2017 Ghana 212841 Confirmation of Non-existence of Obligation

A District and District Housing Association

B

December 20, 2017

January 24, 2018

1. The plaintiff's claim is dismissed.

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

On April 13, 2015, the plaintiff's obligation to settle accounts based on the membership agreement against the defendant does not exist.1)

1. Basic facts

A. The plaintiff in Gwangju City, "A District District District Housing Association apartment" (hereinafter referred to as "the combination Ampa of this case")

The regional housing association was established for the purpose of newly constructing Tit(hereinafter referred to as "T") and the defendant was a member of the association who joined the plaintiff.

B. Conclusion of a partnership joining agreement and payment of charges between the Plaintiff and the Defendant

1) On April 13, 2015, the Plaintiff and the Defendant entered into an agreement to enter into an association with the effect that the Defendant would pay the Plaintiff a partner’s share, and that the Plaintiff would purchase the instant association apartment unit from the Plaintiff on its street (hereinafter “instant agreement”), and the main contents of the said agreement are as follows.

(2) Members of a regional housing association: (a) Members of a regional housing association of a district (hereinafter referred to as "A"): (b) Members of a regional housing association of a district (hereinafter referred to as "A: hereinafter referred to as "A"); (3) Members of a district housing association of a district: Where the sum of charges under Article 2 and the amount of charges under Article 45 (2) of the Regulations of the Association (hereinafter referred to as "the disease") are fully paid in proportion to the total amount of charges under Article 2 and various kinds of public charges and charges according to the project schedule, A and C shall supply one apartment household under their contract (where the area of charges under their contract is determined at the time of approval of the project plan, the difference in charges may occur; and (3) The aggregate amount of charges and agency expenses under Article 2 (2) of the Agreement shall be determined by consultation on the allocation of housing; (4) the total amount of charges and agency expenses for each building; and (5) the amount of charges to be paid by the association;

The total amount of divided charges by partners (unit: 84 :00 won) - A m2-the total amount of charges by 13,002,40275,400

(7) The charges shall not include taxes and public charges of acquisition tax, registration tax, preservation registration expenses (the taxes imposed on the land owned by a partner and transfer expenses), and individual charges (the charges for school sites and development charges) related to the project, and shall be separately borne by A and B.

The Defendant paid the Plaintiff KRW 13,00,000,000 as agent fee, and KRW 26,000,000 as down payment, according to the contract to join the instant association.

C. Details of the covenant of the instant association

The provisions relating to this case in the bylaws of the Association of this case are as follows.

The meaning of terms used in this Code is as follows: 1. Operational expenses of the cooperative's office; 2. Land purchase expenses for the agency business for the purpose of the purchase of land subject to the project; 4. Construction expenses for the agency business until the time when the cooperative moves into the zone; 5. Charges (association dues): All the amounts paid by the cooperative members for the promotion of the project, such as the operating expenses of the cooperative, land purchase expenses, and construction expenses; 1. Charges (associations' rights and duties); 2. Liability for the payment of expenses for the agency business; 2. Liability for the payment of related Acts and subordinate statutes and regulations and general meetings, etc. for the purchase of land subject to the project:

(d) Resolution of an extraordinary general meeting concerning the increase of charges and proposal for the conclusion of an amendment agreement thereby;

1) On October 25, 2016, the Plaintiff opened an extraordinary general meeting (hereinafter referred to as “instant extraordinary general meeting”) with the “case on the charge of a partner,” etc., and there was a resolution to increase the charge of a partner in the said extraordinary general meeting.

2) On December 1, 2016, the Plaintiff demanded the Defendant to enter into a modified supply contract (hereinafter “instant modified supply contract”) with the content that reflects additional charges by December 9, 2016, but the Defendant refused to enter into the modified supply contract.

E. Plaintiff’s expulsion against the Defendant

The Plaintiff rejected the conclusion of the instant modified supply contract, and subsequently, on December 15, 2016, ordered the Defendant from the instant partnership on the grounds of Article 12(3)2 of the instant union bylaws and Article 6(1)4, 6 through 8 of the instant union membership agreement.

