[2] Whether the appellate brief is treated as not having been filed, where the appellate brief does not contain specific and explicit reasons on the violation of the laws and regulations of the court below (affirmative)

A. Article 27(1) of the Installation and Utilization of Sports Facilities Act (hereinafter “Sports Facilities Act”) provides that a person who acquires essential facilities according to the facility standards prescribed by Ordinance of the Ministry of Culture, Sports and Tourism (hereinafter “essential sports facilities”) shall succeed to the rights and obligations arising from the registration or reporting of a sports facility business in addition to inheritance and merger. Paragraph (2) of the same Article also applies mutatis mutandis to a person who acquires the essential facilities according to an auction under the Civil Execution Act and other similar procedures.

In addition, sports facility business entities shall install, maintain and manage facilities meeting the facility standards prescribed by Ordinance of the Ministry of Culture, Sports and Tourism depending on the type of sports facility business (Article 11(1) of the Sports Facilities Act), and the facility standards for each type of sports facility business is prescribed in attached Table 8 of the Enforcement Rule of the Installation and Utilization of Sports Facilities Act (hereinafter “Enforcement Rule of the Sports Facilities Act”).

The above [Attachment 4] sets the standards for facilities by dividing the essential sports facilities to convenience facilities, safety facilities, and management facilities according to the use of the essential sports facilities which must be commonly equipped regardless of the kinds of sports facilities (1.A.), and the standards for facilities by dividing them into sports facilities (slf including lifts necessary for the use of slots), safety facilities, and management facilities (2. B.).

The legislative intent of Article 27 of the Sports Facilities Act is to maintain the public law management system formed in relation to the authorization and permission of a business and to protect the interests of many members who have established a utilization relationship with a sports facility business entity (see, e.g., Supreme Court Order 2014Ma1427, May 25, 2016). In particular, even if Article 27(2) of the Sports Facilities Act does not constitute a transfer of business under Article 27(1) of the Sports Facilities Act, the legislative intent is to apply mutatis mutandis to cases where the ownership of an essential sports facility is transferred according to the procedures such as an auction under the Civil Execution Act stipulated in each subparagraph of paragraph (2) and the owner of the sports facility business is changed due to the transfer of ownership of the essential sports facility business.

In light of the contents of the provisions of the Sports Facilities Act, the Enforcement Rule of the Sports Facilities Act, and the legislative purport of Article 27(2) of the Sports Facilities Act, even if a facility is an essential sports facility as prescribed by Article 27(2) of the said Act, the remaining facility was destroyed or removed to the extent that it was unable to run the previous sports facility business by losing its function according to its original purpose. In a case where the substance of the sports facility business remains not remaining, the facility may not be deemed an essential sports facility as prescribed by Article 27(2) of the Sports Facilities Act. Therefore, even if such facility is sold in accordance with the procedures prescribed by each subparagraph of Article 27(2) of the said Act, such as an auction under the Civil Execution Act, even if it is not applicable, the purchaser of the relevant facility does not succeed to the rights and obligations of the existing sports facility business entity’s members.

B. The lower court determined that, at the time of the purchase of the site and ground buildings of the skiing ground in this case by auction, the ancillary Defendant Ms. S.D. Pursuant to the foregoing, the aforementioned real estate was included in parking clubs, sirens, resting rooms, temporary storages, snow-free storages, lifts boarding and unloading boxes, and slots, but the above facilities cannot be deemed as an essential sports facility because they had already lost their functions, making it considerably difficult to carry on skiing ground business, and therefore, the above Defendant did not constitute the person who acquired the essential sports facilities of the skiing ground business as stipulated in Article 27(2) of the Sports Facilities Act.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine, the lower court’s determination is reasonable, and it did not err by misapprehending the legal doctrine on essential sports facilities as prescribed by Article 27(2) of the Sports Facilities Act.

2. As to the appeal against the defendant Alvidi case

The court of final appeal shall deliberate within the limit of an appeal (Article 431 of the Civil Procedure Act) pursuant to the grounds of final appeal (Article 431 of the Civil Procedure Act). Therefore, the grounds of final appeal shall specify what points of the judgment below are in violation of the Acts and subordinate statutes by specifying the grounds of final appeal, and shall be treated as failing to submit the grounds of final appeal when the grounds of final appeal submitted by the appellant do not state the aforementioned specific and explicit reasons (see, e.g., Supreme Court Decision 2000Da29356, Mar. 23, 2001).

The plaintiffs filed an appeal against Defendant Alvidi case among the judgment below. However, the appeal and the ground of appeal submitted by the plaintiffs are not stated in the grounds of appeal as to this part. Thus, the appellate brief on this part is not submitted.

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Seon-soo (Presiding Justice)