2016 group 152804 refund of contributions

A

B Regional Housing Association

September 14, 2017

December 14, 2017

1. The Defendant shall pay to the Plaintiff 59,950,000 won with 5% interest per annum from November 19, 2016 to December 14, 2017, and 15% interest per annum from the following day to the date of full payment.

2. The plaintiff's remaining claims are dismissed.

3. The costs of the lawsuit shall be four minutes, and one of them shall be borne by the plaintiff, and the remainder by the defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 79,950,000 won with 5% interest per annum from February 9, 2012 to the service date of a copy of the complaint of this case, and 15% interest per annum from the next day to the day of full payment.

1. Facts of recognition;

A. The Defendant obtained the authorization to establish a housing association from the head of Dongjak-gu Seoul Metropolitan Government on January 25, 2008 as a regional housing association established to promote a housing construction project in accordance with the relevant Acts and subordinate statutes in Dongjak-gu Seoul Metropolitan Government C.

B. Around October 2008, the Plaintiff entered into a contract with the Defendant as a member of the association of this case (hereinafter referred to as the “instant contract”) and paid the Defendant totaling KRW 79,950,000 for the first part of the part payment and the first part payment of KRW 59,950,000 for business promotion expenses and the first part payment of KRW 20,000 for the members’ contributions.

C. The main contents of the instant agreement to join the association are as follows.

Article 1 (General Provisions) The plaintiff is required to carry out the business in the state of the failure to obtain new approval for the business from the housing partner under Article 32 (5) of the Building Act and Article 38 (1) of the Enforcement Decree of the same Act. As such, the plaintiff is required to delegate all of the related affairs to the ASEAN for the implementation of the business, and shall separately select an agent for the business of the association, and shall pay the expenses for the business of the association. The defendant and ASEAN shall not be required to pay the expenses for the business of the 0th anniversary of the cancellation of the plaintiff's qualifications to withdraw from the association under Article 2 of the Housing Act (if the plaintiff's qualifications to withdraw from the association were not reduced or decreased by the 0th anniversary of the fact that the plaintiff's qualifications to withdraw from the association were not met, the defendant shall not be required to pay the expenses for the business of the 20th anniversary of the cancellation of the qualifications for the new members' qualifications to withdraw from the association under Article 3 (Qualification for Membership) of the Housing Act and other expenses for the 10th of the Enforcement Decree.

D. The Defendant’s covenant, which was enforced from January 25, 2008, the date of authorization to establish the association (hereinafter “instant covenant”) includes the following contents:

Article 12 (Prohibition of Disqualification for Membership's Secession), D. D., Disqualification for Membership, Disqualification for Membership's Disqualification, Removal, etc. shall be paid to a person who loses the status of partner within 30 days from the date on which the partner requested refund the balance remaining after deducting the prescribed common contributions from the paid-in amount paid by the partner, but the common contributions to be deducted and the time of refund may be determined separately by a resolution of the general meeting.Article 23 (Resolution by the General Meeting) 1. The following matters shall be determined through a resolution of the general meeting:

E. On the other hand, at the general meeting of partners held on February 28, 2012, the defendant presented the "case of determination of the plan to dispose of the person who has lost the status of partner", and the amount of the common contributions and refund money to be deducted was determined at the general meeting determined by the final general meeting, and the time of refund shall be the time of completion of the project, and the resolution was made to the effect that the additional amount of the common contributions and refund money shall be the time of completion of the project

F. From the Defendant on January 12, 2012 and January 20, 2012, the Plaintiff lost the eligibility as the householder on March 23, 2010, the Plaintiff was notified that the Plaintiff would be disqualified for membership if there is no explanation on the ground that the Plaintiff was disqualified for membership, but failed to submit explanatory materials by the prescribed deadline. Accordingly, on February 20, 2012, the Defendant filed an application for authorization for change of the establishment of the Dongjak-gu Seoul Metropolitan Government Housing Association with the head of Dongjak-gu Seoul Metropolitan Government on the authorization for change on March 9, 2012, and notified the Plaintiff on March 14, 2012 that the Plaintiff was treated as being disqualified for membership.

G. After that, on October 18, 2016, the Plaintiff sent to the Defendant the content-certified mail claiming the refund of the business promotion expenses and the contribution already paid, and received it by the Defendant.

