남북한간 상사중재판정의 승인과 집행에 관한 연구

Abstract

The relationship between the South and the North of Korea can be regarded as the special relationship provisionally formed in the process towards unification. According to the special relationship, the trade between the South and the North is not the international trade but the inter-Korea trade. As the inter-Korea trade, the plural legal units were formed between the South and the North. So the legal relationship between the South and the North of Korea is the interregional legal relationship. The interregional legal relationship can be said as a new concept between the South and the North of Korea. But there are several countries where the interregional legal relationship exists in the world. China is the typical one of this kind of countries. Most of the interregional legal relationship has been successfully proceeding in China for a long time. Therefore, China's experience on the interregional legal relationship will be noticeable and significant in the law application issue between the South and the North of Korea. In this study, the aim is to review the problem on the recognition and enforcement of commercial arbitral awards between the South and the North, and also suggest a solution to the problem by reviewing the recognition and enforcement of commercial arbitral awards between them and reviewing the same matter in China. In order to achieve this aim the methods of documentary research and case study are employed. The following problems related to the recognition and enforcement of commercial arbitral awards between the South and the North of Korea were exposed after reviewing China's experience. First, distrust of the legal system between the South and the North exists. Because of the difference between their social systems, there happens a difference between their legal systems. Especially, South Korea doesn't trust the legal system of North Korea because of the incomplete arbitral system in North Korea. Second, the legislation on the enforcement of the arbitral awards is lacked between them. "New York Convention on the Recognition and Enforcement of Commercial Arbitral Awards" can't be applied between the South and the North of Korea because North Korea hasn't taken part in it. And there is no agreement on the enforcement of the arbitral awards between them. Therefore, there is no proper law on the enforcement of the arbitral awards between them. Third, the South and the North of Korea didn't put the enforcement of the arbitral awards into practice. The precedent is important in South Korea and not so important in North Korea. And the precedent is meaningful for the future legislation or the modification and supplementation of law. But the South and the North are not willing to enforce the arbitral awards each other. After reviewing the recognition and enforcement of commercial arbitral awards between the South and the North of Korea and the same matter in China, the methods of legislation or the modification of law and the method of adopting an agreement are the effective method when the arbitral awards is enforced between the South and the North. Therefore, the conclusion of an annex on the performance and the recognition or the enforcement of the arbitral awards to the "Agreement on South-North Commercial Dispute Settlement Procedures" is advisable. It is essential to set up the following clauses in the annex. They are: setting up the deadline for application; specifying a competent court; specifying the requirement for application; the refusal requirement for application. In order to establish a system on the recognition and enforcement of commercial arbitral awards between the South and the North of Korea, the following two stages of development models can be suggested. The first stage is the promotion of their mutual cooperation. This stage will take a long time because there is no mutual cooperation on the recognition and enforcement of commercial arbitral awards between the South and the North of Korea. In this stage, the South and the North of Korea modify their law or make a new law to regard the arbitral awards as special one and enforce them by a different ways with the arbitral awards of other countries. Thus, the South and the North understand the attitude of the court of the other region and gain the experience and the trust through the enforcement practice. The second stage is the conclusion of the aforesaid annex. In this stage, resting on the trust gained in the first stage the aforesaid annex can be concluded. In order to settle the disputes well by unitary jurisdiction of the unified Korea, it is necessary to follow the aforesaid annex until the contradiction between them will be minimized.