2020Na53234 Return of a refund

grandchildren*

Plaintiffs LLC (LLC)

Attorney Lee Ho-chul, and Kim Young-young

* Housing Association

Law Firm LLC (LLC)

Attorney Na-chul

Ulsan District Court Decision 2019Gahap14949 Decided October 31, 2019

on March 4, 2021

April 22, 2021

1. The part against the defendant in the judgment of the first instance is revoked, and the plaintiffs' claims corresponding to the revoked part are all dismissed.

2. The costs of the lawsuit are assessed against the Plaintiffs.

3. The purport of the judgment of the court of first instance shall be corrected to the purport of the judgment of the court of first instance.

1. Purport of claim

The defendant shall pay to the plaintiffs *, grandchildren*, Ma*, Song*, Song*, Ma* each of 92,160,00 won, plaintiffs Kim*, Kim*, Kim*, Kim*, Kim*, Kim*, Kim*, Kim* this*, Kim*, Kim*, Kim*, the last part of*, the 74,160,000 won, the 36,000,000 won for the plaintiff Kim*, the 40,500,000 won for the plaintiff Kim*, the 101,60,000 won for the above money and the 12% per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment.

2. Purport of appeal

The text of paragraph (1) is as follows.

1. Basic facts

A. Status, etc. of the parties

1) The Defendant is a regional housing association established to carry out a housing construction project under the Housing Act in Ulsan-gu, Ulsan-dong 315-1, Ulsan-dong.

2) The plaintiffs entered into a membership agreement with the defendant's promotion committee at which the defendant's promotion committee was the defendant's promotion committee with the contents that the plaintiffs join as the defendant's members (hereinafter "the joining agreement of this case"). Of the contents of the subscription agreement of this case, the part related to this case

Defendant Promotion Committee (contractor): Plaintiffs

1. Union member's intermediate payment and remainder (unit: 2.00 won) 3. Union member's intermediate payment and remainder (unit: 3.00 won) Union member's account; (3) Union member's contributions include land purchase expenses, maintenance expenses, design expenses, supervision expenses, personal construction expenses, civil petition treatment expenses, and operating expenses; and (4) Union member's account; (1) Union member's withdrawal from the union can immediately terminate the contract without the demand of the union member's withdrawal from the union or other separate measures; and (2) Association member's withdrawal from the association by reason of the occurrence of any inevitable reason for the cancellation or withdrawal from the association; and (3) Association member's withdrawal from the association can not be arbitrarily determined by the rules of the union member's withdrawal from the association. Association member's withdrawal from the association.

under section 16.(4) The contract and the bylaws of the Association shall be mutually complementary to each other, and the agreement of the Association shall take precedence over this contract where there is a conflict between the contract and the agreement of the Association.

B. Payment of administrative service charges and contributions under the Plaintiffs’ subscription contract

After the conclusion of the subscription contract of this case, the Plaintiffs paid the administrative service costs and contributions under the subscription contract of this case to the Defendant Promotion Committee or the Defendant (hereinafter referred to as “Defendant”) as indicated below.

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C. Contents, etc. of the defendant's establishment and association rules

On January 27, 2016, the Defendant: (a) held an inaugural general meeting dealing with the matters, such as the selection of executive officers, (hereinafter referred to as the “Inaugural general meeting”); and (b) established a regional housing association upon obtaining authorization to establish a housing association on May 30, 2017; and (c) succeeded to the rights and obligations under the membership agreement entered into by the Defendant’s promotion committee. Of the contents of the Defendant’s bylaws of the association (hereinafter referred to as the “instant regulations”), the parts relating to the instant case are as follows.

The principal office of the union under Article 3 (Office) of the Code of this case shall be located in Ulsan Metropolitan City, Jung-gu*2 stories, and later, it may be transferred through a resolution of the board of directors without a separate general meeting resolution and shall be notified to the union members.The meaning of the terms used in the Code of this case is as follows: The amount of the association's operation cost, land purchase cost, construction cost, service cost, etc.; 7. Administrative service cost: The amount of the association's members pay to the association for the implementation of the association's project, such as the union's operation cost, land purchase cost, service cost, etc.

