[1] Whether Article 19 subparagraph 2 of the Enforcement Decree of the Installation and Utilization of Sports Facilities Act provides that “Where an agreement on the rights and interests of a member is modified after an existing member was admitted as a member,” includes cases where the agreement on the rights and interests of a member is substantially modified due to changes in circumstances such as additional recruitment of members (affirmative), and whether the exercise of right to withdrawal is allowed in cases where an alteration in the agreement on the rights and interests of a member could have been sufficiently predicted at the time of admission of a member, and it can be accepted by social norms (negative)

[2] Whether an agreement on the rights and interests of members may be deemed modified where a business entity who transfers a sports facility business changes its business entity (negative)

[3] The case holding that in a case where Gap corporation, at the time of recruiting Eul et al. as a golf course member, had a grace period agreed to the effect that "the principal shall be refunded only within three months after the member's request for return was made in writing," but Eul et al, et al. sought a return of the membership fee due to the expiration of the membership period, it is difficult to view that the grace period agreement constitutes an "material content" subject to the duty to explain or an unfair contract that unfairly reduces

[1] Article 19 subparag. 2 of the Enforcement Decree of the Installation and Utilization of Sports Facilities Act provides that “where an agreement on the rights and interests of a member is modified after an existing member is admitted,” not only cases where the agreement on the rights and interests of a member is explicitly modified, but also cases where the agreement on the rights and interests of a member is substantially modified due to changes in circumstances such as additional recruitment of a member with preferential treatment. However, in full view of the circumstances at the time of membership subscription, the developments and necessity of the amendment of the agreement on the rights and interests of a member, the contents of the modified agreement and its impact on the rights and interests of a member, etc., the agreement on the rights and interests of a member could have been sufficiently predicted at the time of membership entry, and it cannot be said that the agreement on the rights

[2] Article 27(1) of the Installation and Utilization of Sports Facilities Act provides that a transferee shall succeed to the rights and obligations of the sports facility business upon the registration or report of the sports facility business, including the matters agreed upon between the transferor and the members, in the event of a transfer of business related to the sports facility business. This is a special provision with the purport of maintaining the management system under the public law for the transferor established in relation to the authorization and permission of the business regardless of the change of the business entity, and to protecting the interests of the majority members who entered into a relationship with the transferor, even if the business entity changes by a transfer of business, the agreement on the rights and interests of the existing members at the time of membership recruitment is naturally succeeded to the transferee, and thus,

[3] In a case where Company A, etc., at the time of recruiting Company B, etc. as a golf course member, agreed to the grace period stating that “the principal of the membership fee shall be refunded within three months after the member’s request for return in writing was made, but Party B, etc. sought the return of the membership fee on the ground of the expiration of the membership term, the case holding that, in light of the fact that the grace period for return of the membership fee paid by Party B, etc. does not seem to have been somewhat long-term than the period stipulated by the Enforcement Decree of the Installation and Utilization of Sports Facilities Act or demanded modification of the contents of the contract, it is difficult to view that the grace period constitutes an “important contents” subject to the duty to explain, and in light of all the circumstances, it is difficult to view that the grace period agreement constitutes an unfair terms that unreasonably reduces the duty to return

[1] Article 19 subparagraph 2 of the Enforcement Decree of the Installation and Utilization of Sports Facilities Act / [2] Article 27 (1) of the Installation and Utilization of Sports Facilities Act, Article 19 subparagraph 2 of the Enforcement Decree of the Installation and Utilization of Sports Facilities Act / [3] Article 3, Article 9 subparagraph 1 and 5 of the Regulation of Standardized Contracts Act, Article 19 subparagraph 3 of the Enforcement Decree of the Installation and Utilization of Sports Facilities Act

See Attached List of Plaintiffs (Law Firm LLC, Attorneys Choi Han-soo et al., Counsel for the plaintiff-appellant)

Newan General Rit Co., Ltd. (Law Firm Jeong, Attorneys Kim Gyeong-hee et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2013Na7594 decided October 2, 2013

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court. The Plaintiffs’ appeals are dismissed.

