[1] The interpretation of Article 30(1) and (2) of the former Installation and Utilization of Sports Facilities Act that provides that Article 30(3) of the same Act shall apply mutatis mutandis to the succession of approval of a business plan

[2] Whether Article 30(3) of the former Installation and Utilization of Sports Facilities Act applies mutatis mutandis to Article 30(2) and Article 23(2) of the Constitution violates Article 23(1) and Article 11(1) of the Constitution (negative)

[1] Article 30 (3) (see current Article 27 (3)) of the former Installation and Utilization of Sports Facilities Act (amended by Act No. 8349 of Apr. 11, 2007) / [2] Article 30 (2) (see current Article 27 (2)) and (3) (see current Article 27 (3)) of the former Installation and Utilization of Sports Facilities Act (amended by Act No. 8349 of Apr. 11, 2007), Articles 11 (1) and 23 (1) of the Constitution of the Republic of Korea

Plaintiff (Law Firm Southern, Attorneys Lee Ho-ho et al., Counsel for the plaintiff-appellant)

The Intervenor joining the Plaintiff

Do Governor of Chungcheongbuk-do

Defendant Appellant et al. (Attorney Park Jong-ho, Counsel for the defendant-appellant)

Daejeon High Court Decision 2006Nu1959 Decided April 5, 2007

The appeal is dismissed. The costs of appeal are assessed against the Plaintiff, including the part resulting from supplementary participation.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Fact-finding by the court below

In full view of the selected evidence, the court below acknowledged the non-party 2's non-party 1's non-party 2's non-party 4's non-party 2's non-party 2's non-party 1' and non-party 2's non-party 4's non-party 1's non-party 2's non-party 2's non-party 9's non-party 2's non-party 9's non-party 2's non-party 2's non-party 9's non-party 2's non-party 2's non-party 9's non-party 1's non-party 2's non-party 4's non-party 2's non-party 9's non-party 1's non-party 2's non-party 2's non-party 9's non-party 2's non-party 2's non-party 1's non-party 20'.

2. Whether the business plan and the revision disposition are legitimate;

A. As to the allegation that the Intervenor did not succeed to the existing approval of the project plan

Article 30 of the former Installation and Utilization of Sports Facilities Act (amended by Act No. 6907 of May 29, 2003; hereinafter “former Sports Facilities Act”) provides that “Where a sports facility business entity transfers the business or dies, or a corporation is merged with another corporation, the transferee, heir, or the corporation surviving the merger or established by the merger shall succeed to the rights and duties (including the matters agreed upon between the sports facility business entity and its members where members are recruited under Article 19) following the registration or report of the sports facility business.” Paragraph (3) of the same Article provides that “The provisions of paragraph (1) shall apply mutatis mutandis to the succession of the business plan under Article 12 to the succession of the business plan under Article 6907 of May 29, 2003, the above Act was amended by Act No. 6907 of May 29, 2003 (hereinafter “the amended Sports Facilities Act”) and the provisions of Article 30(2) of the National Tax Collection Act or the provisions corresponding to the approval of the Local Tax Act shall apply mutatis mutandis.

In light of the language and text of Article 30(1) and Article 30(2) of the Sports Facilities Act that provides that the provisions of Article 30(3) shall apply mutatis mutandis to succession to the business plan, the structure of the provision thereof, and the purport of the amendment of the Act that protects the rights and interests of the members, etc., Article 30(3) of the said Act shall apply mutatis mutandis to succession to the requirements and effects of Article 30(1) and (2) concerning succession to the business plan. Of them, Article 30(2)(b) of the said Act shall apply mutatis mutandis to succession to the business plan plan. The part to which Article 30(2)(b) shall apply mutatis mutandis to succession to the rights and obligations arising from the approval of the business plan, including the agreement with the members recruited on the basis of the existing business plan by succession to the business plan by acquiring the essential facilities only

