[1] Whether the right to use a facility or the right to claim the return of deposit is subject to extinctive prescription as an individual right of the so-called “deposits golf membership membership” (affirmative)

[2] In a case where a member bears the obligation to return his/her membership card when he/she withdraws from the golf club membership in accordance with the rules on the operation of the golf club, whether the obligation to return his/her deposit and to return his/her membership card are concurrently fulfilled (affirmative), and the time when the obligation to return the deposit arises (=the time when the intention of withdrawal and the claim for refund are filed)

[3] The case holding that the court below erred by misapprehending the legal principles in calculating the amount equivalent to the ordinary damages due to the interest rate on a fixed deposit in a commercial bank on the amount corresponding to the market price of membership or membership fee which is difficult to be deemed as ordinary damages, in case where the golf membership membership was denied the membership status and thereby causing damage to its property

[1] The so-called golf membership membership in a deposit system is a total of the legal relations arising from a membership agreement or a claim under a membership agreement for a golf course operator of a member's golf course. A person who has such a golf membership in a deposit system has individual rights such as a right to preferentially use the golf course facilities as prescribed by the rules of the Association, a right to preferentially use the golf course facilities, and a right to claim a refund of the principal at the time of withdrawal of a member after deposit of the prescribed membership fee, which is a right to claim a refund of the principal. Of these rights, a right to claim a return of facility use or a right to claim a refund

Furthermore, in a case where a golf club facility operator maintains the status of its members to use the golf club facilities, it shall be deemed that the golf club facility operator fulfilled the obligation to maintain the facilities corresponding to the right to use the golf club facilities. Therefore, the extinctive prescription of the right to use the golf club facilities shall not run solely on the ground that the status of members not using the golf club facilities continues due to personal circumstances. However, from the time when the golf club facility operator denied the qualification of members on the ground that the golf club facility operator refuses to use the golf club facilities due to the expulsion or the previous business operator’s refusal to succeed to the right to use the golf club facilities issued by him/her, or it becomes impossible to use the golf club facilities due to the closure of the golf club facilities, the performance of the obligation to use the golf club facilities by the golf club facility operator is extinguished and the exercise of rights by the golf club facility operator is interfered with. Accordingly, the extinctive prescription of

Meanwhile, in principle, the right to claim the return of deposit differs from the golf course facility usage right, and thus, cannot be deemed as a ground for the interruption of extinctive prescription as to the right to claim the return of deposit. The right to claim the return of deposit can not be exercised without the lapse of the period for exercising the right to claim the return of deposit. Since the right to claim the return of deposit depends solely on the member’s intent, the right to claim the return of deposit cannot be exercised without the lapse of the period for exercising the right to claim the return of deposit after the expiration of a certain grace period necessary for voluntary withdrawal and the right

[2] In golf membership in the so-called deposit system where a certain amount can be deposited at the time of membership and the deposit can be returned in the case of withdrawal, when a golf club operator bears the obligation to return membership in accordance with the rules on the operation of a golf club, a concurrent performance relationship is acknowledged between the obligation to return a deposit to a golf club operator's member and the obligation to return a member's membership in order to prevent the risk of double payment. However, this is not a contractual obligation under the bilateral contract under Article 536 of the Civil Act or a similar quid pro quo. Thus, in relation to the obligation to return a golf club operator's deposit, the golf club operator is liable for delay from the time when the declaration of intention and the claim for refund was received.

[3] The case holding that the court below erred by misapprehending the legal principles on the amount equivalent to the interest rate of a fixed deposit in a commercial bank as to the amount corresponding to the membership price or membership fee, which is difficult to be deemed as an ordinary damage, in case where the golf club’s damages incurred to its property by denying the membership status of golf club membership and making it impossible to utilize its membership, shall be reasonably assessed and assessed on all the indirect facts, such as the average number of golf club members to use the golf club facilities in the position of its member, the amount of the disposable usage fee for the golf club facilities paid to the position of its member, the amount of the disposable usage fee for the golf club facilities paid to the position of its member, the maximum number of times the terms and conditions at the time of membership recruitment as a member, and the number of times the golf club facility operator paid as a non-member, and the entire period of the golf club operator’s membership

[1] Articles 162 and 166 of the Civil Act / [2] Articles 387 and 536 of the Civil Act / [3] Article 393 of the Civil Act, Article 202 of the Civil Procedure Act

