Coup Global Co., Ltd. (Law Firm Seon et al., Counsel for the plaintiff-appellant)

Hak Co., Ltd. (Attorney Choi Jin-si, Counsel for defendant-appellant)

July 16, 2014

1. The plaintiff's claim is dismissed.

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

On January 8, 2014, the Seoul Central District Court Decision 2012Gahap52712 against the Defendant’s non-party Aeln Co., Ltd., dismissed compulsory execution based on an executory exemplification of the judgment that the non-party to the same court appointed the Plaintiff as the successor to Aeln, and granted to the Defendant on January 8, 2014.

1. Basic facts

A. The conclusion of a membership contract between the Defendant and the IMND, etc.

1) On April 201, the Defendant agreed to enter into a membership agreement with AIMD Co., Ltd. (hereinafter “BA”) and the Nonparty Co., Ltd to enter into the membership agreement for the membership of the ○○○ Golf club (hereinafter “instant golf club”) developed in the Chocheon-si in the Chocheon-si’s movable property, on the following terms and conditions (hereinafter “instant collective membership agreement”).

Article 1 of the Matters of the Special Agreement on Admission into Organizations contained in the main text: The matters of this special agreement shall apply only to the members who have entered into the first membership agreement with the defendant attached thereto, and shall take precedence over the admission agreement (written), the terms and conditions of use, and the rules of the golf course of this case. Article 2: The defendant's admission amount shall be fixed as the amount agreed upon between the parties. Article 3: The defendant's entry amount shall be fixed as the amount agreed upon between the parties. Article 3: There shall be no Saturday, Sundays, legal holiday or distinction; three times guarantee shall be guaranteed, five times more than the number of special members agreed separately between the parties. Article 4: The time of paying the admission amount to be paid by the defendant to the non-party company shall be paid in accordance with each individual situation among the defendant's members (the time of receiving the refund of the admission amount to the non-party company), and the time of returning the admission amount shall be the remaining five years after the expiration of five years for each member member of the defendant's member members. The non-party company shall immediately return the admission amount to the non-party member.

2) On April 27, 2011, and August 24, 2011, the Defendant entered into each of the entry agreements with the non-party company and the 190,000 won for each of the entry fees (hereinafter “instant entry agreement”). On March 16, 2012, the Defendant entered into the entry agreement with the special members of the amount of KRW 500,000 won for the entry fees (hereinafter “instant special member entry agreement”) and entered into the entry agreement with the said member entry agreement (hereinafter “instant entry agreement”). The main contents of each of the above entry agreements are as follows.

In the case of the cancellation of the contract under Article 7 (2) where the applicant for the membership fee has acquired the membership fee under Article 6 (1) by full payment of the membership fee under Article 6 (1), the applicant shall not request the termination of the contract unless the period of deposit under Article 6 (1) expires. At the bottom of the special membership contract of this case, the special membership fee of this case contains the following special provisions:

3) The Defendant paid KRW 170,000,000 each of the remainder on April 27, 2011 in accordance with the said membership agreement of the Washington member on April 27, 2011, and KRW 170,00,000 under the said special membership agreement. The Defendant paid KRW 190,000,000 on August 24, 201 under the said special membership agreement. The special member of the instant case paid KRW 120,000 on March 16, 2012 pursuant to the membership agreement.

4) At the time of the recruitment of golf courses in this case, the non-party company advertised that “the size of courses: 54 persons: 54 persons,” “a subsidiary facility: Puweg, tegra, tegroas, hanok village, hanok hotel, tegypt hotel, tegra center, volatile center, outdoor wedding hall, indoor swimming pool, etc.” will be installed.

5) On June 18, 2012, the Defendant filed an application for the withdrawal of a member of the instant membership agreement with the non-party company on the ground of the non-party company’s nonperformance of obligation.

6) During the process of temporarily opening and operating the instant golf course 18 holes, Nonparty Company announced that “the instant golf course was temporarily closed from September 22, 2012 due to the closure of a subcontractor’s road.” On October 5, 2012, Nonparty Company announced that “the instant golf course shall be temporarily closed from September 2, 2012,” and that “the period of temporary closure shall be extended until the re-open site is made in consideration of the closure of road traffic by the subcontractor’s road and the scheduled procedure for public sale of real estate, etc.” on January 16, 2013. However, the instant golf course was not opened by January 16, 2013.

