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

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

January 23, 2015

Seoul Central District Court Decision 2014Gahap8580 Decided August 22, 2014

1. Revocation of a judgment of the first instance;

2. On January 8, 2014, the Seoul Central District Court Decision 2012Da52712, against the Defendant’s judgment on the Defendant’s case of return of the membership fee, the said court administrative disposition is denied based on an executory exemplification of the judgment given by the Nonparty to the said Defendant by having the Plaintiff as the successor of IMELD as the Plaintiff on January 8, 2014.

3. Suspension of compulsory execution based on the original of the judgment with executory power prescribed in paragraph (2) until this judgment becomes final and conclusive;

4. All costs of the lawsuit shall be borne by the defendant.

5. Paragraph 3 can be provisionally executed.

The same shall apply to the order.

1. Basic facts

The reason why this Court has used this part is that it is identical to the corresponding part of the reasoning of the judgment of the court of first instance, except for the fact that the court granted the “assigning” of Part 7 of the judgment of the court of first instance (hereinafter “instant succession execution clause”) to the “assigning the instant succession execution clause”).” Thus, it is acceptable in accordance with Article 420 of the Civil Procedure Act.

2. Provisions related to the Sports Facilities Act;

(2) The provisions of paragraph (1) shall apply mutatis mutandis to a person who acquires an essential facility in accordance with the standards for the facilities of a sports facility business prescribed by Ordinance of the Ministry of Culture, Sports and Tourism in accordance with any of the following procedures; 4. The term "member" means a person who has made an agreement with a sports facility business entity (including a person who has obtained approval of a business plan under Article 12) to use the facilities of a sports facility business on preferential basis or on more favorable terms than a general user. Article 27 (Succession to Sports Facilities Business, etc.) (1) In cases where a sports facility business entity dies or transfers the business or where a corporate sports facility business entity is merged, a successor, a transferee of the business, a corporation surviving the merger or a corporation incorporated in accordance with the merger (merger) shall succeed to the rights and duties in accordance with the registration or report of the sports facility business (including the matters agreed upon between the sports facility business entity and its members where members are recruited under Article 17):

3. Summary of the plaintiff's assertion

As the “general succession” under Article 27 of the Sports Facilities Act does not constitute “a specific succession to the obligation under a judgment,” the proviso of Article 31(1) of the Civil Execution Act stipulating the requirements for granting an execution clause cannot be deemed to constitute “when the succession is evident to a court, or when the succession is proved by a certificate.” Furthermore, even if the Plaintiff acquired the obligation to return the membership fee to the Defendant of the non-party company, it is only an overlapping assumption of obligation and cannot be deemed as an assumption of obligation with immunity. Therefore, the grant of the execution clause of this case is unlawful.

Article 27 of the Sports Facilities Act provides that “the matters agreed upon between a sports facility business entity and a member shall be deemed effective at the time of succession to the sports facility business, and that a member acquires a membership right at the time of succession to the sports facility business, i.e., the right to use the first facility and the right to return a membership fee attached thereto, and that a person who has already lost his status as a member at the time of succession to the sports facility business does not constitute a claim that he had been held as a member in the past by a person who has already lost his status as a member at the time of succession to the sports facility business. However, the Defendant did not acquire the status of a special member pursuant to a special membership agreement by paying only the down payment out of the membership deposit and did not have acquired the status of a special member pursuant to the special membership agreement. Although the membership fee was paid at the time of succession

Even if the granting of the instant succeeding execution clause is lawful, damages for delay by 20% per annum, which the instant prior judgment, was borne by the non-party company due to the acts of litigation by the non-party company, is not irrelevant to the “matters agreed upon between the sports facility business entity and its members” succeeded pursuant to Article 27 of the Sports Facilities Act. Therefore, the effect of the succeeding execution clause should be limited to KRW 50 million for membership fee pursuant to the instant prior judgment and the interest accrued after the Plaintiff’s change to the golf course business entity of this case.

