2012 Gohap 4033 Return of observers

Plaintiff

Daegu Dong-gu

Attorney**

○○ Co., Ltd.

Jeju

* Representative Director**

Attorney**

July 13, 2012

July 27, 2012

1. The defendant shall pay to the plaintiff 20 million won with 5% interest per annum from July 24, 2012 to July 27, 2012, and 20% interest per annum from the next day to the day of complete payment.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by the defendant.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 200,000,000 won with 20% 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. On December 7, 2006, the Nonparty entered into a golf membership agreement with the Defendant who operates the instant golf course in Jeju-si, and paid KRW 200,000,000 to the Defendant five times from the same day until April 1, 2008. The Nonparty was issued a membership card of the instant golf course (hereinafter “instant membership card”) on the 10th of the same month.

B. On October 4, 2011, the Plaintiff: (a) at the auction procedure for corporeal movables (No. 2011 main office of Jeju District Court) the Nonparty

After purchasing the instant membership in the name of the Plaintiff in KRW 48,020,000, the Plaintiff requested the Defendant to change the membership in the name of the Plaintiff. On November 30, 2011, the Defendant issued the Plaintiff’s membership card in the name of the Plaintiff.

C. Of the rules of the instant golf course that the Nonparty entered into force at the time of entry, the provisions pertaining to the transfer, acquisition, and admission of membership are as follows.

Article 7 (Entry)

1. The membership of a club shall obtain the prescribed membership security deposit in the company after obtaining the approval of the company in accordance with the prescribed membership procedure, and shall obtain the membership security by obtaining the certificate of membership;

2. The period of membership shall be three years from the date of acquisition of the membership. If a member requests a withdrawal from the membership, the principal of the membership may be refunded.

Article 8 (Entry Fees and Period of Membership) Membership fees shall be refunded only to the principal at the time of withdrawal as a security deposit for regular members: Provided, That where an accident occurs, such as a natural disaster, etc., the return may be postponed for a certain period of time in accordance with

Article 14 (Transfer and Acquisition of Membership Rights)

1. Transfer and acquisition of membership rights shall be subject to prior approval of the company in accordance with the application form determined by the company and prescribed procedures;

2. Transfer, succession, designation of a corporate member, etc. of membership shall go through prescribed procedures, and pay transfer fees established by the company on the basis of actual expenses to the company;

3. If it is determined that the speculation of membership rights is anticipated or an atmosphere of the golf course is likely to flow due to unfair trade, etc., the company may prohibit the transfer for a certain period of time after deliberation by the Steering Committee.

5. A person who has completed the transfer procedure by acquiring membership rights shall comprehensively succeed to the rights and obligations of the person who has transferred membership rights as a member of the club;

1.The member may not, unless three years have elapsed from the date of entry, withdraw without the approval of the company. 2. If the member wishes to withdraw this club, he shall notify the company in writing at least one month prior to the withdrawal, and shall submit the prescribed application and membership cards.

3. The Company shall refund only the principal of the membership fee within three months after the member’s withdrawal request. D. The Plaintiff requested the Defendant to withdraw and return the membership fee through the instant complaint. The duplicate of the instant complaint was served on the Defendant on April 23, 2012, and the Plaintiff returned the original membership fee to the Defendant on June 26, 2012.

[Reasons for Recognition] Facts without dispute, clear facts in record, Gap 1, 2, 4 evidence, Eul 2, 3 and 4 evidence (including each number), the purport of the whole pleadings

2. Determination

A. Determination on the cause of the claim

According to the above facts, the plaintiff succeeded to the qualification of the non-party who acquired the membership of the golf course of this case. Since the plaintiff reached the defendant on April 23, 2012, which includes the plaintiff's expression of his/her intention of withdrawal and return of the membership fee, which was three years after the date of acquisition of the non-party's membership, from April 10, 2008, the plaintiff was obligated to pay damages for delay at a rate of 200,000 won per annum as stipulated in the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings to the plaintiff, since three months have elapsed since the date of delivery of a copy of the complaint, including the plaintiff's expression of intent to request the return of the membership fee and the plaintiff's expression of intent to request the return of the membership fee, from July 24, 2012 to July 27, 2012.

B. Judgment on the defendant's assertion

1) The defendant's acquisition of membership in the auction procedure does not constitute the transfer and acquisition of membership rights as prescribed by the rules of the golf club of this case. Thus, the plaintiff's previous status cannot be viewed as the plaintiff's succession, and the plaintiff's assertion that the plaintiff should pay 48,020,000 won from the sale price in the auction procedure around October 201 and then acquire new membership rights at that time. Thus, there is no evidence to regard the purchase of membership in the auction procedure as different from the arbitrary transfer and acquisition of membership rights. Rather, as seen earlier, the defendant himself implemented the transfer procedure at the time of transfer and acquisition of membership rights to the plaintiff in accordance with the rules of the golf club of this case, and the number granted to the plaintiff is recognized as the same as the number of the non-party's membership

2) In addition, the defendant asserts that the expression of intent to withdraw from the golf club through the complaint, etc. of this case without attaching the original membership does not have the validity, and therefore there is a provision that requires the company to submit the membership at the time of application for withdrawal from the golf club association of this case. However, this is merely a method that allows the company to simply write down membership, and so long as it is proved that the company is a member, it cannot refuse the application for withdrawal on the ground that the company did not submit membership (see Supreme Court Decision 94Da4728, Mar. 24, 1995). The following circumstances acknowledged by the evidence mentioned above are that the plaintiff's name of the golf club of this case can easily be seen as a member because it is difficult to find the defendant's name of the golf club of this case. The request for the submission of membership at the time of request for withdrawal from the golf club does not have the duty to exercise the right to exercise the right against the portion exceeding the amount of pledge upon the loan of membership and the obligation to return the original membership to the defendant.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge and the judge in order;

Judges South-Name