중국 법원의 하자중재합의 효력 인정에 관한 실증적 연구

Purpose : This study confirms how the court of China recognizes the effectiveness of the pathological arbitration agreement, and summarizes the matters to be noted in relation to the pathological arbitration agreement when Korean investment companies entered in China arrange an arbitration agreement in China. Research design, data, methodology : This study analyzed 144 judgment cases regarding the effectiveness of the pathological arbitration agreement, collected from academic databases such as PKU Law and Chinese Online Arbitration. In addition, through this case analysis, this study confirmed how the Chinese courts applied the provisions relevant to pathological arbitration agreement in ‘Intermediate Interpretation of Arbitration Law’ and the Chinese Arbitration Law. Results : China needs to find a fundamental solution regarding the problem of pathological arbitration agreement through loosening excessive restrictions on the validity requirements of the arbitration agreement, such as selecting an arbitration institution. Conclusions : The approval of the effectiveness of the pathological arbitration agreement is not only related to the smooth realization of the arbitrator's intent by parties of arbitration, but also reflects the degree of judicial support of the country about the arbitration, a civil dispute resolution mechanism. China's arbitration law stipulates to clearly agree the arbitration institution as one of the valid requirements of an arbitration agreement. This means a backward movement to the international trend that is approved as a valid arbitration agreement if only the parties' intention to resolve the dispute through arbitration is clearly agreed.