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

1. Judgment on the plaintiffs' grounds of appeal

A. On the first ground for appeal

In Article 19 subparagraph 2 of the Enforcement Decree of the Installation and Utilization of Sports Facilities Act (hereinafter “Enforcement Decree of the Sports Facilities Act”), “a case where an agreement on the rights and interests of a member is modified after an existing member is admitted as a member” shall include not only cases where the agreement on the rights and interests of the relevant member is explicitly modified, but also cases where the agreement on the rights and interests of the relevant member is substantially modified due to changes in circumstances such as additional recruitment of members. However, in full view of the circumstances at the time of accession, the developments and necessity of the amendment of the agreement on the rights and interests of the relevant member, the details of the modified agreement and its impact on the rights and interests of the members, etc., the exercise of right to withdrawal shall not be allowed on the grounds that the agreement on the rights and interests of the member could have been sufficiently predicted at the time of accession of the relevant member, and

The lower court rejected the Plaintiffs’ first amendment to the terms and conditions of the Agreement on the Admission of Membership 1,80 (one thousand eight hundred and eight hundred and eight members and one hundred and eight hundred and eight hundred and eight members) on the premise that the instant golf course was thirty-six (36%) and that, upon completion of the instant golf course in a scale of thirty-six (36), the Plaintiff changed the number of its members to one thousand and eight hundred and eight hundred and eight hundred and one hundred and one hundred and one hundred and one hundred and one hundred and one hundred and one hundred and one hundred and one hundred and another and the subsequent amendment to the Agreement on the Admission of Members) was made. Based on the premise that the instant golf course was thirty-six and thirty-six (36), the lower court rejected the Plaintiffs’ first amendment to the terms and conditions of the Agreement on the Admission of Membership 1,035 and it was difficult to view the Plaintiffs’ first amendment to the terms and conditions of the Agreement on the Admission of Membership 1,1035 and the rights and interests of its members.

In light of the above legal principles and records, the above determination by the court below is acceptable, and contrary to the allegations in the grounds of appeal, there were no errors of misapprehending Article 19 subparagraph 2 of the Enforcement Decree of the Sports Facilities Act.

B. On the second ground for appeal

Article 27(1) of the Sports Facilities Act provides that a transferee shall succeed to the rights and obligations arising from the registration or report of the relevant sports facility business, including the matters agreed upon between the transferor and the members, in the event of a transfer of business related to the sports facility business. This is a special rule with the purport of maintaining the management system under the public law for the transferor established in relation to the authorization and permission of the business regardless of the change of the business entity, as well as protecting the interests of the majority of the members who entered into a use relationship with the transferor. Even if the business entity was changed by the transfer of business, the agreement on the rights and interests of the existing members at the time of membership recruitment is naturally succeeded to the transferee, and thus

The court below omitted the judgment on the plaintiffs' assertion that the change of the business entity due to the transfer of the instant golf course to the defendant constitutes the ground for withdrawal under Article 19 subparagraph 2 of the Enforcement Decree of the Sports Facilities Act, but its assertion cannot be accepted in light of the above legal principles. Thus, the court below's omission of judgment on this point does not affect the judgment.

C. As to the third and fourth points

In the so-called golf membership 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 the membership card in accordance with the rules on the operation of a golf club, the relationship of simultaneous performance is acknowledged between the obligation to return the deposit to the golf club operator and the obligation to return the membership card in order to prevent the risk of double payment (see Supreme Court Decision 2013Da10750, Jan. 29, 2015, etc.).

In the above purport, the court below is just to accept the defendant's simultaneous performance defense, and there is no error of law by misunderstanding the legal principles on the application scope of Article 3 (1) of the Act on Special Cases Concerning the Simultaneous Performance or the Promotion, etc. of Legal Proceedings.

2. Judgment on the Defendant’s grounds of appeal

A. On the first and second grounds for appeal

Article 19 subparag. 3 of the Enforcement Decree of the Sports Facilities Act provides that if a member whose term of membership is determined requests the return of the membership fee after the expiration of the term of membership, it shall be returned within 10 days from the date of the request, but if there is an agreement on whether to return the membership fee,

After recognizing the facts, the lower court determined that the Defendant was liable to return the membership fee to the Plaintiffs pursuant to Article 19 subparag. 3 of the Enforcement Decree of the said Act, since the Plaintiffs expressed their intent to return the membership fee on the grounds of the expiration of the term after five years from the date of entering the instant golf course.

