2019 Gohap 113909 Action for a Claim for Additional Money

A Corporation

Law Firm Down, Attorneys Park Jong-soo, Counsel for the plaintiff-appellant

B Stock Company

Law Firm Seoul, Attorney Park Jae-sik, Counsel for the plaintiff-appellant

Attorney Lee Jin-han, Hun-Ba

July 24, 2020

2020, 10, 16

1. The plaintiff's claim is dismissed.

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

The defendant shall pay to the plaintiff 397,028,667 won with 12% interest per annum from the day following the day of service of the complaint to the day of full payment.

1. Basic facts

A. The Plaintiff is a public corporation established pursuant to the National Sports Promotion Act for research, development, and distribution for the promotion of national sports, and the Defendant is a company that operates the “C” in the Gyeonggi-gu Group (hereinafter “instant golf course”).

B. The contents of the National Sports Promotion Act relating to the instant case are as follows:

Article 20 (Creation of Fund) (1) The National Sports Promotion Account shall be created with the following financial resources, and the gaming industry addiction prevention and rehabilitation account shall be governed by Article 14-4 of the National Gambling Control Commission Act: (1) Where the account management agency intends to collect surcharges pursuant to Article 20 (1) 3, it shall obtain prior approval from the Minister of Culture, Sports and Tourism in order to obtain approval from the Minister of Culture, Sports and Tourism:

C. The Plaintiff is an account management institution managing and operating the National Sports Promotion Account pursuant to Article 19(3) of the National Sports Promotion Act, and applied for a business plan in 2018 and 2019 to collect and manage surcharges from users of membership golf clubs pursuant to the provisions related to the National Sports Promotion Act and obtained approval from the Minister of Culture, Sports and Tourism.

D. On December 27, 2019, the Constitutional Court accepted a request for an adjudication on the unconstitutionality of Article 20(1)3 of the National Sports Promotion Act (hereinafter “instant legal provision”) as the Constitutional Court rendered a decision that the said provision is unconstitutional (hereinafter “instant decision of unconstitutionality”).

[Ground of recognition] A without dispute, Gap 1-5 evidence (where there are several numbers in documentary evidence, the indication is omitted; hereinafter the same shall apply), Eul 2 evidence, the purport of the whole pleadings

2. Determination as to the cause of action

A. The plaintiff's assertion

The Defendant, as a member golf course operator, received surcharges prescribed by the instant legal provisions from the facility users and paid them to the Plaintiff pursuant to Article 23(3) of the National Sports Promotion Act, but did not pay KRW 397,028,667 in total from June 1, 2018 to September 30, 2019. Accordingly, the Defendant is liable to pay the Plaintiff unpaid surcharges of KRW 397,028,667 and damages for delay.

B. Determination

1) As seen earlier, the Constitutional Court sentenced the instant legal provision to the effect that it violates the Constitution, and the instant legal provision, which serves as the basis for the collection of surcharges claimed by the Plaintiff as the cause of the claim, lost its effect from December 27, 2019, which was the decision of unconstitutionality pursuant to Article 47(2) of the Constitutional Court Act. Therefore, the Plaintiff did not have the right to collect surcharges from the golf course users based on the instant legal provision, and thus, the Plaintiff’s claim based on the premise that the Plaintiff can collect surcharges from the golf course users, cannot be accepted even if not examining the Plaintiff’s claim, which is premised on the fact that the golf course facilities

2) The Plaintiff asserts to the effect that: (a) the Defendant did not collect surcharges from the users of the instant golf course from June 1, 2018 to September 30, 2019, prior to the instant decision of unconstitutionality; (b) the payment of surcharges already collected by the Defendant to the Plaintiff is merely an incidental procedure that does not create and expand a new unconstitutional legal relationship; and (c) the effect of the instant decision of unconstitutionality is not effective.

However, the effect of the decision of unconstitutionality of the Constitutional Court is that of the pertinent case where the Constitutional Court made a request for adjudication on unconstitutionality of the same kind before the decision of unconstitutionality is made, or where a request for adjudication on the unconstitutionality of the same kind was made to the Constitutional Court before the decision of unconstitutionality was made, and the pertinent case where the pertinent law or provision of the relevant law is the premise of judgment and is pending in the court (see, e.g., Supreme Court Decision 90Da8176, Dec. 24, 191). Although the pertinent case did not make a request for adjudication on unconstitutionality of the law in the court, it constitutes a case where the legal provision of this case is still pending in the court as the premise of judgment, and thus, the effect of the decision of unconstitutionality of this case extends to this case. Moreover, since the Defendant’s payment of additional dues collected from golf course users to the Plaintiff constitutes a new legal relation between the Plaintiff and the Defendant, it cannot be deemed that the implementation of additional procedure is not complete.

3. Conclusion

The plaintiff's claim cannot be deemed justifiable and dismissed.

The judge of the presiding judge;

Judge Choi Jong-ok

Judges Song-dae