(영문) 서울고등법원 2019.10.16.선고 2019나2015500 판결

The judgment of the first instance shall be revoked. The defendant shall be revoked to the plaintiff 2,021, 575, 916 and KRW 1,455, 534, 659 among them.

B 6% per annum from December 17, 2015 to the service date of a copy of the complaint in this case, and the next day.

The remaining 56,041,257 won shall be paid with 15% interest per annum from the date of full payment to the date of full payment

15% interest per annum from the service date of the copy of the complaint of this case to the day of full payment.

H. D. Payment

Reasons

1. Basic facts

This Court's explanation is consistent with the reasoning of the first instance court's judgment, except for partial revision and addition as follows. Thus, this Court's explanation is acceptable in accordance with the main sentence of Article 420 of the Civil Procedure Act.

○ In Part 3 of the judgment of the first instance court, the same is applicable in Part 10. B. The same is applicable (hereinafter referred to as "the type of arbitration clause").

○ On the fourth page of the first instance judgment, the following shall be added to the first instance judgment:

F. On the other hand, the purchase contract for wind power 2 phase between the Plaintiff and S Co., Ltd. on May 15, 2006 includes the exclusive arbitration clause that provides that "if a dispute is not settled, the right to decide on the dispute shall be granted to the Plaintiff only for factual matters" as follows: Provided, That this type of arbitration clause includes a number of contracts concluded by the subsidiaries of Korea Electric Power Co., Ltd. including the Plaintiff (Article 25 to 34).

Article 1.6. Dispute and Arbitration 16. 16. 16. If the disagreement or dispute concerning factual issues arising under the contract cannot be settled between the parties to the contract, the difference or dispute shall be determined by the South Korean Supreme Court. The decision shall become final and conclusive if the parties concerned do not raise an objection within 30 days after the contractor is notified of the remaining decision. If the parties concerned do not raise an objection to the remaining decision, the dispute shall be settled by arbitration as provided in this Article. The dispute shall be finally resolved by arbitration as provided in the Arbitration Rules of the Korean Commercial Arbitration Board and the Arbitration made in Seoul on January 2, 16. 16. 1. 2. 1. 1. 1. 1. 1. 2. 1. 16. 16. 16. 1. 1. 1. 1. 2. 1. 2. 2. 1. 2. 1. 2. 2. 1. 2. 2. 1. 2. 3 of the decision of execution shall be subject to arbitration. 1. 2 of the decision of arbitration. 2. 2. 2. 1). 2 of the decision. 2. 2. 1. 2. 2. 2. 2. 2. 2. 3. 3. 3. 2 of the decision. 2.

H. However, the general terms and conditions of the construction contract attached to the tender guide for construction works for the period of 1, 2010 and 1, which the Plaintiff announced around May 2010, include a selective arbitration clause that provides that all disputes shall be governed by arbitration or judgment procedures without distinguishing 'real issues' and 'all disputes' differently from the content of the above legal review opinion on the dispute resolution method (hereinafter referred to as 'the type 3 type arbitration clause').

Article 50 (Settlement of Disputes) (1) Any dispute arising between the parties to a contract in the course of the performance of the contract shall be settled by consultation. (2) If the agreement under paragraph (1) is not reached within 30 days from the date of the occurrence of the dispute, the dispute shall be settled as prescribed in the following subparagraphs: (3) In the case of an international tender under Article 4 of the Act on Contracts to Which the State is a Party (hereinafter “State Contracts Act”), the procedure provided for in Articles 28 through 31 of the State Contracts Act shall not be suspended during the period of the execution of the dispute settlement procedure under paragraphs (1) and (2) of this case. In addition, the plaintiff entered into the purchase agreement with the defendant on April 12, 2012, which was signed on April 12, 2012, which was not reflected in the opinion of the above legal review in the purchase agreement, and the purchase agreement of the new type of arbitration clause B, which was the previous type of the arbitration clause, and the purchase agreement between the defendant 21 and the defendant 214.

