韓國의 仲裁制度 現況

다국어 초록 (Multilingual Abstract)

Amendment to the Korean Arbitration Act
The new Korean Arbitration Act went into effect on December 31, 1999. It is mainly modeled after the UNCITRAL Model Arbitration Law to meet the goal of internationalizing the Korean arbitration system. The adoption of the new Act implies significant deviation from Korean legal tradition in this field. The previous Korean Arbitration Law of 1966 was modeled after old German arbitration law in the tenth book of the 1877 German Civil Code; the German legal system has heavily influenced Korean law in general.
On the other hand, Korean arbitration practice has been more influenced by major international arbitration centers such as AAA, ICC, LCIA, etc. As a result there was a large gap between arbitration law and practice, which was temporarily filled by the revision of the Arbitration Law in 1973. This revision authorized that the Rules of KCAB should regulate any disputes arising out of commercial transactions unless the parties have agreed otherwise. However, the new Korean Arbitration Act now attempts to meet the international standard by adopting the UNCITRAL Model Law.
Salient Features of the New Arbitration Act
These are the salient features of the new Korean Arbitration Act. In principle, the New Act Applies only if the place of arbitration is in the territory of Korea. However, as an exception, the Act applies to arbitration conducted in foreign countries if and when foreign arbitral awards are accepted for enforcement(Article 2). Under the new Act, the autonomy of arbitration is broadly guaranteed by allowing the court to intervene only where so provided. If and when the assistance of the court is needed in such cases as failure to appoint arbitrators, only the court authorized by this Act may do so((Articles 6 and 7). As a rule, an arbitral agreement should be written either separately from the main contract or in the form of an arbitration clause. A court should reject any case brought before it despite arbitration agreements that have already been made except when there is a special reason not to do so. This ensures the validity and effectiveness of arbitral agreements(Articles 8 and 9).
Under the principle of autonomy, the number of arbitrators and their selection procedures are subject to the agreement of the parties. Failing such agreement, three arbitrators are to be appointed, which selection procedure is stipulated by the Act(Articles 11 and 12). Regarding the choice of arbitral procedures and the place of arbitration, the parties may freely agree on them. Failing an agreement, the arbitral tribunal shall decide these matters having regard for the parties' circumstances(Articles 20 and 21). In addition, the new Act stipulates provisions for statements of claim and defense, hearing procedures and evidence taking in detail(Articles 24 and 28).
Furthermore, an arbitral award should include the grounds for it, the date and the place of arbitration and signatures of all the arbitrators. And an arbitral award has the same effect res judicata as a court's final judgment(Articles 32 and 35). Recourse to a court against arbitral award may be made only by an application for setting aside within three months from receipt of the arbitral award(Article 36). An arbitral award shall be recognized and enforced in virtue of the judgment made by the competent court. domestic arbitral awards shall be enforced without delay for an early settlement of disputes, unless there is any reason for setting aside (Articles 37 and 39). Under the new Act, the government is authorized to subsidize commercial arbitration organizations designated by the Minister of Commerce, Industry, and Energy. The Korean Commercial Arbitration Board(KCAB) is designated as one of these organizations in accordance with this law(Article 40 and paragraph(3) of Supplementary Rules).

목차 (Table of Contents)

• Ⅰ. 韓國仲裁制度
• Ⅱ. 仲裁機關(大寒商事仲裁院)