2017Na22538 Return of contributions

1. A;

2. B

3. C

4. D;

5. E.

6. F;

7. G.

8. H;

I Regional Housing Association

Daegu District Court Decision 2016Gahap201887 Decided May 25, 2017

February 28, 2018

March 28, 2018

1. All appeals filed by the plaintiffs are dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiffs A, E, and F 161,00,000 won each for the plaintiffs B, C, D, G, and H 154,00,000 won per annum from January 4, 2016 to the delivery date of a copy of the complaint of this case and 5% per annum from the next day to the day of complete payment.

1. Basic facts

A. On April 13, 2015, the Defendant obtained authorization for the establishment of a housing association from the head of Suwon-gu competent Gu on June 9, 2015 (as to June 30, 2016 to August 30, 2019) as a regional housing association established to promote a housing construction project in accordance with the Housing Act and its Enforcement Decree (hereinafter “instant project”). On April 13, 2015, the Defendant obtained authorization for the establishment of a housing association from the head of the competent Gu (as to June 30, 2015, 985 members of the housing association).

B. Around December 2014, the Defendant recruited a new member for the purpose of selling a house of the joint owner who died in the instant project site through the inaugural general meeting, and on January 2015, the Defendant recruited a new member through the procedures for inviting general members.

C. Plaintiff B, C, D, G, and H as each of the newly established partners, Plaintiff A, E, and F entered into a contract with the Defendant as a member of each general recruitment cooperative (hereinafter referred to as “instant subscription contract,” and paid each of the contributions (hereinafter referred to as “each of the instant contributions”).

On December 31, 2014, 30.84m240,00,000,000 won or more 154,000,000 won or more 154,000,000 won or more on December 31, 2014, 31.84m240,000,000 won or more 154,000,000 won or more on December 31, 3014, 31.84m240,000,154,000, 154,000,000 or more on December 31, 3014, 840,240,000,000 won or more on December 36, 3014; 15,000, 1540,000 won or more on December 84, 200, 2005

D. The main contents of the instant subscription agreement are as follows.

Section 1. (Purpose and Purpose) The purpose of this project is to construct and supply the housing of the association members to promote the stabilization and improvement of the residential life of the association members. 2. "A (Defendant)" and "B (Plaintiffs)" shall, in accordance with the provisions of the association rules, endeavor to ensure that the project is completed at a successful rate by fulfilling their responsibilities until the completion of the project in good faith and cooperative principles. The amount of share of the association members shall include the land purchase cost, construction work cost, design and supervision cost, civil petition disposal cost, service cost, and other charges for the implementation of the project. 2. "B" shall pay the remaining share of the association members within the due date in accordance with the following payment schedule. 3. ..... ... .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. ... .... the members are to be refunded from the association members's 1000 or . . . . .... . . .. . . .. . . . . . . . .. . . . . . . . . . . .... . . . . . .... . . ... . . . . . . . . ... . ..... . . ....... ............... ................. .. . .. . . ... ................ ........................ . .......

E. From October 2015 to December 10, 2015, the Plaintiffs submitted to the Defendant a written application for withdrawal and a written request for refund, and expressed their intent of withdrawal, and requested the return of each of the instant contributions paid by the Plaintiffs.

F. On December 10, 2015, the Defendant: (a) held a third representatives’ meeting on December 10, 2015, and decided to approve each of the above withdrawal applications by the Plaintiffs; (b) returned the remaining amount after deducting business operating expenses (10,00,000) pursuant to Article 7(3) of the subscription agreement; and (c) the time of repayment shall be paid in accordance with Article 7(4) of the subscription agreement; (d) the time of the additional establishment authorization for the members is underway; (e) the establishment authorization for the additional members is in progress after obtaining the approval for the additional establishment authorization, and (e) a notification stating that the additional members are recruited and the alternative members are to be paid in order as they complete the payment of contributions; and (e) the Plaintiffs received the said notification around that time.

G. On July 13, 2015, the Defendant obtained approval from the head of the Suwon-gu head of the Gu for additional recruitment of union members, and conducted the procedures for additional recruitment of union members from July 14, 2015 to August 10, 2015. On December 24, 2015, the Defendant obtained approval for changes in the number of union members from 985 members after changing the number of union members from 1,183 members after changing the number of union members from 985 members on grounds of change in the number of union members.

H. On January 12, 2016, the Defendant obtained approval from the head of the Suwon-si for additional recruitment from January 13, 2016 to February 25, 2016 for the establishment of an association, and obtained approval for the alteration of the establishment of an association that changes the number of union members from 1,183 persons before changing the number of union members from 1,183 persons before changing the number of union members due to the change of 11 members and 1,173 members of the additional recruitment association from January 13, 2016 to February 25, 2016.

I. The main contents of the Rules of the Defendant Union (hereinafter referred to as the “Rules of this case”) are as follows.

Article 7. (Definition of Terms and Conditions: 5. The amount paid by a cooperative member to the cooperative to implement the projects of the cooperative, such as operating expenses of the cooperative, land purchase expenses, and construction expenses; 6. The first cooperative member who has joined the cooperative: the promoters of the cooperative and the real estate owners within the site of the project; 7. The second cooperative member who has succeeded to the status of the cooperative at the time of authorization for the establishment of the cooperative: the cooperative member who has joined the cooperative after obtaining approval for additional recruitment after authorization for the establishment of the association; and the second cooperative member shall not withdraw from the cooperative at will: Provided, That when the cooperative member intends to withdraw from the cooperative due to an inevitable cause, he/she shall notify in writing the head of the cooperative of his/her intention 15 days prior to the resolution of the general meeting or the board of representatives; 3. The president of the cooperative shall make a decision to withdraw from the cooperative by a resolution of the general meeting or the board of representatives; (4) the principal of the cooperative shall be refunded from the payment to the cooperative member excluding agency service expenses, and the remaining amount shall be refunded at the general general meeting.