[2] Supreme Court Decision 98Da47542, 47559 decided Jul. 9, 199 (Gong1999Ha, 1587) Supreme Court Decision 2005Da6337 decided Sept. 20, 2007 (Gong2007Ha, 1626)

Plaintiff 1 and nine others (Law Firm Jeong, Attorneys Kim Gyeong-hee et al., Counsel for the plaintiff-appellant)

C&L Development Co., Ltd. (Law Firm L&B Partners et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2012Na67070 decided November 8, 2013

The part of the judgment of the court below against the defendant is reversed, and that part of the case is remanded to the Seoul High Court. The remaining appeals are dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

For the reasons indicated in its holding, the lower court rejected the Defendant’s assertion that there was no res judicata effect of the said judgment on the grounds that the instant membership, which was confirmed as possessing by the Plaintiffs in the final and conclusive judgment of the instant previous suit, is specified in the type and content thereof, and that the said membership is not clearly specified.

Examining the record in light of the relevant legal principles, such determination by the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles as to whether to exclude res judicata and its scope

2. Regarding ground of appeal No. 2

A. The objective scope of res judicata is included in the text of the judgment, i.e., the conclusion of the judgment on the existence of a legal relationship alleged as a subject matter of lawsuit, and does not extend to the existence of a legal relationship, which is the premise of the judgment (see, e.g., Supreme Court Decisions 86Meu2756, Jun. 9, 1987; 2004Da36130, Jul. 13, 2006).

In the reasoning of a written judgment, it is sufficient to indicate the judgment on the party’s allegations and other means of offence and defense to the extent that it can be recognized that the text is justifiable, and there is no need to determine all allegations by the parties or methods of offence and defense (Article 208 of the Civil Procedure Act). Therefore, even if no specific and direct judgment on a party’s allegations is indicated in a written judgment, it cannot be deemed an omission of judgment if it can be known that the assertion was accepted or rejected in light of the overall purport of the reasoning of the judgment, and even if it is obvious that the assertion would be rejected even if the court did not actually make a judgment, it cannot be deemed an omission of judgment if it does not affect the conclusion of the judgment and it does not constitute an error of omission of judgment (see, e.g., Supreme Court Decisions 2006Da218, Jul. 10, 2008; 2011Da87174,

Meanwhile, “member” under Article 2 subparag. 4 of the former Installation and Utilization of Sports Facilities Act (amended by Act No. 6907, May 29, 2003; hereinafter “the Act”) refers to a person who enters into an agreement with a sports facility business entity to use the facilities of a sports facility business preferentially or under more favorable terms than ordinary users. The so-called “member membership agreement” is established as a credit agreement between a golf club business entity and its members. Unless otherwise provided in the terms and conditions of membership recruitment, there is no limitation on the method of paying membership fees (see Supreme Court Decision 2008Da49844, Jul. 6, 2009).

B. Based on its stated reasoning, the lower court determined that the Plaintiff is obligated to return the membership fee of KRW 70 million to each of the Plaintiffs upon the Plaintiffs’ declaration of withdrawal, as the Plaintiff paid in lieu of the membership fee for each of the instant golf clubs with respect to the obligor’s obligation to pay the construction price of KRW 70 million for each of the creditors. Furthermore, the lower court rejected the Defendant’s assertion that the Plaintiff did not have any obligation to return the membership fee of KRW 70 million for each of the instant golf clubs because the Defendant did not otherwise acquire the instant golf club’s business from the same leisure, as the Defendant did not acquire the right and duty against the Plaintiffs pursuant to Article 30(3) and (1) of the Act, or that the Plaintiffs did not have any obligation to return the said golf club’s membership fee in excess of the above payment in substitutes, and that the Plaintiffs did not have any obligation to claim that the right to claim the return of membership fee or the right to claim the return of membership fee in violation of Article 30(3) and (1) of the Act.

