[1] The standard for determining whether a case constitutes business transfer under Article 30(3) of the former Installation and Utilization of Sports Facilities Act

[2] Whether a person who cannot be deemed to have acquired membership as a collateral, such as being issued membership, constitutes a member who is entitled to the protection of the rights under the existing membership recruitment agreement pursuant to Article 30(3) and (1) of the former Installation and Utilization of Sports Facilities Act (negative)

[3] The case holding that a golf membership membership agreement with respect to the above membership is valid where the amount of the contract price claim is paid in a way substituted for the membership fee and the membership fee is issued in the golf club membership in accordance with an agreement on payment in substitutes

[4] In a case where a sports facility business entity submits a membership recruitment plan and thereby recruits its members, and does not change the recruitment method or report the recruitment status to the competent administrative agency, whether a membership contract concluded between the sports facility business entity and its members is invalid (negative)

[1] Article 30(1) and (3) of the former Installation and Utilization of Sports Facilities Act (amended by Act No. 6907 of May 29, 2003) (see current Article 27(1) and (3) (see current Article 27(3)) / [2] Articles 19 (see current Article 17), 30(1) (see current Article 27(1) and (3) (see current Article 27(3)) of the former Installation and Utilization of Sports Facilities Act (amended by Act No. 6907 of May 29, 2003), Article 18(2) and (3) (see current Article 17(1) of the former Enforcement Decree of the Sports Facilities Act (amended by Presidential Decree No. 16907 of March 31, 199); Article 18(2) and (3) (see current Article 27(3) of the former Installation and Utilization of Sports Facilities Act) / [2] Article 97(3) of the former Installation and Utilization Act

[1] Supreme Court Decision 2000Du4095 decided Jun. 14, 2002 (Gong2002Ha, 1696) Supreme Court Decision 2004Da10213 decided Oct. 28, 2004 (Gong2004Ha, 1949) Supreme Court Decision 2005Da5379 decided Nov. 23, 2006 (Gong2007Sang, 26)

Plaintiff 1 and nine others (Attorneys Song Jae-gu et al., Counsel for the plaintiff-appellant)

Defendant Co., Ltd. (Law Firm Dakel, Attorneys Sog-dam et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2005Na34331 decided September 7, 2007

All appeals are dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the grounds of appeal on the business transfer of a sports facility business entity under Article 30(1) of the former Installation and Utilization of Sports Facilities Act (amended by Act No. 6907 of May 29, 2003; hereinafter “former Act”).

Article 30(1) of the former Act provides that "if a sports facility business operator transfers his/her business or dies, or if there is a merger of corporations, the transferee, heir, or corporation surviving the merger or resulting from the merger shall succeed to the rights and obligations arising from 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 to the approval of the business under Article 12." Generally, transfer of business under the Commercial Act refers to the transfer of business assets, which are functionally organized for a specific business purpose, as a whole, to the whole, by maintaining its identity and identity (see Supreme Court Decision 96Da826, Apr. 14, 1998, etc.). It is reasonable to deem that the business operator has been transferred to the organization of the previous sports facility business for the purpose of completing the construction of the sports facility business by acquiring the entire business from the business operator under Article 30(30(1).

The lower court acknowledged the facts as indicated in its reasoning based on its adopted evidence. The lower court determined that: (a) the Defendant succeeded to the business plan of the instant golf club from ○○○ Leisure Industry Co., Ltd. (hereinafter referred to as “○○○ Leisure”), based on the following facts: (b) the Defendant was established for the purpose of acquiring the instant golf club; (c) the Defendant’s participation in the Defendant’s auction procedure; (d) the acquisition of the sports facility business before the decision to permit a successful bid; and (e) the acquisition of the ownership of the land subject to auction by full payment of the successful bid price; and (e) the succession of the right to participate in the auction procedure to acquire most of the instant golf club site; and (e) the succession of the business plan to take over the instant golf club business from ○○○ Leisure Industry Co., Ltd. (hereinafter referred to as “the instant golf club”), based on the overall details and details of the instant golf club’s business transfer; and (e) the succession of the business plan from ○○ and the Defendant’s succession of the right to the instant golf club.