[Reasons for Recognition] : Facts without dispute, Gap 1 through 5, Eul 12-1, Eul 14-17, the purport of the whole pleadings

2. Discharge of obligation to return contributions;

A. The Plaintiff entered into the instant association subscription agreement and paid the Defendant a total of KRW 79,950,000 for the Plaintiff’s union members’ contributions; thereafter, the Plaintiff lost the Defendant’s membership and determined the time when the Plaintiff returned the contributions paid by the union members in the instant resolution as at the time of completion of the project; and according to the evidence No. 18, the Defendant can be recognized by the head of Dongjak-gu Seoul Metropolitan Government Office on January 27, 2016 that the Defendant was issued a certificate of confirmation of the usage inspection for the housing construction project pursuant to Article 29 of the Housing Act by the head

B. In light of these facts and the purport of Article 2 of the Rules of this case (amended by Act No. 13782, Jan. 19, 2016) and Article 29(1) of the former Housing Act (amended by Act No. 13782, Jan. 19, 2016) provide that when a project proprietor completes a "housing construction project or housing site preparation project," which is implemented by a project proprietor in accordance with the approval of the project plan, it shall be deemed that on January 27, 2016, a "the time when the housing construction project, which is the Defendant's objective project, is completed and has undergone a pre-use inspection from the approval authority, is the time when the project was completed," which is the time for the refund of contributions stipulated in the resolution of this case. Thus, barring special circumstances,

3. Scope of the duty to return contributions; and

According to Article 12 (4) of the Rules of this case, the defendant's amount to be refunded to the plaintiff is the balance after deducting the common contributions from the contributions paid by the members. The defendant asserts that the amount of 20,000,000 won should be deducted from the contributions to be refunded to the plaintiff. Accordingly, the plaintiff asserts that (1) Article 9 (1) through (3) of the Agreement on the Admission to the Association of this case provides for voluntary members who withdraw from the association, and (4) of the disqualification partner does not refund the business promotion expenses, and there is no ground to deduct the business promotion expenses, and (2) in order to pay the business promotion expenses, there is no reason to deduct the business promotion expenses.

(1) According to the contract of joining the association of this case, the defendant's member is entitled to the housing association under the Housing Act (including the Enforcement Decree, the Enforcement Rule, and other ordinances of the same Act) from the time of applying for the membership of the association.

Article 3) A cooperative member shall be maintained until completion and occupancy (Article 3). If a cooperative member fails to maintain the qualification of a housing cooperative member under the Enforcement Decree of the Housing Act, etc. or is not qualified due to any cause attributable to him/her (Article 9(4)), the defendant may withdraw from the cooperative (Article 9). If a cooperative member intends to withdraw and refund the defendant, only the principal shall be refunded out of the contributions already paid to the cooperative member, and the business promotion expenses shall not be refunded (Article 9(2) and (2). Considering that a cooperative member who voluntarily withdraws is also entitled to refund only the principal out of the contributions and deducts business promotion expenses from the total contributions, Article 90 of the Housing Act provides that the defendant's total amount of the contributions to be paid to the cooperative member by proxy shall be refunded to the plaintiff, and Article 90 of the Rules of this case provides that the defendant's total amount of the contributions to be paid by proxy shall be 00,000,000,0000,000 square meters of the Building Act.

B. Judgment on the defendant's assertion

(1) The Defendant resolved on the following: (1) at a special meeting held on October 20, 2016, the case of expulsion, deprivation of qualification, joint contributions to be borne by the withdrawing partner and settlement of accounts; (359,590,000 won out of the Defendant’s losses per partner per partner; (2) even if the Plaintiff did not have a duty to share the total amount of KRW 359,590,00,000, the amount of the contributions paid by the Plaintiff’s partners as of June 30, 2016, the amount of KRW 736,089,694, while the appraisal price of apartment units is 620,824,561 won, and the amount of KRW 100,000,000,000 for each partner and the remaining amount of the contributions should be refunded to the Plaintiff according to the above resolution of 100,010,000 won for each partner and the remaining amount of the contributions to be refunded to the Plaintiff.

However, in full view of the following circumstances, the defendant's above arguments cannot be accepted.

(1) According to the evidence evidence Nos. 24 and 25, the defendant held an extraordinary general meeting on October 20, 2016 for the purpose of dissolution and liquidation of the defendant, and recognized the fact that the defendant held an extraordinary general meeting for the purpose of dissolution and liquidation of the defendant, and set the joint contributions to be additionally borne by the union members, including the plaintiff, at KRW 359,590,000 per capita. However, Article 54 of the Rules of this case provides that "if a union has obligations and residual assets after the completion of liquidation, the association shall be fairly distributed to the union members at the time of dissolution in proportion to the rights of the union members (ordinaryly, the amount of the contributions)" with respect to the repayment of its obligations and the distribution of residual assets. The plaintiff is deemed to have lost the membership's qualification before the general meeting was held on October 20, 2016, since the obligation to bear part of the project expenses arises from the status of the union members. Thus, even if a union member has continuously lost its status by agreement or agreement between the union members, the plaintiff shall not lose its status.

