2017Na301634 Objection

A Housing Association

B

Daegu District Court Decision 2016Da101683 Decided January 12, 2017

November 30, 2017

January 11, 2018

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

In the Daegu District Court 2015 tea16094, the defendant's compulsory execution against the plaintiff is denied.

2. Purport of appeal

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

1. Quotation of judgment of the first instance;

The reasoning for this Court’s explanation concerning this case is as follows, and the reasoning for this Court’s explanation is as stated in the reasoning of the first instance court’s judgment, except where the Defendant amends five parts of the first instance court’s judgment as follows, and the Defendant adds a new judgment on the assertion in the first instance court’s judgment, and therefore, it is acceptable in accordance with the main text of

(a)as follows: 4. The term "joint contributions" shall be read as "joint contributions":

나. 제3쪽 제11〜12행의 "피고의"를 "원고의"로,

(c)each "Plaintiff" described below, under Chapters 12 and 5, shall be referred to as "Defendant";

(d)Paragraph 1 of paragraph 7, "unauthorized partner" shall be construed as "unauthorized partner";

(e) It shall be amended to " August 14, 2015" as " August 10, 2015," respectively, for the following reasons:

2. Additional determination

(a) invalid assertion;

The defendant asserts that the joining agreement between the plaintiff and the defendant is null and void, since the plaintiff recruited the defendant as a member without obtaining the additional recruitment approval from the head of the Sung-gu Metropolitan City as the head of the Gu in Daegu Metropolitan City in accordance with relevant provisions, such as

According to Article 39 (1) of the former Enforcement Decree of the Housing Act (amended by Presidential Decree No. 26369, Jun. 30, 2015; hereinafter referred to as the "former Enforcement Decree of the Housing Act"), a regional housing association is prohibited from replacing or newly allowing its members to join after obtaining authorization for the establishment.

The same shall not apply to cases where an additional recruitment of members is approved by the head of a Si/Gun/Gu to the extent that the number of members does not exceed the number of households scheduled for housing construction, as prescribed by Ordinance of the Ministry of Land, Infrastructure and Transport, and where a vacancy occurs due to any of the following causes:

However, in light of its content, the foregoing provision is merely a simple regulation and cannot be deemed an effective regulation. Thus, even if the parties agree to violate the provision, such agreement does not naturally become null and void (see, e.g., Supreme Court Decision 2011Da7628, Jul. 25, 2013).

Therefore, the first defendant's assertion on the premise that a membership agreement between the plaintiff and the defendant is null and void in violation of Article 39 (1) of the former Enforcement Decree of the Housing Act is without merit.

(b) Claim for the arrival of an indefinite deadline;

The defendant asserts to the effect that the plaintiff is unable to recruit additional members and that the plaintiff's project promotion plan has not been promoted properly due to the lack of funds to secure land, etc., and it is impossible to replace union members or general buyers pursuant to Article 7 (4) of the membership agreement, and it shall be deemed that the period of uncertainty has passed.

In a case where the parties have determined the period for performance when the occurrence of an uncertain fact occurs, as well as when the occurrence of such fact is impossible, the period for performance should be deemed to have arrived at. Here, in specifically determining whether the occurrence of an uncertain fact, which is a cause for the indefinite term, becomes impossible, the parties’ intent, the type and characteristics of the fact based on the indefinite term, and the degree of time elapsed, etc. shall be taken into account in addition, in a case where the occurrence of an uncertain fact is affected by socioeconomic circumstances, the court shall carefully determine the impossibility according to social norms by comprehensively taking into account such factors (see Supreme Court Decision 201Da78577, Jun. 24, 2003)

see, e.g., Supreme Court Decision

Comprehensively taking account of the following circumstances acknowledged by the purport of the statement and the entire pleadings as stated in Article 7(4) of the entry contract by an association member or a general purchaser due to impossibility of replacing an additional union member or a general purchaser pursuant to the above legal doctrine, it is deemed that the progress of the housing construction project by the Plaintiff Union is delayed than the initial plan. The evidence submitted by the Defendant alone cannot be deemed that a considerable period of time has elapsed for replacing an additional union member or a general purchaser to the extent that it is impossible to replace an additional union member or a general purchaser due to the failure of the project as a result of the failure of the project, and there is no other evidence to acknowledge the failure. Therefore, the Defendant’s main owner who already got due to the arrival of the indefinite time limit has no merit.

① The Plaintiff appears to have been expected to have been required for about three years from June 2016 to August 2019. Although the period of the scheduled construction of housing was not commenced until the closing date of the instant pleadings, the period of the scheduled construction remains, and the size of the business, the number of its members, and the amount of the business funds, etc. are considered to have been integrated, the Plaintiff’s failure of the Plaintiff’s housing construction project by the Plaintiff’s association cannot be readily concluded at the present time.

② In addition, on October 15, 2017, the Plaintiff selected AS Dong as a contractor. Furthermore, in light of the fact that considerable part of the materials necessary for the application for approval of a business plan pursuant to the progress of a housing construction project was already underway or prepared, it is difficult to deem the progress of the project as a state of suspension.

③ Some of the members including the Defendant may withdraw from the partnership, and in light of the number of all the members, etc., the number of the members may suspend the operation of partnership or the progress of its business.

In addition, the members of the Plaintiff Union pay contributions, the procedures for internal decision-making, such as an ordinary general meeting or a board of representatives, are continuing, and there is no reason to deem that the operation of the Plaintiff Union has been suspended or impossible.

3. Conclusion

If so, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge's permission area

Judge Lee Jae-ho

Judges Kim Jin-tae