2021Kahap5016Prohibition of Interference with Exercise of Rights by Members

See Attached List of Creditors

Creditors, Law Firm Jinuri, Attorney Lee Jin-uri

[Defendant-Appellee] Plaintiff 1 and 10 others

○○ Leisure Limited Company

Jeon-nam Ham-gun (Grae Ri, ○○ Leisure Limited Liability Company)

Representative Director ○○

Law Firm Lee & Lee, Counsel for the plaintiff-appellant

[Defendant-Appellee] Defendant 1 and 3 others

May 10, 2021

1. The obligor is prohibited from performing the following acts against the obligees in relation to the operation of the ○○○○○○○○ Convention, located in the entire Yan-gun.

(a) An act of infringing on a member's preferential right to engage in driving – an act of infringing on a member's preferential right to engage in driving by allowing non-member to engage in driving at the same time as that of the member in fact (not later than four weeks prior to the date of competition);

(b) Demanding the payment of non-member fees for the course of a golf course;

2. The debtor shall pay 300,000 won per time of the violation to the creditor in the event that the debtor violates the obligations set forth in paragraph 1 above.

3. The obligees' remaining claims are all dismissed.

4. The costs of lawsuit shall be borne by each person;

1. The obligor is prohibited from doing the following acts against the obligees in relation to the operation of the ○○○○○○ Convention, located in the YO in the whole-Nam-gun of the Republic of Korea:

(a) An act of infringing on a member's preferential trading right - an act of infringing on a member's preferential trading right - an act of infringing on a member's preferential trading right by allowing non-member to engage in trading at the same time as that of the member in fact (not later than four weeks prior to the Games);

(b) Demanding the payment of non-member fees for the course of a golf course;

(c) Refusing to grant membership or to implement transfer procedures;

(d) Obstructing any exercise of the rights by the members pursuant to the rules of the golf course other than those referred to in the above paragraphs (a) through (c);

2. The debtor shall pay to the creditor concerned KRW 300,00 per each time of the above anti-act in the event of the violation of the obligations set forth in the above paragraph 1-A, b, and d above, and KRW 1,00,000 per one time of the act of violation in the case of the violation of the obligations set forth in paragraph 1-C.

3. The execution officer shall publicly announce the purport of each of the above orders in the proper manner.

1. Facts of vindication;

According to the overall purport of the record and examination of this case, the following facts are substantiated.

A. The debtor, around November 2015, is a company running ○○○ Tourist Co., Ltd. (hereinafter “○○○ Tourism”) by taking over ○○○○○○ Convention (hereinafter “instant golf course”) located in the Jeonnam Gun (the debtor succeeded to the legal status of ○○ Tourism as to the membership agreement of the instant golf course, and thus, the debtor is called “○○ Tourism” without distinguishing between ○○ Tourism and the debtor, and the creditor is a person who has entered into a membership agreement with the debtor with respect to the instant golf course as a regular member of the instant golf course.

B. In the case of a golf club member, it has been granted special privileges, such as allowing the use of the golf club and its ancillary facilities under preferential and more favorable conditions than other users, instead of paying a certain amount of admission fee to the obligor.

C. After the debtor decided to convert the instant golf course into the public system, from August 2020 to the members of the instant golf course, the period of five-year membership under the “member agreement” expired, and the debtor did not intend to extend the period of membership, and the debtor did not intend to terminate the membership agreement as of November 30, 2020, and submitted a certificate of contents to the effect that “the application for return of the membership deposit is filed before November 30, 2020.”

D. Around November 2020, the debtor notified the members of the instant golf course, including creditors, that the membership agreement was terminated as of November 30, 2020. On December 2020, the debtor made a repayment deposit against each of the members, including creditors, who did not file an application for the return of the security deposit.

E. From January 15, 2021, the debtor has not been treated as a member against the members who did not apply for the return of the security deposit to the creditors including the creditors.

(f) Of the Regulations of the Third Amendment (Evidence No. 3) and the Regulations of the fifth Amendment (Evidence No. 4), the contents pertaining to this case are as follows:

3. The amendment of the 3th amendment ( June 20, 1997): The amendment on November 25, 199: the second amendment on June 7, 199: the members of the sports club under Article 4 (Members) on June 20, 1997 are as follows; the special members of the 3. 6. Special members (individual and corporate members) who are deemed necessary by the company on June 2, 1997; the special members of the 6. 6. Special members shall be entitled to the treatment of their members only within the period determined by the board of directors; the special members shall be entitled to the treatment of their members only. The special members of the 7. 1. 2. Special members shall be individuals or corporate members who have obtained the approval of the company in accordance with the prescribed procedures; the special members shall be entitled to the return of their users under the number of their shares; the special members shall be allowed to return their membership deposits for more than six months and the special members shall be allowed to use their shares for a certain period of time.

