2016 Also 20187 Return of contributions

1. A;

2.B

3.C

4.D

5.E

6.F

7.G

8.H

I Regional Housing Association

April 13, 2017

May 25, 2017

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

The defendant shall pay to plaintiffs A, E, and F 161,00,000 won each of them, with 154,000,000 won per annum from January 4, 2016 to the delivery date of a copy of the complaint of this case, and 15% per annum from the next day to the day of complete payment.

1. Basic facts

A. The Defendant is a regional housing association established in order to promote a housing construction project (hereinafter “instant project”) in accordance with the Housing Act and its Enforcement Decree by making the Daegu Suwon-gu JJ as a project implementation district.

B. Around December 2014, the Defendant recruited new members for the purpose of selling a common house to be newly constructed in the instant project site through the inaugural general meeting, and on January 2015, the Defendant recruited members through the general membership recruitment procedure.

C. Plaintiffs B, C, D, G, and H are the members of each newly established association, and the rest of Plaintiffs A, E, and F, as members of each general recruitment association, enter into a contract with the Defendant as a member of each of the Defendant (hereinafter referred to as “instant subscription contract”) and paid each of the contributions (hereinafter referred to as “each of the instant contributions”).

KRW 84m240,00,000,000 KRW 154,00 on December 31, 2014, 31.84m240,00,000,000 KRW 154,00,00 on December 30, 2014, KRW 154,00,00 for the exclusive use area contract (contract money and the first contribution) for the contract on the date of the Plaintiff’s name contract; KRW 240,000,00 on December 31, 2014; KRW 84m240,000,000 on December 34, 2014; KRW 154,00,00

G2. 1.84m240,000,000 won on December 31, 2014, 31.84m240,000,000 won on December 31, 2014: 84m240,000,000 won on December 31, 2014; 149,000,000 won on January 84, 2015; 161,000,000 won on January 14, 2015; 2460,000 won on January 14, 2015; 244m2460,000,000 won on January 161, 200,000 won on January 84m24m60, 200,0000 won on January 27, 2015;

D. The main contents of the instant subscription agreement are as follows.

조합원 가입 계약서♦ 목적물의 표시 : 대구광역시 수성구 J 일원제1조 (정의 및 목적)1. 본 사업은 조합원의 숙원인 주거생활의 안정과 향상을 도모하기 위한 조합원의주택을 건설 공급함에 있어 이를 위한 자금의 조달, 운영 및 기타 필요한 사업수행을 목적으로 한다.2. “갑(피고)” 과 “을(원고들)” 은 조합규약의 규정에 의거하여 사업 종료시까지신의, 성실, 협력 원칙에 입각하여 맡은 바 책무를 다하여 행복한 내 집 마련을위한 본 사업이 성공리에 마무리 될 수 있도록 상호 노력한다.제3조 (조합원 분담금)1. 조합원 분담금액은 토지매입비, 건축공사비, 설계감리비, 철거비, 민원처리, 용역비 및 기타(모델하우스 건립비 등) 본 사업수행에 따른 비용일체를 포함한다.2. “을” 은 다음 분담금 납부일정에 따라 분담금을 기일 내에 납부하여야 한다.■ 조합원 분담금 납부일정 (생략)3. 조합원 분담금에는 업무대행비(1,000만 원/세대)가 포함되어 있음.제7조 (조합원의 자격 상실)3. “을” 이 제1항 및 제2항에 해당하여 조합원 자격을 상실 또는 탈퇴할 경우 기 납입한 “조합원분담금” 중 업무대행비를 제외한 납입원금만을 환불하며, 환불일까지 제3조 제1항의 조합원분담금 납입을 위해 “갑” 및 시공사 보증으로 금융기관 대출발생시 그에 대한 이자 지불의무는 “을” 에게 있으며, 환불일까지의 공동부담금과 미납된 분담금이 있을 경우 이에 대한 연체료 및 대출금 미납 대출이자와 그 연체료는 환불금에서 공제키로 한다.4. 환불시기는 조합원 또는 일반분양자가 대체되어 입금이 완료된 후 10일 이내로 한다.5. “갑” 은 탈퇴 및 제명된 조합원 세대 및 잔여 세대분에 대하여 본 사업의 원만한 진행을 위하여 대체조합원을 충원 또는 모집할 수 있다.

