[1] The meaning of Article 3 (2) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings where an obligor is deemed to be reasonable to resist the existence or scope of the obligation

[2] The case holding that it is reasonable for the defendant to resist the existence or scope of the duty to perform after remanding the conjunctive claim that was determined by the court below after remanding the case

[1] Article 3 (2) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings provides that "if it is deemed reasonable for an obligor to resist the existence or scope of the obligation until a fact-finding judgment declaring the existence of the obligation is rendered, the provisions of paragraph (1) shall not apply to a reasonable extent." Thus, the application of the provisions of Article 3 (1) of the above Act providing special cases concerning statutory interest rates which serve as the basis for calculating the amount of damages caused by the nonperformance of the obligation can be excluded." Thus, the term "if it is deemed reasonable for the obligor to resist the existence or scope of the obligation" as provided in the above Article 3 (2) of the above Act refers to the case where the obligor's argument that there is a reasonable ground for the obligor's argument as to the existence or scope of the obligation. Whether the obligor is reasonable to resist as above is a matter of fact-finding and its evaluation in the case

[2] The case holding that it is reasonable for the defendant to resist the existence or scope of the obligation to perform after remanding the conjunctive claim that was determined by the court below after remanding the case

[1] Article 3(2) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings / [2] Article 3(2) of the Act on Special Cases Concerning

[1] Supreme Court Decision 96Da17202 delivered on July 14, 1998 (Gong1998Ha, 2103) Supreme Court Decision 99Da212 delivered on January 21, 200 (Gong2000Sang, 474) Supreme Court Decision 99Da2015 delivered on February 25, 200 (Gong2000Sang, 809) Supreme Court Decision 2004Da50341 Delivered on February 17, 2005

Plaintiff 1 and 27 others (Attorney Lee Jae-tae, Counsel for the plaintiff-appellant)

Cheongong Co., Ltd. (Attorneys Kang Byung-sil et al., Counsel for the defendant-appellant)

Supreme Court Decision 2004Da10213 Delivered on October 28, 2004

Seoul High Court Decision 2004Na82500 delivered on June 10, 2005

The part of the judgment of the court below against the defendant against the plaintiff 1, 15, and 22 is reversed, and that part of the case is remanded to the Seoul High Court. The part against the defendant who ordered the remaining plaintiffs except the plaintiff 1, 15, and 22 to pay damages for delay in excess of the amount of 6% per annum from July 25, 2003 to June 10, 2005 is reversed, and the above plaintiffs' preliminary claim as to this part is dismissed. The plaintiffs' final appeal and the defendant's remaining final appeal are dismissed. The plaintiffs' final appeal and the defendant's remaining final appeal are dismissed. The whole costs of the lawsuit between the plaintiffs except the plaintiff 1, 15, and 22 are five minutes, and the remaining plaintiffs are assessed against the defendant.

1. The plaintiffs' grounds of appeal and the defendant's first ground of appeal

In light of the records, on the transfer and acquisition agreement of this case concluded on December 28, 199, between the company for screening and development (hereinafter "exploit development") and the defendant, the provisions on the disposal of membership of the existing proteperperperperperperperperperperitization club, i.e., the defendant's succession to the existing membership used for payment in kind and sale due to the construction of the golf club by issuing the screening development and using it as a general rule, but the defendant's decision on the price and quantity of membership and treatment of the members after the completion of the golf club (Article 3) shall be made after the procedure of real verification after the completion of the golf club (Article 3). The defendant's obligation to pay membership fees among the existing members of the screening and return membership fees to the transferee of the membership and transfer fees within the scope of the membership fees. However, the defendant's obligation to transfer and acquire the membership of the golf club shall be determined to the purport that it is reasonable to view that the defendant's obligation to transfer and develop the golf club is not attributable.

