[1] The meaning of "transfer of business" as a requirement for succession of rights and obligations under the approval of a business plan pursuant to Article 30 (1) and (3) of the former Installation and Utilization of Sports Facilities Act

[2] Under the single intent of continuing a business conducted for the purpose of registering a sports facility business by completing the construction of a sports facility, a part of the business asset is acquired by being awarded a successful bid in a voluntary auction process, and the remaining business assets, goodwill, etc. are acquired by a contract for transfer or acquisition concluded with the previous business operator, whether it constitutes a "transfer of business" as a requirement for succession to the business plan under Article 30(3) of the former Installation and Utilization of Sports Facilities Act (affirmative)

[1] The business transfer of a sports facility business entity under Article 30 (1) of the former Installation and Utilization of Sports Facilities Act (amended by Act No. 6907 of May 29, 2003) refers to "a transfer of human and physical organization organized to carry on the business of installing and operating a sports facility for profit-making purposes as a whole while maintaining its identity," and "a transfer of human and physical organization organized to carry on the business of installing and operating a sports facility as a whole" under Article 30 (3) of the same Act means a transfer of business as a requirement of succession of rights and obligations according to the business plan at the stage of completing the construction of a sports facility before the completion of the construction of the sports facility as a requirement of succession of rights and obligations in accordance with the business plan at the stage of completing the construction of the sports facility."

[2] In light of the overall purpose of the former Installation and Utilization of Sports Facilities Act (amended by Act No. 6907 of May 29, 2003), the special provision like Article 30(1) of the Act in order to protect members who have concluded an agreement with sports facility business operators more strongly than the general creditors in order to achieve the legislative purpose, and the above Paragraph(1) shall apply mutatis mutandis to succession of the approval of the business plan before the completion of the sports facility business for the same reason, under the single intent to continue the business for the purpose of registering the sports facility business from the previous business operators, a part of the business assets is acquired by being awarded a successful bid in the process of voluntary auction, while the remaining business assets, goodwill, etc. are acquired by a contract for transfer or acquisition concluded with the previous business operator, and thus, if special circumstances are acknowledged to be the same as the transfer of the previous business as a whole with maintaining its identity in view of social norms, it constitutes a business transfer under Article 30(3) of the same Act.

[1] Article 30 (1) and (3) of the former Installation and Utilization of Sports Facilities Act (amended by Act No. 6907 of May 29, 2003) / [2] Article 30 (1) and (3) of the former Installation and Utilization of Sports Facilities Act (amended by Act No. 6907 of May 29, 2003)

[1] Supreme Court Decision 2004Da10213 decided Oct. 28, 2004 (Gong2004Ha, 1949)

Korean Bank (Attorney Song-dae et al., Counsel for the defendant-appellant)

Crri Development Co., Ltd. (Law Firm Rate, Attorneys Shin Sung-tae et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2002Na71810 delivered on December 3, 2004

The part of the lower judgment against the Plaintiff on each of the ancillary claims for confirmation of pledge rights is reversed, and that part of the case is remanded to the Seoul High Court. The Plaintiff’s remaining appeal is dismissed.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Examining the reasoning of the judgment below in light of the records, the judgment of the court below is just in holding that there is no evidence to acknowledge that the defendant agreed to acquire the rights and obligations based on the membership rights of this case from the non-party Dong Dong Dongdong Leisure Industry Co., Ltd. (hereinafter referred to as "Dong Dongdong Leisure"), and there is no violation of the rules of evidence

2. Regarding ground of appeal No. 2

The court below rejected the defendant's claim based on the following facts: (a) after compiling the adopted evidence, it was found that the "business transfer" under Article 30 (1) of the former Installation and Utilization of Sports Facilities Act (amended by Act No. 6907 of May 29, 2003; hereinafter "the Act") was made against the defendant from the same new leisure, and (b) thereby, whether the defendant succeeded to the obligations of the non-party Young Electric Co., Ltd. to the members as sports facility business operator, and the non-party Young Electric Co., Ltd.; (c) although the defendant's intent to take over the golf club site of this case was awarded a successful bid through the auction procedure, most of the golf club site of this case with the intention to take over the golf club site of this case; and (d) even if some land equivalent to 0.9% of the golf club site of this case and its ground buildings were actually taken over by the defendant, it cannot be deemed that the defendant transferred the golf club of this case from the new leisure to the defendant, and therefore, it cannot be viewed that the defendant's claim against each of this case.

However, such judgment of the court below is hard to accept.

The term "transfer of business of a sports facility business entity" under Article 30 (1) of the Act means "transfer of human and material organizations organized to carry on the business of installing and operating a sports facility for profit-making purposes to one unit while maintaining its identity." Paragraph (1) of Article 30 of the Act applies mutatis mutandis under Article 30 (3) of the Act, but the term "transfer of business as a requirement for succession of rights and obligations pursuant to the approval of a business plan at the stage of completing the construction of a sports facility." (See Supreme Court Decision 2004Da10213, Oct. 28, 2004, etc.) means "transfer of human and material organizations organized for the purpose of completing the construction of a sports facility for the purpose of registration of the sports facility business as a whole, with the overall purpose of promoting the installation and use of a sports facility, by taking into account the overall purpose of the Act to promote the establishment and use of a sports facility and members who concluded an agreement with a sports facility business entity to achieve such legislative purpose into consideration the entire business approval of a new sports facility business for the same purpose."

However, according to the records and facts established by the court below, the defendant was established on July 23, 199 for the acquisition of the golf club of this case by the non-party construction company, which was the creditor of the construction cost of the above golf club from the above new leisure club, and immediately after the establishment of the golf club, it was decided that the defendant will acquire the remaining part of the land subject to the above auction for the purpose of acquisition of the above golf club with the remaining land for the purpose of acquisition of the above new golf club's land for the purpose of acquisition of the above golf club's land for the purpose of acquisition of the above new golf club as the highest bidder. Since the above decision to permit the successful bid had been made on September 15, 199, the defendant continued to acquire the above golf club's land for the purpose of acquisition of the above new golf club's land for the purpose of acquisition of the above new golf club's land for the purpose of acquisition of the above new golf club's land under the general meeting of shareholders and the general meeting of shareholders. Accordingly, the defendant agreed to acquire the above new golf club's land for acquisition by succession.

Despite its circumstances, the court below determined that the transfer of business related to the golf club of this case cannot be deemed to have been done on the grounds as stated in its reasoning, and eventually dismissed the part of the plaintiff's claim for confirmation of each of the conjunctive claims of this case, there is no violation of the rules of evidence or incomplete deliberation affecting the conclusion of the judgment, or any misapprehension of the legal principles as to the "transfer of business" under Article 30 (1) of the Act, which applies mutatis mutandis under Article 30 (3) of the Act. The ground of appeal

3. As to the remaining grounds of appeal

Although the Plaintiff submitted a petition of appeal to the effect that the part of the conjunctive claim against the Plaintiff was rejected, the part of the claim for confirmation of membership did not contain the grounds of appeal, and the petition of appeal does not contain any indication in the grounds of appeal.

4. Conclusion

Therefore, the part of the judgment below against the plaintiff regarding each of the conjunctive claims for confirmation of pledge rights is reversed, and that part of the case is remanded to the court below. The plaintiff's remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Hwang-sik (Presiding Justice)