Article 8 (Qualifications of Members) The qualifications for members of a housing association mean the qualifications for members prescribed by the Housing Act and subordinate statutes, and are subject to changes in the following matters. (1) A person who does not own a house from the date of application for authorization to establish a housing association until the date of occupancy of the housing association or who owns an exclusive residential area of not more than 85 square meters: Provided, That where a member of a housing association temporarily loses his/her eligibility for membership due to inevitable reasons, such as work, disease treatment, study, marriage, etc., the head of the Si/Gun/Gu shall be deemed to be eligible for membership.

D. Disqualification of Plaintiffs’ membership

On May 24, 2019, after the authorization for the establishment of the housing association was issued by the defendant, the plaintiff * owned a house in excess of one house with an exclusive residential area of not more than 85 meters as shown in the following table. The plaintiff * lost the qualification of the defendant as the member of the housing association as shown in the following table. The remaining plaintiffs, excluding the plaintiff son, lost their qualification as the head of household on the relevant date indicated in the following column after the authorization for the establishment of the housing association was granted to the

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[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1 through 18, 21, 22 (including paper numbers; hereinafter the same shall apply), Eul evidence Nos. 1 and 2, the purport of the whole pleadings

2. Judgment on the plaintiffs' main defense

A. The plaintiffs' defense of this safety

The address of this case entered by the plaintiff at the defendant's address is the location of the office indicated in the instant protocol or the certificate of authorization to establish the housing association. At the address of the defendant, the office of the defendant was served with the plaintiff's office, the original copy of the instant complaint, the notice of sentencing, and the judgment of the court of first instance. The above service is all lawful. Thus, the defendant's appeal or subsequent appeal filed after the expiration of the appeal period

B. Relevant legal principles

1) Procedural acts that may bring legal effects to a party to a lawsuit who is a juristic person (the same applies to a non-juristic person) shall be an act of a natural person representing the juristic person or an act of such natural person. Thus, documents, such as a complaint, date of summons, judgment, etc., to the said juristic person shall be served to the said juristic person. In principle, such documents shall be served to the representative’s address, residence, place of business or office (Articles 64(1) and 183(1)2 of the Civil Procedure Act). Here, “place of business or office” shall be deemed to refer to the pertinent juristic person’s place of business or office (see, e.g., Supreme Court Decision 200Da60197, Apr. 25, 200). In addition, when the person to be served is unaware of the place of service, such as the address, place of business or office, etc. (hereinafter “place of service”), or when the person to be served was unable to receive documents from another person upon delegation or other legal acts, such person can be served (see, 2).

2) Meanwhile, the appeal period is proceeding from the date on which the original copy of the judgment is served and can file an appeal even before the service of the judgment (see, e.g., Articles 396(1)5 and 210(2)6 of the Civil Procedure Act). If the original copy of the judgment in the first instance is not served lawfully, the appeal period against the judgment does not run (see, e.g., Supreme Court Decision 2018Da23989, Oct. 12, 2018).

C. Determination

In light of the following circumstances that can be seen by comprehensively taking account of the facts found above and the overall purport of the arguments in this court and the whole purport of each of the above evidence, the service of the complaint of this case and the original copy of the judgment in the first instance court against the defendant's employee and other employee Kim* at a place other than the defendant's domicile or the defendant's domicile shall be deemed null and void. Accordingly, the appeal of this case filed by the defendant on May 21, 2020 shall be lawful, and therefore, the plaintiffs' safety defense shall not be justified.

1) All the instant complaint and the original copy of the judgment in the first instance court were served to the instant address. The instant address was used from March 31, 1999 to December 1, 2016 as the address * (the location of the principal office) of the Defendant Promotion Committee’s previous agency company, and was used from May 16, 2008 to the time the instant lawsuit was filed, as the address * (the location of the principal office) of the Defendant Promotion Committee, where the previous land purchase service company was located at the Defendant Promotion Committee’s previous land purchase service company (the location of the principal office). However, any contractual relationship between the Defendant and the Defendant * through * at the time the instant lawsuit was filed.

