2019 Ghana 121796 Return of contributions

Maap Plaintiff

Ulsan-gu ○○

Attorney Park Jae-soo

The Central Housing Association of China

Ulsan-gu ○○

Representative of the partnership

Law Firm Doz.

Attorney Lee Jae-soo

October 16, 2020

November 13, 2020

1. The defendant shall pay to the plaintiff 68,00,000 won and 5% interest per annum from the day following the completion of the inspection to the day of full payment, with the fixed deadline for the completion of the inspection for use under Article 49 (1) of the Housing Act of the building project of Ulsan-gu ○○○○-dong 481-1 Multi-Family Housing.

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

The same shall apply to the order.

1. Facts of recognition;

A. The Defendant is a regional housing association established with the approval of the establishment of a housing association from the head of Ulsan Metropolitan City on October 27, 2015 in order to carry out a multi-family housing construction project (hereinafter referred to as “instant project”) pursuant to the Housing Act and subordinate statutes at the ○○○-dong 481-1, Ulsan Metropolitan City.

B. On June 2015, the Plaintiff entered into a contract with the Defendant as a member of the partnership (hereinafter “instant contract”).

C. The Plaintiff paid 83 million won as down payment, including agency service charges of 15 million won, to the Defendant pursuant to the contract of joining the instant association.

D. The main contents of the Defendant’s covenant, which was enforced from October 27, 2015, which was the date the Defendant’s establishment authorization was granted, are as follows.

Article 8 (Qualification of Members) The qualification requirements for a member shall be as follows: 1. A person who does not own a house from the date of application for authorization for establishment of a housing association to the date of occupancy of the relevant housing association or who owns a house with an exclusive residential area of not more than 85 square meters: Provided, That where a member of a housing association temporarily loses his/her eligibility for a member due to any inevitable reason, such as work, disease treatment, study, marriage, etc., if the head of the relevant Si/Gun/Gu recognizes, he/she shall be deemed to have the qualification for a member:

A.For a person who has ceased to be a partner due to withdrawal, forfeiture of membership, expulsion, etc., the balance calculated by deducting the amount paid by the partner as a promotion cost from the amount paid by the partner shall be paid within 30 days from the date of the request for refund, but the joint shares and time of refund which shall be deducted by resolution of the General Assembly

E. On October 15, 2017, the Defendant presented the “case of amendment to the Association Regulations (Article 12(4) of the instant Code”) to the extraordinary general meeting held by October 15, 2017, and according to the resolution at the said extraordinary general meeting, Article 12(4) of the instant Code was amended as follows (hereinafter “instant amendment”).

Article 12 (Disqualification, Disqualification, and Expulsion of Membership's Withdrawal), Disqualification, Removal, etc. shall be settled and paid at the time of completion of the project by settling the balance calculated by deducting the amount paid by the partner as a promotion cost from the paid-in amount paid by the partner.

F. As of May 2, 2019, the Plaintiff lost its membership as the Defendant’s partner by failing to meet the requirements for the householder.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 7, Eul evidence Nos. 1 and 2, the purport of the whole pleadings

2. The allegations by the parties and the determination thereof

(a) Return of refund money;

According to the above facts, the Plaintiff, upon entering into the instant agreement with the Defendant and paying the contributions of its members on May 2, 2019, lost the qualification for the Defendant’s membership on grounds of the disqualification for the requirements of the householder. Therefore, barring any special circumstance, the Defendant is obligated to settle accounts at the time of completion of the project at the time of completion of the project, after deducting KRW 15 million from the total amount of KRW 83 million paid by the Plaintiff pursuant to Article 12(4) of the instant amendment, from the total amount of KRW 83 million paid by the Plaintiff as the promotion cost.

(b) Time to refund a refund (request for future performance);

1) Parties’ assertion

The plaintiff shall request in advance the return of the refund money by using the term "the time of completion of the inspection for use", which is the specific time of the "the time of completion of the project" under Article 12 (4) of the amended Rules of this case.

In this regard, the defendant asserts to the effect that "the completion of business" should be made an indefinite term.

2) Determination

Although there is no definition on the defendant's "business", the amended regulations of this case aim at stabilizing the residential life of union members (Article 2), and Article 49 (1) of the Housing Act provides that the business entity shall undergo a pre-use inspection on the completion of "housing Construction Project or Housing Site Creation Project" implemented after approval of the business plan. Thus, the "time of completion of the business" under the amended regulations of this case should be deemed to be the time when the housing construction project, which is a general defendant's objective business, has been completed and the use inspection has been completed from the approval right holder under Article 49 (1) of the Housing Act. Therefore, it is reasonable to view that the amended regulations of this case is a provision that stipulates that the defendant shall refund the contributions to the plaintiff by making it definite whether or not "the completion of the business", i.e., the completion of the pre-use inspection under Article 49 (1) of the Housing Act.

The defendant's above assertion is not accepted because it is not clear at any time when the business is completed.

Therefore, the Plaintiff’s claim for refund against the Defendant constitutes a claim that may arise in the future. The Defendant’s claim for refund against the Defendant constitutes a claim that may arise in the future. Moreover, according to the purport of the entire pleadings, it is determined that the performance cannot be expected even if the deadline is due. Therefore, the Plaintiff’s claim for refund is required in advance.

Therefore, the Defendant is obligated to pay to the Plaintiff the amount of KRW 68,00,000 as well as damages for delay calculated at the rate of 5% per annum from the day after the completion of the above pre-use inspection to the day of full payment under Article 49(1) of the Housing Act with the indefinite term of completion of the pre-use inspection of the instant project.

3. Conclusion

If so, the plaintiff's claim of this case shall be accepted on the ground of the reasons.

Judges Kang Gyeong-hee