(영문) 대법원 2015.1.29.선고 2013다69033 판결

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court. The remainder of the appeal is dismissed.

Reasons

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 Nos. 1 and 3 in the judgment, a judgment on the party’s allegations and other means of offence and defense should be indicated to the extent that it is possible to recognize that the text is justifiable, and all of the parties’ allegations and means of offence and defense need not be determined (Article 208 of the Civil Procedure Act). Therefore, even if the court’s judgment does not indicate a specific and direct judgment on the matters alleged as the grounds of appeal, if it is possible to find the assertion or rejection in light of the overall purport of the reasoning of the judgment, it cannot be deemed an omission of judgment. Even if the court’s judgment did not specify the specific and direct judgment on the matters alleged as the grounds of appeal, if it is obvious that the assertion would be rejected even if it was not actually decided, it cannot be said that there was an error of omission of judgment due to lack of influence

The court below affirmed the judgment of the court of first instance, and recognized that the Plaintiff was the Plaintiff, and the Plaintiff received the instant membership in lieu of the repayment of the claim against C, and the payment of the membership fee was substituted by the construction cost claim, and that the golf club was transferred to the Defendant under Article 30 (1) of the former Installation and Utilization of Sports Facilities Act (amended by Act No. 6907 of May 29, 2003) applied mutatis mutandis pursuant to Article 30 (3) of the former Installation and Utilization of Sports Facilities Act (hereinafter “former Sports Facilities Act”) with respect to the golf club, and the Defendant succeeded to the rights and obligations following the approval of the business plan, and the Defendant claimed for the return of the membership fee from C to the Defendant after five years from the issuance of the membership card from C, and determined that the Defendant was liable to return the membership fee of KRW 70 million to the Plaintiff.

In light of the above legal principles and records, the above judgment of the court below is clearly distinguishable from the requirements for establishment of membership agreements and deposit of deposits in accordance with Article 30 (1) of the former Sports Facilities Act, and thus, the membership of this case is the plaintiff. The deposit of the deposit can not be deemed to have been established as a matter of course, or the defendant's rejection of the defendant's assertion that the defendant does not succeed to the obligation to return the deposit. Even if the court below omitted the judgment, it is clear that the above judgment of the court below is just and dismissed, and there is no error of omission of judgment or violation of the obligation to explain, as alleged in the grounds of appeal.

2. As to the ground of appeal No. 2, the Plaintiff may alter the purport or cause of the claim in writing to the extent that the basis of the claim is not changed until the closure of pleadings (Article 262 of the Civil Procedure Act), and as long as the evidence requested by the parties is not the only evidence of the allegations by the parties, the court may not investigate the fact that the court deems it unnecessary unless it is the sole evidence of the allegations by the parties (see, e.g., Supreme Court Decision 92Nu5096, Sept. 25, 1992). The lower court is clear in the records that the Plaintiff’s claim and cause of the claim submitted prior to the date for preparatory hearing on July 18, 2013, which was received by the Defendant’s legal representative, are concluded without any judgment on the Defendant’s request for a trial on the claim for construction price, and the fact that the arguments are closed until the pleadings are closed, this shall be deemed to be the purport that the lower court implicitly dismissed the Defendant’s application for a market price appraisal. Therefore, the lower court’s

3. As to the fourth ground for appeal

A. Although property damage is acknowledged in a lawsuit seeking compensation for non-performance of obligation, where it is difficult to prove specific amount of damage in light of the nature of the case, the court may determine the number of damages in proximate causal relation by comprehensively taking into account all relevant indirect facts, such as the relationship between the parties, the background leading up to the non-performance of obligation and property damage therefrom, the nature of damage, and various circumstances after the occurrence of damage (see, e.g., Supreme Court Decisions 2002Da6951, 6968, Jun. 24, 2004; 2007Da18959, Dec. 13, 2007; 2007Da189599, Dec. 13, 2007). This legal principle is consistent with the principle of free evaluation of evidence established under the principle of free evaluation of evidence, but it is difficult to prove the amount of damage in light of the nature of the case, and thus, it is difficult to determine the amount of damages objectively and reasonably based on 20160.15.