2) Article 3 of the Rules of this case provides that “The principal office of a cooperative shall be located in the address of this case, which shall be transferred through a resolution of the board of directors without a separate general meeting, and shall be notified to the members.” However, the defendant transferred the location of the office of Ulsan-gu * after the establishment approval of the housing association was made pursuant to the above provisions, but the defendant transferred the location of the office to Ulsan-gu * (current domicile) around September 2018. At that time, the defendant notified the union members of this fact by text message and announced it on the defendant’s Internet homepage.

3) The instant warden, on August 19, 2019, served the original copy of the judgment of the first instance to each of the instant addresses on November 6, 2019, and Kim* received the original copy of the judgment of the first instance. Kim* does not seem to have been in the Defendant’s position as employee or other employee at the time of receipt of the instant complaint and the original copy of the judgment of the first instance court.

3. Judgment on the merits

A. The parties' assertion

1) The plaintiffs' assertion

Since the Plaintiffs were disqualified as a member of the Defendant due to lack of the requirements for the head of a household, which is a member’s qualification under the Housing Act and the Rules of this case, or of a house with an exclusive residential area of 85 square meters or less, etc. after concluding the instant subscription agreement with the Defendant and paying a member’s contribution, the Defendant is obligated to pay the amount corresponding to the column for the amount of claim for refund of the following table, which is written after deducting 1/10 from the payment that the Plaintiffs

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2) The defendant's assertion

A) Claim of violation of the duty to maintain the qualification of union members

Article 10(2)2 of the instant agreement provides that a member shall be qualified as a member until the time of occupancy except for the matters permitted by the relevant Acts and subordinate statutes (Article 8 subparag. 3). Since a member imposes an obligation to comply with the instant agreement on a member, it is not permissible to arbitrarily lose a member’s membership through a change of the head of the household or a house holding the same (Article 10(2)2). Moreover, it is against the good faith principle to claim the Defendant’s loss of a member’s membership.

B) Claim for deficiency in the resolution of the general assembly as a disposal act of collective ownership

The return of the contribution to the association members constitutes an act of disposal on the property owned by the defendant.

It should be done by a resolution of the general meeting of partners. Since there was no resolution of the general meeting regarding the refund of contributions to the plaintiffs, the defendant does not have the obligation to refund the contributions to the plaintiffs.

C) The non-performance-based assertion

Article 12(4) of the Rules of this case provides that "the return of the contribution to a cooperative member due to the forfeiture of a member's qualification shall be paid within 30 days from the date of the request for refund in accordance with the subscription contract of this case after the establishment of the housing association is approved." Article 10(3) of the Agreement of this case provides that "the time when the payment is completed due to substitution of a member or a general buyer" shall be the time when the contribution is returned. However, since the new member or a general buyer replacing the plaintiffs is not paid in full, the obligation of the defendant to return the contribution to the plaintiffs has not

D) Claim on the calculation method of contributions

In Article 12 (4) of the Code of this case, "the charges under Article 7 (4) of the Code of this case (the Association)"

(B) Article 10(3) of the instant contract provides that "a refund shall be made to the balance obtained by deducting the amount equivalent to 1/10 of the total amount of the contributions." Since Article 10(3) of the instant contract provides that "if a partner becomes disqualified, 10% of the contract amount out of the contributions already paid by the partner shall be deducted as the operating expenses of the association and then the balance shall be refunded to the account of the head of the relevant Tong." Thus, the Defendant’s obligation to return the contributions is recognized only to the balance obtained by deducting

B. Determination

1) The Defendant’s obligation to return the Defendant’s contribution to the Plaintiffs

In light of the above facts, the plaintiffs are naturally disqualified for the defendant's membership for reasons such as failure to meet the requirements for the head of a household, which is the qualification of members under the Housing Act and the Rules of this case, after concluding the subscription contract of this case with the defendant and paying the contribution of the members, or failure to meet the requirements for holding one bonds with an exclusive residential area of not more than 85 meters. Thus, the defendant is obligated to return the balance after deducting a certain amount from the amount paid by the plaintiffs to the plaintiffs under the agreement of this case and the subscription

2) Judgment on the defendant's assertion

A) Determination on the part on the assertion of violation of the duty to maintain qualification of union members

In light of the following circumstances that can be seen by comprehensively taking account of the overall purport of arguments and arguments as seen earlier, it is difficult to view the Plaintiffs’ loss of status as a householder or loss of membership by owning more than one loan with an exclusive residential area of not more than 85 meters in excess of 85 meters as an act violating the duty of maintaining membership or claiming loss of membership as an act contrary to the good faith principle. Thus, this part of the Defendant’s assertion cannot be accepted.

