(영문) 서울중앙지방법원 2017. 7. 6. 선고 2016가합576445 제16민사부 판결

The arbitral award made on November 2, 2016 between the Plaintiff and the Defendant shall be revoked on the case No. 1511-0216 of the Arbitration Act.

Reasons

1. Basic facts

(a)the relationship between the original and the defendant and the conclusion of the contract;

1) On May 12, 2010 and November 16, 2010, the Defendant entered into an agreement on the consignment development of the video caller for advertisement (including the transmitter, receiver, chargeer, hereinafter referred to as “instant product”) and completed the development of the instant product upon the Plaintiff’s request.

2) On May 11, 201, the original and the Defendant entered into a contract (Evidence 1) under which the sales of the product of this case to a third party and profit-making or the provision of the product to a third party at a third party’s place of business (hereinafter “instant business”) to carry out a business in which advertising commission is profit-making (hereinafter “instant business”). After the commencement of the instant business, the said contract was renewed on May 11, 2013, and on July 26, 2013, concluded a contract for partial modification (Evidence 6) (hereinafter “instant contract”).

B. Termination of the instant contract

1) The instant contract was terminated on May 10, 2015 on the expiration of the contract term as the original and the Defendant did not reach a re-agreement.

2) Even after the termination of the instant contract, the Plaintiff’s objection to the number of articles indicated in the attached list

Without returning the product of this case, it continued to provide it to a third party.

(c)a request for arbitration and award;

1) The Defendant, against the Plaintiff, delivered the attached list ① to the Korea Commercial Arbitration Board. ② From May 11, 2015 following the date following the expiration date of the contract, the Defendant filed an application for arbitration with the Plaintiff for the payment of unjust enrichment in proportion to 6% per annum under the Commercial Act (No. 1511-0216) with respect to the total value of the above goods from May 11, 2015 to the date of delivery of the above goods.

2) On November 2, 2016, the Korean Commercial Arbitration Tribunal shall refer part of the Defendant’s claim to arbitration.

The following arbitral awards (hereinafter referred to as "the arbitral award of this case") were made.

1. The respondent (the plaintiff in this case; hereinafter the same shall apply) shall deliver to the applicant (the defendant in this case; hereinafter the same shall apply) the goods listed in the attached list.2. The respondent shall pay to the applicant an amount equivalent to the rate of KRW 15,590,446 per annum from May 11, 2015 to the date on which all the items listed in the attached list are returned.3. The respondent shall dismiss the rest of the applicant.4. Arbitration costs (760,557 won) are borne by the respondent.

[Ground of recognition] Facts without dispute, Gap evidence 1, Eul evidence 1, Eul evidence 1, 2, and 6, the purport of the whole pleadings

Since the arbitral award of this case has grounds for revocation as set forth in the Arbitration Act, the arbitral award of this case must be set aside.

(a) A deviation from the scope of arbitration agreement (Article 36 (2) 1 (c) of the Arbitration Act);

In the above arbitral proceedings, the Defendant sought restitution of unjust enrichment and claimed that the amount was calculated at the rate of 6% per annum as stipulated in the Commercial Act to the total value of the goods listed in the attached list, and did not have asserted and proved advertising profits. Nevertheless, the instant arbitral award was accepted by the Defendant at will by recognizing 50% of advertising profit distribution ratio as the amount of unjust enrichment of the Plaintiff, thereby exceeding the scope of the arbitration agreement.

(b) Fidelity (Article 36 (2) 1 (d) of the Arbitration Act);

The instant contract is an investment contract with the purpose of allocating advertising proceeds, which is to obtain ‘free loan'. The instant arbitral award has ordered the return of unjust enrichment for ‘free loan' which does not occur even though it recognizes the nature of the instant contract, and there is a logical inconsistency in the reasoning of the judgment.

If the arbitral award of this case is approved and executed, it would be in violation of good customs and other social order since it would be justified in the purport of the Small and Medium Business Corporation’s business for supporting the commercialization of ideas and allow unauthorized use of others’ outcomes and gain unjust profits against the fair competition order.

3. Determination

(a) relevant provisions of the Arbitration Act;

Article 32 (Form and Contents of Arbitration Award)

(2) An arbitral award shall state the grounds on which the award is based: Provided, That this shall not apply to cases where there exists an agreement between the parties or settlement award under Article 31.