(d) A member under Article 13 (Facilities Use and Membership Fees) shall be entitled to use the facilities designated by the company. When a member under Article 15 (Restrictions on Qualification) commits any act falling under the following subparagraphs, his/her qualification may be suspended for such an act; 2. Where the member causes any damage to the honor of the club or any other liability for payment for three or more months; 3. Where the member fails to comply with the rules and regulations of the club; 5. Where the member under Article 16 (Loss of Eligibility) intentionally causes any damage to the facilities in the club; 3. Where the member under Article 15 (Restrictions on Qualifications) fails to report the change of his/her address or other liability for payment; 4. Where the member under Article 16 (Loss of Eligibility) fails to comply with the said rules and regulations for the first time after the lapse of two years; 3. Where the member under Article 17 (Transfer of Membership Rights) of the company subject to the resolution for the change of his/her membership rights, he/she may obtain an approval for the change of his/her membership rights from the company;

Article 30 (Time of Effective) This Rule shall enter into force from June 8, 200. The Rule of 31 (Time of Effective) shall enter into force from June 20, 197. The fiveth amendment of the Regulations ( June 20, 1997): The fiveth Amendment: November 25, 1994. The second Amendment of the Act shall be made for a period of not less than 10 months after the date of suspension of operation of the company; the second Amendment of the Act shall be made for a period of not less than 10 years after the date of suspension of operation of the company; the second Amendment of the Act shall be made for a period of not less than 10 years after the date of suspension of operation of the company; and the second Amendment of the Act shall be made for a period of not less than 2 years after the date of suspension of operation of the company's members; and the second Amendment of the Act shall be made for a period of not less than 15 years after the date of suspension of operation of the company's members;

1. Where a member has committed an act falling under any of the following subparagraphs, he/she shall be entitled to use the facilities designated by the company. The member shall pay his/her membership fee. The member shall be entitled to suspend his/her membership fee or qualification for a certain period. 2. Where he/she has damaged the honor of the club or disturbs the order thereof for not less than 3 months; 3. Where he/she has failed to comply with these rules and rules; 4. Where he/she has intentionally damaged the facilities in the club or has failed to file a report on change of his/her personal details for not less than 1 year; 16 (Loss of Eligibility) the member shall lose his/her qualification; 3.O.T. 4. Transfer of the membership; 17 (Transfer of Membership Rights) the company is subject to the resolution for change of his/her membership fee or other liability; 2. The member shall be entitled to transfer his/her membership fee or other right to use the new membership fee after the date of change of his/her membership fee or other right to use the new membership fee.

These Regulations shall enter into force from June 20, 207.The Regulations of Article 32 (Effective Time) shall enter into force from May 1, 200.The Regulations of Article 33 (Effective Time) shall enter into force from January 10, 200.

2. Summary of the parties' arguments

A. Creditors

The rules of the golf club of this case (the 5th amendment of Jan. 10, 2005; hereinafter referred to as the "fiveth amendment rules") only stipulate the right to terminate upon voluntary application of the members, but does not stipulate the right to terminate the company's termination, and even if the rules of the golf club of this case, which are currently effective as of Jun. 20, 197, are not the fiveth amendment rules, but the third amendment rules of Jun. 20, 1997 (hereinafter referred to as the "third amendment rules"), the company may terminate the membership agreement and request the return of the membership deposit, and the company may not terminate the membership agreement.

Therefore, the obligor’s declaration of the rescission of the instant golf course membership agreement against the obligees is null and void as it is without any title. The obligees still maintain their membership status in the instant golf course. Since the obligor’s act of infringing the obligees’ rights is unlawful, the obligor sought provisional disposition such as the purport of the application in order to prevent damages therefrom.

(b) The debtor;

The obligor’s declaration of termination of the instant golf club membership agreement is lawful for the following reasons, and, in the case of creditors who already returned the membership fee, the obligor has already lost the membership status of the instant golf club. Furthermore, the obligor still guarantees the obligees’ preferential right as a member and does not refuse the transfer of membership or transfer of ownership. Therefore, there is no need to preserve the instant provisional disposition.