C. Examining the record in light of the legal principles as seen earlier, it is inappropriate for the lower court to have determined that, on the premise that the res judicata effect of the final judgment in the previous suit of this case, which verified the Plaintiffs’ existence of membership rights extends to the existence and scope of the Plaintiffs’ right to claim the return of membership fees, it cannot be judged differently from the final judgment in the previous suit. However, the lower court’s conclusion that the Defendant is obligated to return the membership fees to the Plaintiffs under the membership agreement regarding the membership fee is justifiable. In so determining, contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal principles as to the meaning of the transfer of business under Article 30(3) and (1) of the Act, whether the Plaintiff is a protected member under Article 30(3) and (1) of the Act

In addition, examining the reasoning of the judgment below in light of the aforementioned legal principles, even if the plaintiffs hold membership in this case, the above judgment below contains the purport of rejecting the defendant's assertion that only the equivalent amount of the appraised value of the claim is the defendant's obligation to return the membership fee because the plaintiffs did not have any obligation to return the membership fee or the claim for construction price was paid in the membership fee. In addition, in light of the above legal principles, the defendant's assertion cannot be accepted. Thus, contrary to the allegations in the grounds of appeal, the court below did not err by omitting

3. As to the third ground for appeal

For the reasons indicated in its holding, the lower court determined that the Defendant is obligated to return the membership fee to the Plaintiffs even if the Defendant did not approve the Plaintiffs’ intention of withdrawal, on the grounds that the instant golf club rules stipulate that “the company’s approval shall be required for the return of the membership fee” is not a requirement for the return of the membership fee, but merely a requirement for the withdrawal.

Examining the record in light of the relevant legal principles, such determination by the lower court is justifiable, and contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on the interpretation of Article 19 subparag. 2 of the Enforcement Decree of the Installation and Utilization of Sports Facilities Act.

4. As to the fourth ground for appeal

A. The so-called golf membership membership in the deposit system is a total of the legal relations arising from a membership agreement or a claim under a membership agreement for a golf course operator of a member's golf course. A person who has such a golf membership in the deposit system has individual rights such as a right to preferentially use the golf course facilities and a right to claim a refund of the principal at the time of withdrawal of a member after depositing a prescribed membership fee, which is a right to claim a refund of the principal, under the conditions as prescribed by the rules of the association. Of these rights, a right to claim a return of facility use or a right to claim a return of deposit is subject to extinctive prescription.

Furthermore, in a case where a golf club operator maintains the status of its members to use the golf club facilities, it shall be deemed that the golf club operator fulfilled the obligation to maintain the facilities corresponding to the right to use the golf club facilities. Therefore, the extinctive prescription for the right to use the golf club facilities shall not run on the sole ground that the status of members not using the golf club facilities continues due to personal circumstances. However, from the time when a golf club operator denied the qualification of members on the ground that he/she refuses to use the golf club facilities due to the expulsion or the previous business operator’s refusal to succeed to the rights to use the golf club facilities issued by him/her, or it becomes impossible to use the golf club facilities due to the closure of the golf club facilities due to the membership qualification, the performance of the obligation of the golf club operator to use the golf club facilities ceases to exist and the exercise of the rights by the members of the golf club facilities from that time is interfered with, and therefore,

Meanwhile, in principle, the right to claim the return of deposit differs from the right to use the golf course facilities, and thus, cannot be deemed as a ground for the interruption of the extinctive prescription period against the right to claim the return of deposit. The right to claim the return of deposit can not be exercised without the lapse of the period to exercise the right (in the case of the same as the instant membership, 5 years after the admission) under the ordinary rule, and it also belongs to the member’s will. As such, the right to claim the return of deposit does not run as long as the right is not practically created before the return of deposit is made upon the expiration of a certain grace period necessary for the voluntary withdrawal.

B. Based on its stated reasoning, the lower court rejected the Defendant’s claim for the completion of extinctive prescription on the ground that there is no room for the Plaintiffs to proceed with the extinctive prescription of the right to claim the return of the membership fee prior to the Plaintiffs’ declaration of intention of withdrawal and the claim for refund of the membership fee, and furthermore, as the Defendant denied the Plaintiffs’ membership rights and obstructed the Plaintiffs’ specific exercise of rights, the extinctive prescription as to the instant membership right (which appears to refer to the right to use the facility) by filing the instant lawsuit seeking confirmation of the Plaintiffs’ membership status

Examining the records in light of the aforementioned legal principles, such determination by the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles on the progress and interruption of extinctive prescription.