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the interpretation of intent or the assumption of obligation of the party expressed in the disposition document, as alleged in the

2. The defendant's second ground for appeal

A. Based on the evidence duly admitted, the lower court acknowledged the fact that Plaintiff 15, 22 and Nonparty 1 paid admission fees of KRW 39 million to the screening development, respectively, at the time the screening development was recruited as a member of the PPA and acquired membership by joining as a regular member.

B. However, it is difficult to accept the above findings of fact by the court below for the following reasons.

Evidence No. 28-1, 2, and 31 as evidence consistent with the above fact-finding by the court below and testimony at the court of first instance of Nonparty 2 as witness of the first instance.

First, as to the descriptions of Gap evidence Nos. 28-1, 2, and 31, according to this, the defendant reports to the head of Pyeongtaek-gu on Dec. 15, 200 and April 12, 2001 the list of 370 members of the UPA club recruited for screening and development to the head of Pyeongtaek-gu Gun on Dec. 15, 200 and April 12, 2001, and the above non-party 1, who is the wife of plaintiff 1, is registered as the membership number E-50-11-0257, and the membership number E-50-11-0303, and the plaintiff 22, as the membership number E-50-11-0304.

However, according to the evidence No. 5-1 to 3, evidence No. 8, and evidence No. 22, screening development is conducted from November 23, 1991 to January 22, 1992, and the Governor of the Gyeonggi-do on June 11, 1996, he/she reported to the Governor of the Gyeonggi-do on the list of 370 members recruited during the above period. Of the list of members, Nonparty 3, E-50-11-0257 was registered as members by Non-Party 3, E-50-12-0304, Non-Party No. 2, Non-Party No. 15, Non-Party No. 2, Non-Party No. 15, Non-Party No. 222, and Non-Party No. 1, Non-Party No. 222, who purchased the above list of members, and it can be viewed as being "one-1, non-party No. 2," which is identical to "the previous number of members". 1.

Next, the above non-party 2's testimony at the court of first instance is consistent with the above fact-finding by the court below. However, according to the above testimony, the screening development is omitted from the list of the 370 members reported to the Governor of Gyeonggi-do, and the plaintiff 15, 22 and the above non-party 1 are registered with the above non-party 3, the Samsung Mutual Savings and Finance Company, and the Mamul Engineering and Finance Company cannot reasonably explain the fact that the above non-party 2's testimony is registered with the same membership number. Thus, it is difficult to believe that it is true.

There is no other evidence supporting the above-mentioned facts by the court below.

Therefore, as seen earlier, the purport of the agreement on the treatment of membership under the agreement on the business transfer agreement of this case was to have the Defendant paid admission fees among the obligations to the existing members of the screening development and to have the obligation to return the admission fees to the person who became a member and the obligation to return the amount equivalent to the transfer fees within the scope of the admission fees to the person who acquired the membership. However, the court below erred by misapprehending the facts that Plaintiff 15, 22 and the above non-party 1 paid the admission fees of KRW 39 million when the screening development was conducted by paying the admission fees to the full-time member or acquiring the membership fees by the above non-party 3, 3, 3, 3, 3 exchange, mutual savings and finance companies, and lighting engineering companies, etc., and the acquisition fees for the transfer of membership should have been determined by making a thorough examination on whether the above acquisition of membership fees was made by the non-party 1, 22, and 15, in violation of the rules of evidence at the time of the judgment below.

3. The defendant's ground of appeal No. 3

A. As the conjunctive claim of this case, the plaintiffs sought 6% per annum from January 1, 1992 to July 24, 2003 from July 25, 2003 to full payment of 20% per annum from the date of delivery of a copy of the application for modification of the conjunctive claim of this case to the plaintiffs other than the above plaintiffs 78 million won and 26 million won to the defendant, and the court below rejected the plaintiffs' remaining conjunctive claim by ordering the defendant to pay 20% per annum from July 25, 2003 to the day of full payment.

B. However, from July 25, 2003 to June 10, 2005, the decision of the court below on the damages for delay from July 25, 2003 is difficult to accept for the following reasons.

