2019 grouped 143767 action for additional payments

A Industrial Complex

Law Firm Down, Counsel for the defendant-appellant

[Defendant-Appellant]

B, the receiver C, the party taking over the lawsuit of the debtor B

Attorney Kim Young-chul, Counsel for the plaintiff-appellant

2020, 7 July 17

September 11, 2020

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant shall pay to the plaintiff 58,852,943 won with 12% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment.

1. Facts of recognition;

A. The Plaintiff is a public corporation established pursuant to the National Sports Promotion Act for the creation, operation, and management of the National Sports Promotion Fund. The Defendant operates the “D” located in Seoan-si, a membership golf course (hereinafter “instant golf course”).

B. The contents of the National Sports Promotion Act relating to the instant case are as follows:

Article 20 (Creation of Fund) (1) The National Sports Promotion Account shall be created with the following financial resources, and the Gambling Prevention and Recovery Account shall be governed by Article 14-4 of the National Gambling Control Commission Act.3. In order to collect surcharges under Article 23 (1) 3, the account management agency shall obtain prior approval from the Minister of Culture, Sports and Tourism. (2) The amount of surcharges under paragraph (1) shall not exceed 1/10 of the admission fee for golf course facilities. (3) The account management agency shall, upon obtaining approval under paragraph (1), notify the operator of the golf course facilities of the details of the approval, and the operator of the relevant golf course facilities in receipt of such notification shall receive surcharges under paragraph (1) from the user of the relevant facilities and pay them to the account management agency:

C. The Plaintiff is an account management agency that manages and operates the National Sports Promotion Account pursuant to Article 19(3) of the National Sports Promotion Act, and submitted an application for approval of each surcharge business to the Minister of Culture, Sports and Tourism for “the person who bears an admission fee to use the membership golf course facilities” in 2018 and 2019. The Plaintiff obtained the approval from the Minister of Culture and Sports.

D. On December 27, 2019, the Constitutional Court accepted a request for adjudication on the unconstitutionality of Article 20(1)3 of the National Sports Promotion Act (hereinafter “instant legal provisions”) as the Constitutional Court rendered a decision that the instant legal provisions violate the Constitution (hereinafter “instant decision of unconstitutionality”).

【Fact that there is no dispute over the basis of recognition, entry of Gap evidence Nos. 1, 2, 4, and 5 (including each number), the purport of the whole pleadings

2. The assertion and judgment

A. The plaintiff's assertion

As the managing agency of the National Sports Promotion Fund, the Plaintiff obtained approval from the Minister of Culture, Sports and Tourism for the collection of surcharges in 2018 and 2019, and notified the Defendant, who is the operator of a membership golf course, of the details of the approval. As such, the Defendant is obligated to pay to the Plaintiff the total amount of KRW 58,852,943,00,000,000,000,000,000 won.

B. Determination

1) As seen earlier, the Constitutional Court ruled that this case’s legal provision was unconstitutional, and the legal provision of this case’s legal provision, which serves as the basis for the collection of surcharges claimed by the Plaintiff as the cause of the claim, lost its effect from December 27, 2019, which was the decision of unconstitutionality under Article 47(2) of the Constitutional Court Act. Accordingly, the Plaintiff did not have the right to collect surcharges from the golf course users based on the legal provision of this case, and the Plaintiff’s claim on the premise that the Plaintiff can collect surcharges from the golf course users, is groundless.

2) The Plaintiff asserts to the effect that, prior to the decision of unconstitutionality, the Defendant received surcharges from the golf course users of the instant golf course and did not pay them to the Plaintiff. The Defendant’s obligation to pay surcharges to the Plaintiff is merely an incidental procedure that does not create and expand a new unconstitutional legal relationship, and thus, the decision of unconstitutionality of the instant case

However, the circumstances alleged by the Plaintiff and the evidence alone are insufficient to recognize that the Defendant collected surcharges from the golf course users of the instant golf course between November 2018 and June 2019, and there is no other evidence to acknowledge this differently. In addition, although the effect of the Constitutional Court’s decision of unconstitutionality was not applied separately to a court, the pertinent law or the provision of the relevant law is a premise for a judgment and still pending in the court (see, e.g., Supreme Court Decision 92Da12377, Jan. 15, 193). Although the Constitutional Court made a request for a ruling of unconstitutionality or did not separately make a request for a ruling of unconstitutionality to the court, the retroactive effect of the decision of unconstitutionality is recognized because the legal provision of the instant case constitutes a case where the legal provision of the instant case is still pending in the court on the premise of a judgment. Accordingly, even before the decision of unconstitutionality is rendered, it should be deemed that the Defendant collected surcharges from the golf course users or did not have the authority to collect such surcharges.

Therefore, the plaintiff's assertion on this part is without merit.

Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.

Judges Yoon Nam-nam