§ 36. Action for setting aside an arbitral award

(2) The court may set aside an arbitral award only in any of the following cases:

1. The party making the application proves that:

(c) The award has dealt with a dispute which is not subject to arbitration agreement, or contains decisions on matters beyond the scope of the agreement on arbitration: Provided, That if the decisions on matters subject to arbitration can be separated from those on matters not subject to arbitration agreement, only the non-subject matter of the award may be set aside;

(d) the fact that the constitution of the arbitral tribunal or the arbitral proceedings have not complied with any agreement between the parties that do not violate the mandatory provisions of this Act, or that such agreement has not been complied with this Act;

2. Where the court recognizes ex officio that any of the following grounds exists:

(b) the recognition or enforcement of the award is contrary to the good morals or other social order of the Republic of Korea;

B. Whether it deviates from the scope of arbitration agreement

1) An arbitration agreement to which the Arbitration Act applies refers to an agreement between the parties to resolve all or part of a dispute that has already occurred or may arise in the future with respect to a certain legal relationship, regardless of whether it is a contractual dispute, and in cases where such arbitration agreement is deemed to exist, it is reasonable to deem that all disputes arising from a specific legal relationship between the parties are resolved through arbitration, barring any special circumstance (see, e.g., Supreme Court Decision 2005Da74344, May 31, 2007).

2) According to the evidence evidence Nos. 1, 2, and 5 of the instant contract, Article 13 subparag. 2 of the instant contract provides that "any dispute arising from the instant contract shall be settled finally through arbitration in accordance with the Arbitration Rules from the Korean Commercial Arbitration Board." The Defendant calculated unjust enrichment on the basis of the value of the instant product on the ground that "a situation in which the Plaintiff’s advertising revenue derived from the instant product cannot be accurately known and accurately known" in the instant arbitration application is "a situation in which the Plaintiff’s advertising revenue derived from the instant product cannot be identified." The facts that advertising revenue generated from the instant product was submitted in the instant arbitration procedure from March 2012 to December 2014 are assessed as evidence, and the instant arbitral award contains all disputes over the creation and scope of a claim for return of unjust enrichment arising from the instant contract and the amount of unjust enrichment calculated. According to the above facts, even if the Defendant asserted in the instant arbitral award does not deviate from the method of calculating the scope of arbitration agreement, the Plaintiff’s assertion is without merit.

C. Whether the reasons are inconsistent

1) Article 32(2) of the Arbitration Act provides that "Arbitral Award shall state the grounds on which the award is based, unless there is an agreement between the parties or a settlement award under Article 31," and Article 36(2)1 (d) of the Arbitration Act provides that "the same shall not apply to an arbitral award."

As one of the grounds for setting aside an arbitral award, "a fact that the arbitral procedure does not comply with any agreement between the parties that does not go against the mandatory provisions of this Act or that the arbitral award is not in compliance with this Act if there is no agreement between the parties to do so." Thus, the grounds for setting aside an arbitral award shall be the grounds for setting aside the arbitral award if the parties fail to enter the reasons in the arbitral award although there is no agreement between the parties that the arbitral award does not require an entry of reasons. In this case, "when the reasons for setting aside an arbitral award are not stated" refers to the case where it is impossible to prove that the arbitral award is based on any factual or legal judgment because no reason is stated in the arbitral award or it is unclear even if the reasons are stated in the arbitral award, and it is reasonable to set the grounds for setting aside the arbitral award as the basis for fairness regardless of the positive law. The reasons for setting aside the arbitral award is sufficient to determine how to reach the judgment without making a clear and detailed judgment on the relationship of rights and duties on the premise of the case, and it does not constitute an incomplete or incomplete judgment.

2) According to the statement in Gap evidence No. 1, the arbitral award in this case acknowledged the following facts as to the nature of the contract in this case and the creation of the defendant's claim for return of unjust enrichment.

O The instant contract is a transaction (loan transaction) in which the instant product is leased without compensation to a third party and profits from the use of the instant product and a sales transaction in which profits from the sale are obtained by selling the instant product to a third party. The dispute between the original and the Defendant is related to the lending transaction.

