2019dan58054 Return of down payment

A

Attorney Han-jin et al., Counsel for the defendant

B Housing Association Promotion Committee

Attorney Park Young-ju, Counsel for the plaintiff-appellant

November 27, 2019

January 8, 2020

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 31,153,00 won with 12% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment.

1. Basic facts

A. The Defendant is a regional housing association promotion committee that is promoting the creation project of apartment with approximately 1,40 households underground and approximately 25 stories underground and approximately 1,400 households, which consist of Pyeongtaek-si C Day as a project implementation district (hereinafter “instant project”).

B. On September 5, 2016, the Plaintiff received a certificate of safeness (hereinafter referred to as the "agreement") with the Defendant's representative as follows, and entered into a contract for joining an association (hereinafter referred to as the "agreement") with the Plaintiff as the subscriber in relation to the instant business, and with the Defendant as the implementer (tentatively named), with the Defendant as the object of sale "D, 59A" as the object of sale. Article 12 (1) of the agreement for joining the association of this case provides that "members shall not withdraw from the association at will: Provided, That if a partner intends to withdraw from the association due to an unavoidable cause, he/she shall notify the head of the association of his/her intention in writing 15 days prior to the withdrawal, and submit a certificate of personal seal impression (for withdrawal from association) to the association, and the head of the association shall determine whether to withdraw from the association by resolution of the general meeting or the board of representatives."

(Omission)The Association shall ensure that by no later than November 201, 30 of 2017, the full amount paid by its members shall be refunded if the plan of business is not approved. (Omission)

C. The Plaintiff paid the Defendant the sum of KRW 31,153,000 (hereinafter “instant payment”) as the name of the down payment, etc.

【Ground of recognition】 without dispute, entry of Gap evidence Nos. 1-4, the purport of the whole pleadings

2. Determination as to the cause of action

A. Main assertion

1) The assertion

Although the Defendant obtained approval of a business plan until November 30, 2017 and carried out a new apartment construction project, the Defendant did not establish an association without obtaining approval of the instant business plan until now. Accordingly, the Plaintiff’s termination of the instant membership contract and withdrawal from the Defendant by delivery of the instant complaint, considering that it was difficult for the Defendant to perform more normal obligations. Therefore, the Defendant is obliged to return KRW 31,153,000, the down payment paid by the Plaintiff as a result of the termination of the instant association membership contract.

2) Determination

On the other hand, the plaintiff's assertion is interpreted as the exercise of the right of rescission according to the other party's non-performance under the Civil Act. Each statement of evidence No. 3 (including a provisional number) alone cannot be readily concluded that the defendant becomes unable to obtain approval of the business plan of this case or that the construction of an apartment is impossible to carry out the construction of an apartment, and there is no other evidence to acknowledge it. Thus, the plaintiff's assertion on a different premise is without merit.

In addition, in order for the Plaintiff to withdraw from the Defendant, a written withdrawal from the partnership shall be submitted to the head of the Defendant partnership pursuant to Article 12 of the Agreement on the accession of this case, and the head of the partnership shall decide whether to withdraw from the partnership by the resolution of the general assembly or the board of representatives. There is no evidence to prove that the Plaintiff submitted the written withdrawal from partnership to the head of the Defendant partnership, or that the head of the Defendant’s partnership decided whether to withdraw from the partnership by the general assembly or the board of representatives

B. Preliminary assertion

1) Parties’ assertion

A) Plaintiff

Inasmuch as the non-approval of the business plan, which is a condition stipulated in the instant agreement, is fulfilled, the Defendant is obligated to return the instant payment to the Plaintiff in accordance with the instant agreement.

B) Defendant

The instant agreement made without a resolution of the Defendant’s general meeting, an unincorporated association, shall be null and void.

2) Determination

A) The legal nature of the defendant

(1) Relevant legal principles

If a housing association, which is a local association established by a homeless resident to become its members and establish a collective housing of its members, is engaged in activities with the unique purpose of a group called a joint housing construction project, and is equipped with bylaws and organizations, and an organization itself remains in existence, regardless of a change following the withdrawal from membership, etc., such act constitutes a non-corporate group (see, e.g., Supreme Court Decision 92Da36052, Jun. 28, 1994).

(2) Determination

In full view of the above facts and the purport of the entire arguments, it is reasonable to view that the defendant is working for an organization with its own purpose, has the rules and organization, and is a non-corporate company, the important matters of which have been determined as an organization.

B) The validity of the instant agreement

(1) Relevant legal principles

In the case of a non-corporate association, the management and disposition of collective ownership shall be governed by the articles of incorporation or regulations, and shall be governed by the resolution of the general meeting of members unless the articles of incorporation or regulations stipulate otherwise. Thus, unless otherwise stipulated in the articles of incorporation or regulations, the management and disposition of collective ownership without the resolution of the general meeting of members shall be null and void. The management and disposition of collective ownership in this context does not include a simple act of bearing obligations, but include a legal factual act and acts of use and improvement concerning collective ownership itself (see, e.g., Supreme Court Decision 2002Da64780, Jul. 22, 2003).

(2) Determination

The instant payment that the Plaintiff paid to the Defendant, a non-corporate company, belongs to the collective ownership in money held by the non-corporate company, and according to the instant agreement, the Defendant is obligated to pay part of the money, which is collective ownership, to the Plaintiff, unlike other members of the non-corporate company, in a case where certain conditions are met. Thus, the Defendant’s conclusion of the instant agreement constitutes an act of disposal of collective ownership as an act of bearing obligations arising from the disposition of collective ownership, as an act of bearing obligations arising from the disposition of collective ownership. However, there is no evidence to acknowledge that the instant agreement had been resolved at such general meeting. Thus, the

C) Sub-determination

Therefore, the plaintiff's assertion that the agreement of this case is valid is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it does not appear to be any mother, and it is so decided as per Disposition.

Judges Cho Young-jin