[1] Whether to grant an execution clause to succession under Article 31(1) of the Civil Execution Act in cases of double-performance of a debt (negative), and whether an executor of a debt with immunity constitutes a successor under the above provision (affirmative)

[2] Whether the assumption of an obligation by a transferee to an existing member under Article 27(1) of the Installation and Utilization of Sports Facilities Act constitutes an assumption of obligation with immunity (affirmative), and whether the transferee constitutes a successor under Article 31(1) of the Civil Execution Act (affirmative)

[1] Article 31(1) of the Civil Execution Act provides, “The execution clause may be granted for the execution of a debtor’s successor who has been granted for or is indicated in the judgment on behalf of the creditor indicated in the judgment,” and it is merely a fact that the party’s obligation continues to exist and bears a separate obligation, and thus, the performance of the obligation cannot be granted by expanding the scope of res judicata and executory power of the judgment on the debtor indicated in the judgment to a person other than the debtor and expanding the scope of res judicata and executory power of the judgment on the debtor, but so-called “the so-called “the so-called “the so-called “the so-called

[2] Pursuant to Article 27(1) of the Installation and Utilization of Sports Facilities Act, a transferee succeeds to the obligations to the existing members along with the management system under the public law relating to the authorization and permission of a business, and at the same time a transferor is exempted from the obligations to the existing members. Therefore, the transferee’s assumption of obligations to the existing members pursuant to Article 27(1) of the Sports Facilities Act constitutes an assumption of obligation with immunity, and the transferee constitutes a successor under Article 31(1) of the Civil Execution Act.

[1] Article 31(1) of the Civil Execution Act; Articles 453 and 454 of the Civil Act / [2] Article 27(1) of the Installation and Utilization of Sports Facilities Act; Article 454 of the Civil Act; Article 31(1) of the Civil Execution Act

[1] Supreme Court Order 2009Da196 Decided January 14, 2010 (Gong2010Sang, 367), Supreme Court Decision 2012Da11630 Decided January 29, 2015 (Gong2015Sang, 296) / [2] Supreme Court Decision 2007Du8201 Decided February 12, 2009 (Gong2016Sang, 185) Decided December 23, 2015

Copi Global Co., Ltd. (LLC, Kim & Lee LLC, Attorneys Song-chul et al., Counsel for the plaintiff-appellant)

Hak Co., Ltd. (Attorney Choi Jin-si, Counsel for defendant-appellant)

Seoul High Court Decision 2014Na44095 decided March 13, 2015

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Article 31(1) of the Civil Execution Act provides, “The execution clause may be granted for the execution of a debtor’s successor who has been granted for or is indicated in the judgment on behalf of the creditor indicated in the judgment,” and it merely retains the party’s obligation and bears a separate obligation, and thus, the performance of the obligation cannot be granted by expanding the scope of res judicata and executory power of the judgment on the debtor indicated in the judgment to a person other than the debtor. However, the so-called assumption of the obligation that succeeds to the status of the debtor by extinguishing the debtor’s obligation constitutes a successor as stipulated in the above provision (see Supreme Court Order 2001Da35, Jan. 30, 2002; Supreme Court Order 2009Da196, Jan. 14, 2010; Supreme Court Order 201Da11630, Jan. 29, 2015).

2. Article 27 of the Installation and Utilization of Sports Facilities Act (hereinafter “sports facilities Act”) provides that “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 successor, the transferee of the business, the corporation surviving the merger, or the corporation incorporated by the merger shall succeed to the rights and duties (including the matters agreed upon between the sports facility business entity and its members where members are recruited pursuant to Article 17) upon the registration or report of the sports facility business,” and paragraphs (2) and (3) of the same Article provide that “The provisions of paragraph (1) shall apply mutatis mutandis to a certain case.”

Article 27(1) of the Sports Facilities Act provides that “If a sports facility business is transferred, a transferee shall succeed to the rights and obligations arising from the registration or report of the sports facility, including the matters agreed upon between the transferor and the members.” The purpose of the provision is to maintain the management system under the public law for the transferor established in relation to the authorization and permission of the business regardless of the change of the business entity, and to protect the interests of the majority of the members who entered into a utilization relationship with the transferor (see Supreme Court Decision 2013Da85417, Dec. 23, 2015).

Considering the language, structure, and purport of Article 27(1) of the Sports Facilities Act, the transferee succeeds to the obligations to the existing members along with the management system under the public law relating to the authorization and permission of the business, and at the same time the transferor is exempted from the obligations to the existing members (see Supreme Court Decision 2007Du8201, Feb. 12, 2009). Therefore, the transferee’s assumption of obligations to the existing members pursuant to Article 27(1) of the Sports Facilities Act constitutes an assumption of obligations with respect to the existing members, and the said transferee is deemed a successor under Article 31(1) of the Civil Execution Act.

3. Nevertheless, the lower court determined otherwise, on the ground that the Plaintiff’s obligation to return membership fees to the members of the non-party company pursuant to Article 27 of the Sports Facilities Act constitutes an overlapping assumption of obligation, and thus, it cannot be deemed that the Plaintiff constitutes a successor under Article 31(1) of the Civil Execution Act, and thus, concluded that the granting of the instant succession execution clause is unlawful. In so doing, the lower court erred by misapprehending the legal doctrine on succession under Article 27 of the Sports Facilities Act and the granting of the inherited execution clause, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of

4. 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 Kwon Soon-il (Presiding Justice)