O The term "loan" in the contract of this case is to provide a third party with the product of this case free of charge to the plaintiff or the defendant who operates in the store of restaurant, etc.

In full view of the fact that there is no provision on transfer of ownership at the time of lending transaction under the contract of this case, in the case of gratuitous lending, it appears that the Defendant had ownership in the case of gratuitous lending, and in the case of gratuitous lending under the contract of this case, the Defendant did not make any counter-payment corresponding to the level of the purchase price, and the fact that the transfer of ownership is not premised on the fact that the product of this case is presumed to have been leased to a third party through the Plaintiff, the ownership of

O Since the contract of this case terminated as the expiration date, the plaintiff is obligated to return the product of this case received from the defendant. The plaintiff gains profits equivalent to the advertising commission sales while continuously using the above product, and the loss suffered by the defendant is 50% of the sales amount under the contract. Thus, the defendant is obligated to return the amount equivalent to the above unjust enrichment to the defendant.

According to the above facts, "free loan" recognized in the arbitral award of this case means only the relationship between the original and the defendant and the third party provided with the product of this case, not the legal relationship between the original and the defendant. Rather, the above arbitral award recognizes the obligation to return unjust enrichment to the plaintiff using the above product even after the termination of the above contract, considering that the defendant's provision of the above product and the distribution of advertising profit to the plaintiff was in a quid pro quo relationship among the loan contract of this case. The arbitral award of this case has a statement to the extent that it is possible to find that the delivery of the goods listed in the separate sheet, the occurrence of the return of unjust enrichment, and the scope thereof are subject to any factual or legal judgment, and there is no evidence to acknowledge this differently. Accordingly, there is no ground for the plaintiff's assertion on this part.

D. Parts contrary to good morals and other social order

1) “When the recognition or enforcement of an arbitral award violates good morals and other social order of the Republic of Korea” under Article 36(2)2(b) of the Arbitration Act means not all cases where the recognition or enforcement of the arbitral award is found to be erroneous in the fact-finding conducted by the arbitrator, or where the contents of the arbitral award may be deemed unreasonable because the legal judgment of the arbitrator is in violation of the laws and regulations, but means where the result of the arbitral award’s order goes against good morals and other social order of the Republic of Korea (see, e.g., Supreme Court Decision 2007Da73918, Jun. 24, 2010).

2) In light of the above legal principles, the instant contract is concluded after the development of the instant product was completed, and the original and the Defendant appears to have been related to the State support project to operate the instant business in an equal relationship, and the original and the Defendant has been operating a business for five years after the conclusion of the instant contract. In light of the fact that the instant arbitral award appears to have organized legal relations between the original and the Defendant upon the termination of the contract, the recognition or execution of the result of the instant arbitral award’s order cannot be deemed to be contrary to the good customs and other social order of the Republic of Korea. Accordingly, the Plaintiff’s assertion on this part is without merit.

4.In conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges

The presiding judge shall be appointed by the judge.

Judges Lee Jae-in

Judges next to that of judges

Site of separate sheet

[Attachment 1] A list of free loans to the respondent of the applicant

1. AD Pier V.1.0

R.* Att.* Att.* Att. 5201/5/5/1 128707586201/581/121/12109201/6/6210921/6/6101/7102301/6/2423023021/6/24231201/7/151/7/2590914209 1/7/2617231418201/7/281201/8/241941028281/8/241/135201/1/1/41/6203, 203821/1201/1/20381/121/2201/2201/201/25/31201/3201/25/3121/3129/3129/321203/3125/31203/129/41203/315/2031203/4

• Inventory number in Gap(13)

2. AD Pier V.2.0

No** Total Number Transmitt. 202013/8/512180122122013/8/1912201222013/8/191222013/9/42301232013/12013/51201272013/120127/12013/12/681204282013/13/136903420342014/2/74502 Subs 345024

* Inventory number of Gap evidence 13

3. AD Pier V.1.0 V.2.0

The name transmitter of the product type transmitter, the receiver of the electrical AD Pager V.1.0931, 860135AD Pager V.2.03451024 total 1272,370159

참조조문

참조판례

-대법원 2007. 5. 31. 선고 2005다74344 판결