2016 grouped 113433 Return of subscription payments to partnership

A

B Regional Housing Association

February 23, 2018

March 23, 2018

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant shall pay to the plaintiff 92,00,000 won with 15% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment.

1. Basic facts

A. The Defendant Union is a regional housing association established to promote a housing construction project in accordance with the Housing Act and its Enforcement Decree, which has a large scale of Daegu Suwon-gu C Project District as a project implementation district.

B. On February 4, 2015, the Plaintiff entered into a membership agreement with the Defendant Union (hereinafter referred to as “instant membership agreement”), and paid the Defendant Union KRW 92 million in total, as a contribution to the Plaintiff’s members, KRW 46 million on January 13, 2015, KRW 31 million on April 23, 2015, and KRW 15 million on April 24, 2015.

C. The main contents of the instant covenant are as follows.

Article 7 (Definition of Terms): The meaning of terms used in the Code shall be as follows: 4.4. Contributions (Expenses for Operation of Cooperatives): The amount paid by members of a cooperative to promote the projects of the cooperative, such as expenses for purchase of land, construction expenses, etc., and (1) The members of a cooperative shall not withdraw from the cooperative at will: Provided, That if a member of the cooperative wishes to withdraw from the cooperative due to an inevitable cause, he/she shall notify in writing the head of the cooperative of his/her intention 15 days prior to such cause, and the head of the cooperative shall determine whether to withdraw from the cooperative by resolution of the general meeting or the board of representatives. (4) The amount paid by members of the cooperative shall be paid only the principal excluding expenses for acting on behalf of the members, service on behalf of the members of the cooperative, and the amount paid by members of the cooperative shall be refunded at once new members or general buyers, but joint charges and time for refund may not be separately determined by the resolution of the general meeting, other than those prescribed in Article 15 (Withdrawal of Rights and Disqualifications, etc.)

D. The contents of the instant accession agreement pertaining to the instant case are as follows.

Article 3. 1. Members' contributions include land purchase costs, construction works, design costs, removal costs, civil petition treatment costs, service costs, and other costs for the implementation of the project. 3. Members' contributions include agency costs (10 million won/households). Article 7. 1. A. 'the Disqualification of members' (the defendant union) may cancel the contract immediately if the 'B' commits any of the following acts, without the peremptory notice of performance or other separate measures. In this case, the 'B' is automatically disqualified from the membership' and 'the 'the 'the 'public interest and the 'the 'the 'public interest and the 'the 'public interest and the 'the 'the 'the 'the 'the 'public interest and the 'the 'the 'the 'the 'the 'public interest and the 'the 'the 'the 'the 'the 'public interest and the 'the 'the 'the 'the 'the 'the 'public interest and the ' the ' will will will be refunded '. '. 1. 'the 'the 'the 'the 'the '. 'the 'the 'the 'the 'the 'the ' will will will will will will not be refunded............................... . . . . ..... ..... ....... ........ .......... ............ .....................>>>>>>

E. On December 21, 2015, the Plaintiff submitted a written request for withdrawal to the Defendant Union. Accordingly, on January 20, 2016, the Defendant Union approved the Plaintiff’s withdrawal from the Plaintiff, and issued a notice on the title “an instruction on the withdrawal and refund of members” to the effect that the remaining share amount after deducting KRW 10 million from the business promotion expenses pursuant to Article 7(3) of the subscription agreement of this case is “presumed to be refunded at the time pursuant to Article 7(4) of the above subscription agreement.” On March 18, 2016, the Plaintiff submitted a written request to the Defendant Union for the payment of KRW 82 million as refund.

F. Around July 2015, the Defendant Mutual Aid Association (hereinafter “Defendant Mutual Aid Association”) obtained approval from the head of Seongbuk-gu, on December 24, 2015, for the change of the number of union members due to changes in the number of union members due to the said 15 withdrawing union members and 213 additional recruitment union members. Thereafter, the Defendant obtained approval for the change of the establishment of the Mutual Aid Association by changing the number of union members due to the said change in the number of union members on January 24, 2015.

G. On the other hand, the plaintiff is shown in the 61st list prepared by the defendant union.

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 1 through 7, Eul evidence Nos. 2, 4, 5, and 12, and whether all pleadings are held

2. The parties' assertion

A. The plaintiff's assertion

At the time of entering into the instant subscription agreement, D, a representative of the Defendant association, is an executive officer or employee of the agency under Article 13(1)7 of the Housing Act, and thus, is ineligible for the president of the association. D, as the president of the Defendant association, an agency agreement entered into with EP PP PPppppppppppppP (hereinafter referred to as the “Nonindicted company”), is null and void. Since the instant subscription agreement is null and void, the Defendant association’s restitution to the Plaintiff, as the Plaintiff’s restitution to the original state.

90 million won is obligated to be returned.

Even if the subscription contract of this case is valid, the Plaintiff expressed D's intention of withdrawal from office on December 21, 2015, and D agreed that D will refund the contributions paid by the Plaintiff. In the event that an authorized partner withdraws at the general meeting of the Defendant Union, the Defendant Union is obligated to pay the Plaintiff KRW 82 million after deducting KRW 10 million from the agency expenses (business operating expenses) in accordance with the above agreement, in accordance with the order of the receipt date of the written request for withdrawal.