E. After that, on April 13, 2015, the Defendant applied for the authorization of the establishment of the housing association to the head of the Daegu Metropolitan City Suwon-gu head of the Gu on June 9, 2015, and obtained the authorization for the establishment of the housing association from the head of the Suwon-gu head of the Gu on June 9, 2015.

F. However, from October 2015 to early December 12, 2015, the Plaintiffs submitted an application for withdrawal and a request for refund payment to the Defendant to the Defendant Association, and requested the return of each of the instant contributions paid by the Plaintiffs.

G. On December 10, 2015, the Defendant: (a) held a third council of delegates to approve each of the above withdrawal applications by the Plaintiffs; (b) on December 17, 2015, the Defendant sent a notice to the effect that: (c) on December 17, 2015, the Defendant approved withdrawal from the Plaintiffs; (d) the refund amount was deducted from business operating expenses (10 million won) pursuant to Article 7(3) of the subscription agreement; and (e) the refund period is to be paid pursuant to Article 7(4) of the subscription agreement; (c) the additional union’s authorization is in progress; (d) the additional union’s authorization is in progress; and (e) a plan to pay refund to the additional union members in succession with the approval of the additional union recruitment after the completion of the authorization; and (e) the Plaintiffs received the above notice at that time.

H. Meanwhile, the Defendant, around July 2015, proceeded with the first general partner recruitment procedure, and on December 24, 2015, 15 of the withdrawing members including the Plaintiffs from the head of Suwon District Office, and 213 of the additional recruitment members.

It was approved to change the establishment of an association from 985 to 1,183 persons after the change (i.e., 985 –15 + 213 persons) due to changes in the number of union members.

I. On the other hand, on July 14, 2016, the head of the Suwon District Court sent to the Defendant an official document stating that the Plaintiffs are not qualified as the Defendant’s withdrawing from the association upon authorization to alter the establishment of the association as of December 24, 2015.

(j) After that, on January 2016, the Defendant was authorized to change the establishment of an association to 1,173 persons after changing the number of union members from 1,183 persons before changing the number of union members on September 6, 2016 due to the change of 11 members and 11 members of the additional recruitment association from 1,183 persons before changing the number of union members (=1,183 persons - 11 persons + 11).

(k) The main contents of the rules of the Defendant Union (hereinafter referred to as the “instant rules”) are as follows.

Article 7 (Definition of Terms and Conditions: 4. Contributions (Definitions of Terms and Conditions): All amounts paid by members of a cooperative to promote the projects of the cooperative, such as operating expenses of the cooperative, land purchase expenses, construction expenses, etc., and Article 12 (Withdrawal from or disqualified from the cooperative) (1) No member shall withdraw from the cooperative at will: Provided, That where a member intends to withdraw from the cooperative due to inevitable reasons, he/she shall notify in writing the head of the cooperative of his/her intention 15 days prior to such withdrawal, and the head of the cooperative shall determine whether he/she withdraws from the cooperative by resolution of the general meeting or the board of representatives; 4. (1) Where a person who loses his/her status as a member due to removal, loss of qualification as a cooperative member or expulsion, he/she shall refund only the principal paid excluding the agency service expenses paid by the members of the cooperative, and the time of refund shall be a refund when the deposit has been completed by substitution of a new member and a general seller, but the time of joint contributions

【Non-contentious facts, Gap’s evidence Nos. 1 through 31, Gap’s evidence No. 42 through 44, Gap’s evidence No. 46 and Eul’s evidence Nos. 12 and 13 (including branch numbers for those with serial numbers), the purport of the whole pleadings

2. The parties' assertion

A. The plaintiffs' assertion

1) Upon the Plaintiffs’ filing of an application for the withdrawal of a member with the Defendant, the Defendant, around December 10, 2015, held a third council of delegates and decided to approve the said application for withdrawal. Accordingly, all the Plaintiffs lose their status as the Defendant’s member pursuant to Article 12(1) of the instant protocol, and the Defendant is obliged to refund the Plaintiffs’ contributions already paid to the Plaintiffs.

2) Business promotion expenses of 10,000,000, which the Defendant decided to deduct pursuant to Article 7(3) of the subscription agreement of this case, are unilaterally set by the Defendant without any grounds, and the scope of the Defendant’s return is the full amount of the Plaintiffs’ contributions paid.

