[1] Whether the action for setting aside the arbitral award is legitimate in a case where the judgment of execution of the arbitral award is rendered while the action for setting aside the arbitral award is pending on the grounds of Article 13(1)1 through 4 of the former Arbitration Act (negative)

[2] In a lawsuit for the cancellation of an arbitral award on the grounds of Article 13(1)5 of the former Arbitration Act after the judgment of execution on the arbitral award, where the "party under the proviso of Article 15 of the same Act was not able to assert the grounds for the cancellation in the procedure of the judgment of execution without negligence", whether the lawsuit for the cancellation of the arbitral award is legitimate (negative), and whether the court bears the duty to explain the grounds for the refusal (negative)

[1] Article 15 of the former Arbitration Act (amended by Act No. 6083 of Dec. 31, 1999) provides that an action for the cancellation of an arbitral award may be brought only on the ground of the grounds under Article 13 (1) 5 of the same Act (the grounds falling under Article 422 (1) 4 through 9 of the Civil Procedure Act) after a judgment of execution is rendered on an arbitral award, and limits the grounds for the cancellation of an arbitral award after the judgment of execution. Thus, the lawsuit for the cancellation of an arbitral award filed on the grounds under Article 13 (1) 1 through 4 of the same Act is unlawful after the judgment of execution is rendered, and this does not change because the lawsuit for the cancellation of an arbitral award was filed before the request of the judgment of execution.

[2] The proviso of Article 15 of the former Arbitration Act (amended by Act No. 6083 of Dec. 31, 1999) provides that even in cases where the grounds under Article 13(1)5 are the grounds under Article 13(5) of the former Arbitration Act, a lawsuit for the cancellation of an arbitral award may be instituted only when the party concerned proves that he/she was unable to assert the grounds for the cancellation in the procedure for the execution judgment without negligence. Thus, unless there is any vindication by the plaintiff as to the fact that the grounds for the cancellation could not be asserted in the procedure for the execution judgment without negligence, the lawsuit for the cancellation of an arbitral award shall be dismissed as unlawful, and in the absence of a vindication, the court shall not require the explanation.

[1] Articles 13(1) and 15 (see current Article 36(1) and (2) of the former Arbitration Act (amended by Act No. 6083, Dec. 31, 1999); Article 422(1) of the Civil Procedure Act / [2] Articles 13(1)5 (see current Article 36(2) and 36(4) of the former Arbitration Act (amended by Act No. 6083, Dec. 31, 199); Article 126 of the Civil Procedure Act

Sung Forest Industry Promotion Co., Ltd. (Attorney Park Sang-hoon, Counsel for the defendant-appellant)

American Construction Co., Ltd. (Law Firm Bag, Attorneys Noh Jeong-soo et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 98Na9351 delivered on September 25, 1998

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

We examine the grounds of appeal.

1. On the first ground for appeal

Article 15 of the former Arbitration Act (amended by Act No. 6083, Dec. 31, 1999; hereinafter the same) provides that an action for the cancellation of an arbitral award may be brought only on the grounds of Article 13(1)5 of the same Act (when there are grounds falling under Article 422(1)4 through 9 of the Civil Procedure Act) after a judgment of execution is rendered on an arbitral award, the action for the cancellation of an arbitral award filed for the grounds under Article 13(1)1 through 4 of the former Arbitration Act (amended by Act No. 6083, Dec. 31, 1999; hereinafter the same shall apply) shall be limited after the judgment of execution is rendered. Thus, the lawsuit for the cancellation of an arbitral award shall be deemed unlawful, and it shall not be deemed that the lawsuit for

According to the reasoning of the judgment of the court below, the court below held that the plaintiff's assertion that the Korea Commercial Arbitration Board did not attach the grounds for the judgment on the completion of the construction work and the mutual-aid amount in the claim for construction payment under Article 9611-0059 of the Arbitration of the Korean Commercial Arbitration Act, which the defendant filed with the plaintiff as the respondent, is unlawful, as long as the judgment of execution of the arbitral award was rendered on January 16, 1998 and the judgment of execution of the arbitral award became final and conclusive, it does not constitute a ground for the revocation of the arbitral award, and therefore, the lawsuit for the revocation of the arbitral award is unlawful. The judgment of the court below is just in accordance with the former Arbitration Act as to the lawsuit for the revocation of the arbitral award after the judgment of execution, and it is not erroneous in the misapprehension of legal principles as to the requirements for the revocation of the arbitral award.

The ground of appeal on this point is rejected.

2. On the second ground for appeal

The proviso of Article 15 of the former Arbitration Act provides that even in cases where the grounds under Article 13(1)5 are based on the reasons under Article 13(5) of the former Arbitration Act after the judgment of execution, a lawsuit for the cancellation of an arbitral award may be filed only when the parties have substantiated that the grounds for the cancellation could not be asserted in the procedure for the judgment of execution without negligence. In other words, the lawsuit for the cancellation of an arbitral award shall be dismissed as unlawful unless there is a vindication by the plaintiff as to the non-performance of the grounds for the cancellation in the procedure for the judgment of execution without negligence. In the absence of a vindication, the court shall not demand the explanation.

In the same purport, even though there is a ground for the omission of judgment under Article 422(1)9 of the Civil Procedure Act in the arbitral award of this case, there is no evidence that the plaintiff could not assert it in the procedure of the execution judgment without negligence. Thus, the judgment of the court below that the lawsuit for the revocation of the arbitral award of this case is unlawful is just, and there is no error in failing to exhaust all necessary deliberations.

We cannot accept the allegation in the grounds of appeal on this point.

In addition, the plaintiff alleged that the court below did not render any judgment on the plaintiff's assertion that the non-party's false statement was admitted as evidence in the arbitral proceedings, but according to the records, the non-party did not testify as a witness in the arbitral proceedings of this case. In addition, in order to support the previous argument that the non-party did not have attached the grounds for the arbitral award of this case or was erroneous in the omission of judgment, it is merely just a ground for the above circumstance on the fourth day of the court below, and it cannot be viewed as a ground for the revocation of the new arbitral award. Thus, the argument in the grounds of appeal on this part is without merit.

3. Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Jae-sik (Presiding Justice)