4. Determination

A. The premise of the discussion

According to the above facts, in a procedure corresponding to the "auction under the Civil Execution Act" in accordance with Article 27 (2) 1 and 3 of the Sports Facilities Act, the plaintiff acquired the business site of this case corresponding to the essential facilities in accordance with the facility standards of the sports facility business. The non-party company entered into the agreement of this case and obtained the approval of the modification thereof. The non-party company succeeds to the rights and duties related to the registration or report of the sports facility business owned by the non-party company including the agreed matters with the non-party company pursuant to Article 2

B. Judgment on the Plaintiff’s assertion

1) We first examine the Plaintiff’s assertion that, even if the Plaintiff took over the obligation to return the instant membership fee, it constitutes an overlapping assumption of obligation, and thus, it is unlawful to grant the instant succession execution clause.

2) Article 31(1) of the Civil Execution Act provides, “The execution clause may be granted for execution on behalf of the creditor indicated in the judgment or for execution on the debtor’s successor indicated in the judgment.” Although the so-called assumption of the obligation that succeeds to the status of the debtor as a party by extinguishing the debtor’s obligation can be deemed to fall under the successor as referred to in the above provision, it is reasonable to interpret that the overlapping assumption of the obligation continues to exist as it is and bears separate obligations (see Supreme Court Order 2009Da196, Jan. 14, 2010).

3) In light of the following circumstances, even if the Plaintiff succeeded to the rights and obligations arising from the registration or report of the sports facility business held by the non-party company, including the matters agreed with the non-party company and its members pursuant to Article 27 of the Sports Facilities Act, it is reasonable to view that the Plaintiff’s acceptance of the Plaintiff’s obligation to return the instant membership fee is an overlapping assumption of obligation.

① In the case of assumption of an obligation, if it is not clear whether there is an exemption acceptance or an overlapping underwriter, it shall be deemed that it has been acquired repeatedly (see, e.g., Supreme Court Decisions 4294Da1087, Apr. 4, 1962; 87Da3104, May 24, 198; 2002Da3628, Sept. 24, 2002; 2009Da196, etc.).

(2) In cases of assumption of an obligation with general immunity, the validity thereof takes effect upon the consent of the creditor (Article 454 of the Civil Act). In cases where a succession to the sports facility business, etc. is made pursuant to Article 27 of the Sports Facilities Act, there is no room for the involvement of the member’s intent. Therefore, in cases where the assumption of an obligation under the above provision is deemed to be exempted, the obligor

In addition, in the case of a member under the Sports Facilities Act, unlike a tenant of a house, there is no way to secure the performance of the obligation by the simultaneous performance defense, the exercise of a lien, etc., so the replacement of a sports facility business entity is inevitably affected by the replacement of the sports facility business entity.

③ The legislative purpose of Article 27 of the Sports Facilities Act is to protect the members of a sports facility business in cases where the said business is succeeded to. If the obligation to return the membership fee is exempted from the obligation to a successor to the sports facility business, etc., the said provision would result in disadvantageous action against the members if the successor to the sports facility business, etc. is not capable of being able to do so

④ At the time when the Plaintiff succeeded to the status of the sports facility business entity of the non-party company, the Defendant cannot assert the right to preferential use of the facility, etc. to the Plaintiff. Therefore, even if the Plaintiff’s acceptance of the Plaintiff’s obligation to return the membership fee is deemed as an overlapping assumption of obligation, the Defendant asserts that the Plaintiff is entitled to preferential use of the facility, etc. and the return of the membership fee

4) As seen earlier, even if the Plaintiff had taken over the obligation to return the membership fee of the non-party company, it shall be deemed to be an overlapping assumption of obligation. Therefore, in light of the above legal principles, the Plaintiff cannot be deemed to constitute a successor under Article 31(1) of the Civil Execution Act. Therefore, the above assertion by the Plaintiff is with merit, and the grant of the instant succession

C. Sub-committee

As long as the Plaintiff accepted the foregoing assertion and deemed that the granting of the instant succession execution clause is unlawful, compulsory execution based on the instant succession execution clause may not be permitted without having to further examine the other allegations.

5. Conclusion

Therefore, the plaintiff's claim is reasonable, and the judgment of the court of first instance is unfair, so the judgment of the court of first instance is revoked, and it is decided as per Disposition that the plaintiff shall not be subject to compulsory execution based on the executory exemplification of the judgment of the court of first instance which granted the defendant as the successor of the non-party company.

Judges Kim Jong-soo (Presiding Judge)