Korean Asset Management Co., Ltd. (Attorney Nam-jin, Counsel for defendant-appellee)

The defendant who is the administrator of the rehabilitation debtor, who is the taking-off of the lawsuit of the company of the slinium

August 8, 2013

Seoul Southern District Court Decision 2012Gahap12048 Decided December 14, 2012

1. The rehabilitation claim confirmation amounting to 180,000,000 won out of the lawsuit of this case, the exchange of which has been changed at the trial, and the part of confirmation of voting rights equivalent to the same amount shall be dismissed;

2. A final determination that the amount of the amount calculated by the rate of 5% per annum from July 6, 2012 to the date of complete payment, with respect to rehabilitation claims against the Plaintiff’s debtor Dolle Slung Co., Ltd., upon a claim changed in exchange at the trial. The Plaintiff confirms that the Plaintiff has voting rights equivalent to the above amount at an assembly of related persons of the rehabilitation debtor Dolle Slung Co., Ltd.

3. The plaintiff's remaining claims that have been changed in exchange at the trial are dismissed.

4. The total cost of a lawsuit shall be borne individually by each party.

The judgment of the court of first instance is revoked. The plaintiff's rehabilitation claim against the plaintiff's rehabilitation debtor sofagyt corporation is confirmed to be the amount calculated by the rate of 20% per annum from July 6, 2012 to the date of full payment. The plaintiff confirms that the plaintiff has voting rights equivalent to the above amount at a meeting of related parties of the rehabilitation company (the plaintiff changed the claim to seek confirmation of rehabilitation claim and confirmation of voting rights at the trial).

1. Facts of recognition;

A. On November 16, 2001, the Plaintiff, as a regular member of a golf club operated by the Co., Ltd. Co., Ltd. (hereinafter referred to as the “Clater”) prior to the commencement of rehabilitation, paid KRW 180,000,000 to the glater’s deposit. Of the instant golf club rules (hereinafter referred to as the “instant golf club rules”), the parts related to the instant case are as follows.

Article 12 (Entry Money) (1) of the Table contained in the main text of this Decree (Entry Money) (1) In the case of a regular member, the deposit shall be paid as interest without interest to the company for five years from the date of full payment of the deposit, and the principal shall be refunded only at the time of withdrawal: Provided, That where the company deems that the management is substantially unreasonable and where a natural disaster or other force majeure event occurs, the return may be suspended for a certain period of time according to a resolution of the board of directors. (1) If the company wishes to retire, it shall submit a prescribed application and obtain the approval of the company. (2) The withdrawal may not be approved for five years after the entry. (3) The company shall return the deposit at the time of

B. On February 20, 2012, prior to the commencement of rehabilitation, the Plaintiff filed an application for membership retirement with the Capital Slovaspon on or around February 20, 201, but the Capital Slovasp did not

C. On the other hand, on April 26, 2013, the rehabilitation procedure was initiated in Seoul Central District Court 2013 Mahap67 on April 26, 2013, and the representative director was appointed as the custodian.

D. On May 23, 2013, the Plaintiff reported to the rehabilitation debtor company the amount of KRW 180 million as an admission fee of KRW 180 million and damages for delay calculated at the rate of 20% per annum from July 6, 2012 to the date of full payment. However, the custodian of the rehabilitation debtor company reported to the rehabilitation claim the amount of damages for delay calculated at the rate of KRW 180 million as an annual rate of 20%

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, Eul evidence Nos. 4, 6, and 7, the purport of the whole pleadings

2. Determination on the cause of the claim

A. The plaintiff's assertion

As the Plaintiff expressed his/her intention to retire to the slocks before the commencement of rehabilitation, the effect of the Plaintiff’s withdrawal on the above golf club occurred. As such, the Plaintiff has a rehabilitation claim equivalent to 5% per annum under the Civil Act, calculated from the day following the delivery of a copy of the complaint of this case to the day of full payment, and a voting right equivalent to the amount of damages for delay calculated by the rate of 5% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, with respect to the slocks, the debtor

B. Determination

1) Whether the part seeking confirmation of rehabilitation claims and confirmation of voting rights regarding KRW 180,000,000 is lawful or not

According to the above facts, on February 20, 2012, after five years from the date of the Plaintiff’s admission, the Plaintiff expressed his/her intention to retire from the golf club and the Plaintiff’s withdrawal from the said golf club occurred. Thus, barring any special circumstance, the Plaintiff has a right to vote equivalent to the amount of rehabilitation claim and damages for delay calculated at the rate of 5% per annum under the Civil Act from July 6, 2012 to the date of full payment, as sought by the Plaintiff, with respect to the amount of KRW 180,00,000 for the rehabilitation debtor, and the amount of damages for delay calculated at the rate of 5% per annum under the Civil Act from July 6, 2012 to the date of full payment.

However, comprehensively taking account of the provisions of Articles 148, 170 through 173, 251, and 288(1) and (4) of the Debtor Rehabilitation and Bankruptcy Act, rehabilitation creditors who intend to participate in rehabilitation procedures shall report rehabilitation claims. If there is an objection against the reported rehabilitation claims, rehabilitation creditors shall file a lawsuit for confirmation of the rehabilitation claim against the objectors, or take over the lawsuit interrupted by the commencement of rehabilitation procedures against the objectors. However, the lawsuit for confirmation of the rehabilitation claim and seeking confirmation of the voting right on the claim against which no objection is raised as a result of the inspection of the reported claim is unlawful. However, as seen above, since the administrator of the rehabilitation obligor is the time for the Plaintiff to raise an objection against the amount of 180,000,000,000 won reported as the rehabilitation claim, there is no benefit to seek confirmation of the rehabilitation claim and to seek confirmation of the voting right to the above amount of damages for delay.

