Plaintiff (Law Firm L&A, Attorneys Lee hee-hee et al., Counsel for the plaintiff-appellant)

Changwon-dong District Housing Association (Attorney Park Young-chul, Counsel for the plaintiff-appellant)

April 23, 2020

Changwon District Court Decision 2019Na51744 Decided October 31, 2019

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 plaintiff is not a member of the defendant. The defendant pays 65,570,000 won to the plaintiff.

2. Purport of appeal

The same shall apply to the order.

1. Basic facts and Plaintiff’s assertion

The court's explanation on this part is as follows: (a) the content of the court's explanation is as follows: (b) Nos. 4 to 6 of the first instance judgment's grounds of appeal No. 15 of the second to 15 of the upper part; and (c) therefore, (d) this part

2. Determination as to whether the Plaintiff lost its membership in the Defendant

A. As to whether the Plaintiff’s withdrawal from the Defendant Partnership lost its membership

The court's reasoning of this part is as follows: (a) No. 7 of the first instance judgment's ground for appeal No. 9 "No Plaintiff's assertion is accepted; (b) the plaintiff's withdrawal from the association should be viewed as impliedly approved since the defendant did not express his/her intent to refuse the plaintiff's withdrawal request; (c) however, there are no grounds for a contract or law to accept the plaintiff's withdrawal from the association; (d) pursuant to Article 12 (1) of the Rules of this case, the decision whether to withdraw from the association of the defendant shall be made at a general meeting or the board of directors' resolution; and (e) pursuant to Article 6 (1) and (2) 1 of the Rules of this case, the change in the rights and obligations of the union members must be notified by registered mail to the relevant union members; (e) it is difficult to see that the defendant approved the withdrawal from the association of the plaintiff on the ground that the defendant did not express any intent to withdraw from the association, and therefore, (e) it is cited pursuant to the main sentence of Article 420 of the Civil Procedure Act.

B. As to whether the Plaintiff’s membership is disqualified due to the Plaintiff’s loss of membership

Article 38 (1) 1 (a) of the former Enforcement Decree of the Housing Act and Article 8 (1) 1 of the Rules of this case provide that “household shall be deemed as a member of a regional housing association.” Article 12 (2) and (4) of the Rules of this case provides that when a member is disqualified as prescribed by relevant Acts and subordinate statutes and the Rules of this case, the remaining balance after deducting common charges, penalty, etc. from the amount paid by the member is deducted. In full view of the contents of the above Enforcement Decree of the Housing Act and the Rules of this case, if the Defendant’s member loses the status of “household owner,” who is a member’s qualification after concluding a membership agreement with the Defendant, it shall be interpreted that the status of the member under the membership agreement entered into with the Defendant

However, Article 15 subparag. 3 of the Joining Agreement provides that "the contents not indicated in this Agreement shall be subject to delegation, letter, covenant, and construction contract," which stipulates that the Joining Agreement shall take precedence over the rules of this case. Even if an individual agreement violated Article 38(1)1 (a) of the Joining Agreement, such individual agreement alone may be deemed null and void as a matter of course, and it is inevitable to restrict voluntary withdrawal of a member under the nature of a regional housing association. It is inevitable under Article 10 subparag. 1 of the Joining Agreement, which states that even if a member loses membership under the relevant laws and regulations, the membership agreement shall be terminated when the union terminates the membership agreement and the status of a member shall be lost. Article 10 subparag. 1 of the Joining Agreement of this case provides that "The first sentence of Article 10 subparag. 1 of the Joining Agreement of this case shall be applied to prevent a member from arbitrarily losing his membership's membership and cancelling the membership agreement on the basis thereof, and it shall be applied in preference to Article 38 subparag. 18(1) of the 1.

However, there is no evidence to prove that the defendant terminated the contract of this case under the first sentence of Article 10 subparagraph 1 of the subscription contract of this case. Thus, it cannot be deemed that the contract of this case was terminated, or that the plaintiff lost the status of the defendant

Therefore, the plaintiff's claim for confirmation of non-existence of membership cannot be accepted.

3. Conclusion

Therefore, the plaintiff's claim for confirmation of the non-existence of membership against the defendant should be dismissed because it is without merit. Since the judgment of the court of first instance as to this part is unfair with different conclusions, it is accepted by the defendant's appeal and it is revoked and the plaintiff's claim corresponding to the cancelled part is dismissed (On the other hand, the plaintiff's claim for the return of payment was dismissed at the court of first instance, and there is no appeal as to this, it is not

Judges Namyang-Woo (Presiding Judge)

1) In other words, in order for an individual agreement to be deemed null and void merely on the ground that it violated relevant laws and regulations, the relevant laws and regulations should not be deemed to be effective provisions. However, there is no ground to view Article 38(1)1(a) of the former Enforcement Decree of the Housing Act as effective provisions. Rather, the Supreme Court held that the provisions of Article 32(5) of the former Housing Act (amended by Act No. 9405 of Feb. 3, 2009) and Article 38(1) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 21159 of Dec. 9, 2008) cannot be deemed to be null and void on the ground that the member’s qualification cannot be deemed to be a member’s qualification as a housing association. Article 38(1)1(a) of the former Housing Act (amended by Act No. 9405 of Feb. 3, 2009) and Article 39(1)1(2) of the same Decree cannot be deemed to be null and void on the ground of the agreement.

2) Regarding the reconstruction association subject to the former Enforcement Decree of the Housing Construction Promotion Act (amended by Presidential Decree No. 14349 of July 30, 1994), the Supreme Court held that it is reasonable to view that the reconstruction association does not allow the voluntary withdrawal of its members, unless there are unavoidable reasons in light of the nature of the association, and that the above provisions of the former Enforcement Decree of the Housing Construction Promotion Act are also provided for in subparagraph 2 of Article 34-3, the main sentence of Article 42(5) and Article 42(7) of the former Enforcement Decree of the Housing Construction Promotion Act, and Article 34-3 of the former Enforcement Decree of the Housing Construction Promotion Act (amended by Presidential Decree No. 14349 of May 30, 1997), and that if a member who agreed to remove the existing housing and voluntarily withdraws on the site, it would be impossible or considerably difficult to implement the reconstruction project.