① The fifth amendment rule, which was submitted by the creditor, was prepared in response to the double taxation policy of acquisition tax by the government at the time of the instant golf course around 2005, and was discarded without the resolution of the board of directors, which is the requirement of the amendment. The current rules of the instant golf course are the third amendment rule. According to the third amendment rule, the company may refuse the renewal of the membership agreement against the member upon the lapse of five years. In this case, the membership agreement is terminated upon the expiration of five years. The company bears only the obligation to return the membership deposit to the member. The debtor expressed his/her intention to refuse the renewal of the membership agreement against the creditor from around August 2020, and the membership deposit was returned to the creditor through the repayment deposit around December 2020.

② Even if only members can choose to renew a membership agreement, it is deemed a selective claim under the Civil Act. The obligor notified the obligees around January 2019 and around May 2019 to choose whether to maintain a membership agreement, but the obligees did not express any intent to the obligor. As such, the obligees’ above choice was transferred to the obligor pursuant to Article 381 of the Civil Act. Since from August 2020, the obligor notified the obligees of the refusal to renew a membership agreement and exercised the right of choice transferred to the obligor, the obligor’s golf course membership agreement in the instant case was terminated according to the obligor’s exercise of the above option.

③ In the instant golf course, there were changes in circumstances that make it difficult to continue to operate the instant golf course as a membership system due to accumulation by the enemy. As such, the right to refuse to renew the instant golf course for the sake of popular transformation should be recognized to the obligor under the good faith principle.

3. Determination

A. The debtor's termination of the membership agreement of the golf course in this case

1) Relevant legal principles

The legal relationship on the operation of a golf club operated with a deposit-based membership system, in which a certain amount is deposited at the time of membership, and the deposit is returned, is contractual rights and obligations between the member and the company operating the golf club. The rules on its operation are the terms and conditions established by the company operating the golf club in order to apply the golf club uniformly to an unspecified number of unspecified visitors, which form a contractual right and obligation with the member who approved it and wishes to join the golf club (see, e.g., Supreme Court Decision 9Da70884, Mar. 10, 200).

The interpretation of a standardized contract shall be interpreted fairly and reasonably in light of the purpose and purpose of the standardized contract in accordance with the principle of trust and good faith, but it shall be objectively and uniformly interpreted on the basis of average customer's understanding potential without taking into account the intended purpose and intent of each party to the contract. Even after such interpretation, where the meaning of the standardized contract is not clear or doubtful, such as where the standardized contract provision is objectively and objectively interpreted, it shall be interpreted in favor of the customer, and it shall be equally applied to cases where the standardized contract prepared by the company constitutes a contract between the member and the company (see, e.g., Supreme Court Decision 2015Da33441, Dec. 13, 2017).

2) Specific determination

In light of the above legal principles, in full view of the following circumstances revealed by the purport of the records and the whole examination of this case, only the members of this case may refuse or terminate the renewal of membership agreement and demand the return of the security deposit to the obligor. The obligor may not refuse or terminate the renewal of membership agreement against the members. Thus, the obligor’s declaration of refusal or termination of the renewal of membership agreement of this case against the obligees is null and void without any title.

① First, as to what the current regulations of the golf course of this case are valid, it is reasonable to view that the five new regulations of the golf course of this case were made out by the obligee’s tourism at the time of the five new regulations of the golf course of this case. The fifth new regulations of the golf course of this case and the fifth new regulations (Articles 28, 30 through 33) contain concrete descriptions of the progress of the amendment, including the procedure of the amendment and the date of entry into force following each amendment. The resolution of the board of directors, which is the requirement of the amendment of the golf course of this case, was merely the internal decision-making process of the obligor, and it is difficult for the obligor to ascertain the existence of the resolution, and there is no materials related thereto. In light of the above, it is reasonable to view that the five new regulations of the Association of this case were effective in accordance with the revision procedure and it becomes effective as stated in its marks and supplementary regulations, and the debtor’s submission of the new regulations of this case has not been specifically asserted and presented differently from the content of the new regulations of this case.

② According to the fifth amendment rules, the grounds for the loss of membership in the golf course of this case include "transfer of membership, deviation, expulsion, dissolution of a juristic person in the case of a juristic person" (Article 16), and regular members, etc. may withdraw from the company upon the lapse of the grace period stipulated by the membership company after the expiration of the grace period stipulated by the membership company (Article 18(1)). The membership deposit for regular members, etc. shall be returned only to the company for ten years or more, and only when the principal is returned upon the application of the member's withdrawal from the company after ten years (Article 12(1)). Where a company intends to change its purpose and close a golf course, the company shall return the membership deposit even during the above grace period (Article 12(4)(d)). In light of the language and purport of the above provisions, the term of the membership agreement of this case does not exist separately, and the obligor may request the renewal of the membership agreement to the obligor through a separate request for the return of the membership deposit for ten years or more.