(1) Article 12(1) of the instant protocol provides that "a partner may not withdraw from a cooperative at will." However, Article 12(2) of the instant protocol clearly provides that "a partner shall not be automatically lost, while distinguishing between voluntary withdrawal from a cooperative and automatic loss of a member's qualification."

(2) In light of the above automatic loss provision, the provision that "a person must be qualified as a cooperative member until the time of occupancy except as permitted by the relevant Acts and subordinate statutes" under Article 8 (3) of the instant regulations is merely interpreted as a provision that restricts voluntary withdrawal under Article 12 (1) of the instant regulations, and does not seem to be a provision that limits automatic loss of a cooperative member under Article 12 (2) of the instant regulations.

(3) There is no provision explicitly prohibiting the members of the householder from sustaining their obligation to maintain their status permanently in the Housing Act and other relevant Acts and subordinate statutes, the regulations of this case, and the subscription agreements of this case, or from waiver of their membership through the modification of a household widely known sense, and there is no person who intentionally lost their membership in relation to the refund of contributions from the person who intentionally lost their membership in relation to the refund of contributions. In fact,

(4) Since a partner who lost his qualification as a partner can only receive the principal of the remaining contributions after deducting the total amount of contributions paid under the instant agreement and the subscription agreement from the Defendant’s operating expenses, it cannot be deemed that the Plaintiff’s loss of qualification as a partner is unilaterally unfavorable to the Defendant.

B) Determination on the deficiency in the resolution of the general assembly as an act of disposal of collective ownership

(1) A reconstruction association constitutes a non-corporate association under the Civil Act; it shall comply with the articles of association or regulations regarding the management and disposal of collective ownership; and shall follow the resolution of the general meeting of members unless there is the articles of association or regulations regarding such management and disposal; therefore, the management and disposal of collective ownership without the resolution of the general meeting of members shall be null and void, unless otherwise stipulated in the articles of association or regulations (see, e.g., Supreme Court Decision 2004Da45349, Jan. 27, 2006).

(2) In a regional housing association like the defendant, which has a legal nature as a non-corporate association, the members' contributions to be paid by the association members shall belong to the collective ownership of the association members, and the disposal of the contributions to the association members, which is a collective ownership (Article 275(10) and Article 276(11) of the Civil Act), shall be null and void, in principle, as well as the management and disposal of contributions to the association members, in addition, according to each of the above evidence, Article 23(1)3 and 7 of the Rules of this case provides that the matters stipulated in the budget and the matters stipulated in the rules of the association shall be determined through a resolution of the general meeting of the association members. However, according to the above evidence and the whole purport of arguments, the defendant may not be deemed to have adopted a resolution to confirm all the affairs conducted by the previous committee relating to the establishment of the rules of this case as to the promotion of the project of this case, and the defendant can not be deemed to have adopted the rules of this case before the establishment of the rules of this case.

C) Determination as to the assertion of the non-performance period

(1) The Defendant’s obligation to return the Defendant’s contribution to the Plaintiffs is due.

The purport of the whole pleadings of each evidence mentioned earlier, i.e., the facts found earlier.

In full view of the following circumstances revealed, it is reasonable to view that the period during which the Defendant’s obligation to return the Defendant’s contribution to the Plaintiffs is due is an indefinite period and the payment is completed in substitution for a new member or a general purchaser, and it is within 30 days from the date on which the Plaintiffs filed the claim for refund.

(A) Article 12(4) of the Rules of this case provides that "the return of the contribution to a partner due to the loss of partner qualification shall be made within 30 days from the date of request for refund in accordance with the subscription agreement of this case after the establishment of a housing association is authorized." Article 10(3) of the subscription agreement of this case provides that "the time when the payment is completed due to substitution of partner or general buyer," and Article 16(4) of the subscription agreement of this case provides that "the subscription agreement of this case and the bylaws of the association shall be complementary to each other." Article 16(4) of the membership agreement of a regional housing association provides matters concerning the organization and operation of the association, and the rules of association of the regional housing association are fundamental rules and municipal ordinances which are bound by the association as well as the whole association's institutions (see, e.g., Supreme Court Decision 2020Da237100, Sept. 7, 2020).

