[1] Whether the so-called “deposit-based golf course” restricts the membership fee payment method (negative in principle)

[2] The case holding that the court below erred in the misapprehension of legal principles in calculating the amount of damages by the interest rate of time deposit in a bank with respect to the amount corresponding to the market price of membership which is difficult to be viewed as ordinary damages, in case where the golf membership membership in the deposit system was denied the membership and thereby causing property damage due to the impossibility of utilizing membership

[1] Article 2 subparag. 4 and Article 17(3) of the Installation and Utilization of Sports Facilities Act / [2] Article 393 of the Civil Act, Article 202 of the Civil Procedure Act

[1] Supreme Court Decision 2008Da49844 Decided July 6, 2009

Plaintiff 1 and nine others (Law Firm Jeong, Attorneys Kim Gyeong-hee et al., Counsel for the plaintiff-appellant)

Crri Development Co., Ltd. (Law Firm KCEL, Attorneys Ro-wing et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2012Na29771 decided July 10, 2013

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court. All remaining appeals are dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the third ground for appeal

A. The reasoning of a written judgment is sufficient to indicate the judgment on the party’s assertion and other means of offence and defense to the extent that it can be recognized that the text is justifiable, and there is no need to determine all allegations by the party or all methods of offence and defense (Article 208 of the Civil Procedure Act). Therefore, even if no specific and direct judgment on a party’s assertion is indicated in a court judgment, if it is possible to find out that the assertion was cited or rejected in light of the overall purport of the reasoning of the judgment, the omission of judgment cannot be deemed as an omission of judgment, and even if it is obvious that the assertion was rejected even if it was not actually determined, there is no error of omission of judgment due to the lack of influence on the conclusion of the judgment (see Supreme Court Decisions 2006Da218, Jul. 10, 2008; 2011Da87174, Apr. 26, 2012).

B. (1) citing the reasoning of the first instance judgment, the lower court acknowledged the facts as indicated in its reasoning, including the developments and contents of the final judgment in this case, which verified that each of the instant golf clubs was owned by the Plaintiffs. Based on this, the Defendant, who acquired the instant golf club business from the said Plaintiffs by acquiring the instant golf club business, which is a sports facility, by recognizing that each of the membership in the attached Table 1-2 of the lower judgment recognized the relevant Plaintiffs was in possession of the relevant Plaintiffs, barring special circumstances, has the duty to implement the registration procedures for the instant golf club membership and to issue and deliver its membership cards to the said Plaintiffs. (2) The lower court determined that each of the instant golf clubs held or held by the said Plaintiffs is not a membership card (right of membership) or a membership card (right of membership), but a membership card that is not a content of the instant right in the second recruitment instruction and alteration instruction, and thus, rejected the Plaintiffs’ assertion that the instant golf club is not subject to the Plaintiffs’ right to use the instant golf club as well as the Defendant’s right to use the instant golf club business.

C. Examining the reasoning of the judgment below in light of the aforementioned legal principles, the judgment below contains the purport of rejecting the defendant's assertion that there is no ground for a member to seek the implementation of the membership registration procedure against the sports facility business entity, unlike the case where the membership recruitment or transfer of membership status was made in the event of the succession of the business plan through a transfer of business concerning sports facilities, etc.

In addition, examining the reasoning of the lower judgment in light of the relevant statutes and the relevant legal doctrine and the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine on the procedures for verifying membership cards under the Installation and Utilization of Sports Facilities Act or the legal doctrine on the occurrence of res judicata, contrary to what is alleged in the grounds of appeal.

2. As to the fourth ground for appeal

A. The objective scope of res judicata is included in the text of the judgment, i.e., the conclusion of the judgment on the existence of a legal relationship alleged as a subject matter of lawsuit, and does not extend to the existence of a legal relationship, which is the premise of the judgment (see, e.g., Supreme Court Decisions 86Meu2756, Jun. 9, 1987; 2004Da36130, Jul. 13, 2006).

Meanwhile, “member” under the Installation and Utilization of Sports Facilities Act refers to a person who has agreed with a sports facility business entity to use the facilities of a sports facility business on a preferential basis or on more favorable terms than the general users (Article 2 subparag. 4). In the so-called deposit golf course, membership agreement is constituted as a claim agreement between a golf course facility business entity and its members. Unless otherwise provided in the terms and conditions of membership recruitment, there is no restriction on the method of paying membership fees (see Supreme Court Decision 2008Da49844, Jul. 6, 2009).

B. For reasons indicated in its holding, the lower court rejected the Defendant’s assertion that: (a) the Defendant is obligated to pay the Plaintiff Hongsung Co., Ltd., Ltd., 5, 3, 7, 8, and 10 with respect to all or part of the membership rights held by the Plaintiff at the time of original adjudication; and (b) the final judgment of this case, which verified the above Plaintiffs’ rights as a member, has res judicata effect on the right to claim the return of the membership fee; and (c) the Defendant’s assertion that the said Plaintiffs cannot claim the return of the membership fee because they did not actually pay the membership fee, is contrary to the contents of the final judgment of this case, and thus, cannot be asserted.

C. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, it is inappropriate for the lower court to have determined that res judicata effect of the instant final judgment that the said Plaintiffs possess the above membership rights extends to the existence and scope of the right to claim the return of the membership fee. However, the lower court’s conclusion that the said Plaintiffs are obligated to return the membership fee under the golf membership membership agreement with respect to the said membership rights is justifiable.

Ultimately, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the objective scope of res judicata, the requirements for the establishment of the right to claim the return of membership fees of golf club members operated with the deposit membership system, or by interpreting the Installation and Utilization of Sports Facilities Act and its rules, as alleged in the grounds of appeal, thereby affecting the conclusion of the judgment.

3. Regarding ground of appeal No. 1

A. The court below held that, although the defendant's obligation to return the membership fee and the duty to return the above plaintiffs' membership fee to the plaintiff Hongsung Co., Ltd. with the membership of the golf club in this case operated with the deposit membership system are concurrently performed, the defendant's obligation to return the membership fee and the duty to return the above plaintiffs' membership fee to the plaintiff Co., Ltd. is the purpose of allowing the defendant to avoid the risk of double payment. Thus, the defendant's right to claim the above plaintiffs' membership fee and the right to claim the return of the defendant's membership fee are not merely a bilateral contract's obligation under Article 536 of the Civil Code or a similar consideration relationship under the bilateral contract. Thus, even if each of the above obligations are simultaneous performance relationship, they mean that the above obligation cannot be refused because it does not need to pay the membership fee unless it is returned with the refund of the membership fee and it is possible for the defendant to refuse the return of the membership fee on the ground that the above plaintiffs' right to claim the return of the membership fee was not legitimate from the defendant.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the right to defense of simultaneous performance and the right to delay of performance (see, e.g., Supreme Court Decision 2005Da6337, Sept. 20, 2007).

The Supreme Court decision cited in the ground of appeal is not appropriate to be invoked in this case, since the case differs from this case.

B. The allegation in the grounds of appeal purporting that the above plaintiffs are not liable for delay of performance on the grounds that they did not obtain the defendant's approval under the rules of the golf club of this case cannot be a legitimate ground of appeal as a new argument that is only made in the final appeal, and even if examining, there is no error of law by misapprehending the legal principles as to delay of performance as alleged above in the judgment below.

4. Regarding ground of appeal No. 2

A. We examine the existence of default liability.

(1) In a claim for damages due to nonperformance, in a case where the obligor does not perform the obligation in accordance with the terms and conditions of the finalized obligation, the claim itself is deemed unlawful (see Supreme Court Decision 2000Da47361, Dec. 27, 2002). However, in a case where the obligor’s intention or negligence is not caused by nonperformance, the obligor is not liable for damages (see Article 390 of the Civil Act).

Meanwhile, in a case where a debtor believed that he/she was not liable to perform his/her obligation and there exists a justifiable ground for such belief, it may be deemed that the debtor does not have any intention or negligence on the part of the debtor. However, even though the debtor asserted it through a lawsuit with the belief that he/she was not liable to perform his/her obligation through a legal judgment on the cause or existence of the obligation, if such legal judgment of the debtor was erroneous, barring any special circumstance, it cannot be said that the debtor has no intention or negligence on the part of the debtor with respect to the nonperformance (see Supreme Court Decision 2011Da85352, Dec

(2) On the grounds indicated in its reasoning, the lower court rejected the Defendant’s assertion that there was no intentional or negligent act in nonperformance of the obligation on the ground that (A) the Defendant was liable for compensating the Plaintiffs for damages caused by the nonperformance of the obligation as above, on the ground that (b) the Defendant did not specify the type and content of the Plaintiff’s membership, on the ground that (a) the Plaintiff was liable for compensating the Plaintiffs for damages caused by the nonperformance of the obligation to compensate for the damages caused to the Plaintiffs on the ground that (a) the Plaintiff was unable to specify the type and content of the Plaintiff’s membership, by acquiring the instant golf club’s business from the instant golf club, and then newly recruited its members and managing only new members on the membership roll, and refused to use the golf club facilities, etc. as its member.

Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court’s determination is based on the legal doctrine as seen earlier, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine on the obligor’s intentional or negligent act in default or by omitting judgment.

B. We examine the calculation of damages.

(1) In a lawsuit seeking compensation for damages due to nonperformance, where it is deemed that the occurrence of property damage occurred, but it is difficult to prove the specific amount of damage due to the nature of the case, the court may determine the number of damages in proximate causal relation by taking into account all the relevant indirect facts, including the relationship between the parties, the background leading up to the nonperformance of obligation and the occurrence of property damage therefrom, the nature of damage, and all the circumstances after the occurrence of damage, etc., based on the results of examination of evidence and the purport of the whole pleadings. This legal principle aims to realize the ideal and function of the compensation system under the principle of free evaluation of evidence in a case where it is difficult to prove the amount of damage due to the nature of the case, but it is difficult to realize the ideal and function of the compensation system under the principle of fair and reasonable allocation of damage by reducing the degree of proof and proof, and it does not give a judge a free discretion to calculate the amount of damage. Thus, when the court determines the specific amount of damage by the aforementioned method, it shall make every effort to search the indirect facts that served as the basis for calculating the amount of damage.

