2016 group 105173 Return of contributions

A

B Housing Association

February 1, 2018

April 5, 2018

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 161,00,000 won with 5% per annum from March 1, 2016 to the delivery date of a complaint, and 15% per annum from the next day to the day of complete payment.

1. Basic facts

(a) A local house which is established by the Defendant in order to promote a housing construction project (hereinafter referred to as the “instant project”), according to the Housing Act and the Enforcement Decree thereof, designating the Daegu Suwon-gu C Project District as a project implementation district;

It is an association.

B. On June 9, 2015, the Plaintiff entered into a membership agreement with the Defendant (hereinafter “instant membership agreement”) and paid a total of KRW 161 million from June 9, 2015 to June 16, 2015.

C. The principal contents of the Plaintiff and the Defendant’s accession agreement are as follows.

＜조합원 가입 계약서＞♦ 목적물의 표시 : 대구광역시 수성구 C 일원제1조 (정의 및 목적)1. 본 사업은 조합원의 숙원인 주거생활의 안정과 향상을 도모하기 위한 조합원의 주택을 건설 공급함에 있어 이를 위한 자금의 조달, 운영 및 기타필요한 사업 수행을 목적으로 한다.2. “갑(피고)”과 “을(원고)”은 조합규약의 규정에 의거하여 사업 종료시까지신의, 성실, 협력 원칙에 입각하여 맡은 바 책무를 다하여 행복한 내 집마련을 위한 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”0| 제1항 및 제2항에 해당하여 조합원 자격을 상실 또는 탈퇴할 경우 기 납입한 “조합원분담금” 중 업무대행비를 제외한 납입원금만을 환불 하며, 환불일까지 제3조 제1항의 조합원분담금 납입을 위해 “갑” 및 시공사 보증으로 금융기관 대출발생시 그에 대한 이자 지불의무는 “을”에게있으며, 환불일까지의 공동부담금과 미납된 분담금이 있을 경우 이에 대한 연체료 및 대출금 미납 대출이자와 그 연체료는 환불금에서 공제키로한다.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.

D. On November 25, 2015, the Plaintiff filed an application for withdrawal of a member with the Defendant by submitting a letter of withdrawal (Evidence A4) to the Defendant.

E. On February 3, 2016, the Defendant sent a notice to the effect that the Plaintiff would be paid pursuant to Article 7(4) of the Agreement, upon receipt of the Plaintiff’s withdrawal request, who is an unauthorized partner, as the title “an instruction on the withdrawal and refund of the union members.”

F. The main contents of the Defendant’s union bylaws (hereinafter “instant bylaws”) concerning union withdrawal 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 in the same year to implement the projects of the cooperative, such as operating expenses of the cooperative, land purchase expenses, construction expenses, etc., and (1) members of a cooperative shall not withdraw from the cooperative at will: Provided, That where a cooperative intends to withdraw from the cooperative due to inevitable circumstances, it shall be notified in writing to the head of the cooperative no later than 15 days prior to the date of withdrawal from the cooperative; and the head of the cooperative shall decide whether to withdraw from the cooperative by resolution of the general meeting or the board of representatives; and the head of the cooperative shall decide whether to withdraw from the cooperative by a resolution of the general meeting or the board of representatives; (a) for a person who has lost his/her status as a union member due to removal, loss, expulsion, etc. of a union member's qualifications, the principal payment shall be made only in exchange, excluding the agency service expenses, and the time of refund shall be determined separately

[Ground] Facts without dispute, entry of Gap 1 through 6 evidence (including additional number), the purport of the whole pleadings

2. Summary of the parties' arguments

A. The plaintiff

A membership agreement is effective for the Defendant to obtain authorization to revise the housing association for the additional joining of new members as prescribed by the Housing Act. Since the Defendant did not obtain authorization to join the Plaintiff’s association, the instant membership agreement is null and void, and the Defendant shall return the Plaintiff’s contributions accordingly. Even if the instant membership agreement is valid, it is merely an offer for joining the Plaintiff on the condition that the establishment of the housing association is amended, and as long as the authorization to join the association is not granted, the Defendant shall refund the contributions to the

Even if the contract of this case was effective by the agreement of this case, the contract of this case was rescinded by mutual agreement, and D, the head of the defendant's association, promised the plaintiff to pay the full amount of the plaintiff's contribution by February 29, 2016, and the due date has arrived, so the defendant shall refund the contribution to the plaintiff.

D Even if the above duty of payment was not effective, the Defendant’s failure to set the time for the repayment of the contribution of a withdrawing partner at the end of the ten-day period after the additional invitation of a union member or a general purchaser constitutes “undeterminedable time limit determined by the time the future uncertainty occurs.” The Defendant’s housing construction project actually failed, leading to the arrival of the above time limit during which the Defendant’s obligation to return the contribution reaches the due date, such as where the additional invitation of union members or the general purchaser is impossible. Accordingly, the Defendant must refund the contribution to the Plaintiff.

B. Defendant

With the conclusion of the subscription contract of this case, the plaintiff is subject to the subscription contract of this case and the rules of this case, and the authorization of the competent authority does not affect this conclusion.

Although the withdrawal of the Plaintiff’s association is recognized, the time when the Plaintiff’s contribution was returned to the Plaintiff, the member or the general purchaser who substituted the Plaintiff under the instant subscription agreement and the rules, was recruited and recruited by the general purchaser, but the time when the contribution was paid to the Plaintiff, but the time when the refund was not yet arrived since substitute partners were not recruited.

