In a case where Party A expected to be operated as a minority membership system because the number of regular members of a golf course is limited, and concluded a membership agreement with Party B, etc., and thereafter sought withdrawal from membership and return of membership fees on the ground of excessive recruitment of members, the case affirming withdrawal from membership and return of membership fees on the ground that the agreement on the rights and interests of members under Article 19 subparag. 2 of the Enforcement Decree of the Installation and Utilization of Sports Facilities Act is modified

In a case where Party A expected to be operated as a minority membership system because the number of regular members of a golf course is limited, and entered into a membership agreement with Party B, etc., and thereafter Party B, etc. recruited excessive members and sought withdrawal from membership and return of membership fees, the case holding that the withdrawal from membership and return of membership fees is recognized on the ground that the agreement on the rights and interests of members under Article 19 subparagraph 2 of the Enforcement Decree of the Installation and Utilization of Sports Facilities Act is modified.

Article 18 of the Installation and Utilization of Sports Facilities Act, Article 19 subparagraph 2 of the Enforcement Decree of the Installation and Utilization of Sports Facilities Act

Plaintiff (Law Firm Yang, Attorneys Kim Jong-Un et al., Counsel for the plaintiff-appellant)

New Pamp Development Co., Ltd. and two others (Law Firm Central LLC, Attorneys Cho Jong-chul et al., Counsel for the plaintiff-appellant)

April 15, 2011

1. The Defendants jointly and severally pay to the Plaintiff 10 million won with 5% interest per annum from May 1, 2010 to October 21, 2010, and 20% interest per annum from the next day to the day of full payment.

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

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Facts of recognition;

A. Defendant New Farm Development Co., Ltd. (former trade name before the change: hereinafter “New Co., Ltd.”) is a sports facility business entity as prescribed by the Installation and Utilization of Sports Facilities Act (hereinafter “sports facilities Act”) that operates a membership golf club (former name before the change: e.g., solar golf club) and is a sports facility business entity as prescribed by the Installation and Utilization of Sports Facilities Act (hereinafter “instant golf club”). Defendant Taedong Co., Ltd. was established by dividing it from each Defendant New Co., Ltd. on December 1, 2005; and Defendant Taedong Co., Ltd. was partially divided from each Defendant New Co., Ltd on July 4, 2007.

B. On May 11, 2005, the Plaintiff entered into the instant golf course membership agreement with Defendant New Co., Ltd. (hereinafter “instant membership agreement”), and paid 160 million won (a down payment of 160 million won on May 13, 2005 and a balance of 140 million won on July 6, 2005) to Defendant New Co., Ltd.

C. The main contents of the Articles of Incorporation of the instant golf course (hereinafter “instant Articles of Incorporation”) delivered by Defendant New Copi to the Plaintiff are as follows.

Article 4 Number of Members

The number of regular members of this club (including VIP special members) shall not exceed 535 persons.

Article 5 Types of Members

The members of this club shall be classified into regular members (individual and corporate members), special members, associate members and other members.

Article 6 Qualifications of Members

2. Special member: a member specially treated under the company's regulations among regular members;

3. Associate member: A associate member shall be his/her spouse, lineal ascendant and descendant, or other designated person in cases of an individual member, and the qualification criteria for a corporate member shall be determined separately by the company;

4. Honorary member: An honorary member shall be respected by the company, following a resolution of the board of directors, who has contributed to the development of this club or society, and shall be given honorable treatment to regular members only within the period determined by the

5. Other members: The other members shall be composed of annual members and ordinary members, and the board of directors shall separately determine the necessary conditions and procedures for attendance when it is deemed necessary, and the company shall determine such conditions and procedures.