B. The defendant's prior judgment against the non-party company

On February 1, 2013, the Defendant filed a lawsuit against the non-party company to return the membership fee (Seoul Central District Court 2012Gahap52712). On the ground of the non-party company’s non-performance of contractual obligations under the following contract, the lower court sentenced the judgment that “the non-party company shall pay to the Defendant KRW 500,000,000 and the amount equivalent to 5% per annum from June 18, 2012 to July 6, 2012, and 20% per annum from the next day to the day of full payment” (hereinafter “instant judgment”), and the said judgment became final and conclusive on February 22, 2013.

The defendant's judgment as to the cause of the claim 2. List contained in the main text of this case 2. Since the defendant has to obtain a total of six times per week pursuant to the organization entry agreement of this case and the cover of four times per week pursuant to the witness agreement of this case (3 x 2) and the special membership agreement of this case, it can be acknowledged that there is no stalking as much as the defendant should have guaranteed as possible because there is no stalking because the incidental facilities of this case are not completed, etc., so the defendant's failure to perform the above contractual obligations has been legally terminated upon the application of the non-party company's membership agreement of June 18, 2012 including the defendant's expression of termination, so the non-party company shall not be obliged to return the above special membership agreement of this case 50,000,000 won (i.e., the non-party company's total amount paid by the defendant to the defendant as the membership agreement of this case 1,000,00 won + the non-party company's 200.

C. Approval, etc. on the public sale and creation plan of the instant golf course

1) Around April 22, 2013 due to the business difficulties of the non-party company, the public sale procedure was conducted on the entire site for the development project of the Gyeongwon-do Tourism Complex (hereinafter “instant project”), including the instant golf course business site. The Plaintiff entered into a sales contract with the trust company of the instant project site on May 10, 2013 and acquired the ownership of the instant project site by concluding the sales contract with the non-real estate trust company, which is the trust company of the instant project site.

2) On June 5, 2013, after acquiring the instant project site through public sale, the Plaintiff entered into an agreement with the non-party company to be changed to the status of the project implementer of the instant golf course (hereinafter “instant agreement”). On August 23, 2013, the Plaintiff obtained the approval of the instant agreement from the Gangwon-do Governor, who is the approval authority for the instant project development plan, to change the project implementer from the non-party company to the Plaintiff (hereinafter “instant approval of the change”).

3) The Plaintiff acquired the status of the operator of the instant business in accordance with the instant modification approval, and the recognition of the modification of the business plan for the registered sports facility business under Article 12 of the Installation and Utilization of Sports Facilities Act (hereinafter “Sports Facilities Act”) was made pursuant to Article 58(1)21 of the Tourism Promotion Act, thereby acquiring the status of the operator of the instant golf course.

(d) Granting succession execution clause;

On December 30, 2013, the Defendant: (a) was a person who joined a membership pursuant to Article 17 of the Sports Facilities Act; (b) was entitled to receive membership fees pursuant to Article 18 of the said Act; and (c) the Defendant filed an application for granting inheritance execution clause to the instant judgment on the ground that he succeeded to the rights and obligations of the non-party company pursuant to the Sports Facilities Act; and (d) on January 8, 2014, the chief clerk of the Seoul Central District Court granted the execution clause to the Defendant who

[Reasons for Recognition] Facts without dispute, Gap evidence 1 to 10, Eul evidence 1 to 5, and the purport of the whole pleadings

2. Determination as to the cause of action

A. The parties' assertion

1) The plaintiff's assertion

A) A member who succeeds to various rights and duties under the Sports Facilities Act shall be construed to be limited to those who, prior to the transfer of a sports facility business, obtain the membership fee in full and become effective before the transfer of the sports facility business and maintain the qualification of a member at the time of the transfer of the sports facility business.

B) On June 18, 2012, the date of the cancellation of the instant membership agreement, the right of members, such as the right to use the instant golf course held by the Defendant, is extinguished, and instead, the Defendant has the right to claim a return of the membership fee paid pursuant to the membership agreement. If so, the Defendant already lost its membership status by cancelling the membership agreement on June 18, 2012, and instead, the status was changed as a general creditor holding the right to return the membership fee to the non-party company on the same day, and the status was changed as a general creditor holding the right to return the membership fee to the non-party company on the same day. Since the Plaintiff obtained the approval of the instant change on August 23, 2013, the Defendant ultimately does not include the Plaintiff’s right and

C) In addition, in order to acquire effective membership, at least the amount of membership fees pursuant to the rules of the golf course operation company should be paid in full in the company operating the golf course. Therefore, the scope of the member who succeeds to the rights and obligations of the Plaintiff under the Sports Facilities Act is limited

2) The defendant's assertion

If the Plaintiff entered into a membership agreement with the Nonparty company before accepting the instant golf course, regardless of whether the agreement was completely paid or only paid the down payment, it shall be deemed as a member protected under Article 27 of the Sports Facilities Act, regardless of whether the contract was rescinded or the request for withdrawal was made.

