2019 Ghana 121802 Return of contributions

50

Ulsan District Court Decision 200 U.S.E.

Attorney Lee In-bok et al.

00 Regional Housing Association

Ulsan Northern-gu

The president of the partnership;

Law Firm (LLC) *

Attorney Jin*

September 15, 2020

October 13, 2020

1. The defendant shall pay to the plaintiff 68,00,000 won with interest rate of 12% per annum from November 21, 2019 to the day of full payment.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by the defendant.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 68,00,000 won with 12% interest per annum from the day following the delivery of the complaint to the day of complete payment.

1. Basic facts

A. Conclusion of a partnership subscription agreement

(1) The Defendant is a regional housing association established on October 27, 2015 with the authorization to establish a housing association from the head of Ulsan Metropolitan City North Korea on the establishment of the housing association in order to promote a collective housing construction project (hereinafter referred to as the “instant project”) pursuant to the Housing Act and subordinate statutes in Ulsan-gu, Ulsan-gu.

(2) On June 30, 2015, the Plaintiff entered into an agreement with the Defendant as a member of the association of this case (hereinafter “the instant contract for joining the association”), and Article 2 of the contract for joining the association of this case at that time stipulates, “In the event of refund, the amount of the deposit paid by the association members shall be refunded after the settlement of expenses, and the service expenses shall not be refunded. In addition, the time of refund shall be determined in accordance with the rules of the association and the provisions of the trust company.”

(3) The Plaintiff paid 83 million won as down payment, including administrative service charges, to the Defendant pursuant to the instant partnership subscription agreement, based on the down payment, etc.

B. The main contents of the Defendant Association Code, which was enforced from October 27, 2015, which was the date of authorization to establish the association bylaws, are as follows.

Article 8 (Qualification Requirements for Membership) of the Regulations of the Association refers to the qualification requirements for a member prescribed in the Housing Act and the following subparagraphs: 1. A person who is a householder who fails to own a house from the date of application for authorization to establish a housing association to the date of occupancy of the housing association or owns a house with an exclusive residential area of 85 square meters or less: Provided, That where a member of a housing association temporarily loses his/her eligibility as a householder due to inevitable reasons, such as treatment of occupational diseases, study, marriage, etc., and the head of a Si/Gun/Gu recognizes he/she, he/she shall be deemed to be eligible for membership. Article 12 (Disqualification for Disqualification for Membership) (1) of the Regulations shall not voluntarily withdraw from the association: Provided, That where a member intends to withdraw from the association due to inevitable reasons, he/she shall notify the head of the association in writing 15 days prior to the date of withdrawal, and the head of the association shall decide whether to withdraw from the association by resolution of the general meeting or the board of representatives.

C. Resolution at the Defendant’s general meeting

(1) On October 15, 2017, the Defendant presented "an amendment to the Regulations of the Association (Article 12 (4) of the said Rules)" at the special meeting, and a resolution was adopted to change the balance, which is calculated by deducting the amount paid by the members as the project cost, from the total amount paid by the members, to the person who loses the status of the members due to withdrawal, loss of membership, expulsion, etc. from the above special meeting (hereinafter "the resolution of this case").

(2) The amended provisions of the instant protocol are as follows (hereinafter referred to as “instant amendment regulations”).

Article 12 (Withdrawal, Disqualification, Expulsion of Members), Disqualification, Disqualification, expulsion, etc., for a person who loses the status of a member, he/she shall settle and pay the balance at the time of completion of the project after deducting the amount paid by the member as a promotion cost from the amount paid by the member.

D. On September 5, 2017, the Plaintiff lost his/her status as a householder by changing his/her resident registration as a member of the household of his/her spouse Lee Jong-soo (hereinafter referred to as “spouse”). (Although he/she recovered from the status of the householder on February 27, 2019, he/she lost his/her status as a householder again on October 10, 2019).

E. Preparation of a written pledge to waive the Plaintiff’s membership

On July 12, 2019, the Plaintiff drafted a written pledge to renounce the membership of the Defendant Union (hereinafter referred to as the “instant pledge”). The instant pledge is written as “I,” stating, “I, at the same time, waives the status of the membership of the Defendant Union, waives the entire amount paid up to the present time, and thereby, I swear I will not raise any civil or criminal objection against the Union.”

