(영문) 서울고등법원 2016. 9. 2. 선고 2015나25046 제27민사부 판결

The judgment of the first instance shall be revoked. The Korea Commercial Arbitration C and Arbitration D between the Plaintiff and the Defendants shall be revoked.

With respect to the case, the arbitral award rendered by the said arbitral tribunal on March 3, 2014 shall be revoked.

Reasons

1. Quotation of judgment of the first instance;

The reasoning for this Court’s explanation concerning this case is as follows: (a) the part of the first instance court’s 11th 8th h.m. “from No. 13 p.m. to No. 14th h.m.”; and (b) the part of the first instance court’s 11th h.m. to No. 14th h., “non-existent”; and (c) the part of the first instance court’s 18th h.m. to the end of the 12th 19th h., and the part of the 3th h. to the end of the 12th 19th h.

2. The changed part

④ In light of the importance of the appointment of an arbitrator in the arbitral proceedings, the Plaintiff appears to have sufficiently reviewed and examined the candidate’s career, including J, to be submitted to the Korean Commercial Arbitration Board (the Plaintiff wanting to take nine order), on the 10 list of the candidates who were sent from the Korean Commercial Arbitration Board, in light of the importance of the appointment of an arbitrator in the arbitral proceedings, the Plaintiff appears to have been sufficiently examined and examined as to the candidate’s career, including J, to be the representative director of L, and L was aware of the fact that the Defendant entered into the design service contract with Defendant B, even though the instant arbitral award was made, there was no objection related to the appointment of another arbitrator until the instant arbitral award was made.

3. Additional parts

A. The following parts of the judgment of the court of first instance: "No. 14 of the 11th judgment":

6) As to the service contract between L and the Defendant for approximately KRW 2.1 billion on April 17, 2014, the Plaintiff:

In light of the fact that the contract amount exceeds 20 times the average amount of the ordinary service cost, the fact that the other excellent enterprises are replaced, the reason why L is selected as a joint designer even though the contract amount was not registered as Defendant B’s partner, and that the regular contract date is about April 17, 2014, but it seems that the design business was already conducted around February 2014 in light of the progress of the contract, etc., it is difficult to think of the above contract separately from the arbitral award in this case. However, as the above contract can be seen as being written in the evidence No. 11, it is concluded in the process of performing the work by selecting a design consortium, not in the exclusive contract between Defendant B and L, in light of the fact that the construction consortium for receiving the above construction work was concluded in the process of performing the above construction work, not in the exclusive contract between Defendant B and L, and that it is difficult to conclude that the above contract did not have an impact on the arbitral award in this case, as alleged by the Plaintiff alone.

B. The 11th end of the judgment of the first instance

[Unless a challenge is filed within the period prescribed by the Arbitration Act after the issuance of the arbitral award in this case, it cannot be asserted that the composition of the arbitral tribunal or the arbitral proceeding constitutes "a case where the composition of the arbitral tribunal or the arbitral proceeding is not in compliance with the Arbitration Act," or "a case where the recognition or enforcement of the arbitral award violates the good customs and other social order of the Republic of Korea" on the grounds that the arbitral award in this case constitutes "a case where the arbitral tribunal or the arbitral proceeding is not in compliance with the Arbitration Act," or "a case where the recognition or enforcement of the arbitral award violates the good customs and other social order of the Republic of Korea" although the J knows that it was subject to the duty of disclosure as seen above, namely, the fact that L, the representative director of the J has concluded a service contract with the defendant B (it is difficult to view such fact as a serious reason to the extent that it can be seen as being like the grounds for exclusion of a judge under Article 41 of the Civil Procedure Act).

C. The 19th part of the first instance judgment

(1) The court below held that the defendants' claims for construction costs at night and on holidays are not acceptable, even though the defendants' claims are not attributable to the defendant's sole or both parties. However, the plaintiff's claims are merely unjustifiable to determine the judgment of the arbitral award of this case. Thus, the plaintiff's claims do not constitute "when the reasons for the arbitral award of this case are not stated." Further, the plaintiff's legitimate assertion or defense was not examined. However, the plaintiff's evidences offered by the plaintiff are insufficient to recognize them.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed in its entirety as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed in its entirety as it is without merit, and it is so decided as per Disposition.