Requirements for compulsory execution based on an arbitral award to constitute a tort

[1] Where an arbitral award is made under the Arbitration Act, the existence of a claim subject to res judicata becomes final and conclusive, and a real executory power occurs as a judgment of execution thereof becomes final and conclusive. Thus, in order to constitute a tort, special circumstances, such as obstructing procedural intervention by either party with the intent to impair the other party's right or deceiving the arbitral tribunal by false assertion, etc. In order to constitute a tort, the execution of the arbitral award must be in the same manner as acquiring and executing an arbitral award different from the substantive legal relationship by means of unlawful means, such as obstructing the other party's right or deceiving the arbitral tribunal by false assertion. Without such circumstance, the mere fact that the content of the arbitral award is simply contrary to the substantive legal relationship and is unfair, and that the enforcement obligee was aware of it cannot be said to constitute a tort. Even if a compulsory execution based on the arbitral award acquired by fraud constitutes a tort, it shall not be deemed that the enforcement of the arbitral award constitutes a tort. In order to exclude the effectiveness of the arbitral award, it should not be readily acknowledged that it constitutes a tort based on the party's procedural justice and procedural justice.

Articles 35 and 36 of the Arbitration Act, Article 750 of the Civil Act

Sung Forest Industry Promotion Co., Ltd. (Attorney Cho Jong-chul, Counsel for the defendant-appellant)

Trustee in Bankruptcy of a bankrupt corporation and 3 others (Law Firm Gyeong-ho et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2003Na28486 delivered on January 15, 2004

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

If an arbitral award is made under the Arbitration Act, the existence of a claim subject to res judicata becomes final and conclusive, and since a judgment of execution thereof becomes final and conclusive, real executory power takes place. Thus, in order to constitute a tort, special circumstances exist, such as where either party acquires and executes an arbitral award different from the substantive legal relationship by unlawful means, such as interfering with procedural intervention with the intent to impair the other party's rights or deceiving the arbitral tribunal by false assertion, etc. In order to constitute a tort, the execution of the arbitral award cannot be said to constitute a tort solely on the ground that the content of the arbitral award is simply contrary to the substantive legal relationship and is unfair, and that the enforcement creditor was aware of it based on the arbitral award.

In addition, even if a compulsory execution based on an arbitral award acquired by deceit constitutes a tort, the establishment of a tort is not easy in light of the legislative purport of Article 35 of the Arbitration Act, which recognizes the same effect as the final and conclusive judgment, such as formal final and conclusive effect or res judicata, or the fact that in order to exclude the effectiveness of the arbitral award, in the case where there exists a ground for revocation in the arbitral award, it is a matter of principle to seek the revocation by a lawsuit for revocation of the arbitral award. Therefore, compulsory execution based on an arbitral award should be limited to a case where the respect of the validity of the arbitral award is clearly contrary to justice, such as where a party’s procedural basic right is infringed, or where the arbitral award is rendered or where there exists a ground for revocation in the arbitral award.

The court below rejected all of the plaintiff's assertion of the cause of action, namely, that the bankrupt corporation and defendant 2 submitted a document that is forged or falsified to the arbitral tribunal, and instigated the non-party to make a false statement, in order to offer a bribe to an investigative agency or exercise influence, and at the same time interfere with the submission of the plaintiff's means of attack and defense by inducing the residents of apartment, and inciting the residents of apartment, there is no sufficient evidence to believe that the plaintiff's procedural fundamental rights were fundamentally infringed upon by exercising illegal influence over the appointment of the arbitrator. This decision of the court below is acceptable in light of the above legal principles or records of this case, although there is no somewhat inappropriate point in its reasoning, and it does not err in the misapprehension of facts against the rules of evidence, or in the misapprehension of legal principles on the fraud and enforcement of arbitral awards and the establishment of tort, as alleged in the ground of

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition.

Justices Kim Hwang-sik (Presiding Justice)