(영문) 서울중앙지방법원 2016. 11. 15. 선고 2016가합541487 제10민사부 판결

1. With respect to the case No. 1511-0163 arbitration between the Plaintiff (Counterclaim Defendant) and the Defendant (Counterclaim Plaintiff), the arbitral award in the attached Form No. 1511-0163, which the said arbitral tribunal rendered on July 6, 2016, shall be revoked.

2. The defendant (Counterclaim plaintiff)'s counterclaim is dismissed.

3. The costs of lawsuit are assessed against the Defendant-Counterclaim Plaintiff by aggregating the principal lawsuit and counterclaims.

Purport of claim

The main office is as set forth in the Disposition.

Counterclaim: Compulsory execution based on the arbitral award under Paragraph (1) of this Article shall be permitted.

Reasons

A principal lawsuit and a counterclaim shall be deemed simultaneously.

1. Facts of recognition;

A. The Plaintiff (Counterclaim Defendant; hereinafter referred to as the “Plaintiff,”) was awarded a contract with respect to the construction of a new city (stage 1) project (stage 3) project (hereinafter referred to as the “instant construction project”) that was ordered by a corporation for the purpose of civil engineering and construction work, and the development of a new city (stage 3) project (stage 3), which was ordered by the Gyeongbuk-do Development Project, for the purpose of the construction work, by means of a joint implementation method, and then

10. Around January and December 6 of the same year, February 10, 2014, between the Defendant (Counterclaim Plaintiff, hereinafter referred to as “Defendant”) and the Defendant (hereinafter referred to as “Defendant”) entered into a subcontract (hereinafter referred to as “each of the instant subcontract”) with respect to “PCX and structure installation works,” “soil and reinforced concrete construction works (one section),” “common soil and sand works, and PCX construction works.”

B. Each subcontract of this case has the following dispute settlement provisions (hereinafter referred to as the "Dispute settlement provisions of this case") concerning the case where a dispute arises between the plaintiffs and the defendant.

[Period of each contract of this case]

Article 31 (Objection and Settlement of Disputes)

1. Where there is any matter not specified in this contract or individual contract, or there is any dispute over the interpretation of the contract, the plaintiff and the defendant shall comply with other written data, and if there is no data, they shall decide upon mutual agreement.

(2) When an agreement under paragraph (1) is not reached, an application for mediation may be filed with the construction dispute mediation committee under Article 69 of the Framework Act on the Construction Industry, or the subcontract dispute mediation committee under Article 24 of the Fair Transactions in Subcontracting Act, or an application for mediation with an arbitration agency

C. After that, from March 2014, disputes arose between the Plaintiffs and the Defendant regarding the payment of the construction cost, and the Plaintiffs notified the Defendant that each of the instant subcontract was terminated on the grounds that the construction cannot be completed within the construction period due to the Defendant’s fault on June 25, 2014.

D. On July 22, 2015, the Defendant filed an application with the Korea Commercial Arbitration Board for arbitration seeking payment of KRW 2,061,268,633 in total, including KRW 1,00,00,000, and KRW 1,061,268,633 in damages suffered by the Defendant due to the termination of an illegal contract by the Plaintiffs (Article 1511-0163 of the Korea Commercial Arbitration Board Arbitration Board). As to this, the Plaintiffs filed an application with the Korea Commercial Arbitration Board for arbitration seeking payment of KRW 2,061,268,63 in total (Article 1511-0163 of the Korea Commercial Arbitration Board Arbitration Board). On August 20, 2015, the Plaintiffs filed a written reply and a preparatory document, asserting the non-existence of the arbitration agreement, and submitted the written reply and a written statement opposing the resolution by the arbitration.

E. On July 6, 2016, the Korea Commercial Arbitration Board rejected the Plaintiffs’ principal safety defense on the grounds that the instant dispute settlement clause existed between the Plaintiffs and the Defendant pursuant to the instant dispute settlement clause, and rendered an arbitral award in the same manner as the arbitral award in the separate sheet (hereinafter “instant arbitral award”).

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 through 4 (including each number; hereinafter the same shall apply) and the purport of the whole pleadings

2. The parties' assertion

A. The plaintiffs

The dispute resolution clause of this case is a selective arbitration clause, and since the plaintiffs oppose the defendant's claim for arbitration to settle the dispute with arbitration, the arbitral award of this case must be revoked.

