Plaintiff for the benefit of the Plaintiff, and the Plaintiff consented to the acceptance by the Defendant.” On the other hand, the Defendant sent the draft of April 4, 2012, which deleted the said Section B on April 11, 2012, and the Plaintiff’s attorney received the transfer certificate sent by the Defendant even though the Plaintiff was weak and the reasons for the transfer and transfer of the patent were not specified, and the documents concluded pursuant to the arbitral award should be clearly stated that it would have been concluded in accordance with such arbitral award, but the Defendant could not be seen as having received the Plaintiff’s entire application for transfer of the patent, and thus, the Defendant could not be seen as having distorted the legal relationship of the instant arbitral award on April 4, 2012.”

나) Euro-Apex� Technology에 관한 특허출원에 새롭게 착수한 사실이 없다는 주장에 대한 판단

이 사건 중재판정 제6, 9항 중 ‘Euro-Apex� Technology에 관한 특허출원에 새롭게 착수하는 경우 간접강제를 할 수 있다는 내용 부분은, 간접강제의 개시요건에 관한 것으로서 중재판정에 대하여 법원이 집행력을 부여하는 절차인 집행판결의 단계에서 심리할 사항이 아니라 집행기관이 집행실시의 단계에서 그 존재 또는 부존재를 스스로 조사할 사항에 불과할 뿐만 아니라, 그러한 개시요건의 미충족은 뉴욕협약에 정해진 집행 거부사유 중 어느 것에도 해당하지 아니한다. 따라서 피고의 이 부분 주장도 이유 없다.

3. Additional determination of the defendant's assertion

A. The Defendant asserts as follows. Even if indirect compulsory performance is permitted with respect to the transfer of the second patent, the Defendant’s provision of performance with respect to the transfer of the second patent of this case and the Plaintiff’s refusal to receive the second patent after the establishment of the instant arbitral award constitutes grounds for objection. However, even if the Defendant offered performance with respect to the transfer of the second patent of this case to the Plaintiff after the establishment of the instant arbitral award, it constitutes grounds for objection to the claim, and thus, the Plaintiff refused to receive the second patent of this case and was placed in the place of receiving the second patent of this case. In addition, the Plaintiff’s refusal to receive the second patent of this case by appearance made the situation where the second patent of this case was not transferred, and then claims for indirect compulsory performance by abusing his right constitutes abuse of rights, which constitutes grounds for objection

In light of the above, a judgment of execution grants executory power to a foreign arbitral award so that it may proceed to compulsory execution procedures under the laws of the Republic of Korea. As such, in a case where the existence or absence of executory power is determined based on the time of closing of argument, if the grounds for objection under the Civil Execution Act, such as the extinguishment of an obligation after the establishment of the arbitral award, have occurred and the circumstance that allowing compulsory execution procedures based on an arbitral award contradicts the fundamental principles of our law, the court may refuse the enforcement of the arbitral award by deeming that it constitutes a violation of public order under Article 5(2)(b) of the New York Convention (see, e.g., Supreme Court Decision 2001Da20134, Apr. 11, 2003). Meanwhile, in order for a creditor’s body to be established, an applicant must submit a written consent of the obligor under Article 460 of the Civil Act (see, e.g., Supreme Court Decision 201Da7160, Mar. 21, 2004).

In this case, the Defendant is obligated to provide all documents necessary for patent transfer in accordance with Article 1(1) of the Arbitral Decision, the Patent Act of the Republic of Korea, the Enforcement Decree of the Patent Act, and the Enforcement Rule of the Patent Act, as prescribed by the Patent Office Regulations, and the applicable provisions of the Korean Intellectual Property Office. However, in order to register a patent, the registration order of the former patent shall be jointly applied by the obligee and the obligor, and when a written consent of the obligor is attached to the application, the obligee can only apply for registration. The applicant must attach documents proving the cause of the registration and the certificate of personal seal impression of the applicant and documents proving that the applicant is a corporation. Thus, it is reasonable to deem that the Defendant has to provide documents to be attached to the application (the Defendant’s written consent, documents proving the cause of registration, certificate of personal seal impression, and documents proving that the applicant is a corporation) to the extent that the obligation can be performed if the Plaintiff cooperate with the Plaintiff at any time.

However, comprehensively taking account of the overall purport of the arguments in Eul evidence Nos. 3, 6, and 14, the defendant prepared a transfer certificate to the plaintiff around September 26, 2012 that the right to Patent No. 2 was transferred to the plaintiff and provided it to the plaintiff. The defendant's agent expressed the plaintiff's intent to transfer the Patent No. 2 to the plaintiff's representative on October 9, 2012, and the defendant knew that there was transfer certificate, certificate of personal seal impression, and certificate of corporate register. The defendant sent the e-mail with the statement that the documents or materials deemed necessary for transfer are known in the plaintiff's side, and the copy of the transfer certificate was attached to this e-mail. The defendant provided the plaintiff with a transfer certificate and certificate of corporate seal impression necessary for transferring the patent No. 2 patent right and a certificate of corporate seal impression on June 19, 2013, but it is recognized that the plaintiff was deposited in the plaintiff's account.

