Ring-S U.S. et al. (Attorneys Shin Tae-gil et al., Counsel for the plaintiff-appellant-appellee)

Ging-ri and one other (Law Firm Han-ri et al., Counsel for the plaintiff-appellant)

December 8, 2011

Seoul Central District Court Decision 2010Gahap31926 Decided February 11, 201

1. Revocation of a judgment of the first instance;

2. All of the plaintiffs' lawsuits against the defendants are dismissed.

3. The costs of the lawsuit are assessed against the Plaintiffs.

1. Purport of claim

With respect to the cases involving the partial support of the California District Court of the United States of America (U.S.), specific performance and attorney's fees and attorney's fees between the plaintiffs and the defendants, the above court shall be granted compulsory execution according to the sentence of the attached judgment in accordance with the judgment rendered on January 15, 2009.

2. Purport of appeal

The judgment of the first instance is revoked, and the plaintiffs' claims are dismissed.

1. Facts of recognition;

The reasons for this part are as stated in the part of the “1. Facts of recognition” from 2.1 to 7.1 of the judgment of the court of first instance. Thus, this part is cited by the main text of Article 420 of the Civil Procedure Act.

2. Specific performance parts

A. Of the instant judgment rendered by the U.S. court, the specific performance portion is that “the Plaintiff was granted the Defendants the right to claim specific performance of the agreement and exclusive license agreement.”

B. (1) According to Article 26(1) of the Civil Execution Act, compulsory execution based on a judgment of a foreign court may be declared lawful by a court of the Republic of Korea in the Republic of Korea. As such, the judgment of a foreign court subject to a judgment of execution refers to the performance of specific benefits, etc., which has the contents suitable for the compulsory realization (Supreme Court Decision 2009Da68910 Decided April 29, 2010).

The recognition of a foreign judgment is to respect the validity of the foreign judgment in Korea as it is, and on the other hand, the exercise of force to realize the obligation of payment is essentially a intellectual property, and thus the recognition of a foreign judgment cannot be subject to compulsory execution in Korea based on the foreign judgment. Thus, it is to grant enforcement force on such foreign judgment by the judgment of execution by the Korean court.

Where an executory power is granted by a judgment of execution of a Korean court on a foreign judgment, the actual contents of the executory power, such as the method, object, commencement, progress, termination, etc. of compulsory execution based thereon, shall be governed by the Civil Execution Act of Korea, which is a Korean corporation. According to the Civil Execution Act, compulsory execution shall be conducted based on a title of execution, such as a final and conclusive judgment, and where an executory power is granted by a judgment of execution of a Korean court

Such enforcement titles indicate the existence and scope of a claim for performance under certain judicial (judicial) and recognize the executory power to such claim, and must be indicated directly and specifically by compulsory execution, such as the kind, content, scope, etc. of performance to be realized by compulsory execution. This is because enforcement procedures are separated in enforcement procedures to conduct enforcement without examining the existence and contents of the performance obligation.

(2) However, the specific performance portion of the instant judgment is that “the Plaintiff has been granted the Defendants the right to claim a specific performance of the agreement and exclusive license agreement,” and the Plaintiffs expressed that they have the right to seek the performance of the obligation under the agreement and exclusive license agreement, but the content of such obligation itself does not specify.

On the other hand, according to the above facts of recognition, the plaintiffs filed a lawsuit with the U.S. court on the basis of the above agreement and exclusive license agreement, and the judgment of this case was rendered, and the defendants had the obligation to transfer patent rights to the plaintiffs in the above agreement and exclusive license agreement, and the judgment of this case does not indicate the contents of the above agreement and exclusive license agreement, and thus, it is inevitable to confirm the above patent transfer obligation other than the judgment of this case in order to confirm the above patent transfer obligation.

(3) If so, the subject judgment of this case cannot be qualified as executive title because the kind, content, scope, etc. of the benefits to be realized by compulsory execution is not directly and specifically indicated, in case where compulsory execution is to be conducted under the Civil Execution Act of Korea based on the subject judgment of this case.

C. (1) According to Article 27(2) of the Civil Execution Act, when a foreign judgment fails to satisfy the conditions under Article 217 of the Civil Procedure Act, the lawsuit seeking a judgment of execution shall be dismissed, and Article 217 subparag. 4 of the Civil Procedure Act provides that “mutual guarantee exists.”

If the requirements for recognition of the same kind of judgment between Korea and foreign countries are not considerably balanced, the requirements prescribed in the foreign country are not more severe than those prescribed in the Republic of Korea, and there is almost little difference in important points, it is reasonable to deem that the requirements for mutual guarantee under Article 217 subparag. 4 of the Civil Procedure Act have been met. In addition, the mutual guarantee is sufficient to acknowledge the comparison of the requirements for recognition according to foreign statutes, precedents, and custom, and there is no need to enter into a treaty with a party. It is sufficient to expect that the foreign country can actually approve the same kind of judgment even if there is no case of approval of the foreign country (Supreme Court Decision 2002Da74213 Decided October 28, 2004).

(2) The subject case of this case is a state 2 of California central law of California and states 3 of California of California of the United States, and Chapter 2 of §1713 through §1724 of "Civil Procedure Act" is referred to as "unit 4 of the Unification Foreign Monetary Judgment Approval Act" and provides for the approval, etc. of foreign judgments.

California's above approval law provides that the above approval law shall apply to any foreign judgment ordering or dismissing a certain amount of money, and states 5) (Article 1715) (Article 1715). This judgment also provides that the above approval law shall not apply to family relation decisions such as tax judgment, fine, divorce, support, etc. (Article 6) (§1715).