[Ground of recognition] Facts without dispute, Gap 1-4 evidence, Eul 1-3 and 6 evidence, the purport of the whole pleadings

2. Determination on the defense prior to the merits

A. The defendant's assertion

The written pledge of this case states that "I waives all the amount paid up to the present and take a pledge not to raise any objection to civil and criminal matters as a result of this," and this constitutes an agreement to institute a suit, and thus the plaintiff's claim of this case is unlawful as there is no benefit of protection of rights.

B. Determination

In light of the following circumstances, this case's written oath does not have effect on the plaintiff. Thus, the defendant's argument based on the above written oath is without merit.

① In a case where: (a) the parties to a lawsuit have to bring an action, i.e., waiver of the right to a trial guaranteed under the Constitution; (b) the interpretation of the parties’ intent with respect to procedural acts, the interests of which are extremely in accordance with the determination on the existence of the agreement, is unclear; and (c) the parties’ assertion on the interpretation of the parties’ intent is not clear; and (d) the parties’ intention being inferred by an act externally expressed, the existence of such agreement may be denied, as much as possible, from a passive point of view, if it is unclear as to the interpretation of the parties’ intent, and the objective and reasonable interpretation of the parties’ intent taking into account the parties’ intent and the act expressed externally. Moreover, even if an indemnite agreement between the parties who are the subjects of the right and duty, it is related to a specific legal relationship that the parties can dispose of, and thus, is valid at the time of the agreement, at the time of the agreement (see, e.g

② In the case of deprivation of membership, such as withdrawal, deprivation of qualification, expulsion, etc., if a member notifies in writing the head of the cooperative of his/her intention to withdraw, it shall be determined by the resolution of the general meeting or the board of representatives (Article 12(1) of the Rules of this case). However, in the case of deprivation of membership, if a member does not fall under any of the qualifications prescribed in the relevant statutes and the rules of this case, he/she automatically loses his/her eligibility without going through separate approval or resolution procedures (Article 12(2) of the Rules of this case). Accordingly, withdrawal and deprivation of membership are different types of different from

③ Since the instant written pledge submitted by the Plaintiff to the Defendant is stating that the said written pledge refers to “a waiver of the status of a partner” means “a withdrawal of a partner by taking account of the provisions of the union rules that prohibit the type of loss of a partner and voluntary withdrawal as seen above.” It is reasonable to interpret that the said written pledge takes effect only in cases where the said pledge takes effect on the premise that the Plaintiff has a valid status as a partner, such as waiver of the status of a partner and waiver of the right to claim the return of the amount already paid.

④ Since the Plaintiff automatically lost membership pursuant to the rules of the instant case before submitting the instant pledge to the Defendant, it is difficult to view that the Plaintiff is entitled to prepare, submit, or be entitled to submit a written pledge to the Plaintiff who already lost its membership at the time of submitting the written pledge, and further, it is difficult to deem that the Plaintiff, who is not a partner, renounces its membership status or renounces its right to claim the return of the amount paid upon withdrawal from

3. Judgment on the merits

(a) Whether the refund duty exists or not;

(1) The occurrence of refund obligation

According to the above facts, the Plaintiff, upon entering into the instant association membership agreement with the Defendant and paying the shares of its members on September 5, 2017, lost the qualification of the Defendant’s member for reasons for the disqualification for the requirements of the householder. As such, the Defendant is obligated to pay within 30 days from the date of the claim for refund the balance calculated by deducting the amount paid as the promotion cost from the amount paid by the Plaintiff pursuant to Article 12(4) of the

(2) Judgment on the defendant's assertion

(A) The defendant asserts that the automatic loss provision of the defendant's bylaws shall apply to cases where the status of a householder is lost in objective, inevitable, dynamic, and conclusive cases, and thus, if the status of a householder is temporarily lost, it does not lose the status of a householder. It is merely a regulation on the qualification requirement of a union member under the Housing Act, and it cannot be deemed that the qualification of a union member cannot be deemed to be lost solely on the ground that the plaintiff failed to meet the qualification requirement under the Housing Act. Thus, even if the plaintiff created a external type of punishment which

However, in the rules of the defendant association, the law and the qualifications of association members under this Code are applicable.