(j) The provisions of Section 1 in the form of "fact-finding" or "Dispute 1" which are used by subsidiaries of the Korea Electric Power Corporation including the Plaintiff are as follows. If the dispute is not settled among the parties to the arbitration under Category 3: (a) the method of granting the right of priority to matters of fact-finding (No. 18-2) 1.6. If the difference or dispute concerning matters of fact-finding under the contract is not settled among the parties to the arbitration under the law of the Republic of Korea, the difference or dispute shall be determined. This decision shall not be made within 30 days after the date on which the other party to the arbitration is notified of the decision of development of the Southern Power. If the parties to the arbitration raise an objection in writing and the parties to the arbitration are unable to reach an agreement, the other party to the arbitration shall be notified of the dispute under the law of the Republic of Korea within 30 days after receipt of the objection. The other party to the arbitration shall be notified of the dispute in accordance with Article 16.1.6.

2. Determination on this safety defense

A. The Plaintiff’s claim 1) The instant lawsuit seeking liquidated damages on the ground that the Defendant did not complete each of the pertinent duties on the delivery date, commercial driving date, installation and construction date of the instant construction contract under the instant construction contract violates the Arbitration Agreement (Article 9 of the Arbitration Act, which provided that all disputes arising in relation to the instant construction contract are resolved by arbitration by the Korean Commercial Arbitration Board (Article 13(1) of the Arbitration Act).

In addition, the defendant is illegal, and the defendant does not have any interest in the lawsuit by depositing all of the liquidated damages in accordance with the arbitral award, and therefore, the defendant shall make a defense of this safety.

2) As to this, the Plaintiff’s interpretation of Article 1. 1. 1, located in the front of the instant arbitration clause, as the principle provision concerning dispute resolution, it is reasonable to interpret that “fact-finding problem” under Article 1. 1. 13 means all disputes arising from fact-finding issue, and Article 1. 1. 2, which applies only to cases where the Plaintiff has selected a dispute resolution by arbitration. Thus, the instant arbitration clause is ultimately a provision that applies only to cases where the Plaintiff has selected a dispute resolution by arbitration. Thus, the instant arbitration clause is intended at the Plaintiff’s option concerning all disputes arising from fact-finding problem of the instant construction contract.

The plaintiff asserts to the effect that there is no arbitration agreement between the plaintiff and the defendant, since it is merely an selective arbitration clause to resolve the dispute through a trial on the liquidated damages, and the plaintiff submitted a written answer to the effect that there is no arbitration agreement between the plaintiff and the defendant in the arbitral proceedings requested by the defendant.

B. Relevant legal principles

An arbitration agreement takes effect when the parties concerned agree in writing to settle all or part of a dispute that has already occurred or may arise in the future through arbitration instead of a court ruling. Thus, in order to deem that a specific arbitration clause has its validity as an arbitration agreement, it shall be determined by comprehensively taking into account specific circumstances such as the concept of arbitration under the Arbitration Act, the nature or method of the arbitration agreement, etc. based on the contents of the relevant arbitration clause and the circumstances leading up to the parties' establishment of the arbitration clause (see Supreme Court Decision 2004Da42166, Nov. 11, 2004, etc.). The method of dispute resolution is based on the mediation by the mediation committee, etc. established under the relevant Act or the arbitration agency under the Arbitration Act, etc. established under the Arbitration Act or if one party is dissatisfied with the mediation, it shall be decided by the court ruling, and the so-called selective arbitration clause, which provides that "if one party to a contract selects an arbitration procedure for the other party, not the mediation, and the other party is appointed to the arbitration procedure without any particular objection, it shall be renewed (see Supreme Court Decision 20016Da.

5. In addition, barring special circumstances such as clearly specifying the scope of a dispute that is the subject matter of an arbitration agreement, where an arbitration agreement exists, it is reasonable to view that all disputes arising from a specific legal relationship between the parties are resolved through arbitration (see Supreme Court Decision 2005Da74344, May 31, 2007, etc.). Meanwhile, the main text of Article 9(1) of the Arbitration Act provides that "where a lawsuit is instituted against a dispute that is the subject matter of an arbitration agreement and the defendant raises a defense that there is an arbitration agreement, the court must file a lawsuit, respectively."