5. Ground of appeal No. 5

In the so-called golf club membership with a certain amount of money deposited at the time of membership, in which the deposit can be returned in the case of withdrawal, when the golf club operator bears the obligation to return the membership card in accordance with the rules on its operation, the relationship of simultaneous performance is acknowledged between the obligation to return the deposit to the golf club operator's member and the obligation to return the membership card in order to prevent the risk of double payment. However, this is not the obligation of bilateral contract under Article 536 of the Civil Act or the similar contractual relationship. Thus, in relation to the obligation to return the deposit of the golf club operator, the obligation to return the deposit is held liable for delay of performance from the time when the declaration of intention to withdraw and the claim to return the deposit is received (see Supreme Court Decisions 98Da47542, 4759, Jul. 9, 199; 2005Da63337, Sept. 20, 2007).

Examining the record in light of the above legal principles, the court below is just in holding that the defendant's obligation to return the admission fee and the obligation to return the plaintiffs' membership fee are in simultaneous performance relationship, but this is aimed at preventing the risk of double payment, and that the defendant is liable for delay of performance from the time when the defendant received a declaration of intent to withdraw and a claim for refund of the admission fee from the plaintiffs. Contrary to the allegations in the grounds of appeal, the court below did not err

The Supreme Court precedents cited in the grounds of appeal are inappropriate to be invoked on the grounds of different cases.

6. Regarding ground of appeal No. 6

A. We examine the existence of default liability.

(1) In a claim for damages due to nonperformance, in a case where the obligor does not perform the obligation in accordance with the terms and conditions of the finalized obligation, the claim itself is deemed unlawful (see Supreme Court Decision 2000Da47361, Dec. 27, 2002). However, in a case where the obligor’s intention or negligence is not caused by nonperformance, the obligor is not liable for damages (see Article 390 of the Civil Act).

Meanwhile, in a case where a debtor believed that he/she was not liable to perform his/her obligation and there exists a justifiable ground for such belief, it may be deemed that the debtor does not have any intention or negligence on the part of the debtor. However, even though the debtor asserted it through a lawsuit with the belief that he/she was not liable to perform his/her obligation through a legal judgment on the cause or existence of the obligation, if such legal judgment of the debtor was erroneous, barring any special circumstance, it cannot be said that the debtor has no intention or negligence on the part of the debtor with respect to the nonperformance (see Supreme Court Decision 2011Da85352, Dec

(2) Based on its stated reasoning, the lower court rejected the Defendant’s assertion that the Defendant was liable for compensating the damages suffered by the Plaintiffs due to the nonperformance of obligations against the Plaintiffs, on the ground that the details of the rights to the instant golf club are unclear and the Plaintiffs did not apply for the use of the instant golf club, and that the Defendant did not have intention or negligence on the part of the Defendant before the final and conclusive judgment of the instant club became final and conclusive.

Examining the reasoning of the lower judgment in light of the record, the lower court’s determination is justifiable as it is based on the legal doctrine as seen earlier, and contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal doctrine

B. We examine the calculation of damages.

(1) In a lawsuit seeking compensation for damages due to nonperformance of obligation, where it is deemed that the existence of property damage is recognized, but it is difficult to prove the specific amount of damage in light of the nature of the case, the court may determine the amount of damage by comprehensively taking into account all the relevant indirect facts, such as the relationship between the parties as revealed by the results of examination of evidence and the purport of the entire pleadings, the background leading up to the nonperformance of obligation and the occurrence of property damage therefrom, the nature of damage, and various circumstances after the occurrence of damage (see, e.g., Supreme Court Decision 2002Da6951, 6968, Jun. 24, 2004). However, in determining the specific amount of damage by the aforementioned method, the court should seek the best effort to investigate the indirect facts that form the basis for calculating the amount of damage and make it difficult to prove the amount of damage in light of the nature of the case, and should not grant a judge a free discretion in calculating the amount of damage. Therefore, it is reasonable to reasonably assess the amount of damage through the aforementioned method.

(2) Based on its stated reasoning, the lower court: (a) premised on the premise that the damages incurred by the Plaintiffs to entirely use the instant membership by denying their membership status from the Defendant can be assessed on the basis of the usage fee or usage value of the instant membership; (b) based on the amount calculated by multiplying the membership fee by the interest rate on a fixed deposit in a commercial bank where the market price or the market price of the instant membership cannot be determined based on the real estate appraisal on the grounds that the cases of lease of golf membership similar to the instant membership cannot be confirmed; (c) however, (d) on the ground that the real estate appraisal method does not provide verification of the cases of lease of golf membership rights, the lower court calculated the amount of damages based on the amount calculated by multiplying the membership fee by the interest rate on

(3) However, according to the reasoning of the lower judgment and the record, the following circumstances are revealed.

