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(영문) 수원고등법원 2020.11.11 2019나20586
계약금반환
Text

The judgment of the first instance shall be modified as follows:

The primary defendant is the defendant's attached Form 2. The cited amount list to the plaintiffs.

Reasons

1. The facts of recognition and the reasons why the court should explain this part of the allegations by the parties are as follows, except for the part of the plaintiffs' primary grounds for the plaintiffs' primary claims (from No. 8 of the judgment of the court of first instance to No. 5 of the judgment below, up to No. 5 of the judgment below) as follows:

It shall be quoted pursuant to Article 420 of the Civil Procedure Act.

① The Plaintiffs may seek the cancellation of the association agreement and the refund of contributions, etc. only before the primary Defendant obtains an association establishment authorization from the competent authority in accordance with each of the instant certificates.

In the absence of the right to terminate the contract, the Plaintiffs are subject to the partnership agreement as a union member as long as the primary defendant obtained authorization to establish the association.

Article 8(2) of the Union Regulations limits the voluntary withdrawal of partners, and since the Plaintiffs have not expressed their intent to withdraw in accordance with the Housing Act and the Union Regulations, the Plaintiffs cannot seek the return of contributions and the cost of job performance based on each of the instant certificates.

② Even if the right of rescission was created according to each of the instant written confirmations, the Plaintiffs did not delay the establishment of the association for two years after the primary Defendant’s establishment authorization, and exercised the rights of the association members by either submitting a written resolution directly or in writing to the general meeting of the association members.

In addition, the plaintiff J and K paid the down payment, etc. after the main defendant's establishment approval was granted.

Therefore, the plaintiffs should be deemed to have implicitly waived their right to rescission, and the right to claim the return of down payment and business fees is contrary to the good faith principle.

③ Article 9(4) of the membership agreement of a cooperative provides that the contract shall not be returned when the contract is terminated.

On the other hand, Article 10(1) and (4) of the Union Regulations are subject to refund when a member withdraws.

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