However, on the other hand, the above facts and circumstances are as follows, which can be revealed by considering the overall purport of arguments in Gap evidence No. 8, i.e., the defendant's transfer of the right to patent No. 2 within 30 days after the notification of the arbitral award of this case, and it cannot be deemed that there was an agreement between the plaintiff and the defendant to postpone the time of performance of the transfer obligation as follows. The defendant sent a copy of the transfer certificate to the plaintiff only on September 26, 2012 after the expiration of 30 days from January 4, 2012 when the written arbitral award of this case delivered to the defendant, and the defendant's transfer of e-mail sent by the defendant on October 9, 2012 is merely a notification of necessary documents or data for the transfer of patent rights to the plaintiff, and the defendant's transfer of e-mail to the plaintiff on the above 20th day after the lapse of 30 days from the notification of the transfer certificate to the plaintiff.

B. The Defendant asserts also as follows. If an agreement between the obligee and the obligor on the postponement of the performance of the obligation after the arbitral award was concluded, this constitutes grounds for objection to a claim. However, the Plaintiff and the Defendant concluded that not only the transfer of the second patent but also the implementation of the instant arbitral award 3 and 4 around October 2012, the agreement should be concluded, and accordingly, the settlement negotiation was conducted, but the settlement negotiation was reached on March 31, 2013, and it was evident that there was an agreement between the Plaintiff and the Defendant to postpone the implementation period before the transfer of the second patent until the final conclusion of the said settlement negotiation. Accordingly, the Plaintiff’s claim seeking indirect compulsory performance for the period for which the extension of the performance agreement exists is to be rejected as it constitutes grounds for objection to a claim.

In full view of the purport of the entire pleadings in the statement No. 14, as a whole, evidence No. 14 can be acknowledged that the Plaintiff and the Defendant had a compromise negotiation on the overall process of the instant case from October 9, 2012 to March 31, 2013. However, such circumstance alone is insufficient to deem that there was an agreement between the Plaintiff and the Defendant to postpone the timing of performing the obligation to transfer the Patent No. 2 until the final conclusion of the compromise negotiation, and there is no other evidence to acknowledge it. Accordingly, the Defendant’s assertion is without merit.

다. 피고는 나아가, 이 사건 중재판정 주문 제4, 6항은 원고(EURO-APEXⓡ사)의 기밀기술 또는 원고의 기술에 관한 것이어서 그러한 기술이 특정 가능하다는 것을 전제로 하고 있는 반면, 이 사건 중재판정의 이유 제105항에는 원고의 기밀기술이 충분히 명시(특정)되지 않았다고 기재되어 있어 서로 명백히 모순되고, 이와 같은 판정이유의 모순은 우리나라의 중재법 등 강행법규에 위반되어 공공질서에 반하므로 이 점에서도 위 부분 중재판정은 집행이 거부되어야 한다고 주장한다.

Therefore, Article 32(2) of the Arbitration Act provides, “Arbitral Award shall state the grounds on which the award is based: Provided, That this shall not apply where there exists an agreement between the parties, or where the arbitration award is a reconciliation award under Article 31.” Article 36(2)1(d) of the same Act provides, “Where the procedure of arbitration does not follow the agreement between the parties that do not go against the mandatory provisions of this Act, or where there is no such agreement, it is proved that the parties did not comply with this Act.” Thus, if the parties fail to state the grounds for the arbitral award even though there is no agreement between the parties, “when the reasons for the arbitral award are not stated” shall be the grounds for the revocation of the arbitral award. In this case, it shall be sufficient and inconsistent with the case where it is impossible to prove that the arbitral award is based on any factual or legal judgment or it is inconsistent, and it shall be 00 if it does not contain any clear and incomplete judgment on the grounds that it does not constitute a justifiable or incomplete judgment, and it shall be 2000.

However, considering the following facts or circumstances which can be acknowledged by considering the overall arguments stated in Gap evidence 4 and 7, i.e., ① the plaintiff filed an application for Patent Nos. 1 and 2 with the Republic of Korea for the arbitral award of this case and filed a claim similar to the plaintiff's 4 and 6 of the arbitral award of this case (No. 53-5 and 13 of the arbitral award of this case) on the ground that the defendant continuously used the confidential part of the plaintiff's technology including procedure manuals, APEX200 software, and safety standards and procedures, and the part of the plaintiff's claim for the arbitral award of this case on the ground that the plaintiff's 60 UPP 1 and X 200 software was developed on the basis of the plaintiff's 60 UP 1 and U.S. 5 of the arbitral award of this case on the ground that the plaintiff's 60 U.S. 1 and U. 5 of the arbitral award of this case could not be seen as an confidential part of the plaintiff's claim of this case.

4. Conclusion

Therefore, the plaintiff's claim of this case is accepted with its reasoning, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges exhaustr fever (Presiding Judge)