[1] The purport of Article 30(3) of the former Installation and Utilization of Sports Facilities Act

[2] The meaning of "transfer of business by a sports facility business entity" under Article 30 (1) of the former Installation and Utilization of Sports Facilities Act and the meaning of "transfer of business" at the pre-construction stage of the construction of sports facilities although the business plan was obtained,

[3] The case holding that it cannot be viewed as a transfer of business under Article 30 (3) and (1) of the former Installation and Utilization of Sports Facilities Act

[1] The purport of Article 30 (3) of the former Installation and Utilization of Sports Facilities Act (amended by Act No. 6907 of May 29, 2003) is to interpret that where a person who obtained approval of a business plan succeeds to the business transfer, death, or succession of the business plan under Article 12 of the same Act with respect to the sports facilities before the completion of the business plan in the pre-report and registration of the sports facilities by completing the construction of the sports facilities, the transferee, heir, and corporation after the merger succeeds to the rights, obligations, and membership recruitment under the approval of the person who obtained the approval of the business plan, such as the transferor, etc.

[2] The term "transfer of business by a sports facility business operator under Article 30 (1) of the former Installation and Utilization of Sports Facilities Act (amended by Act No. 6907 of May 29, 2003)" means "transfer of human and physical organization organized to carry on the business of installing and operating sports facilities for profit-making purposes as a whole while maintaining its identity." Paragraph (1) of the same Article is applied mutatis mutandis under Article 30 (3) of the same Act, and the transfer of business at the stage prior to the completion of the construction of sports facilities is still a "transfer of business" means a transfer of human and physical organization organized to register the sports facility business by completing the construction of sports facilities to maintain its identity."

[3] The case holding that even if a person who intends to take over a golf course purchases most of the site of a golf course from a company which merged the successful bidder who acquired ownership through a successful bid in the auction procedure, and acquires all the goodwill related to the golf course business and all the site of the golf course by a transfer agreement between the person who obtained the approval of the project plan and the person who acquired the approval of the project plan, it cannot be deemed as a transfer of business under Article 30 (3) and (1) of the former Installation and Utilization of Sports Facilities Act (amended by Act No. 6907 of May 29, 2003)

[1] Article 30 (3) of the former Installation and Utilization of Sports Facilities Act (amended by Act No. 6907 of May 29, 2003) / [2] Article 30 (1) and (3) of the former Installation and Utilization of Sports Facilities Act (amended by Act No. 6907 of May 29, 2003) / [3] Article 30 (1) and (3) of the former Installation and Utilization of Sports Facilities Act (amended by Act No. 6907 of May 29, 2003)

Plaintiff 1 and 27 others (Attorney Lee Jae-tae, Counsel for the plaintiff-appellant)

Cheongong Co., Ltd. (Law Firm Sejong-jin General Law Office, Attorneys Lee Byung-heon et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2003Na68 delivered on January 15, 2004

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

1. The judgment of the court below

A. The court below acknowledged the following facts based on the evidence adopted.

(1) On December 25, 1989, the film development Co., Ltd. (hereinafter referred to as the "explosion development") decided to create a golf course of 27 persons in total (the site of the golf course in this case is 95.6% of the total site, and the remaining site is 4.4% of the total site owned by Nonparty 2), including the 1,715,293 square meters of woodland ( Address omitted) in Pyeongtaek-gun (hereinafter referred to as the "the site of the golf course in this case"), which is the non-party 1, the non-party 2, and the non-party 3 owned by the non-party 1, the non-party 3, the non-party 1, the non-party 2, and the non-party 3, with the approval of the business plan under the Installation and Utilization of Sports Facilities Act from the Gyeonggi-do Governor around December 25, 198.

(2) As the screening development did not fully repay the debt incurred while the golf course development works, the creditors of the screening development filed an application for auction based on the right to collateral security established on the instant golf course site on August 23, 1993, and the auction procedure was commenced on July 24, 1995 with the Government-Support 93 Dolung (Case Number omitted), and the instant golf course site (including the buildings and ancillary facilities which were constructed on the site of a golf course) was awarded a successful bid for the development of the Bangladesh industry on May 13, 1996, and the ownership transfer registration was made in the future for the development of the Bangladesh industry on the grounds of a successful bid on May 13, 1996.

(3) At the time of voluntary auction, the degree of the construction progress of the site of the instant golf course was completed by the Civil Works Corporation, the construction of 27 holes and the construction of stone embankments for ancillary facilities, and the construction of the second floor and the construction of the roof slves were completed by the structural slves and the roof slves of the second floor. The turd Corporation completed the turfing construction of 19 joints of 27 joints, and was performing the remaining eight joints of eight joints. The waterworks Corporation was installed with water pipeline work and the slves facilities up to 27 joints of the development of underground water. The lighting facilities were constructed with a lighting tower at 18 joints of the nurg and completed 70% of the total construction process.

