[1] Whether a debtor can oppose the assignee of a claim under an arbitration agreement by an arbitration agreement (affirmative)

[2] Whether a party to an arbitration agreement constitutes a case where it is impossible to implement the arbitration agreement under the proviso of Article 9(1) of the Arbitration Act where composition procedures commence due to a default (negative)

[1] The obligor of a claim under an arbitration agreement may set up against the assignee of the claim by arbitration agreement.

[2] Even if a company that is a party to an arbitration agreement commences composition procedures due to default, it does not affect the company's rights, capacity, or right to manage and dispose of its property, and thus does not constitute a case where it is impossible to implement the arbitration agreement under the proviso of Article 9 (1)

[1] Article 451 of the Civil Code / [2] Article 9 (1) of the Arbitration Act

Pira Co., Ltd. (Attorney Lee Jong-hoon, Counsel for the plaintiff-appellant)

centa City Co., Ltd. (Law Firm Taeil, Attorney Ro Sang-op, Counsel for the plaintiff-appellant)

Chungcheong Construction Co., Ltd.

1. The plaintiff's lawsuit shall be dismissed.

2. Litigation costs shall be borne by the plaintiff.

The defendant shall pay to the plaintiff 706,683,300 won with 5% per annum from the day following the delivery of a copy of the complaint of this case to the day of the pronouncement of the judgment of this case and 25% per annum from the next day to the day of full payment.

On July 5, 2001, the Plaintiff Company asserted that KRW 706,863,300, out of the construction cost claims, which the Plaintiff owned against the Defendant Company in relation to the construction of the foundation of the trading center and the public facilities (hereinafter referred to as the “instant construction”), the Plaintiff Company received from the Nonparty Company and notified the Defendant Company of the transfer of KRW 706,863,30 around that time, and sought payment as the instant lawsuit.

However, according to the evidence No. 2-2 (the "general terms of construction contract" which forms the contents of the contract for construction contract prepared by the non-party company and the defendant company upon entering into the contract for construction work of this case), the non-party company and the defendant company can be acknowledged that the dispute arising during the execution of the above contract is settled through consultation, and if the dispute is not reached within 30 days from the date of the occurrence of the dispute, the Korea Commercial Arbitration Board under the Arbitration Act is required to arbitration. The defendant company can set up against the plaintiff company which acquired the claim for the above construction payment from the non-party company by the non-party company with the claim for the above construction payment by the above arbitration agreement. Thus, the lawsuit of this case where the defendant company raises a defense of the existence of the arbitration agreement at the first preparation procedure is unlawful because it violates the above arbitration agreement (the plaintiff company was established due to the non-party company which is the party to the above arbitration agreement, and it is impossible to implement the arbitration agreement under the proviso of Article 9 (1) of the Arbitration Act, but even if the composition procedure commenced, it does not affect the rights and management of the plaintiff

If so, the plaintiff's lawsuit is unlawful and dismissed.

Judges Deposit (Presiding Judge) Monopo-man