In addition, the purpose of the Sports Facilities Act stipulating that a person who intends to operate a sports facility business like a golf course shall prepare a business plan before installing the facility and obtain approval from the Governor, etc. is to protect the rights and interests of users of the sports facility including members by examining in advance all the business performance capabilities, including whether the person who intends to operate the above business can meet the facility standards prescribed by the law. Thus, in the event that the ownership of the essential facility is lost due to auction after the approval of the business plan, there is no practical benefit to continue to maintain the legal status of the existing person authorized to approve the project plan. However, due to the enforcement of the amended Sports Facilities Act, a person who loses the ownership of the above essential facility is unable to transfer the business plan separately, but there is a aspect that the person who acquired the above essential facility becomes exempt from the obligations of the existing members. However, in order to achieve the purpose of the Sports Facilities Act that promotes the installation and use of the sports facility and develops the sports facility business in a sound manner, Article 30 (1) (2) and (3) of the Act does not violate the provisions on property rights of the plaintiff.

B. As to the assertion that the amended law does not apply to this case

The amended Sports Facilities Act only provides that "this Act shall enter into force on the date three months have elapsed after its promulgation," and does not provide any other transitional provision. Even if a security right which was the cause of auction was established prior to the enforcement of the amended Act, or the auction procedure was commenced, the amended Act shall apply to the acquisition of the essential facilities after the above enforcement. As seen earlier, even if interpreted, the foregoing supplementary provision shall not be deemed to violate the provisions of the Constitution, since it does not unreasonably disadvantage the existing person authorized to approve project plans or make a person gain profit only as seen earlier, and thus, the above supplementary provision shall not be deemed to violate the provisions of the Constitution. Therefore

C. As to the allegation that the Intervenor did not accept the essential facilities of the instant golf course

Of the instant golf course sites, the lower court acknowledged the following facts: (a) the land in the form of the instant golf course site, the size of which is limited to 0.27% of the instant golf course site; and (b) the ownership transfer registration was made in the name of Nonparty 6, the representative director of the Plaintiff, etc. with respect to the said land owned by the State; (c) but the lawsuit seeking the cancellation of the above ownership transfer registration was pending; and (d) in full view of all the circumstances, including the size and shape of the instant golf course site acquired by the Intervenor, etc., the size and shape of the said golf course site, etc., the un acquired by the Intervenor, the reasons why the said land was not acquired, and the fact that it is possible to create a golf course with 18 holes or more, excluding the said un acquired land. In light of the records, the lower court’s determination is just and acceptable, and there is no error in the misapprehension of legal principles as otherwise alleged in the ground of appeal. Therefore, the Plaintiff’s appeal on the validity of the instant business plan approval is without merit.

3. Whether the disposition of membership recruitment plan and approval is legitimate.

A. As to the assertion that it overlaps with the approval of the 8th membership recruitment plan and exceeds the approved amount of investment

The court below rejected this part of the plaintiff's assertion on the ground that the plaintiff lost the qualification for membership as a result of the plaintiff's loss of ownership of the instant golf course site after obtaining approval of the membership recruitment plan on November 7, 2000, and the above membership recruitment plan becomes invalid due to the expiration of the membership recruitment period. In light of the provisions of Article 19 of the Sports Facilities Act and Article 18-2 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 19686, Sep. 22, 2006), the judgment of the court below is just, and there is no error in the misapprehension of legal principles or the violation of the rules of evidence as otherwise alleged in the ground of appeal.

B. The assertion that it is against the limitation of the power of representation.

The court below held that even if the non-party 3 and 4 registered as the joint representative director of the Intervenor joining the Defendant had attended at the board of directors on the recruitment of this case and passed a resolution, it is hard to see that there was any defect in the defendant's disposition of the recruitment plan of this case even if the preparation and submission of the membership recruitment plan pursuant to the above resolution were made in the sole name of non-party 3. In light of the purport of the joint representative director system that prevents the loss of the company due to the crossing of a specific representative director through check among joint representative directors, this decision of the court below is acceptable, and there is no error of law as otherwise alleged in the ground of appeal, and therefore, the plaintiff'

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal, including those resulting from participation, are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Ill-sook (Presiding Justice)