(1) Article 3(2) of the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings provides that "if it is deemed reasonable to dispute about the existence or scope of the obligation until the judgment of fact-finding that declares the existence of the obligation is rendered, the provisions of paragraph (1) shall not apply to a reasonable extent." This may exclude the application of the provisions of Article 3(1) of the above Act, which provides for special cases concerning statutory interest rate which serves as the basis for calculating the amount of damages caused by the nonperformance of the obligation." Thus, the term "if it is deemed reasonable for the obligor to dispute about the existence or scope of the obligation," as provided in the above Article 3(2) of the above Act refers to the case where the obligor's argument is acknowledged to have a reasonable ground for the obligor's argument as to the existence or scope of the obligation. Whether the obligor is reasonable to dispute as above is related to the fact-finding and evaluation of the pertinent case (see, e.g., Supreme Court Decisions 96Da17202, Jul. 14, 1998>

(2) According to the records, the plaintiffs added the conjunctive claim of this case at the court below prior to remand, but the court below did not make any decision as to the conjunctive claim of this case as a result of the plaintiffs' acceptance of the conjunctive claim of this case before remand. The court below reversed and remanded all the judgment of the court of first instance prior to remand to the defendant's appeal, and maintained the court below's decision as to the conjunctive claim of this case as seen above, while the court below's decision as to the conjunctive claim of this case was reached. The defendant did not make a separate decision as to the plaintiff's conjunctive claim of this case as defense against the conjunctive claim of this case before remand to the second date of pleading of the court below prior to remand, unless the defendant stated that the amendment of the claim of this case as of July 21, 2003 and the request for the conjunctive claim of this case as of July 24, 2003 were stated, and it cannot be seen that the defendant's main point of the hearing was just before and after remand to the court below's decision as to the conjunctive claim of this case's conjunctive claim of this case.

(3) If so, the court below ordered the defendant to pay damages for delay with 6% per annum under the Commercial Act as damages for delay from July 25, 2003 to June 10, 2005, which is the date of the decision of the court below. However, the court below ordered the defendant to pay damages for delay at the rate of 20% per annum under Article 3 (1) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings. Thus, the court below erred by misapprehending the legal principles on Article 3 of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, etc., which affected the conclusion of the judgment.

4. Scrapping, returning, and destroying; and

A. Therefore, among the judgment below, the part against the defendant against the plaintiff 15 and 22 and the part against the defendant against the plaintiff 1 who acquired membership rights due to the cancellation of title trust from the above non-party 1 is reversed, and this part of the case is remanded to the court below for a new trial and determination.

B. The part of the judgment of the court below against the remaining plaintiffs, other than the above plaintiffs, against the defendant ordering payment in excess of an annual amount of 6% from July 25, 2003 to June 10, 2005, shall be reversed. This part shall be sufficient to directly judge a party member, and therefore, it shall be self-convened as follows pursuant to Article 437 of the Civil Procedure Act.

As seen above, the defendant is obligated to pay damages for delay at the rate of 6% per annum under the Commercial Act for the remaining plaintiffs (excluding plaintiffs 1, 15, and 22) with respect to the plaintiff 18 and the plaintiff 26 corporation, and for the remaining plaintiffs (excluding plaintiffs 1, 15, and 22) with respect to each of the 39 million won, respectively, and for delay damages at the rate of 6% per annum from July 25, 2003 to June 10, 2005. Thus, the part concerning damages for delay for the above period among the plaintiffs' preliminary claims in this case against the plaintiff 18 and the plaintiff 26 corporation is accepted within the scope of the above recognition, and

5. Conclusion

Therefore, as above, the appeal by the plaintiffs and the remaining appeals by the defendant are dismissed, and the costs of appeal by the plaintiff are assessed against the losing party. It is so decided as per Disposition by the assent of all participating parties.

Justices Kim Hwang-sik (Presiding Justice)