Article 8 Enrollments

1. Enrollment money shall be collected from a company with interest free of charge for five years from the date of opening as a member qualification deposit;

Article 13 Desertions

1. A member shall not request a withdrawal within a grace period under Article 8 from the date of entry, and shall be considered to have been automatically renewed unless an application for withdrawal is made after five years have elapsed;

(d) the relevant provisions;

【Sports Act】

Article 18 (Protection of Members)

A sports facility business entity who has recruited members pursuant to Article 17 (1) or a person who has obtained approval of his/her business plan shall observe matters prescribed by Presidential Decree for the protection of the rights and interests of members in cases of transfer and acquisition of membership, refund of membership fees, confirmation and issuance of membership cards, organization and role of a representative body, etc.

[Enforcement Decree of the Sports Facilities Act]

Article 19 (Protection of Members)

"Matters prescribed by Presidential Decree" in Article 18 of the Act means the following matters:

2. Return of the amount of membership (referring to all the amount paid by the first person who joins a membership in return for obtaining membership, but excluding the amount of contribution to the fund established in accordance with Acts when the first person who joins a membership is admitted to a membership);

The time for returning a membership fee to a person who withdraws from a membership or withdraws from a membership shall be governed by an agreement between the fund raiser and the member, but where the agreement on the rights and interests of the member is modified after the membership, the existing member may withdraw and where the person who withdraws from a membership requests the return of the membership fee,

[Reasons for Recognition] Facts without dispute, Gap 1 through 6 evidence, Eul 4 each entry and the purport of the whole pleadings

2. Determination as to the cause of action

A. The parties' assertion

(1) The plaintiff's assertion

The Plaintiff entered into the instant membership agreement on the ground that the number of regular members of the instant golf course is limited to 535, and thus, Defendant New Copis would be operated as a minority membership system. Since the agreement was amended by Defendant New Copis on the rights and interests of its members, the Plaintiff withdrawn from the instant golf course members pursuant to Article 18 of the Sports Facilities Act and Article 19 subparag. 2 of the Enforcement Decree of the Sports Facilities Act. Accordingly, the Defendants are jointly and severally liable to return the membership fee to the Plaintiff.

(2) The defendants' assertion

As to this, the defendants asserted that the membership fee in the articles of incorporation of this case shall be collected from the company without interest for five years from the date of opening, and that the member is unable to request the withdrawal within the grace period.

B. Determination

(1) Article 18 of the Sports Facilities Act and Article 19 subparagraph 2 of the Enforcement Decree of the same Act provide that the withdrawal of a member shall, in principle, follow the agreement between the recruited members and the members with respect to the withdrawal of the member. However, where the agreement on the rights and interests of the member is modified after the member was admitted to the membership, the existing member may withdraw, and where the withdrawing member requests the return of the membership fee, it shall be returned without delay. Therefore, the provision that “a member may not request a withdrawal for five years from the date of the opening of the member” under the articles of association of this case shall be null and void within the extent contrary to Article 18 of the Sports Facilities Act and Article 19 subparagraph 2 of the Enforcement Decree of the same Act. Accordingly, if the agreement on the restriction on withdrawal for five years under the articles of association of this case is modified, the member may withdraw within five years from the date of the opening of the membership,

(2) In light of the following circumstances acknowledged by comprehensively taking account of the overall purport of the arguments in each statement of Gap evidence Nos. 11 through 17 and Eul evidence Nos. 1 through 3 (including each number), it is reasonable to view that Defendant New Pampco’s additional recruitment of major members of the instant golf course according to the resolution of the board of directors constitutes a case where the agreement on the rights and interests of members under Article 19 subparag. 2 of the Enforcement Decree of the Sports Facilities Act is modified.

(1) At the time of the plaintiff's entry, 283 regular members were enrolled.

② During the period from February 16, 2006 to May 27, 2010, Defendant New Copi made a resolution on the resolution of the board of directors stating that the main members shall be classified into individual members, corporate members, family members, royalties members, and business members, and that the total of 838 main members shall be recruited additionally, and that 793 main members shall be recruited additionally until July 2010.

(3) General liquor members can be used freely on a weekly basis, and in cases of a member of a royalty farm, it is possible to use the royalty farm only once a weekly, as well as from among States.

