2013 Mada8983 Return of Fraudulent Gains

It is as shown in the separate list of the plaintiffs.

Plaintiff 2 through 47 Attorney Lee Hong-gu, Counsel for the plaintiff-appellant

Korean Air and correspondence University Organization

Representative le-salgos

Government Law Firm Corporation, Attorney Lee In-bok, Counsel for defendant-appellant

October 23, 2014

April 2, 2015

1. The defendant shall pay to the plaintiffs 5% interest per annum from each day on which each of the money recorded in the separate sheet and each of the above money is recorded in the separate sheet registration period column to December 26, 2013, and 20% interest per annum from the next day to the day of full 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. Basic facts

A. The Plaintiffs are graduates or students of the Korean National Open University (hereinafter referred to as “National Open University”).

B. The Defendant was established with the aim of contributing to the creation of an atmosphere and the improvement of educational environment by supporting the urgent educational facilities, school operation, etc. of the defense room.

- Article 67, paragraph 1

(1) Students shall pay the following payments at the time of registration of each semester:

1. Tuition fees;

2. Admission fees;

3. Membership fees.

(2) Tuition fees and admission fees shall be governed by the Regulations on Tuition fees and admission fees for universities and colleges, and tuition fees for school supporting members shall be paid in accordance with the Regulations on the Organizational Studies for School.

- Article 33

(1) Persons permitted to be admitted shall pay the payment by the designated date.

(2) If a person fails to register by no later than the date without justifiable grounds, the admission permit shall be revoked.

(3) An student shall complete his/her registration according to the procedures determined by January 10 for one semester before the beginning of each semester, and by July 10 for two semesters according to the prescribed procedures until the designated date.

-Article 36 students shall be suspended from school unless they are registered within the registration period.

- Article 81.

(1) Persons permitted to enter shall pay the payment by the designated date.

(2) A person who fails to pay the subscription price under paragraph (1) shall be revoked.

D. The notice of the enrollment fee issued by the guard room is required to be paid in a lump sum as well as the enrollment fee in addition to the enrollment fee and the tuition fee. The Plaintiffs paid the Defendant the amount due stated in the attached list by the due date for registration.

[Ground of recognition] Facts without dispute, Gap 1 through 5 (including paper numbers, hereinafter the same shall apply), Eul 1, the purport of the whole pleadings

2. Summary of the parties’ assertion

A. The plaintiffs

The defendant, without any legal basis, is obligated to return the subscription fees collected from the plaintiffs, since the defendant collected the subscription fees from the plaintiffs without any legal basis, thereby gaining profits equivalent to the same amount and causing damage to the plaintiffs.

B. Defendant

1) The Plaintiffs and the Defendant entered into a gift agreement by paying the registration fees stated in the registration fees payment notice form. Since the Plaintiffs were the Defendant’s special members, the membership fees received by the Defendant from the Plaintiffs are the grounds under a contract.

2) The dues paid by the Plaintiffs constitute enrollment fees that can be paid by founders of schools under the Higher Education Act, and have been deliberated by the enrollment fee deliberation committee including student representatives. Therefore, there are legal grounds.

3) The Plaintiffs’ payment of membership fees can not be claimed for the return of the fees because they constitute a bad faith repayment or a bad faith repayment that is appropriate for the concept of the Do.

3. Determination

(a) Whether there are any grounds under a contract for the collection of dues;

We examine whether the Plaintiffs paid the registration fees specified in the notice of payment, and whether the donation contract was concluded between the Plaintiffs and the Defendant, or the Plaintiffs were admitted to the Defendant’s special members. In the admission process of the defense room, there is no evidence to acknowledge that the applicants stipulated that “the applicants shall apply for admission on the condition that they will approve the Defendant’s rules or pay the subscription fees after entering the defense room.” Moreover, even if the Plaintiffs paid the enrollment fees without raising any objection to the enrollment fees stated in the notice of payment issued in their own future, it is understood to the effect that the separate payment is not allowed because the details of the enrollment fees issued in the notice of payment are written in addition to the admission fees and the tuition fees, and in fact, the Plaintiffs would be expected to cancel the admission if they fail to pay the enrollment fees, or would be expected to incur damages to the opportunity to be deprived of educational services, and thus, the payment of the enrollment fees inevitably notified in a lump.