① According to the rules of the golf club of this case, the status as a member based on the membership of the golf club of this case is contractual rights and obligations corresponding to the membership of the golf club operated with the so-called deposit membership system. As a content thereof, the member has the right to use the golf club facilities under favorable terms in accordance with the rules of the association, the right to use the golf club facilities under favorable terms after the expiration of a certain grace period stipulated in the rules of the association, and the right to receive the refund of the membership fees deposited at the time of entry, and the various obligations as a member are imposed.

② In the instant case where the Plaintiffs did not withdraw from the membership for a period of time when they denied their status as a member seeking damages, the Plaintiffs’ rights as a member constitute the basic part of the Plaintiffs’ rights to preferentially use the golf course facilities, and accordingly, the Defendant bears the duty to allow the Plaintiffs, a member, to use the golf course facilities in accordance with the rules. Therefore, the property damage arising from the Plaintiffs’ denial of status as a member from the Defendant, as a member, shall be deemed as the damage arising from the failure to exercise the right to use the golf course facilities in accordance with the rules as above

③ The lower court determined that the Plaintiffs’ damages due to the Defendant’s nonperformance were “amount equivalent to the interest rate on a commercial bank’s term deposit with respect to the amount corresponding to the membership price or membership fee” pursuant to the evidence No. 35 (Appraisal Report) submitted by the Plaintiffs as evidence. However, according to the evidence No. 35 (Appraisal Report), the appraiser was excluded from the object of appraisal on the ground that it is impossible to grasp the damages due to the failure to exercise the right to use facilities as a member. Thus, the amount of damages calculated by ascertaining the lower court cannot be said to reflect the loss of the interest on the golf course facilities constituting the basic part of the Plaintiffs’ membership.

Furthermore, even if the plaintiffs suffered losses due to the defendant's non-performance of obligation due to the plaintiffs' failure to obtain expected profits equivalent to the interest on time deposits for the amount equivalent to the price of membership, such losses are not losses due to the loss of profits from use due to the failure to exercise the right to preferentially use the golf course facilities, but losses due to the loss of opportunities to use money which is the economic value of membership rights, including the economic value of membership, and it is reasonable to view them as losses due to special circumstances, not ordinary damages, if considering the legal nature of membership rights as the consumption price of membership rights,

(4) Even if the Plaintiffs were to be denied their membership status as a member by the Defendant and thereby lost the opportunity to dispose of the membership held by them, or was unable to receive the price therefor properly, such damage may not be deemed as ordinary damages caused by failure to exercise the membership right that constitutes the basic part of the golf course itself.

⑤ Ultimately, in the instant case, in light of the content and nature of the right interfered with the exercise of the right by the Defendant due to the nonperformance of the obligation, and the degree and duration of the nonperformance, it appears that the Defendant’s nonperformance of the obligation that caused property damage to the Plaintiffs, but it is difficult to prove the specific amount of damage due to the nature of the case. If such circumstances exist, in light of the legal doctrine as seen earlier, the amount of damage in proximate causal relation with the Defendant’s nonperformance of obligation should be reasonably assessed and calculated by reasonably evaluating all the indirect facts revealed by the result of examination of evidence and the entire intent of the pleading including the following: the average number of damages caused by the Defendant’s nonperformance of obligation as a member during the period when the Plaintiffs denied the status as a member. The difference between the average number of damages incurred by the members of the instant golf club using the golf club’s facilities in the position of a member, the amount of the user fee per time for the golf club’s facilities paid as a non

(4) Nevertheless, the lower court erred by misapprehending the legal doctrine on the calculation of damages for nonperformance, thereby adversely affecting the conclusion of the judgment, and instead calculating the amount of damages for property damage caused by the Plaintiffs’ denial of membership status as a member, and instead calculating the amount of damages by the interest rate on a commercial bank’s term deposit with respect to the amount corresponding to the market price of membership or membership fee that is difficult to be deemed as ordinary damages. Therefore, the lower court erred by misapprehending the legal doctrine on the calculation of damages for nonperformance, thereby adversely affecting the conclusion of the judgment

7. Conclusion

Therefore, the part of the judgment of the court below against the defendant is reversed, and that part of the case is remanded to the court below for a new trial and determination. The defendant's remaining appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young (Presiding Justice)