③ Furthermore, in light of the language and purport of the provisions of the Rules of the 5th Amendment, and the fact that if a member does not request a withdrawal of a membership agreement and a return of a security deposit against an obligor, the above membership agreement still remains effective, if the member does not request a return of the security deposit against the obligor, etc., the member’s right against the obligor constitutes a selective claim under Article 380 of the Civil Act, or a request for withdrawal of a member agreement and a request for return of a security deposit against an obligor, cannot be deemed an exercise of option on the selective claim under the Civil Act. Even if a member is a selective claim, the choice cannot be deemed to have been transferred to the obligor pursuant to Article 381 of the Civil Act, on the ground that the member did not exercise a request for withdrawal of a member agreement and a request for return of a security deposit against

④ Even if the third amendment of the membership agreement of this case is applied as alleged by the company, the term "the expiration of the membership agreement of this case" is not a ground for loss of the membership prescribed by the above association rules. Article 19 of the above rules of the Ministry of Patriots and Veterans Affairs provides that "regular members, etc. shall renew the membership registration of the company after the expiration of the grace period after the enrollment: Provided, That the membership fee shall be automatically extended for five years at the time of absence of a separate request within three months after the expiration of the grace period after the entry." Meanwhile, Article 18(1) provides that "regular members, etc. may withdraw from the membership agreement upon the expiration of the grace period determined by the company after the entry." Article 12(1) provides that "the admission fee shall be collected as the membership deposit of regular members, foreigners, and overseas members for five years, and only the principal shall be refunded at the time of withdrawal," and the provisions on the termination or renewal of the membership agreement of this case concerning the debtor's rejection of the request for renewal of the membership agreement of this case can not be seen as the debtor.

⑤ The termination of a contract due to change of circumstances, where the parties could not have predicted at the time of entering into the contract, and such change of circumstances arose due to a cause not attributable to the party who acquired the right to terminate the contract, and where the binding force is recognized in accordance with the contents of the contract, is remarkably contrary to the good faith principle, it is recognized as an exception to the principle of contract observance (see Supreme Court Decision 2008Da44368, Jun. 24, 201). The mere fact that the debtor faces difficulties in operating the golf course in this case, it is difficult to deem that a significant change of circumstances unexpected at the time of the instant golf course membership agreement occurred, or that such circumstance occurred due to a cause not attributable

B. Specific determination on the purport of the application

1) The cited part

Since the obligor’s refusal to renew or terminate the instant golf course membership agreement against the obligee is null and void as it is without any title, the obligees still maintain the obligee’s membership status as to the instant golf course. The obligor is obligated to provide special privileges to the obligees holding their membership pursuant to the instant golf course membership agreement, and the obligees have the right to be preserved to seek prohibition against the obligor’s act of violating the obligation against the obligor, i.e., the obligor’s right of priority, infringing on the obligor’s right of preference or demanding payment for non-member membership, and the need for its preservation is also recognized.

Furthermore, comprehensively taking account of all the circumstances such as the facts supporting the aforementioned facts and the obligor’s attitude and degree of the act, it is highly probable that the obligor will repeat each act described in Paragraph (1) in the future despite the provisional disposition order order in this case. In order to guarantee effectiveness of the provisional disposition order in this case, the indirect compulsory order shall be issued to the obligor, and the amount of indirect compulsory performance shall be KRW 300,000 per time of the act of violation, taking into account various circumstances such as the degree of damage the obligee would incur, and the circumstances leading

2) The dismissed part

However, the evidence submitted by the obligees alone is insufficient to vindicate that the obligor refused to request the obligees to transfer their membership or to implement the transfer procedure, as prescribed by the rules of the golf course in this case, or that the obligor infringed the obligees' rights as members of the golf course in this case beyond the part cited by the obligor, and there is no other supporting evidence. Therefore, the obligees' prohibition of interference and the motion for indirect compulsory enforcement on this part cannot be recognized as the necessity for preservation.

In addition, the provisional disposition of this case does not have effect on all other members except creditors, and it does not need to be notified to other members or general users of the golf course of this case. Thus, the part of the application seeking the public notification of the execution officer of the provisional disposition of this case cannot be recognized as the need to preserve.

4. Conclusion

Therefore, the obligees' motion of this case is accepted within the above scope of recognition, and the remaining motion is dismissed as it is without merit. It is so decided as per Disposition.

May 10, 2021

Judges Lee Jae-chulon

Judges Jeon Il-ju

Judges Kim Jong-hwan