Lee & Lee and 96 others (Law Firm LLC, Attorneys Ha-young et al., Counsel for the defendant-appellant)

Hotel Capital Co., Ltd. (Law Firm L&B Partners, Attorneys Yang Woo-soo et al., Counsel for the defendant-appellant)

June 16, 2016

Seoul Central District Court Decision 2013Gahap51650 Decided September 10, 2015

1. All appeals filed against the Plaintiffs other than Plaintiffs 97-A, 97-B, 97-C, and 97-D, the deceased Nonparty’s taking over lawsuit, are dismissed.

2. Of the appeal cost, the part arising between the Plaintiff 97-A, Plaintiff 97-B, Plaintiff 97-C, Plaintiff 97-D and the Defendant, the Defendant bears, and the part arising between Plaintiff 4 and the Defendant is borne by Plaintiff 4, and the remainder between the Plaintiffs and the Defendant is borne by each of them.

3. The part concerning the non-party in the Disposition No. 1 of the first instance judgment was modified as follows according to the lawsuit acceptance system by Plaintiffs 97-A, 97-B, 97-C, and 97-D.

The defendant shall pay to plaintiffs 97-A 623,33 won, plaintiffs 97-B, plaintiffs 97-C, 97-C, and 97-D 415,55 won, and 20% interest per annum from November 13, 2013 to September 10, 2015, and 10% interest per annum from the next day to the date of full payment, to plaintiffs 97-A 1,46,66, 97-B, plaintiffs 97-C, 97, 977, 9777, and each of the above amounts to plaintiffs 97-D 97,777, and 97-D 5% interest per annum from the next day to July 16, 2015, and 20% interest per annum from the day to the day of full payment.

1. Purport of claim

The defendant shall pay to the remaining plaintiffs other than the deceased non-party's litigant 2's 'total amount of claim' as stated in the corresponding "amount of claim" in the attached Table 2 attached hereto, 3,334 won, 97-B, 97-C, 97-D, and 97-D respectively, 5% per annum from October 1, 2013 to the delivery date of a copy of the application for change of claim and cause of claim, and 20% per annum from the next day to the day of complete payment.

2. Purport of appeal

A. The plaintiffs (excluding the deceased non-party's lawsuit acceptances): The part against the plaintiffs corresponding to the amount ordered to be paid under the judgment of the court of first instance shall be revoked. The defendant shall pay to the plaintiffs the amount calculated by the ratio of 5% per annum from October 1, 2013 to April 15, 2014, and 20% per annum from the next day to the date of full payment.

B. Defendant: Of the judgment of the first instance, the part of the judgment against the Defendant regarding each of the corresponding amounts as stated in the “property damage” in the attached Table 2’s “property damage” against the remaining Plaintiffs, excluding Plaintiff 4, is revoked, and the above Plaintiffs’ claim corresponding to the revoked part is dismissed.

1. Scope of the judgment of this court;

The first instance court partly accepted the plaintiffs' claim for damages, and partly accepted the claims for damages against plaintiffs 17, 30, and 63, and accepted the whole principal against the other plaintiffs. As to the part against which plaintiffs 17, 30, and 63 lost among the claims for damages, and the part against which the plaintiffs lost among the claims for damages against the plaintiffs 17, 30, and 63, the defendant appealed each of the claims for damages. Accordingly, the scope of the judgment of this court is the part against the above plaintiffs among the claims for damages, the part against which the plaintiffs lost among the claims for damages, the amount of security deposit, and the claim for refund of membership deposit.

2. cite the judgment of the court of first instance

The reasoning of the judgment of the court of first instance is as stated in the reasoning of the judgment of the court of first instance, except for cases where the reasoning of the judgment of the court of first instance is examined as follows.

After ○○○-1’s Na-1’s “Plaintiffs” (the deceased Nonparty died on March 5, 2014 and took over the legal proceedings in the trial of the deceased Nonparty 97-A, Plaintiff 97-B, Plaintiff 97-C, and Plaintiff 97-D, who is his heir; hereinafter for convenience, the deceased Nonparty, who is not the deceased Nonparty’s attorney, is deemed to fall under “the deceased Nonparty,” and is separately indicated when viewing the litigant as the Plaintiff).

○○ 6 through 7 9, 16, 12 and 13, 17, 6 through 7, 17, 51 through 18, 17, and 14 through 18, respectively, are deleted. The remaining Plaintiffs except Plaintiff 4, 1, and 51, 84, and 125, among the reasons for the judgment, are “the rest of the Plaintiffs except Plaintiff 4, 51, 84, and 125,” and “the rest of the Plaintiffs except Plaintiff 51, 84, and 125,” and “the rest of the Plaintiffs except Plaintiff 125,” respectively.

○ 10(3) shall be raised in the following manner:

Pursuant to these legal principles, it is examined as to whether there was a significant change in circumstances that the parties could not have predicted at the time of the contract regarding the use of the instant club. In light of the overall purport of the pleadings as indicated in the evidence Nos. 4 through 11, 14, 31, and 32 (including the serial number), the Defendant’s overall sales have decreased from October 1, 2009 to September 30, 2013 while operating the instant club, while the expenditure has increased due to price increase, the Defendant’s overall business has been deficited during the period from October 1, 2012 to September 30, 2013. In order for the instant club to escape from the hostile state, it is recognized that the annual fee increase or a large number of members has to increase from September 30, 2013 to September 21, 205.

In the evidence of the 13th to 10th one, “the fact-finding and the results of the fact-finding and the request for the supplementation of appraisal with respect to the Pacific Certified Public Appraisal Corporation of the Party” shall be added to “the results of the fact-finding and the results of the appraisal supplementation of the Pacific Certified Public Appraisal Corporation of the Pacific.” The 13th to 17th one is a special class hotel and the 2015th to 1st one.

○○ 15 and thereafter, the sum of “each corresponding amount” (However, with respect to the corresponding amount related to the deceased Nonparty, KRW 623,333 won (i.e., KRW 1,870,000 x KRW 3/9, and less than KRW 3/9), Plaintiff 97-B, Plaintiff 97-C, and Plaintiff 97-D, respectively, KRW 415,555 won (= KRW 1,870,000 x 2/9)”) shall be added to Plaintiff 97-A, who is the wife of the deceased Nonparty according to the inheritance share of the litigants.

○○ 16th 10th 16th 16th 10 pages adding “(as against Plaintiffs 17, 30, and 63)”, and delete “Nanaa” from 14th .

○○ 18-C’s 19-C’s 18-C’s 19-C’s 19-C’s 19-C’s 1,466,666’s x 3/9, Plaintiff 97-B, Plaintiff 97-C, and Plaintiff 97-D respectively [2,50,000 + 1,900,000) + 2/9] and each of the said money shall be paid damages for delay calculated at the annual rate from the following day to July 16, 2015; and 20-D’s 97,77777,777, respectively.

The 19th conclusion is that the plaintiff's claim is reasonable within the scope of the above recognition, and the remaining claims shall be accepted and dismissed as there is no reasonable ground."

3. Conclusion

The judgment of the court of first instance is justifiable. The appeal by the plaintiffs (excluding the deceased non-party's attorney-at-law) and the appeal by the plaintiffs except the plaintiff 4 are all dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment]

Judges Sung Dok (Presiding Judge) Park Jong-il