준정부기관 간접비 분쟁에서 소송과 중재 비교 연구

This paper was motivated by the lack of previous studies comparing and analyzing litigation and arbitration based on data from the construction industry and Quasi-Governmental Organizations. Specifically, this paper compares the outcomes of litigation and arbitration in prolongation costs cases, which are frequent construction disputes at the Korea National Railway(hereinafter referred to as “KR”). This comparison revealed the following facts. First, there was no significant difference in the number of lawsuits and arbitrations, with 29 and 21 cases, respectively. Second, arbitration was found to be resolved 524 days faster than lawsuits. Third, despite being conducted for cases where defeat was anticipated, the success rate of arbitration was only 5 percentage points lower than that of litigation. Fourth, the KR was able to save 16.94 billion won in budget by utilizing arbitration. The following improvement measures were proposed to address the issues identified through the operation of the arbitration system at the KR. First, it is possible to consider revising Article 1 of the Arbitration Act to expand the scope of arbitration to include judicial disputes with public law characteristics in the short term and public law disputes in the medium to long term. Second, the Korean Commercial Arbitration Board(hereinafter referred to as the “Arbitration Board”) should amend its Domestic Arbitration Rules to ensure the speediness that is a key advantage of arbitration by stipulating important matters in advance, such as the hearing period, witnesses, and whether expert opinions will be sought. Third, the Arbitration Board should conduct educational and promotional activities for relevant ministries, such as the Board of Audit and Inspection of Korea, and enter into business agreements with these ministries stipulating that no adverse actions will be taken against contracting authorities solely for having conducted arbitration. Fourth, the Arbitration Board is currently in discussions with relevant government agencies to establish a new evaluation indicator for the operation of the arbitration system in the government performance evaluation, which has a significant impact on public institutions. If these discussions are successful, public institutions are expected to actively utilize the arbitration system. Fifth, courts should limit their review to procedural defects under Article 36(2) of the Arbitration Act to enhance the reliability of arbitral awards, thereby preventing frivolous lawsuits seeking their annulment. Furthermore, it is necessary to amend the Domestic Arbitration Rules to allow the Secretariat of the Arbitration Commission to review draft awards and resolve potentially problematic issues in advance, within the scope that does not affect the authority of the arbitral tribunal.