중재판정 집행절차의 개선에 관한 연구

The current Korean Arbitration Act requires that an enforcement judgment on an arbitral award be obtained in order to enforce the award. However, there is much criticism on this enforcement procedure, as it is too burdensome to the winning party of the arbitration and delays the whole enforcement procedure too much. The fundamental cause of the criticism lies on the fact that whether or not to grant enforcement to an arbitral award is decided by judgment procedure on trial. To resolve the criticism, some argue that an arbitral award itself must be recognized as a title of enforcement. Some argue that enforcement procedure which is currently judgement procedure should be amended to decision procedure. An Arbitral award is a conclusion not by a national court, but by a private person or persons and does not have enforcement power. Thereforethe enforcement power of the nation should be exercised in order to enforce the award. In this process, it is necessary for the nation to review whether the award have fulfilled requirements for enforcement. Almost all the nations require that national courts review whether or not an arbitral award is qualified for enforcement, though the review procedure might differ from nation to nation. An arbitral award cannot be enforced without any review by the national court. Some argue that review of an arbitral award for enforcement can be conducted in the procedure where a law clerk issues an execution clause to the award. However, it is not appropriate to review whether or not an arbitral award fulfills requirements for enforcement during this process. As an arbitral award is a conclusion of formal arbitration procedure, which is equivalent to judgment procedure on trial, it is unreasonable to require formal judgment procedure to enforce the award. It is desirable to amend the current judgement procedure on trial for enforcement of an arbitral award to decision procedure without trial, when considering the following reasons: An arbitral award is already a result of a formal arbitration procedure; The reviewing court is not allowed to review the merits of an arbitral award in principle; It is highly important to simplify and expedite enforcement of an arbitral award; Legislations of almost all the nations stipulate simpler procedure. This study suggest the following measures to improve the current enforcement procedure. (i) The party seeking enforcement of an arbitral award may apply for an enforcement decision to the court, and need not to submit a complaint for an enforcement judgment. (ii) The court should hold an oral pleading in the courtroom, or examine the parties when both parties are ale to attend. (iii) The court should dismiss, reject, or grant the application in the form of decision. Reasons to reach such a decision must be written, yet summary of the reasons may be allowed if there were no pleading in the courtroom. (iv) The court decision regarding whether or not requirements for enforcement of an arbitral award are fulfilled should have res judicata, and the award may be enforced with an enforcement decision. (v) All decisions should be subject to immediate appeal within the fixed time. The immediate appeal may not suspend enforcement of the decisions.