3) In accordance with Article 7(4) of the instant subscription agreement, the Defendant decided to refund the contributions to the Plaintiffs within 10 days after the payment was completed on behalf of the union members or general buyers. Since the Defendant’s association obtained authorization to change the establishment of the association for the addition of union members from the Suwon-gu Office on December 24, 2015, the period during which the obligation to return the contributions was due on January 13, 2016, which was ten days after December 24, 2015, and even if the Plaintiff’s additional members cannot be deemed as substitute members of the Plaintiffs, the above Article 7(4) of the instant subscription agreement is due to the occurrence of uncertainty. Since the Defendant’s housing construction project was virtually failed and thus it is impossible to additionally recruit union members or general buyers, the period during which the Defendant’s obligation to return contributions to the Plaintiffs has already arrived.

B. Defendant’s assertion

1) In violation of Article 12(1) of the instant Rules, the remaining Plaintiffs except Plaintiff E and D did not give notice of withdrawal 15 days prior to the date of the meeting of the board of representatives held on December 10, 2015, and thus, are illegal.

The decision of the council of representatives dated December 10, 2015 by the defendant does not take effect as an application for withdrawal, and the decision is null and void due to the situation in which the council of representatives itself could not exist because the total number of the members of the defendant at the time of the resolution of the council of representatives by the defendant on December 10, 2015 is not 25. Thus, the above application for withdrawal by the plaintiffs or the approval

2) After the plaintiffs' application for withdrawal, the association members or general buyers replacing the plaintiffs did not yet gather. Article 7(4) of the subscription contract of this case constitutes the condition of suspension as to the right to claim the refund of contributions, and the conditions were not fulfilled because the union members or general buyers replacing the plaintiffs did not recruit them. Even if the above provision is considered to be indefinite, even if the defendant's business progress was not possible, the recruitment of the union members or general buyers replacing the plaintiffs is not possible. Thus, the period during which the obligation to return contributions did not arrive.

3.Flag

A. Whether the obligation to return the contributions following the withdrawal of the Plaintiffs is established

1) Whether the plaintiffs' withdrawal notice is legitimate

Article 12(1) of the Rules of this case provides that, among the plaintiffs, the defendant's receipt of written withdrawals by 6 plaintiffs other than plaintiffs E and D does not meet the notification requirements 15 days prior to the opening date of the council of representatives as of December 10, 2015, and thus, it is invalid as an application for withdrawals. Thus, according to each item of evidence Nos. 30 and 31, "members of the union cannot withdraw from the association at will": Provided, That where a member intends to withdraw from the association due to inevitable reasons, he/she shall notify the head of the association of his/her intention in writing 15 days prior to such withdrawals, and the head of the association shall make a decision on whether to withdraw from the association by the resolution of the general meeting or the council of representatives, and the application for withdrawals by plaintiffs G, H, and C shall each be made on December 1, 2015, and the application for withdrawals by plaintiff F shall be made on December 8, 2015, and the application for withdrawal of plaintiff F.

The Plaintiff’s withdrawal application is accepted by the Defendant on December 10, 2015. The Defendant held the third representatives’ meeting around December 10, 2015, and approved and resolved each of the above Plaintiffs’ withdrawal applications. According to the above Plaintiffs’ withdrawal application, it is reasonable to view that the above Plaintiffs’ withdrawal application was received from the Defendant after November 26, 2015, and the Defendant failed to comply with the time limit for written application under the proviso of Article 12(1) of the 3th representatives’ meeting at the time of resolution of the third representatives’ meeting on December 10, 2015. However, in light of the above facts, it is reasonable to view that the Defendant applied for the change of the contents of the Plaintiff’s withdrawal to the above 10th representatives’ meeting, which was held around December 10, 2015, which was approved by the Defendant’s amendment of the 19th members’ withdrawal application to the above 10th members’ withdrawal from the association. The Defendant, on December 17, 2015, 2015.

