국내 중재판정의 집행절차에 관한 연구

Abstract

The current Arbitration Act in Korea has the form of international standard by adopting 'UNCITRAL Model Law on International Commercial Arbitration' of UNCITRAl in 1985 in general. However, the Arbitration Act in Korea is not limited to a commercial transaction. It was difficult to imagine for the information and communication technology to develop to this level around the time the model above was adopted, and it is also hard to think that the Act has considered situations in Korea such as the regulations on domestic arbitration because of the Attorneys-at-Law Act. This study is aimed at examining the execution procedure of the Arbitration Act which deprive speed and economic feasibility, which is the main advantages of arbitration, and the profit conflict decline as well. It is also focusing on examining the problems of the execution procedure of the domestic Arbitration Act by comparing with the cases in other countries that have more advanced arbitration procedure than Korea, using comparative study, and checked theories of legislation or of analysis as the solution for those problems. The current Arbitration Act in Korea only distinguishes the domestic and foreign arbitration based on the arbitration place. To activate the arbitration, especially in domestic, the distintion should be more specific, and recognition and enforcement of the arbitration be more simple than the foreign arbitration. The developed countries execute most of the domestic arbitration by simple procedures such as decision, order or permission without any defense, and some of them regard it as schuldtitel. The Korean Arbitration Act clarifies that the Arbitration Act has the same effect with the final decision on its Article 35. It also clarifies that it should be executed unless there is reasons relevant to Article 36 Clause 2 according to Article 38. However, for those who tries to withdrawal of the arbitration according to the reasons above should raise their opinion within 3 months from the date of receiving the text of judgement, and there's no doubt it is period of exclusion. Therefore, if three months passed after the text of judgement had been delivered, there is no reason or justification to have a trial about the domestic arbitration judgement. Come to think of it, to an application, the court gives the execution clause after judging the text of judgement kept according to the Arbitration Act Article 32 Clause 4, and the documents which proves the deliberation. Withing the period of exclusion, it is possible to be saved from the unfair execution that may occur if the withdrawn lawsuit is sued within the execution procedure to object to suspension of execution or grant of execution clause. It is possible merely by current law without enactment or revision of acts, so it is only the matter of application or interpretation of law.