(2) (A) The lower court, based on the premise that (a) the Plaintiffs were deprived of their membership status from the Defendant and were denied the preferential use of the golf club facilities, thereby causing damage to entirely making use of the membership rights of the instant golf club, which is a property right. However, the said damage was premised on the premise that it can be understood that “the damage was lost the opportunity to obtain an amount equivalent to the amount equivalent to the interest rate of the term deposit interest rate of the bank during the time of a bank in relation to the amount corresponding to the membership rights” due to the said failure to neglect membership rights. (b) The lower court recognized the amount calculated by the ratio of the interest rate of the term deposit interest rate of the bank

(3) However, it is difficult to accept the lower court’s determination on the assessment of damages for the following reasons.

(A) According to the rules of the golf club of this case, the status as a member based on the membership of the golf club of this case is the contractual rights and obligations corresponding to the membership of the golf club operated with the so-called deposit membership system. The contents thereof reveal that the member has the right to use the golf club facilities on favorable terms pursuant to the rules of the association, the right to use the golf club facilities on favorable terms after the expiration of a certain grace period stipulated in the rules of the association, and the right to receive a refund of the membership fees deposited at the time of entry, and the member bears various obligations as a member.

(B) In this case where the plaintiffs did not withdraw from the membership for a reasonable period of time when they denied their status as a member seeking damages, the plaintiffs' rights as members constitute the basic part of the right to preferentially use the golf course facilities. Accordingly, the defendant bears the duty to allow the plaintiffs who are members to use the golf course facilities in accordance with the rules of association. Therefore, the property damage incurred by the plaintiffs who denied their status as a member from the defendant should be deemed as the damage caused by the plaintiffs' failure to exercise their right to use the golf course facilities as a member under the rules of association.

(C) The court below found damages due to the Defendant’s nonperformance as “damage that lost an opportunity to obtain an amount equivalent to the interest rate on time deposits in banks with respect to the amount corresponding to the membership price” according to the result of the appraisal commission by the appraiser in the court below. However, according to the appraisal business report submitted by the appraiser in the court below, it can be known that the damages due to the failure to exercise the right to use facilities as a member were excluded from the object of appraisal on the ground that it is impossible to grasp the damages. Thus, the amount of damages calculated by the court below based on the judgment of the court below cannot be said to reflect the loss of the right to use facilities constituting the basic part

Furthermore, according to the court below's non-performance of obligation, even if the plaintiffs suffered loss of expectation interest equivalent to the interest on time deposits for the amount equivalent to the price of membership rights, such loss is not the loss of usage benefits due to the failure to exercise the right to preferentially use the golf course facilities, but the loss due to the loss of opportunity to use money which is the economic value of membership rights, such as the economic value of membership rights, and considering the legal nature of membership rights as the consumption price of membership rights, it is reasonable to view it as a loss due to special circumstances, not ordinary damages.

(D) Other losses incurred by the Plaintiffs, by denying their membership status as a member from the Defendant, in the event that the Plaintiffs lost an opportunity to dispose of the membership, such as the sale of the membership held by them, or in the event of being paid the price therefor properly, such losses cannot be deemed as ordinary damages arising from the failure of the golf course usage right to exercise its membership itself,

(E) Ultimately, in light of the content and nature of the right interfered with the exercise of the right by the Defendant due to the nonperformance of the obligation, and the degree and duration of the nonperformance, etc., it appears that the fact that property damage was inflicted on the Plaintiffs due to the Defendant’s nonperformance of the obligation is difficult to prove the specific amount of damage in light of the nature of the case. If there are circumstances, in light of the aforementioned legal principles, the amount of damage in proximate causal relation with the Defendant’s nonperformance of obligation should be reasonably assessed and calculated by reasonably evaluating all indirect facts revealed by the outcome and purport of the entire pleadings, including the following: the average number of damages caused by the Defendant’s nonperformance of obligation as a member during the period when the Plaintiffs denied the status as a member, the difference between the average number of damages incurred by the members of the instant golf club using the golf club facilities as a golf club in the position of a member, the amount of the user fee per time for the golf club facilities paid as a member, the maximum number of damages

(4) Nevertheless, the lower court did not calculate the amount of damages due to the Plaintiff’s wrongful identification of property damage caused by the Plaintiffs’ being unable to utilize their membership by denying their membership status as a member, but calculated the amount based on the interest rate on a term deposit in the city of mid-term bank as to the amount corresponding to the market price of membership difficult to be deemed as ordinary damage. Therefore, the lower court erred by misapprehending the legal doctrine on the calculation of damages due to nonperformance of obligation, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal

5. Conclusion

Therefore, the part of the judgment of the court below against the defendant is reversed, and that part of the case is remanded to the court below for a new trial and determination, and all remaining appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim So-young (Presiding Justice)