3. Determination

A. The validity of the contract of this case

Even in cases where the establishment of a housing association is authorized, but it is changed without obtaining authorization for the change of members, a new member may exercise his/her right as a member to the association without relation to whether to grant authorization (see, e.g., Supreme Court Order 2002Da12, Mar. 11, 2002). In light of such legal principles, the membership agreement of this case entered into with the Defendant by the Plaintiff with the Defendant was valid without relation to the authorization of the competent authority, and the Plaintiff is a member of the Defendant’s association (the Plaintiff is merely an incentive to subscribe to the subscription agreement of this case, and

Although it is alleged to the effect that the contract is not binding unless it was received, it cannot be viewed that the contract of this case is a mere inducement for subscription, and thus the above argument cannot be accepted).

Therefore, the plaintiff's assertion that the defendant should return the contribution to the plaintiff because the subscription contract of this case becomes effective is without merit.

B. Whether the Plaintiff’s withdrawal and the obligation to return the contribution arrives

1) As seen earlier, the Plaintiff expressed his intention of withdrawal through a written withdrawal, etc., and the Defendant also accepted his request for withdrawal, thereby withdrawing from the Defendant Cooperative.

2) Whether the due date for the obligation to return the contribution, as of February 29, 2016, arrives

According to the statement in Gap evidence No. 4, it is recognized that D, which was the head of the defendant's association at the time of November 25, 2015, stated that the plaintiff agreed to pay the plaintiff's full amount of the plaintiff's contribution by February 29, 2016 in the withdrawal note of the union formed by the plaintiff. However, as seen earlier, Article 12 (4) of the Rules of this case provides that the time for the refund of the contribution to the withdrawing union members shall be determined by a resolution of the general meeting, and that the time for the refund of the contribution shall be determined by the resolution of the general meeting. According to the above rules, setting the time for the refund of the contribution to the withdrawing union members shall not be deemed within the scope of the representative authority of the defendant association. Accordingly, unless it is recognized that the plaintiff's general meeting was passed on the date for the refund of the contribution of the plaintiff's member, D's establishment of the time for the refund shall be invalid for the defendant.

3) Whether the period during which the obligation to return the contribution was due under the instant subscription agreement, etc.

A) The nature of the provision on the time to refund the contribution

According to Article 7 (4) of the subscription contract of this case, the time for refund of the Plaintiff's contribution is "within 10 days after the payment is completed by a member or a general purchaser on behalf of the member or the general purchaser."

As can be seen, it should be deemed as a condition where it is reasonable to view that the failure to perform the obligation if the fact indicated in the subsidiary does not occur in the juristic act attached thereto. If it is reasonable to view that the obligation should be performed not only when the indicated fact occurred but also when it becomes definite to oppose the occurrence of the event, it shall be deemed that the fixed period is not determined (see, e.g., Supreme Court Decisions 2003Da24215, Aug. 19, 2003; 2009Da1643, May 14, 2009). The duty to return the share to the Plaintiff by the Defendant is reasonable and reasonable in light of the following circumstances acknowledged by the entire facts and arguments, namely, that the Defendant’s duty to return the share to the Plaintiff is not an additional obligation to return the share to the Plaintiff under the terms and conditions that the Plaintiff would not have paid the share to the Plaintiff within 10 days after the Plaintiff’s withdrawal or the additional obligation to return the share to the Plaintiff.

B) Whether the due date has arrived or not

First of all, on November 25, 2015, the Plaintiff submitted a written withdrawal to the Defendant and approved the withdrawal by the council of representatives of the Defendant on December 10, 2015, and thereafter, from January 13, 2016 to February 25, 2016.

The second additional members are recruited, and only one additional member was recruited, the time for the repayment of the contribution determined by the due date has arrived, as long as the additional members were recruited. The plaintiff's assertion cannot be accepted. It is determined that the substitution of the member or the general purchaser determined by the time for the repayment of the contribution in the contract, etc. of this case, etc. of this case is intended to be the case where the plaintiff is recruited by the member replacing the plaintiff or the general purchaser. There is no evidence to deem that one additional member by the second additional recruitment has been recruited as a substitute for the plaintiff.

Next, we examine the argument that the time to refund the contribution came due to the impossibility of replacing additional members or general buyers. The following circumstances recognized by the purport of each entry and pleading in the evidence of subparagraphs B through B (including the serial number) are as follows. In other words, the project of this case is likely to require a considerable period of time to implement the project in light of the scale of members, the number of members, and the amount of the project funds, etc., as the project of which the number of members exceeds 800 persons and which is more than 47.2 billion won, the project of this case is likely to require a considerable period of time to implement the project; most of the O members are deemed to have paid contributions faithfully; the resolution for additional contributions was made at the special meeting on October 15, 2017, and the alteration contract with the members was considerably delayed than the initial plan; however, it is generally difficult to view that the project of the OM project was conducted in the process of land purchase, financing, and the selection of the contractor from 200 to 16.15% of the general construction project.

There is no evidence to deem that it was impossible to replace the union members or the general buyers, even though the recruitment of additional partners had been made for a considerable period of time thereafter). Therefore, the Plaintiff’s assertion on this part is without merit.

C. Sub-committee

Therefore, the Plaintiff’s assertion of this case seeking an immediate payment of the total amount of the installment, on the premise that the Defendant’s obligation to return the installment to the Plaintiff arrives.

4. Conclusion

Therefore, the plaintiff's claim is dismissed.

Judges Nam Jae-in