In light of the contents of the above statutes and the record, the above determination by the court below is just, and contrary to what is alleged in the grounds of appeal, it did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by erroneous interpretation of the duration

B. On the third ground for appeal

According to the Regulation of Standardized Contracts Act (hereinafter “Terms and Conditions Act”), when a business operator enters into a contract with a customer using a standardized contract, it shall provide the customer with an opportunity to know the contents of the standardized contract by specifying the standardized contract in a generally anticipated manner (Article 3(2)), and explain to the customer the important contents of the standardized contract so that the customer can understand the standardized contract (Article 3(3)). Here, “important contents” subject to the duty to explain refer to matters directly affecting the customer’s decision on whether to enter into a contract or to make a price for the standardized contract in light of social norms, and what constitutes an important contents among the standardized contract terms and conditions cannot be called uniformly, and individual circumstances should not be considered in a specific case (see, e.g., Supreme Court Order 2007Ma1328, Dec. 16, 2008).

According to the records, Article 15(2) of the Rules of this case stipulates that the principal of the membership fee shall be returned only within three months after a member’s withdrawal request in writing (hereinafter “instant grace period agreement”). The defendant, from the time of the first recruitment of members, prepared the instant rules of this case including the instant agreement from the time of the first recruitment of members, attached to the membership recruitment agreement, and attached to the membership recruitment agreement. The person wishing to be present at the instant golf course without any separate agreement, submitted an application for membership to consent to the instant rules of this case and obtained membership membership by obtaining membership cards, and the plaintiffs also went through the membership procedure.

In light of the above facts in light of the legal principles as seen earlier, the instant rules are deemed to have been incorporated into the contents of the membership agreement entered into between the Plaintiffs and the Defendant. In light of the amount of the membership fee paid by the Plaintiffs or the duration of the membership fee, the grace period for return of the membership fee is less than the period prescribed by the above Enforcement Decree, and it does not seem that the Plaintiffs refused to enter into the instant contract or requested modification of the contents of the contract. Therefore, it is difficult to view that the instant grace period constitutes “important contents”

Nevertheless, the lower court determined that the Defendant’s failure to perform its duty to explain the grace period for the instant agreement was not a party to the contract. In so determining, the lower court erred by misapprehending the legal doctrine on the terms and conditions law, and the Defendant’s ground of appeal pointing this out is with merit.

C. On the fourth ground for appeal

Article 9 of the Terms and Conditions Act provides that among the terms and conditions with respect to the cancellation or termination of a contract, a clause that excludes the right to cancel or terminate a contract under the Act, or limits the exercise of the right to cancel or terminate the contract (Paragraph 1), or a clause that unreasonably reduces the obligation of a business operator to restore or compensate for damages due to the cancellation or termination of the contract (Paragraph 5) shall be null and void. In order for the grace period agreement to be deemed null and void under the Terms and Conditions Act as a clause unfairly unfavorable to a customer, it shall not be based solely on the terms and conditions that are somewhat long-term than the period prescribed by the Enforcement Decree of the Sports Facilities Act. The determination shall be made by comprehensively taking into account all the circumstances such as the intent and purpose set forth in the Terms and Conditions, ordinary transaction practices in the business type, provisions of relevant Acts and subordinate statutes

① In general, in the case of a sports facility business requiring huge investment in the funds as above, it is possible to invite members if a certain process takes place, and thus, the golf course facility business operator does not continue to hold the initial fund necessary for the installation of a sports facility in the form of wired assets, and thus, a certain period of time is required to obtain membership fees to be returned to the members who applied for the withdrawal. ② The proviso to Article 19 subparag. 3 of the Enforcement Decree of the Sports Facilities Act provides that a reasonable grace period may be set by an agreement between the parties in consideration of the kinds of sports facilities, the amount of membership fees, the duration of membership fees, etc. The proviso to Article 19 subparag. 3 of the Enforcement Decree of the Sports Facilities Act is interpreted as allowing the parties to set a reasonable grace period. ③ In addition to the method of requesting the return of membership fees, a method of recovering membership fees by transferring membership fees through an exchange of membership, etc. (4) In light of the legal principles as seen earlier, it is difficult to view that the Defendant’s second recruitment period was unfairly 280 million won or more for a grace period.

Nevertheless, the lower court determined that the instant grace period agreement was null and void on the grounds indicated in its reasoning. In so determining, the lower court erred by misapprehending the legal doctrine on Article 9 of the Terms and Conditions Act, thereby adversely affecting the conclusion of the judgment, and the Defendant’s ground of appeal

3. Conclusion

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Plaintiffs’ appeals are all dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Plaintiffs: Omitted

Justices Lee In-bok (Presiding Justice)