Plaintiff 1 and 27 others (Attorney Lee Jae-tae, Counsel for the plaintiff-appellant)

Defendant 1 Co., Ltd. (Law Firm Sejong-jin General Law Office, Attorneys Lee Byung-jin et al., Counsel for the defendant-appellant)

October 16, 2002

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

On November 29, 191 between the plaintiffs and the non-party 2 corporation, it is confirmed that the plaintiffs have the right to enter and use the facilities for membership as a member under the membership agreement between the plaintiffs and the non-party 1 corporation.

1. Basic facts

A. Nonparty 2 Co., Ltd. (hereinafter Nonparty 2) decided to create a golf course of not more than 27 persons in total (95.6% of the total site, and 4.4% of the remaining forests owned by Nonparty 4), including the 90-2 forest land in the Do-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri (hereinafter “the site of the instant golf course”). On December 25, 1989, with the approval of the business plan under the Installation and Utilization of Sports Facilities Act from the Gyeonggi-do Governor around December 25, 1989, with the name of Nonparty 6’s golf club and the recruitment of golf course members from 19

B. Nonparty 2’s creditors filed an application for commencement of auction on August 23, 1993 with the right to collateral security established on the instant golf course site, and the instant golf course site was awarded on July 24, 1995 by the Government branch of Seoul District Court. At the time of voluntary auction, the instant golf course site was awarded to Nonparty 7 corporation. The degree of the progress of construction of the instant golf course site was completed by the Civil engineering Corporation at the time of the completion of construction of 27 holes and auxiliary facilities, and the size of the second floor and the gros and gress and gress and gress and gress and gress and gress and gress and gress and gress and gress and were completed in the construction of the 19 holes among 29 holes and completed the construction of the remaining gres and gress and gress and gress and gress and gress and were developed by water supply facilities.

C. On March 31, 1998, the non-party 7 was merged into the non-party 8 corporation, and the non-party 8 corporation commenced the company reorganization procedure on May 19, 1997 and received the decision to authorize the reorganization of the company on March 31, 1998. The administrator of the non-party 8 corporation sold the instant golf course site to the non-party 9 corporation (the non-party 9 was omitted from the name of the defendant on January 13, 200, hereinafter the defendant) on August 20, 199 (the change of the name of the defendant on January 13, 200), and on December 30, 199, the transfer registration of the ownership in the name of the defendant was completed.

D. On December 28, 199, the Defendant entered into a contract with Nonparty 2 on the acquisition of business rights (including superficies) for the golf course site owned by Nonparty 2, and forest land (4.4% of the total golf course site) owned by Nonparty 4, the representative director of Nonparty 2, and to provide Nonparty 2 with 40% of the Defendant’s shares.

E. The Defendant changed the name of Nonparty 6’s consortium to Nonparty 1, and recruited 104 million won per capita and 21.65 million won per capita around March 2001, respectively.

[Ground of Recognition] Uncontentious Facts, Gap evidence 1, Eul evidence 2, Eul evidence 3, Gap evidence 6-1, 2, Eul evidence 7-1, 2, Eul evidence 1, Eul evidence 2, Eul evidence 3-1 through 7, Eul evidence 4, Eul evidence 5, whole purport of oral argument

2. Determination

A. On November 29, 191, the Plaintiffs entered into a membership agreement with Nonparty 6 with Nonparty 2. The Defendant asserts that the Plaintiff is a member of Nonparty 1, operated by the Defendant, as the Defendant comprehensively succeeded to the rights and obligations between Nonparty 2 and the Plaintiffs pursuant to Article 30(1) and (3) of the Installation and Utilization of Sports Facilities Act by means of an agreement on the transfer of business between Nonparty 2 and Nonparty 2 on the transfer of business and the Defendant’s transfer of business.

B. Determination

(1) The plaintiffs' rights against the non-party 2

According to the health classes, Gap evidence 4, Gap evidence 5-1 through 3, Gap evidence 8-27, 28-1 and 27, and the purport of the oral argument as to the rest of the plaintiffs except for the plaintiff 1, the non-party 6 consortiums owned and operated by the non-party 2 shall obtain the approval of the non-party 2 in accordance with the prescribed procedure, the membership fee shall be collected, and the membership fee shall be collected in advance for five years, and the membership fee shall be collected in advance, and the membership fee shall be returned to the company. The membership fee shall be paid by the non-party 2 to the non-party 2, the rights and obligations of the non-party 2 shall be paid by the non-party 2, the non-party 2 shall be recorded in the non-party 2's membership recruitment fee for the non-party 2, the non-party 2 shall be reported to the non-party 2, the remaining part of the plaintiff's membership recruitment fee for the non-party 1, the non-party 2, the non-party 2, the non-party 3.

With respect to the plaintiff 1, there is evidence that the plaintiff 1 was the witness non-party 4's testimony, which corresponds to the fact that the plaintiff 1 is the non-party 6's member, but this alone is insufficient to recognize that the plaintiff 1 is the non-party 6's member, and there is no other evidence to recognize it (However, in the case of the plaintiff 1 when the plaintiff 1 applied for the request for the delivery of documents, the name of membership can be 11. Thus, there is no assertion or evidence as to the fact that the plaintiff 1 acquired membership rights from 11 or obtained membership by borrowing the name of 11).

(2) Whether the Defendant succeeded to the duty of Nonparty 2 with respect to membership from Nonparty 2

(A) Whether a business transfer contract is succeeded

The plaintiffs asserts that the defendant comprehensively succeeded to the claims and obligations regarding membership rights between the non-party 2 and the plaintiffs pursuant to Article 3 of the Business Transfer Agreement between the defendant and the non-party 2.