(4) After that, the gro industry development was merged into Ya Young-gu, Inc. on March 31, 1998, and Ya Young-gu, Inc. commenced the company reorganization procedure on May 19, 197 and obtained a decision to approve the company on March 31, 1998, and Non-party 4, the administrator of Ya Young-gu, Inc., Ltd., was established on August 20, 199 and was established on January 13, 200, and sold the instant golf course site to 1.7.5 billion won, and the registration of ownership transfer was completed on December 30, 199.

(5) On December 28, 199, the Defendant entered into a contract for the acquisition by transfer of all business rights (including superficies, and the above business rights refer to the approval of the instant golf course business in the name of the development of the screen) related to the golf course business with the development of the screen, and the remaining land owned by Nonparty 2, who is the representative director of the development of the screen, to acquire the forest (4.4% of the entire golf course site) and to provide the screening development with 40% of the Defendant’s shares.

(6) The defendant has changed the name of the pro rata-con club to the pro rata-con club, and has recruited its members from August 200 to operate it.

(7) On the other hand, the remaining plaintiffs except the plaintiff 1 and the non-party 5, as shown in paragraph (1) of this Article, paid a certain amount of membership fee at the time when screening development was conducted to recruit its members and acquired the qualification for its members (regular members). On January 1, 200, the non-party 5 notified the defendant on July 15, 200 after transferring the membership fee to the plaintiff 1, and notified the defendant on July 15, 2003 that the transfer of membership fee and the transfer of the name to the plaintiff 1 is required. According to the rules of the use of the use of the use of the use of the use of the use of the use of the use of the use of the use of the use of the use of the use of the use of the use of the use of the use of the use of the use of the use of the use of the use of the use of the use of the use of the use of the use of the use of the use of the use of the use of the use of the use of the use.

B. The lower court fully accepted the Plaintiffs’ primary claims as follows.

(1) According to the above facts, the rest of the plaintiffs except the plaintiff 1 and the non-party 5 acquired qualification for membership of the use of the use of the use of the use of the use of the use of the use of the use of the use of the use of the use of the use of the use of the use of the use of the use of the use of the use of the use of the use of the use of the use of the use of the use of the use of the use of the use of the use of it

(2) Whether the status of screening development for the existing members of the PPA club is succeeded to the defendant due to the succession of the approval of the business plan

(A) Article 30 of the former Installation and Utilization of Sports Facilities Act (amended by Act No. 5636 of Jan. 18, 1999 and amended by Act No. 6907 of May 29, 2003; hereinafter referred to as the "Act") provides that "where a sports facility business operator transfers the business or dies, or where a corporation is merged with another corporation, the transferee, heir, or corporation surviving the merger or established by the merger shall succeed to the rights and duties following the registration or report of the sports facility business (where members are recruited under Article 19, including the matters agreed upon between the sports facility business operator and the members)" in paragraph (3).

The athletic facilities enterpriser or the person who has obtained the approval of his business plan may recruit members after going through the procedures prescribed by the Act (Article 19 of the Act): Provided, That the person who has obtained the approval of his business plan may recruit members after the progress of not less than 30% of the process of installing the business facilities of the registered athletic facilities business.

(B) Interpretation of Article 30(3) of the Act

As above, Article 11 (1) and (2) of the Act provides that the person who has obtained approval of a business plan can recruit members even before he/she is equipped with the facilities under the provision of Article 11 (1) of the Act, and Article 10 (1) and (2) of the Act, which was enacted by Act No. 4106 of March 31, 1989, provides that he/she may transfer or take over the sports facility business or merge the sports facility business with a corporation operating the sports facility business, and there was no provision regarding succession of the approval of a business plan. Since the Act was amended by Act No. 4719 of January 7, 1994, Article 30 of the Act, the term "transfer of the sports facility business, etc." under Article 30 of the Act, was stipulated as "transfer of the approval of a business plan."

