싱가포르협약상 조정을 통한 국제적 화해합의의 승인 및 집행 : 한국법의 관점

In 2018, UNCITRAL submitted to the General Assembly a draft convention on international settlement agreements resulting from mediation and at the same time adopted a new model law by revising the then existing Model Conciliation Law. The United Nations Convention on International Settlement Agreements Resulting from Mediation (“Singapore Convention”) was adopted by the General Assembly on 20 December 2018 and entered into force on 12 September 2020. According to current law, since a settlement agreement between the parties through private mediation is a contract, if one of the parties does not comply with the settlement agreement, it can be enforced only by obtaining a title of execution through litigation or arbitration. However, the Singapore Convention expands the function of international commercial mediation and enhances the effectiveness of settlement agreements by giving direct enforceability. The Singapore Convention is in substance “a convention on the recognition and enforcement of international settlement agreements resulting from mediation”. Many domestic and foreign articles and books have already been published on the Singapore Convention. Since Korea has signed the Singapore Convention, it is necessary for Korea to consider whether to ratify it. The Ministry of Justice launched a task force on 10 March 2021 in charge of preparation for a law implementing the Singapore Convention in Korea. The author decided to write this article because the analysis of existing literature on issues of Korean private international law or international civil procedure law, such as the recognition of foreign judgments or arbitral awards and the recognition of domestic arbitral awards, seemed insufficient. First, the concepts of mediation agreement and settlement agreement and the law applicable to those agreements are discussed. This is because there is no basic act on private mediation in Korea, and the concepts of mediation agreement and settlement agreement have not been clearly established. Next, the author focuses on the particularity of the recognition of settlement agreements under the Singapore Convention when compared with the recognition of foreign judgments or foreign arbitral awards and recognition of domestic arbitral awards. This particularity is due to the fact, among others, that a settlement agreement is a contract in nature, and there is no distinction between foreign and domestic settlement agreements because there is no seat of mediation under the Singapore Convention. The Singapore Convention deals with recognition of settlement agreements, without conferring res judicata or any other similar procedural effect to the settlement agreement, by way of disallowing re-litigation on the basis that the matter has already been resolved by the settlement agreement. If so, this does not fall under the concept of recognition under the existing Korean private international law or international civil procedure law; this is a novel concept of recognition. While it is possible for the Singapore Convention to introduce such recognition, it is unfortunate that basic issues such as the effect of the recognition (i.e., whether recognition means prohibition of re-litigation without res judicata effect) and its scope (i.e. the meaning of “matter” resolved) have not been clarified. In terms of Korean law, the recognition of a settlement agreement under the Singapore Convention (i.e., disallowing re-litigation on the ground of a settlement agreement) may be explained as first, the existence of a settlement agreement itself is a negative pre-requisite to suit (negative Prozessvoraussetzung), and second, because there is no interest in bringing a lawsuit. However, both approaches are not fully satisfactory. Moreover, such approaches lead to inconsistencies between the recognition of foreign judgments, foreign arbitral awards, and domestic arbitral awards. The author hopes that with the review of the Singapore Convention, we will be able to revise the legal regime for judicial settlement and settlement agreements. Although the author does not oppose Korea’s ratification of the Singapore Convention, there is no reason to rush into ratification. Before doing that, theoretical issues mentioned above should be thoroughly reviewed, the practical needs of Korean enterprises and the position of foreign countries should be considered, and policy decisions should be made first. It is questionable whether the task force launched by the Ministry of Justice is appropriate be cause it is not some thing that can be done with by imple me nting an act alone . The author would like to request the Ministry of Justice to gather the wisdom of the many and lay out a reasonable way forward.