B. Defendant

Since the dispute resolution clause of this case is not a selective arbitration clause but a conclusive arbitration agreement, compulsory execution based on the arbitral award of this case against the plaintiffs should be allowed.

3. Determination

A. Relevant legal principles

1) Article 3 subparag. 1 of the Arbitration Act provides that "a dispute under private law is resolved by an arbitration without a court's judgment but without a court's judgment." Article 3 subparag. 2 of the Arbitration Act provides that "an arbitration agreement means an agreement between the parties to the dispute that has already occurred or may arise in a certain legal relationship, regardless of whether it is a contractual dispute, in whole or in part, through arbitration." Article 8(1) of the Arbitration Act provides that "an arbitration agreement may be in the form of an independent agreement or an arbitration clause in the form of an arbitration clause." Article 9(2) of the Arbitration Act provides that "an arbitration agreement shall be in writing." Article 9(1) of the Arbitration Act provides that "if a lawsuit is brought against a dispute which is the object of an arbitration agreement, the court shall dismiss the lawsuit if the defendant raises a defense of the existence of the arbitration agreement." However, this provision provides that "An arbitration agreement shall not apply where it is invalid, void, or impossible to implement it." Article 8(2) of the Arbitration Act provides that an arbitration agreement shall take effect in whole or in part of the dispute.

Supreme Court Decisions 2003Da318, 2004Da42166 Decided November 11, 2004, and Supreme Court Decision 2004Da25192 Decided January 28, 2005, etc.

2) In addition, the so-called selective arbitration clause, which provides that "a party to a contract selects a party to an arbitration procedure other than an arbitration and requests the other party to resolve the dispute according to the arbitration procedure, and the other party without any particular objection, shall be deemed effective as an arbitration agreement only when the other party to the contract withdraws from the arbitration procedure. In a case where the other party actively objects to the arbitration by asserting the non-existence of the arbitration agreement in the response to a claim by a party to the arbitration, the other party shall not be deemed to be effective as an arbitration agreement (see, e.g., Supreme Court Decision 2004Da42166, supra).

B. Determination

1) In light of the above legal principles, this case's dispute settlement clause is a selective arbitration clause, and the facts acknowledged earlier are the following circumstances, namely, if the agreement under paragraph (1) is not reached, the dispute settlement clause of this case can apply for mediation or arbitration to a construction dispute mediation committee under Article 69 of the Framework Act on the Construction Industry or to a subcontract mediation committee under Article 24 of the Fair Transactions in Subcontracting Act, or to an arbitration agency established under other Acts and subordinate statutes, and has the authority to apply for mediation or arbitration. If either party selects arbitration procedures, the other party does not have the obligation to comply with it. ② The dispute settlement clause of this case does not explicitly exclude the dispute settlement by the court decision, and the dispute settlement clause of this case does not have the obligation to comply with it, and ultimately, if the parties fail to reach an agreement between them, it shall be decided by a court decision.

Since it is not possible to resolve the dispute in the dispute resolution procedure, it cannot be deemed that the parties' right to trial was excluded because there is no provision regarding the dispute resolution by the court's decision in the dispute resolution clause of this case, and the plaintiffs and the defendant appear to have accepted the dispute resolution clause of this case as it is, it is reasonable to view the dispute resolution clause of this case as the selective arbitration clause.

2) On the other hand, the selective arbitration clause like the dispute resolution clause of this case is effective as an arbitration agreement only when one of the parties selects a non-resolution of the dispute to the other party and demands the resolution of the dispute according to the procedure, and the other party acts without any objection to the dispute. Since the fact that the plaintiffs explicitly opposed to the resolution by arbitration while actively seeking the non-existence of the arbitration agreement, the dispute resolution clause of this case cannot be deemed to be effective as an arbitration agreement under the Arbitration Act.

3) Therefore, the arbitral award in the instant case shall be revoked on the ground that it constitutes “where it has dealt with a dispute which is not subject to an arbitration agreement” under Article 36(2)1 (c) of the Arbitration Act, and the said arbitral award may not be approved or executed (Article 38 of the Arbitration Act).

4. Conclusion

Therefore, the plaintiffs' claim of this case is justified, and the defendant's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.