(영문) 대구지방법원 2017. 6. 8. 선고 2016가단107711 판결

The defendant shall pay to the plaintiff 154,00,000 won with 15% interest per annum from the delivery date of the complaint to the day of complete payment.

Reasons

1. Basic facts

A. The defendant shall set up a local house building project district of Daegu Suwon-gu, as a project implementation district and established to promote Dra Housing Construction Project (hereinafter referred to as the "project of this case") in accordance with the Housing Act and its Enforcement Decree

is the partnership.

B. The Plaintiff entered into a membership agreement with the Defendant in 2014, and paid the Plaintiff’s contribution from December 2014 to June 2015.

C. The main contents of the instant subscription agreement made between the Plaintiff and the Defendant are as follows.

【Archability of a member joining agreement

♦ 목적물의 표시 : 대구광역시 수성구 C 일원

Article 1 (Definitions and Purpose)

1. The purpose of this project is to procure and operate the funds and to carry out other necessary projects in supplying the housing of the members of the association for promoting the stabilization and improvement of the residential life which is the cause of the members of the association;

2. “A” and “B” shall endeavor to ensure that this project for the creation of a house in happy by fulfilling their responsibilities on the basis of good faith, good faith and cooperative principles until the completion of the project in accordance with the provisions of the Code of the Association.

Article 3 (Members' Contributions)

1. The shared amount of association members shall include land purchase costs, building works, design and supervision costs, removal costs, civil petition treatment costs, service costs, and other costs and expenses incidental to the implementation of the project (such as costs for the construction of model houses);

2. “B” shall pay the following contributions by the due date in accordance with the following schedule of payment of contributions:

(Omission) A schedule for the payment of contributions to members;

3. Members' contributions include agency expenses (10 million won/households).

Article 7 (Disqualification for Membership)

3. Where "B" is disqualified for membership or withdraws from a cooperative because it falls under paragraphs (1) and (2);

Of the contributions paid to members, only the paid principal excluding agency expenses shall be refunded, and the interest payment obligation for the loan of a financial institution under the "A" and the guarantee for construction works for the payment of contributions to members under Article 3 (1) by the date of the refund shall be made to "B", and the refund shall be made to "B".

If there is a common charge or unpaid contribution, the overdue charge and loan interest thereon and the overdue charge shall be deducted from the refund.

4. The time of refund shall be within ten days after the deposit is completed by members or general buyers in substitution.

5.A “A” may recruit or recruit substitute members for the smooth progress of the project in respect of the withdrawing and expelled members’ households and the remaining households.

D. On December 15, 2015, the Plaintiff filed an application for the withdrawal of a member with the Defendant.

E. On January 20, 2016, the Defendant approved the Plaintiff’s above withdrawal application, and sent a notice to the Plaintiff on January 20, 2016 that “the Plaintiff shall pay, pursuant to Article 7(4) of the Agreement on Subscription, the remainder of the money obtained by deducting business operating expenses (10 million won) pursuant to Article 7(3) of the said Agreement, and the time of refund, the time of repayment shall be paid pursuant to Article 7(3) of the said Agreement, and the current amendment of the partnership for additional partners is in progress, and the alternative partners shall pay, in order, refund money to the Plaintiff.”

F. The main contents of the rules of the Defendant Union (hereinafter referred to as the “instant rules”) are as follows.

Article 7 (Definitions)

(b)

4. Contributions: A project implementation of an association, such as operating expenses of the association, land purchase expenses, and construction expenses;

All the amount paid by partners to unions;

Article 12 (Expulsion from Disqualification for Membership)

(1) A member shall not withdraw from a cooperative at will: Provided, That when a member of the cooperative intends to withdraw from the cooperative due to an unavoidable cause or event, he/she shall notify the head of the cooperative of his/her intention in writing 15 days prior to such withdrawal, and the head of the cooperative shall determine by resolution whether to withdraw from the cooperative.

(4) For a person who has lost the status of a partner due to withdrawal, loss of qualification for a partner, expulsion, etc., only the principal shall be refunded out of the payment made by the partner, excluding agency service expenses.

and the time of the refund shall be the refund when the deposit is completed by replacing a new member or a general seller, but the joint charge to be deducted and the time of refund may be determined separately by the resolution of the general meeting.

[Ground] Facts without dispute, entry of Gap 1 to 6 evidence, purport of the whole pleadings

2. Summary of the parties' arguments

A. The plaintiff

Since the Defendant approved the Plaintiff’s application for withdrawal and became disqualified as the Plaintiff’s member, the Defendant shall refund the contributions already paid by the Plaintiff. The Defendant decided to refund the contributions to the Plaintiff within 10 days after the payment was completed by substitution of union members or general buyers pursuant to Article 7(4) of the subscription agreement of this case. Article 7(4) of the above Act is determined as the due date when an uncertainty occurred. Since the Defendant’s housing construction project actually failed and is impossible to recruit union members or general buyers, the Defendant’s obligation to return contributions to the Plaintiff has already arrived.

B. Defendant

Article 7(4) of the Agreement on the Joining of this case constitutes a condition to suspend the right to claim the refund of contributions, and the conditions have not been fulfilled since a member or a general buyer replacing the Plaintiff after the Plaintiff’s withdrawal application was not recruited. In view of the Defendant’s progress of business even if the foregoing provision is a indefinite term, it is not impossible to recruit members or general buyers replacing the Plaintiff in light of the Defendant’s progress of business. Therefore, the obligation to return contributions did not arrive.