B. According to the reasoning of the lower judgment, the lower court: (a) premised on the premise that the Defendant was obligated to compensate the Plaintiff for damages incurred by the Plaintiff due to the Plaintiff’s failure to perform its duty to treat its members, such as transfer of membership rights and preferential use of golf club facilities; and (b) the amount of damages that the Plaintiff was unable to use at all as to the amount of damages can be determined based on the usage fees or usage values of golf membership; (c) as the case of golf membership lease cannot be confirmed similar to the instant case, the lower court recognized the amount calculated by multiplying the market price appraisal price or membership fees of the instant membership by the fixed deposit interest rate of a commercial bank in the relevant litigation submitted by the Plaintiff, by applying mutatis mutandis the “The Distribution Act”, which is one of the methods of seeking rent in real estate appraisal, as the method of seeking rent in a commercial bank. This seems to be in accordance with the appraiser’s opinion in the relevant litigation submitted by the Plaintiff. However, the lower court

1) According to the rules of the golf club of this case, the status as a member based on the membership of the golf club of this case is the contractual rights and obligations corresponding to the membership of the golf club operated with the so-called deposit membership system. The contents thereof reveal that the member has the right to use the golf club facilities under favorable terms pursuant to the rules of the association, the right to use the golf club facilities under favorable terms after the expiration of a certain grace period stipulated in the rules of the association, and the right to receive the membership fees deposited at the time of the withdrawal from the club, and the member bears various obligations as a member.

2) In this case where the Plaintiff did not withdraw from the Plaintiff’s membership for a reasonable period of time, the Plaintiff’s right as a member constitutes a basic part of the Plaintiff’s right to preferentially use the golf course facilities. Accordingly, the Defendant is obligated to allow the Plaintiff, a member, to use the golf course facilities in accordance with its rules. Therefore, the property damage arising from the Plaintiff’s denial of status as a member from the Defendant, as a member, should be deemed as the damage arising from the Plaintiff’s failure to exercise the right to use the golf course facilities as a member, as such, pursuant to its rules.

3) The court below found the Defendant’s non-performance of obligation as damages that the Plaintiff lost an opportunity to obtain an amount equivalent to the interest rate on time deposits in a bank with respect to the amount corresponding to the Plaintiff’s membership price. However, according to the appraisal report submitted to the court below, the appraiser was excluded from the appraisal object on the ground that it is impossible to ascertain the damages due to the Plaintiff’s failure to exercise the right to use facilities as a member. The amount of damages calculated by the court below cannot be said to reflect the loss of the interest on use of the golf course facilities that constitute the Plaintiff’s basic part of membership.

Furthermore, even if the Plaintiff incurred loss of expectation interest equivalent to the interest on a fixed deposit with the amount equivalent to the price of membership in accordance with the Defendant’s nonperformance as determined by the lower court, such loss is not a right to preferentially use the golf course facilities. It is not a loss due to the loss of profit from use, but a loss due to the loss of opportunity to use money which is the economic value, etc. of membership, which is the value of membership, and considering the legal nature as the value of consumption of membership, which is the deposit membership system, it is reasonable to view it as a loss due to special circumstances, not ordinary damage.

4) In addition, even if the Plaintiff lost an opportunity to dispose of membership, such as the sale of membership, or was unable to receive the price therefor, by denying the status of a member from the Defendant as a member, such damage cannot be deemed an ordinary damage caused by failure to exercise the golf course facility usage right itself as a basic part.

5) Ultimately, in light of the content and nature of the right interfered with the exercise of the Defendant’s right due to the Defendant’s nonperformance, and the degree and duration of nonperformance, it appears that the Defendant’s failure to perform his/her duty may cause property damage to the Plaintiff, but it is difficult to prove the amount of specific damage due to the nature of the case. If such circumstances exist, in light of the legal doctrine as seen earlier, the amount of damage in proximate causal relation with the Defendant’s nonperformance should be reasonably assessed and assessed based on the results of examination of evidence including the following: the average number of damages arising from the Defendant’s nonperformance of duty as a member of the instant golf club during the period when the Plaintiff was denied his/her membership; the difference between the average number of damages arising from the Plaintiff’s use of the golf club facilities as a member of the instant golf club; the amount of the user fee per time for the golf club facilities paid as a non-member; the maximum number of damages guaranteed by C

Nevertheless, the lower court, without proceeding to calculate the amount of damages as above, found that the Plaintiff was unable to utilize membership as a member by denying his/her status as a member, and calculated the amount based on the interest rate of time deposit in the city of mid-term bank as to the amount corresponding to the market price of membership difficult to be considered as an ordinary damage, as the amount to be compensated by the Defendant

In so determining, the lower court erred by misapprehending the legal doctrine on the calculation of damages due to nonperformance, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

4. As to the fifth ground for appeal

According to the reasoning of the lower judgment, the lower court determined that the Plaintiff’s right to claim the return of membership fee was not expired since it is clear that the Plaintiff made a claim for return of membership fee by delivering a letter of request for change in the purpose of the claim and the cause of the claim on January 13, 2012, and thus, rejected the Defendant’s defense of the extinctive prescription period. Examining the relevant legal principles and records, the lower court’s determination is justifiable, and it did not err by misapprehending the legal doctrine as to the extinctive prescription period, as otherwise alleged in the grounds of appeal.

5. Conclusion

The part of the judgment of the court below against the defendant is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The defendant's remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.