2009dan11668 Return of down payment

A Kim

Attorney Park Sung-ho, Counsel for the defendant-appellant

NewB (54 years old, South)

Attorney Kim Young-deok, Counsel for the plaintiff-appellant

January 18, 2010

February 8, 2010

1. The defendant shall pay to the plaintiff 30 million won with 20% interest per annum from April 21, 2009 to the day of complete payment.

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

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Facts of recognition;

A. A. Around April 28, 2008, the Plaintiff entered into an agreement with the Defendant to purchase membership rights of 155,000,000 won (hereinafter referred to as “the instant sales agreement”) located within the U.S. located within the U.S. mountain upon the Defendant’s smuggling (hereinafter referred to as “the instant sales agreement”), and paid 30,000,000 won as down payment to the Defendant on the same day. At the time, the Plaintiff and the Defendant paid the remainder by August 31, 2008, and the name of the Plaintiff was denied, but the Plaintiff was qualified as a regular member.

B. The instant public golf course is a public golf course, and there is no member, but the right of priority is given to shareholders by inviting shareholders, and usage fees are discounted. The Defendant’s sale to the Plaintiff under the instant trade agreement was the said shareholder’s right. [The ground for recognition of fact: A evidence No. 1, B’s evidence No. 2, and the result of each fact inquiry with respect to the instant lawsuit and the instant Do Governor by the court.]

2. Determination

A. The plaintiff's assertion

이 사건 ◇이 회원제골프장이 아님에도 피고가 마치 그러한 것처럼 원고를 기망하여 원고는 그렇게 알고 이 사건 매매계약을 체결하였다. 그러므로 이 사건 매매계약은 피고의 사기에 의한 법률행위이거나, 원고의 착오에 의한 법률행위이므로, 이를 취소한다.

B. Determination

(1) The nature of the shareholder's right of this case

The sports facility business is divided into a membership-based sports facility business and a public sports facility business that operates without membership recruitment (Article 10(2) of the Installation and Utilization of Sports Facilities Act and Article 7(1) of the Enforcement Decree of the same Act). In this case, the term “member” means a person who has agreed with a sports facility business entity to use the facilities of the sports facility business on a preferential basis or on more favorable terms than a user (Article 2 subparag. 4 of the same Act), and a person who has obtained approval of a sports facility business entity or a business plan may recruit members. In order to recruit members, the person shall prepare and submit a membership recruitment plan to the Mayor/Do Governor or the head of a Si/Gun/Gu by no later than 15 days prior to the commencement date of membership recruitment (Article 17(1) of the same Act). Thus, a public golf course that does not register as a public sports facility business that operates without membership recruitment and to prepare and submit a membership recruitment plan may not be recruited as a member recruitment,

Therefore, the shareholders of this case, which are public golf courses, cannot be used preferentially or under more favorable terms than ordinary users, such as the members of the membership golf course.

(2) Determination of fraud assertion

According to the above facts, the plaintiff and the defendant can find out the fact that the subject of the sales agreement in this case is the shareholder's right in the form of membership. However, considering the operation behavior of this case (referring to giving the shareholder a preferential right and granting a discounted fee; hereinafter the same shall apply) as mentioned above, it is difficult to view that the defendant knew that the shareholder's right in this case is different from the membership in the membership golf course as mentioned above, and therefore, it is insufficient to recognize that the plaintiff deceivings the defendant. Therefore, the plaintiff's assertion about fraud is without merit.

(3) Determination on the assertion of mistake

In light of the contents of the instant sales agreement and the operating behavior of the instant sales agreement, the Defendant may ratification that the subject of the instant sales agreement was either a membership of a golf course with knowledge that the subject of the instant sales agreement was a membership or a similar membership and concluded the instant sales agreement with the knowledge that the subject of the instant sales agreement was a member. However, notwithstanding the management behavior of the instant lawsuit, the contents of the instant shareholders’ rights, which are the subject of the instant sales agreement, are in the legal point of view and trade among the membership of a golf course and the legal point of view. Therefore, the Plaintiff was erroneous as to the nature of the subject of the instant sales agreement, and such mistake is deemed to be an error in the important part of the instant sales agreement, and thus, the Plaintiff

(4) Judgment on the defendant's assertion

The Defendant asserts to the effect that even after the instant lawsuit was brought, the instant transaction agreement was ratified by taking advantage of the privilege as a designated person corresponding to the shareholder in the instant case. In light of the result of the fact-finding on the instant case, the Defendant had registered the Plaintiff as a designated person with privileges similar to the shareholder in the instant case, and the Plaintiff was able to recognize that the Plaintiff received benefits as a designated person, but it is difficult to deem that the Plaintiff ratified the instant transaction agreement. Therefore, the Defendant’s assertion is without merit.

3. Conclusion

In full view of the above, since the Plaintiff revoked the sales agreement of this case by the lawsuit of this case, the sales agreement of this case, which is an expression of intent, was revoked. Accordingly, the Defendant, as such, shall return the down payment received from the Plaintiff, and thus, the Plaintiff is obligated to pay the Plaintiff the amount of KRW 30 million and the damages for delay calculated at the rate of 20% per annum from April 21, 2009 to the date of full payment, which is the day following the delivery of the copy of the complaint of this case, to the day of full payment. The Plaintiff’s claim is justified and acceptable.

Judges Lee Jong-soo