3. Determination

A. Establishment of a duty to return a contribution upon withdrawal of the Plaintiff

As seen earlier, the Plaintiff withdrawn from the partnership, barring any special circumstances.

The defendant is deemed to have established the obligation to refund the contribution to be paid by the plaintiff.

B. Maturity of the fulfillment period or fulfillment of the conditions for the obligation to return contributions

1) The nature of the provision on the timing for refund of contributions

According to Article 7 (4) of the subscription contract of this case and the defendant's notification to the plaintiff, the time of refund for the plaintiff's contribution is "within 10 days after the payment is completed by a member or a general buyer on behalf of the member or a general buyer."

With respect to the nature of Article 7 (4) of the above subscription contract, if there is a considerable reason to view that if there is no fact indicated in the subsidiary in the juristic act attached to him/her, he/she will not perform his/her obligation. If it is reasonable to view that not only the occurrence of the indicated fact but also the occurrence of the obligation becomes final and conclusive, it shall be deemed that the occurrence of the indicated fact should be determined by the indefinite time limit. Therefore, in cases where certain facts are attached to the repayment of the obligation already borne, unless there are special circumstances, it shall be deferred the time of repayment, and the time period shall expire when the fact does not occur, as well as when the fact has not occurred within a considerable period (see, e.g., Supreme Court Decisions 203Da24215, Aug. 19, 2003; 209Da1643, May 14, 2009).

The following circumstances, which are acknowledged based on the aforementioned facts and the purport of the entire oral argument, are: (a) the Defendant’s obligation to return the instant contribution to the Plaintiff was already caused by the Defendant’s notice of withdrawal from the Plaintiff on the part of the Plaintiff; and (b) Article 7(4) of the subscription agreement provides that the Defendant shall pay the contribution within 10 days after additional members or general buyers pay the money replacing the Plaintiff; (c) it is reasonable to interpret the time of payment by determining the time of payment.

In full view of the fact that Article 7 (4) of the subscription contract of this case provides that the defendant shall return the contribution of this case to the plaintiff by making it impossible for the plaintiff to pay the money instead of paying the money to the plaintiff. In full view of the fact that Article 7 (4) of the subscription contract of this case provides that the defendant shall return the contribution of this case to the plaintiff on the ground that "the additional member or the buyer is replaced by the additional member or the buyer, and the payment of the contribution of this case is completed."

2) Whether the due date is due due to the impossibility of additional recruitment by union members or general buyers

Since the Plaintiff was unable to recruit additional members since January 2016, and the Defendant’s project promotion plan was not promoted properly due to disputes among the members, the Defendant’s financial difficulties for securing the land, etc., the Plaintiff is deemed to have actually failed to do so. As such, the Plaintiff should be deemed to have been in a situation where it is impossible to replace a union member or a general purchaser under Article 7(4) of the Agreement on the Subscription and thus, the period of non-determination under Article 7(4) of the Agreement on the Subscription is due to the impossibility of substitution.

In light of the following circumstances acknowledged by the respective descriptions of the evidence Nos. 10 through 21 (including the paper numbers) and the purport of the entire pleadings, it is difficult to view that the evidence submitted by the Plaintiff alone was insufficient to replace the instant business by the Defendant Cooperative with an additional member or a general purchaser, or that it was impossible to replace the said additional member or a general purchaser, or there is no other evidence to acknowledge it otherwise. Therefore, the Plaintiff’s assertion that the period of absence has already arrived is without merit.

O The defendant seems to have been expected to have been required for about three years from June 2016 to August 2019, and even if six months have elapsed since the scheduled date of commencement of the construction, this company

Although the selection of a contractor or the commencement of construction has not been made until before the closing date of pleadings, the remaining period of construction is reasonable, and comprehensive management of the scale, number of union members, amount of business funds, etc. of the instant project cannot be readily concluded at the present time as to the failure of the instant project.

O) On March 20, 2017, the Defendant: (a) concluded a MOU with Hyundai Construction Co., Ltd. on the instant project; and (b) selected the said company as a prospective contractor for the execution of the instant project; and (c) considerable portion of the data necessary to apply for approval of the project plan following the progress of the instant project has already been prepared, it is difficult to deem that the instant project was suspended.

Most of the members of theO pay contributions, the procedures for internal decision-making, such as an ordinary general meeting or a board of representatives, are continuing, and there is no reason to deem that the operation of the union has been suspended or impossible.

O Some of the withdrawing partners including the Plaintiff, but in light of the total number of union members, it is difficult to view that the number of withdrawing partners is the degree to suspend the operation of the association or the progress of the business.

O The defendant seems to endeavor to carry out the project in this case from the selection of the contractor to the approval of the business plan and the invitation of general buyers.

O Generally, the regional housing association project has many variables such as land purchase, financing, and the selection of a contractor in the process of its implementation, and it seems that the members can expect this situation as a substitute.

C. Sub-committee

Ultimately, the Defendant’s obligation to return the instant contribution under Article 7(4) of the Agreement was not due. On the premise of the foregoing, the Plaintiff’s State seeking an immediate payment of the total amount of contribution.

The head of the Gu has no reason to do so without any further examination.

4. Conclusion

Therefore, the plaintiff's claim is dismissed.