Therefore, this part of the lawsuit by the plaintiff seeking confirmation of rehabilitation claim and voting right against the above membership fee is unlawful.

2) The damages for delay of the above membership fee

As the Plaintiff seeks from July 6, 2012 to the date following the delivery of a copy of the complaint of this case, the Plaintiff has a rehabilitation claim in an amount equivalent to 5% per annum under the Civil Act and a right to vote equivalent to the same amount as the damages for delay calculated from July 6, 2012 to the date of full payment, as the Plaintiff seeks from 180,000,000 membership fees, for Capitals, a debtor for rehabilitation,

Meanwhile, the Plaintiff sought confirmation of rehabilitation claims and voting rights equivalent to damages for delay calculated at a rate of 20% per annum from the day following the delivery of a copy of the complaint of this case to the day of full payment. However, Article 3(1) main text of the aforementioned Special Cases provides that “Where the Plaintiff declares a judgment (including adjudication; hereinafter the same shall apply) ordering the performance of all or part of monetary obligations, the statutory interest rate which serves as the basis for calculating the amount of damages due to the nonperformance of monetary obligations shall follow the interest rate prescribed by the Presidential Decree in consideration of economic conditions, such as the overdue interest rate applied by banks under the Banking Act within the limit of 40/100 per annum from the day following the day on which the complaint of seeking the performance of monetary obligations or other equivalent documents were served on the obligor.” This does not apply to cases where a judgment ordering the performance of monetary obligations is rendered by delegation of the statutory interest rate of 10% from the day following the date on which the complaint of damages due to nonperformance was served to the obligor, etc., thereby allowing the obligee to seek full or partial repayment of rehabilitation claims.

Therefore, the Plaintiff’s assertion on the confirmation of rehabilitation claims against the portion exceeding the amount calculated at the statutory interest rate of 5% per annum as stipulated in the above-mentioned Civil Act out of damages for delay in relation to the membership fees in which the receiver of the rehabilitation debtor slurf states an objection.

3. Judgment on the defendant's assertion

A. Judgment on the assertion that the approval of the withdrawal of the capital slots is necessary

The defendant asserts to the effect that the obligation to return the membership fee did not accrue unless the member has approved the withdrawal from the meeting, but the member returns the membership fee at the time of approval of the withdrawal from the meeting pursuant to Article 20 (3) of the Rules of this case, as well as the return of the membership fee upon the request of the withdrawal from the meeting.

However, the legal relationship on the operation of golf clubs operated with a deposit membership system is the contractual rights and obligations between the members and the golf club operating companies. The right to claim the return of membership fees under the condition that the grounds for the return of membership fees may be exercised when a member leaves the association unless there is any special restriction on the withdrawal of the members (see Supreme Court Decision 88Meu19606, Nov. 10, 1989). However, pursuant to Article 20(1) and (3) of the Rules of the instant case, if a member wishes to leave the association, the member shall obtain the approval of the glphs, and the defendant shall return the membership fees when the member approves the withdrawal. However, Article 12(1) of the Rules of the instant case provides that the membership fees shall be returned only to the company with no interest for five years from the date of full payment, and the defendant's right to request the return of the membership fees shall not be required to obtain the approval of the withdrawal from the 20th anniversary of the date of the withdrawal.

B. Determination as to the assertion that the return of the membership fee was suspended by a resolution of the board of directors of the capital chain

The defendant asserts that, on January 28, 2012, the board of directors of the glives did not have the obligation to return the above membership fee to the plaintiff until the management of the glives is normalization, since the defendant decided to withhold the return of the membership fee to the members who applied for the withdrawal from the association until the management is normalization, based on the proviso of Article 12(1) of the instant Rules.

According to the statement in Eul evidence No. 5, the board of directors of glovasin may recognize the fact that on January 28, 2012, prior to the commencement of rehabilitation, the board of directors of glovasin passed a resolution that "the temporary suspension of the return of the membership fee until the management is normalized for the efficiency of the company's management" pursuant to the proviso to Article 12 (1) of the Rules of this case.

However, this case’s rules have the nature of terms and conditions which form the content of contractual rights and obligations with the members who intend to join the club and the members who intend to join the club (see Supreme Court Decision 2007Da85980, Feb. 25, 2010). However, the proviso of Article 12(1) of the Rules permits the indefinite extension of the membership fee without any restriction upon the unilateral decision of the business operator, based on which the time for the return of the membership fee may be restricted by the circumstances on the part of the business operator, including the plaintiff, under the above provision. Thus, since the members’ rights and obligations may be affected by the decision of the board of directors and the exercise of the right to request the return of the membership fee, the members’ rights and obligations may not be restricted to any time without any restriction on the time for the return of the membership fee. Therefore, since the contents of the above provision are unfairly unfavorable to the customers, it is reasonable to deem the defendant’s assertion that it was null and void by a resolution of the board of directors based on the principle of trust and good faith.

4. Conclusion

Therefore, the part of confirmation of rehabilitation claim amounting to KRW 180,00,000 among the lawsuit of this case, which is changed to exchange at the trial of the party, is unlawful and dismissed. The part of confirmation of rehabilitation claim amounting to KRW 180,000,00, and the part of confirmation of voting right equivalent to the same amount is accepted. The plaintiff's claim for confirmation of rehabilitation claim and confirmation of voting right of KRW 180,000,000 for the debtor's debtor's debtor's debtor's company for rehabilitation, upon the claim that is changed to exchange at the trial of the party, is accepted

Judges domination and decorations (Presiding Judge)