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(영문) 대법원 2016.06.09 2015다222722
계약금반환청구의 소
Text

All appeals are dismissed.

The costs of appeal are assessed against the defendant.

Reasons

The grounds of appeal are examined.

1. As to the ground of appeal No. 1, Article 27 of the Installation and Utilization of Sports Facilities Act (hereinafter “Sports Facilities Act”) provides, “When a sports facility business entity dies or transfers his/her business, or when a corporate sports facility business entity merges with another sports facility business entity, the heir, the transferee, the corporation surviving the merger, or the corporation incorporated by the merger shall succeed to the rights and duties of the sports facility business upon the registration of or reporting on the relevant sports facility business (where members are recruited under Article 17, including the matters agreed upon between the sports facility business entity and its members),” and Paragraph (2) of the same Article provides, “Article 27 of the Installation and Utilization of Sports Facilities Act shall apply mutatis mutandis to a person who acquires essential facilities according to the standards for the facilities of the sports facility business prescribed by Ordinance of the Ministry of Culture, Sports and Tourism pursuant to the Civil Execution Act (Article 17), realization under the Debtor Rehabilitation and Bankruptcy Act (Article 2), the sale of seized property under the National Tax Collection

However, Article 2 Subparag. 4 of the Sports Facilities Act provides that "a member refers to a person who enters into an agreement with a sports facility business entity to use the facilities of a sports facility business on a preferential basis or on a favorable condition than the general user, and does not have any special restrictions on the qualifications of members.

In addition, a membership contract entered into by a sports facility business entity such as a golf course and a user is, in principle, a abortion contract, and the payment of a membership fee is not established.

Meanwhile, the purpose of Article 27 of the Sports Facilities Act is to maintain the management system established in relation to the authorization and permission of a business and protect the interests of many members by establishing a use relationship with a sports facility business entity (see, e.g., Supreme Court Decision 2013Da85417, Dec. 23, 2015).

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