C. Determination

1) Determination as to the existence of an arbitration agreement

In light of the legal principles as seen earlier, with respect to whether the mediation clause is effective as an exclusive arbitration clause on 1.13.2 of the instant arbitration clause, the following facts and circumstances revealed by considering the facts of recognition and the evidence mentioned above, as well as the whole purport of the arguments stated in the evidence No. 23 and No. 38 of the instant arbitration clause, it is reasonable to deem that there was an arbitration agreement to resolve all other disputes except the aforesaid factual problems arising with respect to the instant construction contract between the Plaintiff and the Defendant by arbitration, even though the primary interpretation right or priority right of determination has been reserved for the instant construction contract, with respect to the type of arbitration clause adopted by the Plaintiff et al. (i) the Korea Electric Power Corporation’s subsidiaries, including the Plaintiff, to adopt and use the arbitration clause as an exclusive arbitration clause on 13.2 of the instant arbitration clause, and (ii) the type of arbitration clause provides that all types of disputes including the Plaintiff may be granted to the Plaintiff, which are not subject to the Plaintiff’s exclusive arbitration clause in accordance with the dispute resolution procedure.

B) With respect to the language and content and structure of the arbitration clause of this case (1) 1. 1. 1. 1. 1. 1. 3, Article 1 of the arbitration clause of this case provides that, if the plaintiff raises an objection within 30 days, it shall be resolved by arbitration, but if the plaintiff selects a court proceeding, it shall be resolved by arbitration. 1. 2. 3, the former is an optional arbitration clause concerning "fact-finding problem" and the latter is an exclusive arbitration clause concerning legal relations except for fact-finding problem, and it seems objectively clear in light of the content of the arbitration clause of this case. 1. 2) The plaintiff asserts that it would be an objective dispute resolution of this case under the premise that "the plaintiff would have made an objective dispute resolution" under Article 13 (1) 1 of the Arbitration clause, and it would be interpreted as an "case of dispute" under the premise that it would have an objective dispute resolution of this case.

Article 12(1) of the Arbitration Act provides that "the fact-finding problem" shall be interpreted extensively, and Article 13(1) of the Arbitration Act provides that "All disputes" shall be interpreted in accordance with the objective meaning of the re-paragraph(1) of the same Article, and that it may seriously affect original and defendant's legal relations by interpretation differently from the objective meaning of the re-paragraph(2) of the same Article, and that if a specific dispute is excluded from the subject of arbitration agreement, and the dispute that is excluded from the subject of arbitration agreement may not be easily set up, and thus, the dispute that is excluded from the subject of arbitration agreement shall be strictly limited and interpreted in light of the purport of the arbitration clause(see Supreme Court Decision 2004Da1385, Jun. 24, 2005; Supreme Court Decision 2004Da13885, Jun. 22, 200; Supreme Court Decision 2007Da13885, Nov. 13, 2008>

C) With respect to the principle of the arbitration clause of this case (1) The plaintiff asserts that, on March 1, 1999, Article 1 of the Arbitration Clause of this case, which was located in the front of the last part of the arbitration clause of this case, the plaintiff is a principle provision on the dispute resolution of this case and that the dispute concerning facts is included in the law as well as the Supreme Court Decision 1). Thus, on March 13, 199, the "fact-finding problem" of this case means "any dispute arising from fact-finding problem" and Article 1. 1. 2 of the Arbitration Clause only applies to the case where the plaintiff selects the dispute resolution by arbitration.

(2) However, without considering the language and text of the arbitration clause, only because it is located earlier than the date of the arbitration clause. Article 1(1)1 of the Arbitration Act provides that only "fact-related dispute" shall be applicable to Article 13(2) of the Arbitration Act, and Article 1(1)2 of the Arbitration Act provides that "any dispute shall be excluded)" shall be applicable to each of the parties, and Article 1(1)3 of the Arbitration Act provides detailed provisions concerning arbitral proceedings shall be deemed as Article 1.13.2 of the principle concerning dispute resolution and arbitration. On the other hand, considering the reasons why the provisions of the Arbitration clause of this case and the exceptions are changed later, the plaintiff's argument that the first type of arbitration clause are subject to arbitration, and that the plaintiff's first type of arbitration is not subject to the first type of arbitration, and that the plaintiff's new type of arbitration clause is not subject to the first type of arbitration, with the exception of the former type of arbitration clause, and that the plaintiff's new type of arbitration clause is naturally different from the first type of arbitration clause.