(2) Article 7 of the Rules of this case provides that the meaning of the charges shall be "all amounts paid to unions to promote the projects of unions, such as operating expenses of unions, land purchase expenses, construction expenses, etc." and Article 4 of the Agreement on the Admission to the Association of this case provides that the total amount of 59,500,000 won and 20,000,000 won according to the sale-type shall be the final contribution. The defendant asserts the deduction shall be the difference between the contributions paid by the members and the apartment value paid by the members, which is different in nature from the common expenses paid for the operation of the association. In addition, there is no evidence to prove that the defendant adopted a resolution to deduct this amount from the contributions to be paid by the plaintiff, which is to be paid by the plaintiff. Accordingly, the above 115,265,133 won shall not be deemed to constitute a common contribution to be paid by the plaintiff.

(3) According to the Defendant’s evidence No. 13, the following facts are acknowledged: (a) the amendment agenda for construction contract was resolved to add the contribution per member to KRW 100,000,000 at an extraordinary general meeting of November 6, 2012; (b) however, the aforementioned amount is determined to be a part which should be reflected in the apartment sale price of an individual member of the association as a result of the increase in the construction cost; and (c) thus, it is deemed as a joint charge.

It is difficult for the defendant at the general meeting of October 20, 2016, the above 100,000,000 won was not determined as a common share, and there is no evidence to prove that there was a resolution of the general meeting to deduct the above amount as a common share before October 20, 2016 from the share to be refunded to the plaintiff.

(c) Liability for the delay in the repayment of contributions;

The Plaintiff asserts that on February 9, 2012, the Plaintiff was disqualified as a member of the Defendant’s association (the day following February 8, 2012, the date when the Defendant demanded the Plaintiff to submit an explanatory document as a member of the association), and sought payment for damages for delay calculated from that date. The Defendant asserts that the Plaintiff’s request for the refund of contributions would result in delay liability from October 18, 2016.

On the other hand, Article 12(4) of the Rules of this case provides that the balance after deducting common contributions from the contributions shall be paid within 30 days from the date of the claim for refund, and the fact that the Defendant received the claim for refund of contributions from the Plaintiff on October 18, 2016 is as seen earlier. Therefore, it is reasonable to view that the Defendant is liable for the delay of payment for the obligation to refund contributions from November 19, 2016 after the lapse of 30 days from the time of receiving the claim for refund.

In this regard, the Plaintiff, regardless of the claim for refund, has the right to claim the refund of the amount immediately when the Plaintiff loses its membership, and therefore, (1) the initial date of calculation of delay damages is February 9, 2012. However, apart from the time of occurrence of the obligation, the obligor bears the responsibility for delay from the time when the obligation becomes due pursuant to Article 387 of the Civil Act, when the obligor becomes aware of the due date, and is liable for delay from the time when the obligation becomes due. (2) The obligation for payment is determined to occur after the due date stipulated in the instant

[Plaintiffs, if they interpret Article 12 (4) of the Code of this case that "if a person who is disqualified as a partner claims a refund, the actual right to claim a refund will occur, and the defendant will be liable for delay thereafter, the above provision constitutes a violation of the Regulation of Terms and Conditions Act. However, "Terms and Conditions" stipulated by the above Act refers to the contract contents prepared in advance by one of the parties to the contract to enter into a contract with a large number of other parties. It is a municipal law prescribed by the rules of this case by the union members including the plaintiff, and therefore, the defendant is a party to the contract and the contents of the future contract to be entered into by the union members

4. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 59,950,000 won and the damages for delay determined at the rate of 5% per annum under the Civil Act and 15% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment, from November 19, 2016 to December 14, 2017, which is the date of this decision (it is reasonable to dispute over the scope of the obligation to be performed by the defendant and the defendant until then). Thus, the plaintiff's claim of this case is justified within the above recognized limit, and the remainder is dismissed as there is no reason.

Judges Noh Ho-ho

1) or referring to the plaintiff's assertion that "it is necessary to pay the refund of contributions from February 9, 2012 to March 9, 2012, which is within 30 days from February 9, 2012, when the defendant recognized the loss of the plaintiff's member's member's qualification (8 pages of the briefs dated 28, 2017)."

2) The Plaintiff, in a preparatory document dated September 12, 2017, referred to as “if the contract was terminated due to a circumstance after concluding the partnership contract, the Plaintiff shall return the money from the moment when the general principle was terminated.” However, in the partnership agreement, it is only possible to request dissolution, withdrawal, and expulsion of the partnership, and the partnership agreement is rescinded or terminated, such as the one half contract, and the other party cannot be obliged to pay the obligation of restitution due to the other party (see, e.g., Supreme Court Decision 2013Da29714, Jun. 11, 2015).