According to the records on the records on the records on the records on the records on the records on the records on the records on the records on the records on the records on the records on the records on the records on the records on the records on the above records on the records on the non-party 2: "The defendant should, in principle, succeed to the existing membership rights which were issued by the non-party 2 and used for payment and sale pursuant to the construction of the golf course;" Article 4 (Claims and Obligations shall be succeeded to by the defendant; and Article 7 (Duty of Transferee) shall consult in advance with the non-party 2 on the contents of the plan to be promoted or the business and affairs under the plan to be purchased by the non-party 2; the defendant's right to the non-party 2 to the non-party 7 to the non-party 2 to the non-party 3's transfer of membership rights to the non-party 2 and the non-party 4's transfer of membership rights to the non-party 2's transfer of membership rights to the non-party 3's transfer of membership rights to the non-party 2.

The plaintiffs claim that the above interpretation is inconsistent with the provision that the defendant succeeds to the obligations of the non-party 2 related to the construction of a golf course under Article 4 of the same contract, and thus, Article 3 shall be interpreted as succeeding to the membership as it is. However, according to the text of Article 4, the defendant's succeeding obligation is related to the construction of a golf course, and it cannot be viewed as acquiring the obligations of the non-party 2 including the obligations of membership, and therefore, the above assertion is without merit.

(B) Whether to succeed under Article 30 of the Installation and Utilization of Sports Facilities Act

① The Plaintiffs asserts to the effect that the agreement on the transfer of business between the Defendant and Nonparty 2 is the transfer of business, and that the transferee of business pursuant to Article 30(1) of the said Act ought to succeed to the agreement between the transferor and the members, and thus, the Defendant comprehensively succeeded to the claims and obligations related to membership.

Article 30(1) of the Installation and Utilization of Sports Facilities Act provides that “When a sports facility business operator transfers his/her business or dies, or when a corporation is merged, the transferee, heir, or the corporation surviving the merger, or the corporation established by the merger shall succeed to the rights and duties (including the matters agreed upon between the sports facility business operator and its members, in cases where members are recruited under Article 19) following the registration or report of the relevant sports facility business.” In light of the purport of the provision that the business transfer under the above provision provides that not only the rights and duties arising from the registration or report of the sports facility business by transfer of business, but also the matters agreed upon by the members shall be succeeded to. In light of the purport of the provision that the business transfer shall be deemed to be a case of transferring the functional property as an essential physical and human organization for operating the relevant sports facility business, it shall be deemed that the business operator transfers the functional property as an essential material and human organization for operating the relevant sports facility business. In the case of a golf course business operator, it shall be equipped with more than

The above facts are as follows: (a) at the time of the above contract for the transfer of the golf course, the right to operate the golf course site in this case (including superficies) and the remaining site were transferred; (b) the obligation related to the construction of the golf course in this case and the acquisition of the officers and employees in Nonparty 2 was agreed upon; (c) on the other hand, the site in this case was awarded to Nonparty 7 corporation by voluntary auction prior to the contract for the transfer of the golf course; (d) the site in this case constitutes 95.6% of the total site and the construction of the golf course was completed at the time of the commencement of the auction procedure; and (e) the site in this case includes golf course as well as the golf course, and the golf course site in this case is included in the golf course area and the 70% of the construction of the golf course site in this case; and (e) Nonparty 2 did not have ownership or right to use the golf course site in this case, which is essential to the golf course business of Nonparty 2 at the time of the transfer of the business.

② Even if the business transfer contract is not a business transfer agreement, the plaintiffs also asserted that the defendant succeeded to the name of the business approval plan for the golf course held by the non-party 2, and thus, the plaintiff succeeds to the agreement between the non-party 2 and the plaintiffs pursuant to Article 30(3)

Article 30 (3) of the Installation and Utilization of Sports Facilities Act provides that "the provisions of paragraph (1) shall apply mutatis mutandis to the succession of approval of a business plan under Article 12," and therefore, the meaning of paragraph (3) shall be examined.

The sports facility business operator prescribed by the Installation and Utilization of Sports Facilities Act is a person who registers or reports the sports facility business under Article 21 (1) and (2) or Article 22 of the Act (Article 2 subparagraph 3 of the Act), a golf club business is a registered sports facility business (Article 10 (1) 1 of the Act). A person who intends to operate a registered sports facility business shall prepare a business plan by type of sports facility business before installing the facilities prescribed by the above Act and obtain approval from the Special Metropolitan City Mayor, Metropolitan City Mayor, or Do governor (Article 12 (1) of the Act). Where a person who has obtained approval of a business plan is equipped with the facilities prescribed by the above Act, the relevant sports facility business operator shall register the relevant sports facility business before commencing the business (Article 21 (1) of the Act). The purpose of Article 30 (1) of the above Act is that the former sports facility business operator has already been equipped with facilities meeting the registration standards for sports facility business prescribed by the Installation and Utilization of Sports Facilities Act, and the former sports facility business operator acquires the status of sports facility business from the previous sports facility business operator or the heir shall succeed to the new sports facility business plan approval.

However, the plaintiffs' assertion is without merit, since the business transfer contract between the non-party 2 and the defendant alleged by the plaintiffs does not constitute a sports facility business.

3. Conclusion

Therefore, the plaintiffs' claim is dismissed. It is so decided as per Disposition.

Judges Kim Jong-dae (Presiding Judge)