④ As of July 2010, the number of regular members of the golf course in this case (535) initially increased to 1,086 (293 regular members, 793 main members). A regular member including the Plaintiff, etc., including the Plaintiff, seems to be inevitable to compete with the main member in the use of the golf course in this case.

(5) In particular, since a member of the Lyyalian is guaranteed the use of the Lyalian, it would be against the nature of the member and be likely to affect the use of the Lyalian by the regular members guaranteed two times a weekend.

④ The market price of the golf club membership in the instant case is 40 million won or more, and the said circumstance seems to have significantly decreased in the amount close to 1/4 of the membership fee.

Therefore, the Plaintiff may withdraw from the membership of the instant golf course and seek the return of the admission fee pursuant to Article 18 of the Sports Facilities Act and Article 19 subparagraph 2 of the Enforcement Decree of the Sports Facilities Act. The content-certified mail demanding the Plaintiff to withdraw and return the admission fee does not conflict between the parties, and the Plaintiff withdrawn from the instant golf course on April 30, 2010.

Therefore, pursuant to Article 530-9(1) of the Commercial Act, the Defendants are jointly and severally liable to pay to the Plaintiff KRW 160 million and the damages for delay at each rate of 5% per annum prescribed by the Civil Act from May 1, 2010 to October 21, 2010, which is the date of the final delivery of the copy of the application for modification of the claim of this case, and 20% per annum prescribed by the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings from the following day to the date of full payment.

3. Determination on the remainder of the Defendants’ assertion

A. The defendants' assertion

The articles of incorporation of this case stipulate that “other members” shall be defined as one kind of member and shall also be recruited as a major member. Thus, Defendant New Pamp does not constitute an amendment to the agreement on the rights and interests of the members that additionally recruited a major member.

B. Determination

Article 3 of the Regulation of Standardized Contracts Act provides that when a business operator enters into a contract with a customer using a standardized contract, it shall clearly state the terms and conditions in a manner generally anticipated by the type of contract (Paragraph 2), and explain to the customer the important contents of the standardized contract so that the customer can understand them (Paragraph 3). In the event that the business operator enters into a contract without fulfilling his/her duty to explain, the relevant standardized contract shall not be asserted as the content of the contract (Paragraph 4). Here, the important contents of the duty to explain refer to those matters directly affecting the customer in determining whether to enter into a contract or the price for the contract in light of social norms, and the business operator who claims that the standardized contract was incorporated as the content of

The articles of incorporation of this case constitutes a contract prepared in a certain form in order for Defendant New Pamp to enter into a contract with several other parties. As seen above, the articles of incorporation of “other members as annual members and ordinary members, etc.” under the articles of incorporation of this case shall be established separately when the board of directors deems it necessary, and the conditions and procedures necessary for entry shall be determined by the company.”

However, in light of the Plaintiff’s developments leading up to the conclusion of the instant membership agreement, the amount of membership fees, etc., the above matters concerning the other members’ kinds, recruitment number, benefits, etc. shall be deemed to constitute an important content of the instant membership agreement as matters that may directly affect the rights and interests of regular members. Thus, in order to claim this as a content of the instant membership agreement, Defendant New Copi should explain it to the Plaintiff. In order to claim this, it is difficult to recognize that Defendant New Copi explained to the Plaintiff the contents of the instant articles of association only with the statement of No. 5, and there is no other evidence to acknowledge this differently, Defendant New Copi cannot claim that the contents of

Even if this part of the articles of incorporation is incorporated into the contents of the instant membership agreement, it is difficult to deem that the Plaintiff could have anticipated that Defendant New Pampers and other members are recruited more than 783 persons to recruit regular members, and that they will be guaranteed to use the weekends. As such, the Plaintiff’s withdrawal cannot be restricted since the agreement on the rights and interests of its members was modified due to the recruitment of other members.

Therefore, the above assertion by the defendants is without merit.

4. Conclusion

If so, the plaintiff's claim shall be accepted for the reasons and it is so decided as per Disposition.

Judges Kim Il-il (Presiding Judge)