Law Firm Name (Law Firm LLC, Counsel for defendant-appellant)

[Defendant-Appellant] Plaintiff 1 and 1 other

Law Firm Han-chul et al., Counsel for the plaintiff-appellant

Attorney Lee In-ho et al.

1. Review of the reasoning of the lower judgment and the record reveals the following facts.

A. On January 2, 2016, the Defendant applied for authorization to establish a regional housing association to implement a new apartment construction project at Pyeongtaek-si (location omitted), and is a regional housing association that obtained authorization to establish an association from the head of Pyeongtaek-si on April 6, 2016.

B. On May 16, 2015, prior to authorization to establish an association, the Plaintiff entered into an agreement with the Defendant to become a member of the Defendant and to be supplied with the apartment (water omitted) (hereinafter “the instant first agreement”).

C. Pursuant to the instant first contract, the Plaintiff paid KRW 20 million in total as the down payment among the members’ contributions from May 16, 2015 to July 23, 2015, and KRW 11 million in total as the administrative service expenses on June 22, 2015 and the following day.

D. On the other hand, on January 27, 2016, the Plaintiff was notified by the Defendant that the Plaintiff owned a house exceeding 85 meters of the exclusive residential area, and thus constitutes grounds for non-existence of union members. The Plaintiff asked the Defendant about the above issue. The Plaintiff sold the house owned by the Plaintiff from the Defendant, and provided an explanation from the Defendant that there is no problem in acquiring the Plaintiff’s membership if the Plaintiff drafted a partnership subscription contract as a day after the date of sale

E. On April 25, 2016, the Plaintiff received a notice from the Defendant to additionally pay KRW 46 million out of the cooperative contributions under the instant first contract, and paid the following day. On May 24, 2016, the Plaintiff sold the Plaintiff’s house and completed the registration of ownership transfer under the purchaser’s name, and notified the Defendant of such fact.

F. On June 20, 2016, the Defendant requested the Plaintiff to re-consign a partnership membership agreement as the Plaintiff’s ground for disqualification was eliminated, and on June 21, 2016, the Plaintiff entered into a partnership membership agreement with the Defendant with the same content as the instant first agreement (hereinafter “instant second agreement”).

G. On January 2, 2016, the Defendant notified the Plaintiff after the instant secondary contract, and the Plaintiff failed to meet the requirements for homeless as of January 2, 2016, the date of application for authorization to establish a housing association, and received authorization to change the regional housing association from the head of Pyeongtaek-si by excluding the Plaintiff from its members on February 23, 2017.

2. Where a party has filed an application for resumption of pleadings to submit arguments and certifications after the closing of pleadings, the issue of whether to accept the application falls under the court’s discretion in principle. However, as the party who filed the application for resumption of pleadings was unable to have the opportunity to submit arguments and certifications due to the reasons that it was difficult for him/her to be responsible prior to the closing of pleadings, and as such, where a judgment against the party without having given the opportunity to submit arguments and certifications is contrary to procedural justice pursued by the Civil Procedure Act, the court is obliged to resume the pleadings and continue the hearings. Furthermore, in cases where the party violated the duty to explain matters in fact or in law, and the party has concluded the pleadings with the intent to submit arguments and certifications, such as where the party filed the application for resumption of the pleadings, and where there were errors in the litigation procedures that may affect the proper and fair resolution of the case, the court responsible for conducting the hearing and determination of the case is obliged to continue the hearing and determination of the case in an appropriate and fair manner, and perform the duty of continuing the hearing (see, e.g., Supreme Court Decision 201300.

3. The Plaintiff, as the cause of the instant claim, rescinded the agreement, and filed a claim for the return of the Plaintiff’s share of cooperative members and administrative service costs borne by the Plaintiff to the Defendant on the premise that the instant secondary contract is null and void. The lower court rejected the Plaintiff’s claim on the ground that the instant secondary contract is null and void in terms of the original impossibility of payment, but the agreement cancellation of the instant primary contract is null and void without going through the Defendant’s general assembly resolution.

4. However, according to the records, the defendant asserted that even if the first contract of this case was automatically rescinded through each of the preparatory documents dated November 16, 2018, June 3, 2019, and October 15, 2019, the plaintiff only has the right to claim a reimbursement within the scope that deducts penalty, etc., even if the first contract of this case was automatically rescinded. The above preparatory documents are all stated on each of the dates for pleading, the plaintiff completely denied them without using the defendant's conjunctive assertion, and the plaintiff completely denied them without using the defendant's conjunctive assertion. The defendant asserted that the penalty for breach of contract claimed by the defendant is excessive through the application for resumption of pleading as of August 4, 2020 and the preparatory documents as of September 11, 2020, which are after the closing of argument in the court below.

5. In addition to these proceedings, if the Plaintiff submitted a written statement to the effect that the Plaintiff was already excluded from the Defendant’s union members at the time of the closing of argument in the lower court, and that the penalty claimed by the Defendant is excessive after the closing of argument in the lower court, this can be seen as a cause of the instant claim after the resumption of oral argument, which is the cause of the instant claim, to add the return of the remainder within the reasonable scope after deducting penalty, etc. from the penalty, etc. within the reasonable scope, under the premise that the first contract in the instant case was automatically rescinded. In light of the above, the lower court need to sufficiently examine whether to maintain the validity of the first contract

Nevertheless, the lower court rejected the Plaintiff’s claim on the grounds stated in its reasoning without reaching it. In so determining, the lower court erred by neglecting the exercise of the right to ask for seat and failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

6. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Min-young

The chief Justice Justice shall mobilized

Justices Noh Tae-ok