(3) Furthermore, in the case where the Supreme Court Decisions 1: (a) only the difference between the facts and other disputes are defined as the subject matter of arbitration agreement; (b) it is reasonable to view that all disputes arising out of a specific legal relationship between the parties would be resolved by arbitration unless there are special circumstances, such as that the scope of disputes subject to arbitration agreement is clearly limited. (c) It is not clearly specified that the provisions related to arbitration are limited to "Dispute on the facts"; and (d) it is reasonable to consider that all disputes arising out of the contract are resolved by arbitration. However, in light of Article 1(1)3 of the Arbitration Act and Article 1 of the Arbitration Act, it is reasonable to interpret that all disputes arising out of the contract are subject to arbitration agreement and all other disputes arising out of Article 3.

D) As to the motive and background of the instant arbitration clause, the Plaintiff (1) revised the former arbitration clause in the manner of newly establishing the proviso to Article 1, 13, 13, 13, of the instant arbitration clause with the advice of a legal expert in order to have an option to resolve the dispute. In light of such circumstances, Article 1, 2, 1, 2, 13, 13, 13, 13, 13, 2, of the instant arbitration clause.

It argues that the exclusive arbitration clause excluded from the adjudication procedure cannot be seen as an exclusive arbitration clause. (2) In light of the fact that the Plaintiff received the legal review opinion to the effect that: (a) on February 2, 2010, the Plaintiff may consider the measures to add the same content as the proviso of the instant arbitration clause on March 22, 2010, when requesting a legal advice to the Kim & the law office on various matters relating to the term of the contract *1.2. As seen earlier, the Plaintiff may consider the measures to add the same content as the instant arbitration clause on March 13, 2010.

(3) However, there is no evidence to view that the Plaintiff, while entering into the instant construction contract with the Defendant, intended to be subject to the application of the instant arbitration clause, of all disputes, unlike the language and text of the instant arbitration clause, was either expressed to the Defendant or revised the previous arbitration clause through consultation with the Defendant. Furthermore, the Plaintiff, while entering into the instant construction contract, divided into “the former factual issue” and “any other dispute” into only the former one, while granting the Plaintiff’s preferential right of determination into the instant construction contract, adopted the instant arbitration clause (Class B arbitration clause) by means of dispute resolution, including adding the selective arbitration clause to the former. If the Plaintiff wishes to be subject to the application of the instant arbitration clause, then, the Plaintiff did not adopt all the types of arbitration clause including the instant arbitration clause, i.e., the legal advice clause before and after the instant arbitration clause, and (iii) the Plaintiff did not adopt any other types of arbitration clause including the instant 20 types of legal advice clause, i.e., the instant arbitral award clause, without any selective consultation clause.

12. In full view of the fact that the purchase agreement entered into with the Defendant is still 'fact-finding' and 'all other disputes', and that the Plaintiff has adopted the exclusive arbitration clause (II type arbitration clause) that grants the Plaintiff's preferential right to decision to the former, despite the above legal review opinion, the Plaintiff appears to have appropriately chosen one of the arbitration clause (B type arbitration clause) or three types of arbitration clause at its own discretion, so the meaning of the instant arbitration clause cannot be deemed to be the same as the selective arbitration clause (III type arbitration clause) for all disputes, contrary to its literal content. Accordingly, the Plaintiff's above assertion cannot be accepted.

2) Sub-decisions

Therefore, the existence and scope of the Plaintiff’s claim for liquidated damages as the instant lawsuit shall be the subject of the dispute in the area beyond the factual issues, such as the causes for delay, causation, and scope of responsibility.

Therefore, it cannot be resolved by the primary interpretation of the plaintiff's factual relations, which is subject to the exclusive arbitration agreement in accordance with the contents of the arbitration agreement of this case. Accordingly, the lawsuit of this case is brought against the arbitration agreement, and is illegal in accordance with the main sentence of Article 9 (1) of the Arbitration Act, and the defendant's principal safety defense pointing this out is justified.

3. Conclusion

Therefore, the lawsuit of this case is unlawful and thus it shall be dismissed, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.