In light of the fact that the application for authorization to change the establishment of an association is filed and the authorization is obtained from the head of the Suwon head of the Gu on December 24, 2015, the defendant is reasonable to evaluate that the above plaintiffs' notification requirements were accepted without considering the defects of the notification requirements of the above plaintiffs. Accordingly, the defects of the notice of withdrawal applications issued by the plaintiff G, H, C, B, F, and A were cured. Therefore, this part of the defendant's assertion is without

2) Determination as to the invalidity of the board of representatives’ resolution

Article 25 (2) of the Rules of the defendant association, which provides that "the total number of representatives shall be not less than 25 but not more than 30" shall be invalid in violation of Article 25 (2) of the rules of the defendant association, since the resolution of the board of representatives held around December 10, 2015 by the defendant at the meeting of 24 representatives approved the plaintiffs' application for withdrawal is made, there is no dispute between the parties that the total number of representatives shall not be less than 25 but not more than 30," but Article 25 (2) of the rules of the defendant association is stipulated that "the total number of representatives shall not be more than 24 persons". However, considering the above evidence and the purport of the statement and the evidence No. 2, the above provision concerns the organization of the defendant's resolution body which performs the defendant's business, and it is reasonable to interpret that the above provision has been made in excess of 25 and more than 20 representatives who can represent the members, and it is difficult for the defendant to 24 or more representatives to elect the above general meeting.

The resolution of the third board of representatives cannot be deemed invalid in violation of the rules, and there is no other evidence to acknowledge the defendant's ground for the above argument. Therefore, the defendant's allegation in this part is without merit.

3) Sub-decisions

Thus, since the plaintiffs legally withdraw from the defendant, the defendant established the obligation to return each of the contributions set forth in the contract of this case to the plaintiffs, unless there are special circumstances.

B. Determination as to the arrival of the due date or fulfillment of the conditions for the obligation to return contributions

1) The nature of the provision on the timing for refund of contributions

According to Article 7 (4) of the subscription contract of this case and each notification to the plaintiffs by the defendant, the time of refund for each plaintiffs' contribution is "within 10 days after the completion of deposit due to substitution of union members or general buyers."

The defendant asserts that Article 7 (4) of the subscription contract of this case did not meet the conditions stipulated in the above provision concerning the suspension condition of the right to claim the refund of the contributions of this case, and thus, the plaintiffs did not claim the refund of the contributions of this case, and even if the above provision was not established due to the indefinite period, it cannot be deemed as the failure of business, and thus, it did not arrive

First, with respect to the nature of Article 7(4) of the subscription agreement of this case, if there is considerable reason to view that if there is no fact indicated by the father in the act of the rate of law attached to the father, the performance of the obligation should be deemed as a condition, and if it is reasonable to view that the performance of the obligation is not possible even if the fact indicated has occurred or it is confirmed that it does not result in any objection, it shall be deemed that the determination of the occurrence of the indicated fact has become final and conclusive. Accordingly, with respect to the repayment

In a case where a certain fact is attached to an associate officer, barring any special circumstance, it is an example of the period of payment. The time comes when the fact occurred or becomes final and conclusive, as well as when the fact does not occur within a considerable period (see, e.g., Supreme Court Decisions 2003Da24215, Aug. 19, 2003; 2009Da16643, May 14, 2009). The above facts and arguments are acknowledged as follows: (i) the obligation to return the contributions of this case to the plaintiffs was already occurred by the defendant's withdrawal notice following the resolution of the council of representatives; (ii) Article 7(4) of the subscription contract of this case provides that the payment of contributions shall be made within 10 days after the additional members or general buyers paid the money in substitution for the members or general buyers; (iii) it is reasonable to interpret that the defendant is not obligated to pay the contributions of this case to the plaintiffs in substitution for the members or general buyers.

2) Determination as to whether the due date due to the substitution of an association member arrives

The Plaintiffs asserted that, with respect to the fulfillment period of the obligation to return the instant contribution, the Defendant recruited more than 213 additional members and received contributions from them, and that, upon obtaining authorization for the establishment of the association on December 24, 2015, the additional 213 members were replaced by the said 213 additional members, the Plaintiffs asserted that the Defendant’s obligation to return the contribution to the Plaintiffs, from December 24, 2015 to January 3, 2016, became due date for the repayment of the Defendant’s obligation to the Plaintiffs.

On the other hand, the defendant asserts that the obligation to return the above contributions to the plaintiffs was not yet due, since additional members who replace the plaintiffs who have withdrawn at present were recruited and deposited.