【In the absence of dispute over the grounds for recognition, Gap’s evidence 1, Gap’s evidence 3 through 5, Gap’s evidence 7, Gap’s evidence 8, Eul’s evidence 2 through 4, and the purport of the whole pleadings

2. The plaintiff's assertion and judgment

A. Summary of the plaintiff's assertion

It is based on the premise that there is no change in the business plan when obtaining approval from the competent authority for the establishment of the partnership agreement of this case. The plaintiff notified in advance that the defendant may additionally bear the shares of the union members when the expenditure increases due to a change in the business plan. Nevertheless, the defendant refused to enter into the modified supply agreement of this case while refusing to pay the additional shares determined through an extraordinary general meeting resolution, which constitutes a ground for expulsion of union members under the covenant of this case and the agreement to join the partnership. Accordingly, the expulsion against the defendant is legitimate, and there is no obligation to pay the amount that the plaintiff should return to the defendant if the defendant deducts the penalty from the amount paid by the plaintiff according to the agreement to join the association of this case.

B. Determination

1) When comprehensively considering the following circumstances acknowledged in light of the purport of the entire pleadings, it is reasonable to deem that the Defendant’s share of the Plaintiff’s association member is the final charge, and the evidence submitted by the Plaintiff alone lacks to deem that the instant association member’s share of the Plaintiff was anticipated to be changed, and there is no evidence to acknowledge it.

A) Most of the provisions in the instant association subscription agreement are printed in the same word. On the other hand, the instant finalized charges clause appears to have been added when entering into the instant association subscription agreement (the instant finalized charges clause is signed and sealed as rubber rather than printed differently from other provisions). At the time of entering into the instant association agreement, the instant association member’s charge was premised on the premise that the instant association member’s charge was a final and conclusive charge.

B) As to this, the Plaintiff’s provision on the confirmation charges of this case is based on the premise that there is no change in the business plan, so if there is a change in the business plan, it is not possible to pay the confirmation charges

In addition, it is argued to the effect that members may demand the payment of additional charges, but there is no provision that reflects the same place as the plaintiff's assertion in the contract of joining the association of this case, and there is no evidence to view that the contents asserted by the plaintiff were incorporated into the contract of joining the association of this case.

C) Around the time of entering into the instant membership agreement, since not only approval for the allocation of a business community, but also the establishment of a partnership, it was sufficiently anticipated that the increase and decrease of the charge would occur due to the change of the business plan at any time. It can be seen that there was a provision stipulating that the total amount of the charge may be increased by using the same text as referred to in Article 1(3) of the instant membership agreement. Nevertheless, this case’s membership agreement provides that the said special agreement shall be deemed as a final and conclusive charge by affixing rubber seal immediately next to the said provision. In light of the foregoing, the said special agreement shall be interpreted as the Plaintiff’s agreement that there was no change in the total amount of the charge against the Defendant without any relation to the change of the business plan above

D) A written consent (No. 9) written by the Defendant written to the Plaintiff is recognized that the phrase “the Plaintiff did not include acquisition tax, registration tax, preservation registration fee, individual charges (school site charges and development charges), individual charges, individual interior fees, etc.” was written on the part of the Plaintiff. On the other hand, it is reasonable to deem that the instant union agreement has no direct relation with the amount paid by the union members to the association for the purpose of implementing the association’s business, such as expenses for operating the association, land purchase, construction charges, etc., “the amount paid by the union members to the association.” However, it is reasonable to deem that “the acquisition tax, registration tax, preservation registration fee, individual charges (school site charges and development charges), individual interior expenses, etc. related to the instant business are highly characterized to each of the union members’ individual interests from the beginning, and there is no direct relation to the amount paid by the union members to the association for the purpose of implementing the instant project.

Even if the Defendant prepared and submitted the written consent as above to the Plaintiff, it is difficult to deem that the Defendant consented that the instant partner’s share was intended to be changed, or that it could have anticipated that it was intended to change the shares.

2) Therefore, it is unlawful that the Plaintiff demanded the Defendant to enter into the instant modified public benefit contract, which increased the charges, unlike its initial agreement, and expelled the Defendant as a member on the ground that the Plaintiff did not comply therewith. Ultimately, it is lawful that the Plaintiff expelled the Defendant as a member of the association, and the Defendant is liable to pay the penalty to the Plaintiff. The Plaintiff’s claim that the Plaintiff did not have any obligation to return the amount of penalty paid by the Defendant to the Defendant, if it deducted the penalty, etc. from the amount paid by the Plaintiff,

3. Conclusion

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

Judges Lee Sung-sung

1) Although the purport of the instant complaint stated that “the Defendant’s claim does not have any obligation to settle the accounts based on the membership agreement against the Plaintiff on April 13, 2015,” it is deemed to be a clerical error in light of the cause of the instant complaint.