[1] Whether a person who cannot be deemed to have obtained membership as a collateral by obtaining membership rights, etc. is included in a protected member pursuant to Article 30(1) and (3) of the former Installation and Utilization of Sports Facilities Act (negative)

[2] The purport of the provisions of the relevant Acts and subordinate statutes such as Article 19(1) of the former Installation and Utilization of Sports Facilities Act concerning the invitation of members, and whether the method of recruitment is different or the method of recruitment does not report the recruitment situation to the competent administrative agency is affected by the validity of membership contracts (negative)

[3] In a case where a company which received approval of a business plan for the operation of a golf course agreed to transfer the golf course membership to the creditors for the payment of obligations for the golf course and received an application for membership from them and did not report the result of the membership recruitment to the administrative agency on time, the case holding that the above golf course membership was issued in lieu of the payment of the construction price claim, and it cannot be deemed that there was a serious violation of the law that denies the validity of the membership

[1] Article 19 (see current Article 17), Article 30 (1) (see current Article 27 (1) and (3) (see current Article 27 (3)) of the former Installation and Utilization of Sports Facilities Act (Amended by Act No. 6907, May 29, 2003); Article 2 subparagraph 4 of the former Installation and Utilization of Sports Facilities Act (Amended by Act No. 6907, May 29, 2003); Article 19 (see current Article 17); Article 18 (2) (see current Article 17) and (3) of the former Enforcement Decree of the Installation and Utilization of Sports Facilities Act (Amended by Presidential Decree No. 16215, Mar. 31, 199); Article 18 (2) (see current Article 17); Article 18 (3) and (4) (see current Article 27 (3) of the former Enforcement Decree of the Sports Facilities Act) / [2] Article 9 (3) and (4) of the former Installation and Utilization of Sports Facilities Act (see current Article 97 (2)

[1] Supreme Court Decision 2007Da52621 Decided July 9, 2009 (Gong2009Ha, 1274)

Plaintiff (Attorney Song-gu et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Jeong-ho, Counsel for defendant-appellant)

Seoul High Court Decision 2007Na99769 decided June 24, 2008

The judgment below is reversed, and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Article 30 (1) of the former Installation and Utilization of Sports Facilities Act (amended by Act No. 6907 of May 29, 2003; hereinafter “former Act”) provides that “if a sports facility business entity transfers the business---, the transferee--- shall succeed to the rights and obligations pursuant to the registration or report of the sports facility business (if a sports facility business entity recruits its members under Article 19, including the matters agreed upon between the sports facility business entity and its members)” and Paragraph (3) of the same Article provides that “the provisions of paragraph (1) shall apply mutatis mutandis to the succession of the approval of the business plan under Article 12.” Thus, a member protected under this provision shall be the person who has obtained the qualification as a member effective in accordance with the procedure stipulated in Article 19 of the former Act and other relevant Acts and subordinate statutes, and a person who cannot be deemed to have obtained the qualification as a member merely by simply obtaining membership under a security title, etc. (see, e.g., Supreme Court Decision 2009Da3539, Oct. 29, 2999).

Meanwhile, Article 19 (1) of the former Act provides that "a sports facility business entity or a person who has obtained approval of its business plan may recruit its members, and a Mayor/Do Governor or the head of a Si/Gun/Gu shall submit a membership recruitment plan no later than 15 days prior to the commencement date of membership recruitment." Article 18 (2) of the former Enforcement Decree of the Act (amended by Presidential Decree No. 16215, Mar. 31, 199; hereinafter the same shall apply) provides that "a sports facility business entity may recruit its members after the progress of at least 30 percent of the construction process of the business facilities of the sports facility business, and a member recruitment shall be made public. The total amount of membership recruitment shall not be made within the scope of expenses determined by the Ordinance of the Ministry of Culture and Sports among the expenses invested in the construction of the sports facility business at the time of the submission of membership recruitment plan, and that "a person who has submitted a membership recruitment plan shall establish a separate provision concerning the sports facility business under his/her jurisdiction and the head of the above general sports facility business entity no more than the expiration date of membership recruitment agreement."

On the other hand, in a case where there is a difference between the parties regarding the interpretation of a contract, and the interpretation of the intention of the parties expressed in the disposition document is at issue, it shall be reasonably interpreted in accordance with logical and empirical rules by comprehensively taking into account the contents of the text, motive and developments leading up to the agreement, the objective to be achieved by the agreement, the parties’ genuine intent, etc. (see Supreme Court Decisions 2002Da6753, Jun. 11, 2002; 2007Da13640, Jul. 12, 2007, etc.).

2. According to the facts acknowledged by the court below and the records, ○○○ Leisure Industry Co., Ltd. (hereinafter “○○○○ Leisure Industry Co., Ltd.”) concluded that on June 24, 1998, a member recruitment plan under Article 19 of the Act and a member recruitment pursuant to a report on the change thereof, the creditors representing the creditors of the instant golf club agreed to transfer 230 membership rights to the creditors of the instant golf club as debt repayment (hereinafter “the instant agreement”). Accordingly, within the extent of the above 230 Chapter, the creditors of the instant golf club calculated membership fees as KRW 70 million per head, and the ○○○○○ Co., Ltd. (hereinafter “the instant golf club”) did not issue a promissorysory note or non-paid certificate issued for the payment of the construction price to the creditors of the instant golf club, and the Plaintiff’s membership recruitment agreement was made with the non-party 9, a member of the instant golf club under the name of the non-party 198.

The following facts revealed that ○○○ Leisure Co., Ltd. transferred membership rights to “debt settlement” under the transfer contract in Chapter 230, which was entered into between ○○○ Leisure and Claim Group. If the above membership rights were issued as a collateral for the payment of the construction cost, the agreement in this case should be deemed that there was no reason or need to determine one membership fee as KRW 70,000,000, and ○○ Leisure Co., Ltd. was less than the annual report in the corresponding year after the agreement in this case, or that there was no increase in the membership security deposit due to the issuance of membership rights. However, it would be reasonable to deem that ○○○○ Leisure did not report the issuance of membership rights under the agreement in this case to the competent authorities, and that it would be reasonable to deem that ○○○○’s membership rights were not subject to compulsory execution on corporeal movables of ○○○○ Leisure and its establishment of membership rights in this case, or that the Plaintiff violated the law and regulations in this case’s establishment of membership rights in lieu of the agreement in this case’s submission of membership rights.

Nevertheless, the court below held that the agreement of this case is for the repayment of the obligees' claim for construction price, and it cannot be deemed that the plaintiff had an intention to attend as a member of the golf course of this case and that the plaintiff was not a member of the golf course of this case, and that the plaintiff did not constitute a member recruited under Article 19 of the former Act, and held that the defendant did not succeed to the status under the membership recruitment agreement under Article 30 (1) of the former Act in relation to the plaintiff. Thus, the court below erred by misapprehending the legal principles on the interpretation of contract or the legal principles on Articles 30 and 19 of the former Act, which affected the conclusion of the judgment. The ground of appeal on this point is with merit

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)