In addition to the purport of the aforementioned evidence, the defendant applied for additional recruitment of 213 members to the Sung-gu Office on July 13, 2015, and obtained approval from the same day, and completed additional recruitment (1st) for the full number of members from July 14, 2015 to August 10 of the same year. The plaintiffs commenced an application for withdrawal from the police officer from October 2015 after the additional recruitment of members (1st). The defendant can be found to have obtained approval from the Sung-gu Office on December 24, 2015 upon additional recruitment of 15 members, including the plaintiffs, from the Sung-gu Office on December 24, 2015. Thus, the defendant's additional recruitment of 213 members (1st) for the above 213 members cannot be deemed to have increased the plaintiffs' membership recruitment as a whole, and it cannot be deemed to have any other legal ground for the plaintiff's withdrawal from the membership (1st).

Therefore, this part of the plaintiffs' assertion is without merit.

3) Determination as to the arrival of the due date due to the impossibility of additional recruitment by union members or general buyers

Although the Plaintiffs cannot be deemed to have replaced an additional partner with the authorization to change the establishment of the association on December 24, 2015, the Defendant failed to recruit additional partners since January 2016, and due to disputes among partners, financial difficulties for securing the land, etc., the Defendant’s project promotion plan was not implemented properly until the date of closing argument, and the Defendant’s project was actually conducted.

Since it is deemed that the entrance contract of this case was lost, it is impossible to replace union members or general buyers pursuant to Article 7 (4) of the entry contract of this case, and the indefinite time limit under Article 7 (4) of the entry contract of this case shall be deemed to have already arrived.

In light of the following circumstances and facts, the progress of the instant project by the Defendant Union is deemed to have been relatively delayed than the initial plan, and it cannot be deemed that a considerable period of time has elapsed since the instant project was actually failed to replace the additional partners or the general buyers to the extent that it is impossible or equivalent to the substitution of the additional partners or the general buyers, the evidence alone submitted by the Plaintiffs is insufficient to acknowledge it, and there is no other evidence to acknowledge it. Accordingly, the Plaintiffs’ assertion that the period of absence has already arrived is without merit.

(1) The Defendant, at the time of filing an application for authorization for the establishment, specified the expected construction period as the “date of June 30, 2016 to August 30, 2019,” and thus, seems to have been required for about three years only for the original construction period. Although around 11 months from June 30, 2016, which was the scheduled date of commencement, did not start the construction project selection or start up until the date of closing argument, it cannot be readily concluded as to whether the remaining scheduled construction period was lost at the present time as much as the remaining scheduled construction period is considerable in full view of the size of the instant project, the number of its members, and the number of its operators.

(2) On March 20, 2017, the Defendant entered into a MOU with Hyundai Construction Co., Ltd. on the instant project, thereby selecting the said company as a prospective contractor for construction, and on April 7, 2017.

It is difficult to view that the progress of the project in this case has been suspended in light of the fact that there are considerable parts of the data necessary for the integrated deliberation and the application for approval of the project following the progress of the business in this case, and there are still yet to be prepared.

(3) Most of the members are paying contributions in good faith, and the procedures for internal decision-making, such as an ordinary general meeting or a board of representatives, are continuing, and there is no reason to deem that the operation of the defendant has been suspended or impossible.

(4) In light of the overall number of union members (as of November 30, 2016: 64 persons who were to be refunded as of November 30, 2016) (as of September 6, 2016, 1,173 persons as of September 6, 2016), some union members, other than the Plaintiffs, expressed their intention to withdraw or are identified as disqualified, and thus, the number of union members to be refunded to the Defendant does not reach a scale sufficient to suspend the Defendant’s operation or the progress of the instant project.

(5) In addition, the Defendant seems to endeavor to smoothly carry out the instant project under its own specific plan from the selection of the contractor to the approval of the project plan and the invitation of general buyers.

(6) In addition, a project of a regional housing association generally requires considerable time because there are many variables such as land purchase, financing, and selection of a contractor in the process of carrying out the project, and the members seem to have been able to expect these circumstances as a substitute.

C. Sub-committee

Ultimately, the period during which the Defendant’s obligation to return the instant contribution under Article 7(4) of the Agreement has not yet arrived until the closing date of the argument in the instant case. On this premise, the Plaintiffs’ claim for the refund of the instant contribution that immediately seeks to pay the entire amount of each of the instant contributions was further examined.

There is no reason to view that the examination is without reason.

4.In conclusion

Therefore, the plaintiffs' claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Lee Jae-chul, Counsel for judge

Judges Yellow-gu

Judges Park Gi-mo