If so, Article 30(1) of the Act provides that "the succession of sports facilities business" shall be deemed to be "the succession of the business plan" and Article 30(3) of the Act provides that "the succession of the business plan" shall be deemed to be "the succession of the business plan" and Article 30(1) of the Act provides that "the person who registered the sports facilities business after being equipped with the facilities under Article 11 of the Act after obtaining approval for the business plan is transferred or dead, or when a sports facilities business operator is merged with another corporation, the transferee shall succeed to the status of the former sports facilities business operator or the status of the business under the membership recruitment contract according to the registration of the sports facilities business operator." Article 30(3) of the Act provides that "the person who obtained approval for the business plan transfers the business plan or dies, or when a corporation is merged" shall be interpreted to mean that the transferee shall succeed to the status of the existing business plan or the status of the business according to the membership recruitment contract. In light of the above provisions, it shall not necessarily be viewed that the transfer of the business plan under Article 30(1) of the Act.

Therefore, if a person who has obtained approval of a project plan transfers the approval of the project plan, the transferee will succeed to the status of the transferor in accordance with Article 30(3) of the Act.

(C) The facts of the instant case’s health zone and screening development transferred the approval plan of the instant golf club business to the Defendant are as seen earlier. As such, the status of the existing members of the relevant business plan under Article 30(3) of the Act on the succession of the approval of the business plan is deemed to have been succeeded as they are to the Defendant (the member of the membership golf club business is entitled to recruit within the scope of the expenses invested by the sports facility business operator in the installation of the business facility in accordance with the relevant statutes. The Defendant succeeded to the approval plan of the business plan after he succeeded to the development of the running, and recruited members of the relevant golf club by succeeding to the remaining investment expenses, excluding the amount of the approved investment expenses collected in relation to the recruitment of members, and reported the result of the recruitment of members to the competent authorities, and in light of the fact that the existing members of the use-based golf club are also included in the list of the members of the use-based golf club).

(D) Ultimately, the rest of the plaintiffs except the plaintiff 1 and the non-party 5 acquired the status as a member of the Hemmanium operated by the defendant, and the non-party 5 notified the defendant of the transfer of the above membership after transferring the membership to the plaintiff 1 and demanded the transfer of the above membership to the plaintiff 1. Thus, even if the transfer of the membership was not made in the above plaintiff's name, the above plaintiff succeeded to the status of the non-party 5's membership and came to have the status as a member of the plaintiff's operation by transferring the status of the non-party 5's membership, and as long as the defendant is disputing the status as the above plaintiffs' member,

2. The judgment of this Court

We cannot accept the judgment of the court below for the following reasons.

A. Interpretation of Article 30(3) of the Act

(1) Article 30 of the Act provides that "If a sports facility business operator transfers his/her business or dies, or a corporation is established by a merger, the transferee, heir, or the corporation surviving the merger shall succeed to the rights and obligations pursuant to the registration or report of the sports facility business (including the matters agreed upon between the sports facility business operator and his/her members where members are recruited under Article 19)," and Paragraph (3) of the same Article provides that "the provisions of paragraph (1) shall apply mutatis mutandis to succession of the approval of the business plan under Article 12," and the provisions of Article 30 (3) of the Act on the Establishment and Utilization of Sports Facilities are amended by Act No. 4719, Jan. 7, 199 only because the provisions of Article 30 (3) of the Act on the approval of the business plan and the provisions of the Act on the approval of the business plan are amended by Act No. 1067, Feb. 19, 200>

Before Article 30(2) of the amended Act was newly established, and Article 30(3) of the same Act was amended to apply mutatis mutandis to succession of approval of a business plan under paragraph(2) of the same Article, where the site for a golf course, etc., which is an essential facility of the sports facility before the completion, was knocked through the execution of collateral security, the human and physical organization of the sports facility before completion of the construction of the sports facility is separated from the intent of the person who obtained approval of a business plan and reverted to the successful bidder, and its unity was lost. However, the interpretation of Article 30(3) and (1) of the Act as succeeding to the position of the transferor under a membership agreement, which is merely a contractual relationship, due to the fact that the successful bidder of an essential facility before completion of the construction of the sports facility or the specific successor succeeds to the position of the transferor under the previous business plan by a juristic act separate from the auction, would also result in imposing unexpected damages on the mortgagee

In addition, since a member who is protected under Article 30(3) and (1) of the Act shall be a person who has obtained the qualification of a member in accordance with the procedure prescribed in Article 19 of the Act and other relevant Acts and subordinate statutes, a person who cannot be deemed to have obtained the qualification of a member, such as obtaining the membership as a collateral without undergoing such procedure, does not constitute a person who has obtained the qualification of a member (see Supreme Court Decision 99Da20513 delivered on October 22, 199).