B. Defendant’s assertion

The Plaintiff asserted that the above subscription contract was null and void on the premise that the Plaintiff entered into the instant subscription contract with the Nonparty Company, the agent company, but the Plaintiff entered into the instant subscription contract with the Defendant Company, which is not the non-party company. In addition, the Defendant Company, other than D, entered into the instant subscription contract with the non-party company on behalf of the members recruitment service with the non-party company, and finally became final and conclusive after

Although the Plaintiff filed an application for withdrawal on December 21, 2015, the obligation to refund the contributions with the Defendant Union was due when the members are recruited as a substitute, and the alternative members are not recruited, so the obligation to refund the contributions following the Plaintiff’s withdrawal was not due.

3. Determination

A. Judgment on the plaintiff's primary argument

On November 2014, the agreement between the defendant's association and the non-party company on the agency service contract for the recruitment of union members between the defendant's association and the non-party company was not stipulated as grounds for disqualification of partnership's officers. However, Article 18 (1) 5 of the covenant of the association of this case does not stipulate that the agent is an officer or employee of the agency.

However, even if D had the grounds for disqualification as stipulated in the above union rules, it cannot be said that the contract entered into with another party immediately becomes null and void as a matter of course.

In addition, even if the defendant union and the non-party company have no validity of the contract of vicarious recruitment of union members between the defendant union and the non-party company, and the plaintiff concluded the contract of this case through the non-party company that vicariously performed the sales business, according to the overall purport of the statement and arguments in subparagraph 2, since the parties to the contract of this case are recognized as the facts that the plaintiff and the defendant union are the plaintiff, the plaintiff's assertion under the premise that the contract

B. Judgment on the Plaintiff’s conjunctive assertion

1) The occurrence of the obligation to return the contribution

On December 21, 2015, the Plaintiff expressed his/her intention to withdraw from the Defendant Cooperative. On January 20, 2016, the Defendant Cooperative sent a notice of withdrawal and refund to the effect that the Plaintiff received the Plaintiff’s request for withdrawal from the Plaintiff. As seen earlier, the Plaintiff was registered in the list of prospective refund candidates prepared by the Defendant Cooperative. Therefore, barring any special circumstance, the Defendant Cooperative is obligated to refund the Plaintiff’s contribution paid to the Plaintiff, as stipulated in the instant subscription agreement and the instant union agreements.

2) Whether the obligation to return the contribution arrives due date

According to Article 7 (4) of the subscription contract of this case and the defendant's notification to the plaintiff, the time of refund for the plaintiff's contribution is "within 10 days after the payment is completed by a member or a general buyer on behalf of the member or a general buyer."

With respect to the nature of Article 7 (4) of the above subscription contract, if it is reasonable to view that a juristic act attached to a supervisor may not perform his/her obligation unless the facts indicated in the supervisor have occurred, it shall be deemed as a condition. If it is reasonable to view that the performance of the obligation should be done not only when the indicated facts have occurred but also when the non-performance of the obligation becomes final and conclusive, it shall be deemed that the existence of the indicated facts has become final and conclusive. Therefore, in cases where certain facts have already been attached to the repayment of the obligation, barring any special circumstance, it shall be deemed that the payment period has been postponed, and the time period shall expire when the facts have not occurred or become final and conclusive as well as when the facts have not occurred within a considerable period (see, e.g., Supreme Court Decisions 203Da24215, Aug. 19, 2003; 209Da1643, May 14, 2009).

The following circumstances recognized by the above facts and the purport of the entire oral argument are as follows: ① the Defendant’s duty to return the instant contribution to the Plaintiff has already occurred; ② Article 7(4) of the subscription agreement of this case provides that additional members or general buyers shall pay the contribution within 10 days after the payment of the contribution is made on behalf of the additional members or general buyers; thus, it is reasonable to interpret that the Defendant’s interpretation would go beyond the content of the above provision, and the Defendant’s interpretation would go against the condition that the additional members or general buyers do not pay the contribution to the Plaintiff if they do not pay the contribution in lieu of the additional members or general buyers. ③ The Defendant’s notice of the withdrawal and refund of the Plaintiff (Evidence 5) sent by the Plaintiff. In full view of the fact that Article 7(4) of the subscription agreement of this case provides that “The payment of the contribution to the Plaintiff shall be made by the additional members or general buyers pursuant to Article 7(4) of the subscription agreement.”

In addition, in addition to the fact that the defendant union conducted the procedure for additional recruitment of general partners after the withdrawal of the plaintiff, but it is difficult to conclude that the defendant's business failed to meet the defendant's business or the prospect of the future business, which makes it impossible to recruit new partners, etc., the defendant union's additional recruitment procedure for general partners has not yet arrived until the date of the closing of argument in this case. Thus, the defendant's assertion pointing this out has merit.

4. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Young-chul