중재판정의 집행결정절차에 관한 검토

Abstract

Due to the autonomous nature of an arbitral dispute solution, the likelihood that a party satisfies the obligations of an arbitral award might be higher than that of a party complying with a judgment of the court. However, there still remains a need for a procedure to execute the arbitral award through compulsive means in the event of the failure of enforcement. While an arbitral award seems to have its own executing authority considering its equivalent legal effect with a final judgment, allowing it to function as an independent title of execution, the arbitral award is not treated equally as the judgment of the court when it comes to the enforcement procedure, due to its nature as a private trial. That is, the court’s declaration of enforcement is required in order to enforce the award. According to the Arbitration Act, which was amended by Act No. 14176, May 29, 2016 and entered into force on November 30, 2016, the procedure for enforcing an arbitral award has been shifted from previously requiring the court’s “judgment” to requiring the court’s “decision” with a view to expediting and simplifying the procedure. That is, under the current Arbitration Act, an arbitral award may be enforced by the court’s “enforcement decision,” rather than by an “enforcement judgment.” Thus, a party seeking enforcement of an arbitral award should file a claim for the court’s “decision” to allow the enforcement of an arbitral award (see Article 37(2) of the Arbitration Act). In view of the newly instituted enforcement decision procedure, this paper conducts a systematic review of the subject of enforcement decisions, documents required for the filing of a request for enforcement decisions, the method of deliberation, an immediate appeal on enforcement decisions, and the legal effect of enforcement decisions. Furthermore, the paper takes a look at the issue that may arise from different interpretations of the relevant provisions, such as whether a demurrer may raise an objection on the grounds of termination of claim (i.e., satisfaction of claim after an arbitral award is given), as well as the procedural legal principle concerning the relationship between an enforcement decision procedure and a procedure for revoking an arbitral award. The scarce amount of arbitration cases entailed by a small number of claims for enforcement decisions was the obstacle for an in-depth research on practical situations and the cases of proceedings, for which further research is needed.