강제집행이 곤란한 외국중재판정의 집행결정에 관한 연구 －대법원 2024. 11. 28.자 2023마6248 결정과 관련된 쟁점을 중심으로－

In order to execute a foreign arbitral award against a debtor’s property in the Republic of Korea, it is necessary to obtain a court decision granting enforcement under Article 37(2) of the Arbitration Act, which confers enforceability on the foreign arbitral award. In the Supreme Court Decision of November 28, 2024 (2023Ma6248) (hereinafter ‘the Decision’), the Court declared the legal principle that even if the operative part of a foreign arbitral award differs somewhat from the format of a Korean court judgment, it is desirable for a Korean court, as the court of the enforcing state, to grant legal relief that is the same as or similar to the enforcement of a final judgment rendered in Korea on the arbitral award. Therefore, the court can legitimately render an enforcement decision that modifies or supplements the unclear or incomplete operative part of the foreign arbitral award. Accordingly, in the Decision, the Supreme Court upheld the High Court’s ruling, which supplemented the operative part of a foreign arbitral award — where the creditor-debtor relationship among multiple parties was unclear — by specifying the total amount the debtors must pay to the creditors. The holding in the Decision, aimed at ensuring the broadest possible enforceability of foreign arbitral awards, reflects a sound legal principle that could be widely accepted in the field of international arbitration. However, when the operative part of a foreign arbitral award is so unclear that, even if modified or supplemented in light of the principle established in the Decision by analyzing the reasoning of the award, it still fails to meet the required level of specificity for enforcement under the Civil Execution Act, the question arises as to how such an application for an enforcement decision should be handled. In such cases, since enforcement in Korea — as the enforcing state — would ultimately be unfeasible, there is no legal interest in granting enforceability to the foreign arbitral award. Moreover, even if a court were to render an enforcement decision, a separate dispute may later arise in the subsequent execution procedure contesting its enforceability under the relevant provisions of the Civil Execution Act. Therefore, it is reasonable to reject the application for an enforcement decision on the ground that there is no legal interest in the decision itself. However, depending on the circumstances, the court may still issue a decision recognizing the foreign arbitral award. Although the Decision concerned a foreign arbitral award ordering the payment of money, the same legal principle also applies to awards requiring specific performance. The Supreme Court has consistently held that the operative part of a judgment must be clearly and precisely specified to the extent that no doubt arises in its enforcement. In cases involving orders for specific performance or prohibitory injunctions, a high degree of specificity is similarly required for enforcement. Accordingly, foreign arbitral awards ordering specific performance are more likely to require modification or supplementation during the enforcement decision procedure, in line with the principle established in the Decision. The modified or supplemented operative part should be specified to a degree equivalent to that of a Korean court judgment. It is difficult to present a general rule to distinguish between cases where the operative part of a foreign arbitral award may be modified or supplemented in the enforcement decision procedure, and cases where the operative part is entirely incapable of enforcement, thus rendering the enforcement application inadmissible. Such a standard must be gradually developed through the accumulation of case law and theoretical discussion in future enforcement decision proceedings.