In light of the fact that a person who does not become a member of the association is only "voluntary loss of his/her eligibility as a member of the association" but does not state any particular condition as to the reason why he/she does not become a member of the association, the reason why the plaintiff loses his/her eligibility as a member of the association is not a housing law, but according to the defendant association agreement, which is an agreement between the union member and the defendant, and even if he/she recovers his/her eligibility as a member of the association since he/she automatically loses his/her eligibility as a member of the association when he/she loses his/her status as a householder, it cannot be deemed that he/she re-acquisitions his/her eligibility as a member of the association, even if he/she recovered his/her status as a householder after he/she temporarily loses his/her eligibility as a member of the association due to unavoidable reasons

(B) In addition, the defendant argues that the plaintiff's failure to meet the conditions against the good faith and good faith, even though the plaintiff submitted "a delegation letter and a letter of undertaking to maintain the qualification of the union members until the time of joining the defendant association," which prevents the plaintiff from voluntary withdrawal, constitutes an act of counter-performance under Article 150 (2) of the Civil Code, and thus, the fulfillment of the conditions cannot be recognized. However, according to Article 150 (2) of the Civil Code, the other party can assert the non-performance of the conditions if the party who is benefiting from the fulfillment of the conditions did not fulfill the conditions against the good faith and good faith. Since the plaintiff's failure to meet the conditions, the plaintiff's argument does not have any reason to consider that the plaintiff would have received any benefit by being disqualified, and it is difficult to see that the plaintiff's failure to withdraw from the defendant association as the main delegation letter and letter of undertaking, which the plaintiff submitted at the time of joining the defendant association, as small as "the head of the association's amendment to the status of the union members."

(C) In relation to the time of the refund, the Defendant amended the instant regulations (hereinafter referred to as the “amended regulations”) in accordance with the instant resolution regarding the time of the refund, and accordingly, the refund amount should be returned at the time of completion of the project in accordance with the above amended regulations. However, the Defendant’s business was not yet completed, and therefore, the Defendant’s obligation to return the refund did not yet arrive.

However, the following circumstances revealed by the facts and evidence revealed as above, namely, ① Article 12(4) of the Rules of this case provides that the common contributions to be deducted as a resolution of the general meeting and the timing of refund shall be paid within 30 days after a claim for refund is filed. However, in exceptional cases, it is permitted to set the common contributions to be deducted as a resolution of the general meeting and the timing of refund in advance. Thus, if the above conditions were to be determined by the resolution of the general meeting before the cancellation of membership, loss of membership or expulsion, etc., and the time of refund are not separately determined, the provision that allows the return of subscription money in principle within 30 days from the date of the claim shall be applied. If it is interpreted that the time of return can be postponed only upon the choice of the union, and this would be excessively limited to the rights of the union members. ② Article 12(2) of the Rules of this case provides that the plaintiffs' automatic entitlement to the above plaintiffs shall not be lost in light of the amended regulations and the rules of this case.

(b) Scope of the refund repayment obligation;

(1) According to the above facts, the defendant is obligated to pay the remaining 68 million won and damages for delay after deducting 15 million won from the amount paid by the plaintiff from the amount paid by the plaintiff, barring special circumstances.

(2) In regard to this, the Defendant asserts that not only administrative service charges, but also the expenses for land purchase, partnership operation, loan interest, overdue interest on the failure to pay contributions to cooperative members, service charges already paid, financing expenses due to vacancy, difference between the parcelling-out price and the general parcelling-out price, performance fees due to withdrawal, loss of partner qualification and expulsion, execution expenses, execution expenses, and union's obligations shall be divided into the total members of the union, and thus, each of the above expenses shall be deducted.

In light of the latter part of Paragraph 4 of Article 12 of the Code, the above promotion cost is interpreted as expenses of the same meaning as common expenses, and Paragraph 4 of Article 12 of the Code of this case provides for the payment of the remaining amount after deducting the "amount paid as promotion expenses" from the amount paid as to the disqualified member's payment, and Paragraph 4 of Article 12 of the revised Code does not stipulate any provision on the scope of the promotion cost or the calculation method thereof, and it is apparent that the "amount already paid as promotion expenses" in the above provision is to be deducted from the amount paid as non-performance expenses, and the plaintiff cannot be viewed as automatically paid as administrative service expenses in addition to the down payment amount by the time when the plaintiff loses membership's membership, and the plaintiff cannot be viewed as being entitled to the remaining amount after the revision of the Code of this case, in light of the following facts:

Therefore, the Defendant is obligated to pay to the Plaintiff damages for delay calculated at the rate of 12% per annum from November 21, 2019 to the date following the expiration of 30 days from October 21, 2019, which was served on the Defendant by the instant complaint, including the purport of seeking refund of KRW 68 million and the claim for refund thereof, to the day of full payment.

4. Conclusion

Thus, the plaintiff's claim of this case is accepted within the scope of the above recognition, and the remaining claim is dismissed as there is no ground.

Judges fixed-term