Therefore, it is insufficient to recognize that the plaintiffs paid the membership fee without reservation of explicit objection, just because the plaintiffs expressed their intent to join the membership or approved the comprehensive agreement of the rules, or that there was an agreement between the plaintiffs and the defendant on the payment of the membership fee.

Therefore, this part of the defendant's argument is without merit.

(b) Whether any legal ground exists for the collection of membership fees;

1) Article 29(1) of the Constitution provides that all citizens shall have “the right to receive education equally according to their abilities.” Article 29(6) of the same Act provides that “The educational system, its operation, and education finance” shall be prescribed by the Act. Accordingly, the Higher Education Act and the regulations on university enrollment fees based thereon shall be based on the relevant provisions on education finance, in particular, the school tuition fees and other charges (hereinafter “enrollment fees”) that can be received by founders and managers of national universities as financial resources for education at national universities. In other words, each of the above statutes provides that founders and managers of schools may receive tuition fees and other charges, and then specifically provide for the calculation of tuition fees and other charges, such as the Higher Education Act or the regulations on university enrollment fees delegated by them. This is within the meaning that each of the above statutes provides for the grounds for allowing the founders and managers of national universities to receive tuition fees, but in order to ensure that students may suffer equal financial burden on education at national universities and thus infringe on their rights to receive education equally.

Therefore, the amount of enrollment fees to be paid by students who have the right to receive equal education at national universities is limited to tuition fees and other fees, which are stipulated in Article 11 of the Higher Education Act and the regulations on university enrollment fees based thereon.

2) In light of the content of relevant laws and regulations, “other fees” includes “admission fees”. Since there are differences in the legal nature of tuition fees, admission fees and dues for school supporting association, the subject and procedure for determination, collection, and enforcement of fees for school supporting association, it cannot be deemed that the fees for school supporting association constitutes “other fees” provided for in Article 11 of the Higher Education Act and the Regulations on University Tuition Fees based thereon.

3) As a result, most of the subscription fees contribute to the expansion of finance, such as the expansion of the education facilities of the defense room and the subsidization of personnel expenses. However, such circumstance alone is difficult to view that the nature of the subscription fees has changed from the Defendant’s membership fees to the enrollment fees that are directly responsible for payment to the national university established and operated by the State. Furthermore, according to Article 11 of the Higher Education Act and the regulations on university enrollment fees based thereon, it is interpreted that the obligation of students to pay educational services from the national university is limited to the amount stipulated in the above statutes. As such, it is interpreted that the obligation of students to pay education services is limited to the amount stipulated in the above statutes. Thus, even if the school regulations of the defense room or the Defendant’s rules provide the basic provisions on donations not included in the concept of the subscription fees stipulated in each of the above provisions, the obligation of payment shall

Therefore, this part of the defendant's assertion is without merit.

C. Judgment on non-performance defenses

The defendant's defense is without merit, since there is no evidence to prove that the plaintiffs paid the dues with knowledge of non-performance of obligations, and it cannot be said that the actual compulsory collection of the dues for non-performance of obligations is a non-performance of obligations in accordance with the concept of the Do.

4. Conclusion

Therefore, the defendant is obliged to pay the above subscription fees to the plaintiffs since it received the subscription fees without any legal ground. Therefore, the defendant is obliged to pay to the plaintiffs the subscription fees at the rate of 5% per annum from the closing date of each registration period indicated in the separate list list list column for each of the above amounts and each of the above amounts to the plaintiffs to December 26, 2013, the delivery date of a copy of the complaint of this case, and 20% per annum from the next day to the day of complete payment. Therefore, the plaintiffs' claim is justified, and therefore, it is so decided as per Disposition.

Judge Choi Sung-soo