In light of the above legal principles and records, the fact-finding and decision of the court below is just, and there is no error of law such as misconception of facts or misapprehension of legal principles due to the violation of the

The Supreme Court Decision 2004Da10213 Decided October 28, 2004 cited in the ground of appeal is that most of the site of a golf course is purchased from a successful bidder after four years have passed since the successful bid was awarded by auction, while the right to operate the golf course is succeeded by the principal contractor who is not the successful bidder, and it is not appropriate to apply the case in this case because the case is different. The court below did not err by misapprehending the legal principles as pointed out in the ground of appeal.

2. As to the ground of appeal regarding the plaintiffs' membership status

Article 30(3) and (1) of the former Act provides that the matters agreed upon between the sports facility business operator and his/her members shall be succeeded to by a person who succeeds to the approval of the business plan with respect to the members recruited under Article 19 of the former Act. Article 19(1) of the former Act provides that "a sports facility business operator or a person who has obtained approval of the business plan may recruit members, and where he/she intends to recruit members, he/she shall submit a plan to the Mayor/Do Governor or the head of Si/Gun/Gu by no later than 15 days prior to the commencement date of membership recruitment, and Article 18(2) of the former Enforcement Decree of the Act (amended by Presidential Decree No. 16215, Mar. 31, 199; hereinafter the same shall apply) provides that "the person who has submitted the plan to recruit members by no later than 30 percent after the process of installing the business facilities of the sports facility business shall be open to the public, but the total amount of membership recruitment shall be closed to the Governor by no later than the end date of 18-2.

Therefore, a member who is protected under Article 30 (1) and (3) of the former Act shall be a person who has obtained the qualification of a member in accordance with the prescribed procedures under the relevant Acts and subordinate statutes, and a person who cannot be deemed to have obtained the qualification of a member in a valid manner, such as simply obtaining membership in a security clause, shall not be deemed to be a person (see Supreme Court Decision 99Da20513 delivered on October 22, 199, etc.).

However, the purpose of the former Act is to establish a desirable order of membership recruitment and to promote the sound growth and development of the golf course facility business by preventing sports facility business entities, such as golf course facility business entities from collecting members or leaving membership rights without being equipped with certain facilities, in light of the fact that the provisions of the former Act does not provide for the validity of membership recruitment in cases of violation of the above provisions, and that "members" refers to sports facility business entities who agreed with the sports facility business entities to use the facilities of the sports facility business preferentially or under more favorable conditions than ordinary users (Article 2 subparagraph 4 of the former Act). Thus, it is reasonable to view that the validity of membership agreements concluded between the sports facility business entities, such as golf courses, and their members are not affected even if the methods of membership recruitment and the status of membership recruitment are not reported to the competent administrative agencies, unless special provisions exist in the terms and conditions of membership recruitment.

The court below, citing the reasoning of the judgment of the court of first instance, found the facts as stated in its reasoning, and found the following facts. Rather, it cannot be deemed that each of the instant membership was issued to secure the claim for the construction cost of △△ integrated Construction Co., Ltd., and rather, the above company, etc. paid a membership fee by the method in lieu of a membership fee and received a membership certificate from ○○○ Leisure as to each of the instant membership. Thus, the golf membership membership agreement on each of the instant membership was concluded effective between ○○○ Leisure and the Plaintiffs. On the other hand, the court below determined that the golf membership agreement on each of the instant membership was concluded effective, and that the golf membership agreement on each of the instant membership was concluded not only recruited as members of the construction cost creditors who are juristic persons but also did not comply with some procedures due to lowering of the membership fee reported to the Governor of Gangwon-do. However, according to the comparison of the procedures set forth in Acts and subordinate statutes, this merely did not properly observe the details thereof, and thus, it cannot be deemed null and void between the above golf and the Plaintiffs.

In light of the above legal principles and records, the fact-finding and decision of the court below is just, and there is no violation of the rules of evidence or misapprehension of legal principles as alleged in the grounds

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)