Plaintiff (Law Firm Name, Attorneys Seo Jae- Jae et al., Counsel for the plaintiff-appellant)

Pyeongtaek-gu Housing Association (Law LLC, Attorneys Lee Young-young et al., Counsel for the defendant-appellant)

Suwon District Court Decision 2018Kadan60913 Decided August 30, 2019

May 28, 2020

1. The part against the defendant in the judgment of the court of first instance shall be revoked, and the plaintiff's claim corresponding to the cancellation shall be dismissed.

2. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The defendant shall pay to the plaintiff 70 million won with 5% interest per annum from June 21, 2016 to the delivery date of a copy of the complaint of this case, and 15% interest per annum from the following day to the full payment date.

2. Purport of appeal

The text of paragraph (1) is as follows.

1. Basic facts

The reason why the trial court's explanation on this part is the same as that of the judgment of the court of first instance, and therefore, it is accepted by the main text of Article 420 of the Civil Procedure Act as it is.

2. The assertion and judgment

A. Summary of the parties' assertion

(1) The Plaintiff, while entering into the instant secondary contract, shall be deemed to have rescinded the agreement, and since the said secondary contract aims at granting the Plaintiff, who is not a member of the Defendant’s association from the beginning to the Plaintiff, the Plaintiff asserts that the Defendant is liable to return the Plaintiff’s share of the association members and the administrative service cost incurred by the Plaintiff as unjust enrichment.

(2) The Defendant asserts to the effect that, as long as the instant secondary contract becomes null and void as its original impossibility, the instant primary contract still remains valid, and that it is null and void even if there is no timely decision to rescind the instant primary contract between the original and the Defendant, or even if the agreement was rescinded.

B. Determination

(1) According to the above facts, the plaintiff and the defendant concluded the first contract of this case, and came to know that the plaintiff is disqualified for union members who failed to meet the requirements without any houses, and concluded the second contract of this case with the intent to meet the requirements, and concluded the second contract of this case, and agreed to recognize the contributions that the plaintiff paid as a result of the execution of the first contract of this case as a contribution of the second contract of this case. In other words, the plaintiff and the defendant agreed to include (i) the cancellation agreement of the first contract of this case, (ii) the contribution of the second contract of this case, and (iii) the contribution of the second contract of this case which the plaintiff paid as a contribution of the second contract of this case, and (iv) the second contract was concluded.

However, as long as the second contract in this case becomes null and void due to its original impossibility as recognized in the above basic facts, it cannot be deemed that the agreement on the contributions of the said second contract, which is premised on the validity of the said second contract, has not been null and void.

In addition, as to the validity of the agreement on cancellation of the first contract, the defendant constitutes a regional housing association authorized by an administrative agency, and its legal nature belongs to the collective ownership of union members with union property. The contributions paid by union members belong to the collective ownership of union members. The management and disposition of collective ownership belongs to the general meeting without the articles of association or regulations, and unless otherwise stipulated in the articles of association or regulations, the management and disposition of collective ownership without the resolution of the general meeting shall be null and void (see Supreme Court Decision 2004Da45349, Jan. 27, 2006, etc.). Under Article 12 (4) of the Rules of the defendant, the defendant's assertion that the above agreement should be null and void because of withdrawal, loss of union members' qualifications, expulsion of association members, etc., deducted the balance of the principal of the contract excluding administrative service charges from the balance of the contract paid by union members, and the above agreement cannot be seen as valid and void, in light of the legal principles and the purport that the plaintiff can still be seen as valid and void from the above agreement.

(2) In the event that the Plaintiff maintains a contract with a contractor who is not qualified as a union member among the parties to a contract for joining the association including the Plaintiff, or succeeds to a contract with a third party who is qualified as a union member without any penalty, the Plaintiff asserts that the contract of this case was made by the contractor without any penalty, and that the contract of this case would be deemed to exist with respect to the first contract of this case or that the Defendant’s disposal method that imposes penalty only on the Plaintiff goes against the good faith principle, but there is no evidence suggesting that the above circumstances alleged by the Plaintiff exist. However, if the disposition of the non-corporate association’s collective ownership becomes null and void due to its lack of validity under the Civil Act, it would be dismissed on the ground that it would go against the good faith principle, and thus, barring any special circumstance, it cannot be deemed that the Defendant, a non-corporate entity, asserts the invalidity of the first contract rescission agreement by itself does not violate the good faith principle, and there is no special circumstance to deem otherwise contrary to the good faith principle.

3. Conclusion

Thus, the plaintiff's claim of this case shall be dismissed as it is without merit. Since the judgment of the court of first instance is unfair with a different conclusion, the defendant's appeal shall be accepted, and the part against the defendant among the judgment of first instance shall be revoked and the plaintiff's claim corresponding to the revoked part shall be dismissed. It is so

For the purpose of serving as judge Jeong Young-soo (Presiding Judge)

Note 1) The abbreviationd names used in the judgment of the first instance court are also used.