B. Relevant provisions

4. The term "member" means a person who has made an agreement with a sports facility business operator (including a person who has obtained approval of a business plan under Article 12) to use the facilities of a sports facility business on a preferential basis or on more favorable terms than the general user. Article 27 (Succession to Sports Facilities Business) (1) In cases where a sports facility business operator dies or transfers his/her business, or where a corporate sports facility business operator is merged with another sports facility business operator, the successor, the transferee of the business, the corporation surviving the merger or the corporation incorporated by the merger shall succeed to the rights and duties (including the matters agreed upon between the sports facility business operator and his/her members where members are recruited under Article 17) following the registration or report of the sports facility business.

(c) Markets:

1) Article 27 of the Sports Facilities Act (hereinafter “instant provision”) provides that “The rights and obligations of the Plaintiff shall be succeeded to pursuant to the agreement between the non-party sports facility business entity and its members,” which includes the duty to return membership fees due to the termination of the agreement with the non-party company, shall be considered as including the duty to return membership fees to the non-party company.” The instant membership agreement provides that “if the non-party company violated this special agreement and its members demand the return of membership fees, the non-party company shall immediately return membership fees.” The Defendant’s duty to return membership fees asserted that the non-party company succeeded to the Plaintiff by violating the above special agreement, is naturally liable to the Defendant under the above provision of return, and thus, the non-party company’s duty to exempt the non-party company from the obligation to return membership fees is also deemed as falling under the matters stipulated in the agreement between the non-party sports facility business entity and the non-party business entity, which is subject to succession to the rights and obligations of the non-party business entity prior to the termination of the agreement or termination of the agreement.”

2) Next, we examine whether the Plaintiff succeeds to the rights and obligations of a member upon full payment of membership fees under the agreement between the above member and the non-party company. ① Article 2 subparag. 4 of the Sports Facilities Act provides that "a member" means a sports facility business entity (including a person who has obtained approval of a business plan under Article 12) who uses the facilities of a sports facility business preferentially or on more favorable terms than ordinary users, and does not limit membership fees to those who have acquired membership fees from a sports facility business entity under the specific contents of the agreement or those who have paid the full amount of membership fees. ② In a case where the right and obligations under the agreement by the law of this case are limited to those who have acquired membership fees or those who have paid the full amount of membership fees under the provision of the agreement of this case, it is reasonable to view that the Plaintiff acquired membership fees in full arbitrarily according to the terms of an agreement between the sports facility business entity and the non-party company, and that the Plaintiff acquired membership fees in full without any initial basis for acquiring membership fees under the agreement between the Plaintiff and the non-party members's right to membership fees.

3) Therefore, the Plaintiff succeeded to all obligations against the Defendant by the instant judgment against the Defendant of the non-party company pursuant to the instant legal provision. Therefore, the Plaintiff’s assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Hong-chul (Presiding Judge) Kang Jae-in Kim Dong-hee

1) The Plaintiff does not dispute the fact that the Plaintiff is a member recruited through the procedures under Article 17 of the Sports Facilities Act. Meanwhile, in the case where Article 27(3) of the Sports Facilities Act provides for the approval of the business plan for the sports facility business, but the transfer of business at the stage prior to the completion of the construction work for the sports facility business refers to, in principle, the transfer of human and material organization organized to register the sports facility business upon completion of the construction work, as a whole. In light of the purpose of the Act to encourage the installation and use of the sports facility, it is not determined on the basis of whether the human and material organization has been transferred as a single opportunity, but on the basis of a single intention to continue to acquire the business of the Plaintiff with the purpose of registering the sports facility business through the completion of the construction work for the sports facility business by succession from the previous business operator, and on the other hand, it is deemed that the Plaintiff acquired the business of the instant case by obtaining the approval of the establishment of the sports facility business under Article 27(1)7 of the Commercial Act from the previous business operator and without obtaining the approval of the business as a single agreement among the Plaintiff.