(B) Meanwhile, it should be deemed as a condition when it is reasonable to view that, in the case of a juristic act attached to a sub-subsidiary, if the fact indicated in the sub-subsidiary does not occur, the obligation should not be performed. In a case where it is reasonable to view that the obligation should be performed not only when the indicated fact occurred, but also when the existence of the fact becomes final and conclusive (see, e.g., Supreme Court Decision 2003Da24215, Aug. 19, 2003). As seen earlier, the Defendant’s obligation to return the Defendant’s contribution to the Plaintiffs was established due to the Plaintiffs’ loss of membership, and the Plaintiff’s failure to refund the contribution at any time unless the above fact occurs, it is difficult to view that the Defendant may not return the contribution at any time by the time, and therefore, the above sub-subsidiary becomes final and conclusive as to whether the payment is completed by a new member or a general purchaser, and thus, the Defendant’s refund the contribution to the Plaintiff.

2) Whether the due date has arrived

However, the evidence submitted by the plaintiffs alone is insufficient to recognize that the status of the plaintiffs' union members was replaced by new union members or general buyers, or that the above reasons have not occurred, and there is no other evidence to acknowledge this otherwise. Therefore, this part of the defendant's assertion is with merit.

3) Sub-decisions

Therefore, since the Defendant’s obligation to return the Defendant’s contribution to the Plaintiffs cannot be deemed to have arrived at the due date, the Defendant’s assertion on a different premise is without merit without further review.

4. Conclusion

Therefore, all of the plaintiffs' claims in this case are dismissed because they are without merit. Since the judgment of the court of first instance is unfair in some different conclusions, the defendant's appeal is accepted, and the part against the defendant in the judgment of the court of first instance is revoked, and all of the plaintiffs' claims in the judgment of the court of first instance are dismissed. Since the purport of the judgment of the court of first instance is obvious that it is a clerical error in the purport of the claim

Judges Park Young-young

Judges Kim Jae-hyung

Judges Lee Jae-chul

1) Article 64 (Status of Representative of an Organization, such as a Corporation)

The provisions concerning legal representation and legal representative of this Act shall apply mutatis mutandis to the representative of a corporation, or the representative or manager under Article 52.

(ii) Article 183 (Place of Service);

(1) Service shall be made at the domicile, temporary domicile, place of business or office of a person to be served (hereinafter referred to as "domicile, etc."): Provided, That service to a legal representative may be made at the principal's place of business or office.

(iii) Article 183 (Place of Service);

(2) When the place under paragraph (1) is unknown or a service is not possible at such place, such service may be made at the domicile, etc. of another person, where a recipient of service is engaged by an employment, entrustment and other legal acts (hereinafter referred to as "work place").

(iv) Article 186 (Supplementary Service and Service by Custody);

(1) When a recipient of service has not been present at the place of service other than his/her place of service, documents may be delivered to his/her clerk, employee, or cohabitant, who is man of sense.

5) Article 396 (Period for Filing Appeal)

(1) An appeal shall be filed within two weeks from the date on which the written judgment has been served: Provided, That it may be filed even before the service of the written judgment.

6) Article 210 (Service of Written Judgment)

(2) A written judgment shall be served with the original copy.

7) The notice of sentencing was served by the method of delivery.

8) 10% of the contract amount or 1/10 of the total amount of the charges stipulated in Article 7 subparagraph 4 of the Code of this case seems to be 1/10 of the contract amount.

9) See note 8).

10) Article 275 (Collective Ownership of Property)

(1) The members of an association which is not a juristic person shall jointly own the property when they own the property.

(2) The following two Articles shall apply to collective ownership, in addition to the articles of association or other contracts of an association:

xi) Article 276 (Administration, Disposition and Use of and Profit from Property in Collective Ownership);

(1) The management and disposition of property in collective ownership shall be governed by a resolution of general members.

(2) Members may use and profit from collective ownership in accordance with the articles of incorporation or other regulations.