However, the specific performance part of the judgment of this case is that "the plaintiff has the right to claim a specific performance of the agreement and exclusive license contract against the defendants," and the plaintiffs expressed that they have the right to seek the performance of the obligation under the agreement and exclusive license contract, but the contents of such obligation are not specified itself, and therefore, the judgment of this case cannot be deemed to constitute a judgment ordering or dismissing the payment of a certain amount of money.

In addition, since the above agreement forms and exclusive license agreements stipulate that the Defendants shall bear the obligation to transfer the patent right to the Plaintiffs, this does not constitute a monetary payment of a certain amount.

On the other hand, California's above approval law does not prohibit any foreign judgment that is not subject to the above approval law from being approved by the principle of good faith, etc., and state 7) (§1723) (Article 1723) (Article 8) (Article 1715) (Article 17) (Article 1715).

However, since the specific implementation part of the judgment of this case is related to the agreement and exclusive license agreement, it cannot be said that it is a family relation judgment such as divorce or support.

(3) If so, the specific performance part of the instant judgment does not constitute a judgment ordering or dismissing a certain amount of money, and does not constitute a family relation judgment such as divorce or support, which is not a judgment that can be approved pursuant to the Uniform Foreign Money Judgment Approval Act of California of the United States. Thus, among the instant judgment, there cannot be “mutual guarantee” under Article 217 subparag. 4 of the Civil Procedure Act as to the specific performance part of the instant judgment, and there is no other evidence to acknowledge this.

D. Therefore, with respect to the specific implementation portion of the instant judgment, the qualification of executive officer under the Civil Execution Act cannot be satisfied, and the judgment of execution is not allowed on the ground that there is a mutual guarantee under Article 217 subparagraph 4 of the Civil Procedure Act.

3. Part of attorney's fees and fees

A. Of the instant judgment rendered by the U.S. court, the part on attorney’s fees and attorney’s fees are “the Plaintiff is jointly and severally paid 940,378.32 dollars from the Defendants.”

B. (1) The above attorney’s fees and fees are indicated directly and specifically as the type, content, scope, etc. of the benefits corresponding to the payment of a certain amount of money.

However, according to the above facts, the plaintiffs filed a lawsuit with the U.S. court on the basis of the agreement statement and exclusive license agreement, and the judgment of this case was rendered. The above agreement statement and exclusive license agreement provide that the defendants shall assume the duty to transfer patent rights to the plaintiffs, and the winning party shall have the right to recover reasonable costs and expenses, including attorney fees and expenses, and accordingly, the plaintiffs shall have the right to claim specific performance of the agreement statement and exclusive license agreement, and the judgment of this case was rendered that the plaintiffs shall be jointly and severally paid 940,378.32 dollars from the defendants.

According to the above circumstances, the part concerning attorney fees and expenses in the judgment of this case shall be deemed to have been repaid by the court of the United States of America in order to obtain the judgment of the same contents as the specific performance part in the judgment of this case.

(2) The enforcement judgment system is based on a foreign judgment without a need to enforce double procedures, such as filing a lawsuit, in a case where a party’s right confirmed in the judgment rendered in a foreign court having jurisdiction is to be compulsorily realized in Korea. However, it is intended to achieve an appropriate balance between the parties’ request for smooth realization of the right by examining whether compulsory realization of the foreign judgment is permissible in Korea and approving the enforcement judgment (Supreme Court Decision 2009Da68910 Decided April 29, 2010).

On the other hand, Article 391 of the Korean Civil Procedure Act provides that no independent appeal shall be filed against a judgment on costs of lawsuit, which is subordinate to a judgment on the merits.

In light of the above purport of the enforcement judgment system and the judgment of litigation costs, in a case where compulsory performance of the obligation to pay benefits confirmed in the judgment of a foreign court is not allowed in Korea, it separates the obligation to reimburse expenses incurred by the foreign court to obtain the foreign judgment, and thus, the compulsory performance of such obligation in Korea results in the compulsory performance of the above obligation to reimburse expenses in Korea. Therefore, it is not allowed to enforce the above compulsory performance in Korea independently from the above obligation to reimburse expenses incurred in the realization of the obligation to pay benefits which is not permitted.

C. However, the judgment of execution is not allowed with respect to the specific performance part of the judgment of this case, and the attorney's fees and attorney's fees among the judgment of this case are to be repaid by the defendants in the U.S. court in order to obtain a judgment with the same contents as the above specific performance part. Therefore, the judgment of execution is not allowed with respect to the attorney's fees and fees among the judgment of this case

4. Conclusion

Therefore, all of the plaintiffs' lawsuits of this case seeking a judgment of execution of this case shall be dismissed, and since the judgment of the first instance differs from this conclusion, the judgment of the first instance shall be revoked and all of the plaintiffs' lawsuits against the defendants shall be dismissed, and it is so decided as per Disposition.

[Attachment]

Judge Cho Young-young (Presiding Judge)

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State2) United States District Court of the United States of America, the United States District Court of the United States of America, the United States of America Dostern Divis

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주6) §1715 (b) This chapter does not apply to a foreign-country judgment, even if the judgment grants or denies recovery of a sum of money, to the extent that the judgment is any of the following: (1) A judgment for taxes. (2) A fine or other penalty. (3) (A) A judgment for divorce, support or maintenance or other judgment rendered in connection with domestic relations.

주7) §1723 This chapter does not prevent the recognition under principles of comity or otherwise of a foreign-country judgment not within the scope of this chapter.

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