(2) Nevertheless, the court below interpreted that the transfer of business under Article 30(3) of the Act should not necessarily be accompanied by the transfer of business under Article 30(1) of the Act in the case of succession of the approval of a business plan under Article 30(3) of the Act, and that when the person who obtained the approval of a business plan only transfers the approval of a business plan or dies or when a corporation is merged with another corporation, the transferee succeeds to the status and the status under the existing approval of a business plan. In so doing, the court below erred by misapprehending the legal principles on the interpretation of Article 30(3) and

B. Whether such transfer of business can be seen as transfer of business

If it is recognized that the business plan is succeeded to by transferring the business of sports facilities before the completion of the Defendant as a whole by maintaining its identity, and that the requirements of Article 30(3) and (1) of the Act are satisfied, the above provision of the Act shall apply. Therefore, this is examined as to this.

(1) The term "transfer of business" means a transfer of a human and material organization, i.e., a company organized for a certain business purpose, to maintain its identity. To deem that there is a transfer of business, it is necessary to view that the transferee continues business activities such as transfer of functional properties as sources of revenue that have been systematically organized by the transferee. In addition, it is necessary to maintain the existing business organization and function as a whole or an important part of its organization. Thus, even if the entire business property was transferred by dissolution, if it was transferred after dissolution of the organization, it cannot be viewed as a transfer of business (see, e.g., Supreme Court Decisions 9Du2680, Apr. 14, 1998; 9Du2680, Jul. 27, 2001; 2002Da23826, May 30, 2003).

Meanwhile, the term "sports facility business" means a business that installs and operates sports facilities for profit (Article 2 subparagraph 2 of the Act); the term "member" means a person agreed with an athletic facility business operator (including a person who has obtained approval of a business plan under Article 12 of the Act) to bear the costs invested in the establishment of sports facilities and to preferentially use the facilities (Article 12 of the Act) (Article 2 subparagraph 4 of the Act); the person who intends to operate a golf course business and a registered sports facility business such as a golf course business shall obtain approval of a business plan before installing the facilities under Article 11 of the Act (Article 12 of the Act); and the person who has obtained approval of a business plan under Article 12 of the Act installs the facilities under Article 11 of the Act shall register the sports facility business before commencing the business (Article 21 of the Act).

In light of the above legal principles and relevant legal provisions, a business transfer by a sports facility business entity as prescribed in Article 30 (1) of the Act refers to a transfer of human and material organizations organized to carry on the business of installing and operating a sports facility for profit-making purposes as a whole while maintaining its identity. Paragraph (1) of Article 30 of the Act applies mutatis mutandis under Article 30 (3) of the Act, thereby obtaining approval of a business plan for the sports facility business, but the transfer of business at the stage prior to the completion of the construction of the sports facility refers to a transfer of human and material organizations organized to register the sports facility business by completing the construction of the sports facility.

(2) According to the facts established by the court below, since the instant golf course site and its ancillary facilities amounting to 95.6% of the site prior to the completion of the instant case were awarded a successful bid for the development of the Lia industry by the auction procedure commenced by the mortgagee’s application without going through the intent of development of the screen site and without obtaining approval of the project plan, the operation of the screening development of the sports facilities prior to the completion was demolished most of the physical foundation at the time of the successful bid, and the screening development was merely carried out after the above auction, and it did not have a functional property which would be the source of the organicly organized revenue. Thus, the Defendant again purchased the golf course site four years after the Defendant was awarded a successful bid for the development of the Lia industry with the intention to acquire the golf course site, while it again purchased the golf course site after the lapse of four years since it was awarded a successful bid for the development of the Lia industry by acquiring all the business rights related to the golf course business and the remaining golf course site equivalent to 4.4% prior to the completion of the acquisition agreement between the running development.

In addition, even after the land of this case was awarded to another person, even if a certain amount of business rights, including superficies, were transferred under the acquisition agreement between the defendant and the defendant during the golf course operation of a golf course with a certain amount of 70% of the total progress in consultation with the successful bidder, the business prior to the registration of a sports facility business is not only a ground for revocation of the approval of the project plan, but also an act punished by penal punishment (Articles 34(1)3 and 42(1)2 of the Act). In addition, as long as the superficies that the development was transferred to the defendant is not the same as the original right of the land of this case prior to the successful bid, the form of business or business operation based on such right shall be separate from the original business or business operation, so the transfer of superficies shall not be deemed as a transfer of business under Article 30(3) and (1) of the Act, on the ground that the transfer of superficies was included.

(3) Thus, even if the Defendant purchased the instant land from the successful bidder and acquired the right of operation, such as 4.4% of the site of the instant golf course and the approval of the business plan related to the golf course business under the instant agreement, Article 30(3) and (1) of the Act cannot be applied.

3. Conclusion

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

Justices Lee Han-gu (Presiding Justice)