【Facts without dispute over the grounds for recognition, Gap’s evidence 1 to 31, Gap’s evidence 39, Gap’s evidence 42 to 44,

Gap evidence Nos. 46 and Eul evidence Nos. 12 and 13 (if any, c) and each fact-finding with the head of the court of first instance, the purport of the whole pleadings.

2. The parties' assertion

A. The plaintiffs' assertion

1) On December 10, 2015, the Defendant held a board of representatives to approve the Plaintiffs’ withdrawal application, and thereby, all the Plaintiffs lose their membership pursuant to Article 12(1) of the Rules, and the Defendant is obligated to refund each of the instant contributions to the Plaintiffs.

2) In accordance with Article 7(4) of the instant subscription agreement, the Defendant decided to refund the contributions to the Plaintiffs within 10 days after the payment was completed on behalf of the union members or general buyers. Since the Defendant’s association obtained authorization for the establishment of an association with respect to the addition of union members from the head of Suwon-si on December 24, 2015, the due date for the obligation to return the contributions on January 3, 2016, which was 10 days after December 24, 2015. Even if the said additional members cannot be deemed as substitute members of the Plaintiffs, Article 7(4) of the instant subscription agreement is determined to be due date when the existence of uncertainty occurred, and the Defendant’s housing construction project practically failed, thereby making it impossible or reasonable for union members or general buyers to make additional recruitment.

The period during which the defendant's obligation to return the contributions was due because additional members or general buyers who substitute the plaintiffs did not recruit them within the period.

3) While the Defendant pays a million won for the purchase of land, it is against the principle of good faith or constitutes an abuse of rights if the Defendant does not refund the contributions to the Plaintiffs who approved the withdrawal by himself even after making a deposit of the amount equivalent to the Plaintiffs’ contributions.

B. Defendant’s assertion

1) Since the rest of the Plaintiffs except Plaintiff E and D did not give notice of withdrawal on or before December 10, 2015, in violation of Article 12(1) of the instant regulations, it is not effective as an illegal application for withdrawal. The resolution of the board of representatives on December 10, 2015 by the Defendant on December 10, 2015 is null and void in the situation where the number of the representatives of the Defendant at the time of the resolution of the board of representatives was not 25 persons, and the said resolution cannot exist in itself. Thus, the above Plaintiffs’ application for withdrawal or the approval of the withdrawal of the Defendant’s board of representatives does not become unlawful or null and thus, the said Plaintiffs’ right

2) After the plaintiffs' application for withdrawal, the members or general buyers replacing the plaintiffs did not yet have been recruited. Article 7(4) of the subscription contract of this case constitutes the condition of suspending the right to claim the return of contributions, and the conditions were not fulfilled because they were not recruited by the members or general buyers replacing the plaintiffs. Even if the above provision was based on the degree of running the business of the defendant, it cannot be deemed that the recruitment of the members or general buyers replacing the plaintiffs was impossible or proper period was exceeded. Thus, the period during which the obligation to return contributions was not due.

3. Determination

A. Whether the obligation to return the contributions following the withdrawal of the Plaintiffs is established

1. Whether the plaintiffs' withdrawal notice is legitimate

First, according to the evidence evidence Nos. 30 and 31, Article 12(1) of the Rules of this case, a member of the association may not withdraw from the association at will: Provided, That where a member intends to withdraw from the association due to an inevitable cause, he/she shall notify the head of the association in writing 15 days before the withdrawal, and the head of the association shall make a decision on whether to withdraw from the association by a general meeting or a council of delegates; on December 1, 2015, an application for withdrawal by a plaintiff G, H, and C shall be made on December 1, 2015; on December 8, 2015; on December 9, 2015; on December 10, 2015; on December 10, 2015; on December 10, 2015; on December 10, 2015, the plaintiff's application for withdrawal from the association, the defendant held on December 3, 2015; and on December 15, 2015.

However, the defendant decided that the third representatives' meeting held on December 10, 2015 approves all of the plaintiffs' applications for withdrawal. The defendant sent notice of withdrawal and refund to all the plaintiffs around December 17, 2015. The defendant, except for the plaintiffs, sent 15 additional members of the association with 213 additional members, and applied for the authorization of change of establishment from 985 members before change to 1,183 members after change, and the fact that the defendant obtained the authorization from the head of Suwon head of the Gu around December 24, 2015 is as mentioned above. Thus, even if each of the above plaintiffs' applications against the defendant for withdrawal falls under the defective declaration of intention that does not meet the procedural requirements of Article 12 (1) of the Rules of this case, the defendant must accept the above six members' withdrawal intention and then send notice of withdrawal to all the plaintiffs, and based on this, the defendant can be viewed as having received the above plaintiffs' consent of withdrawal and withdrawal from the association 2015.

2) Whether a resolution by the board of representatives is null and void

Although Article 25 (2) of the Rules of the defendant's Union provides that "the total number of representatives shall be not less than 25 but not more than 30 persons", there is no dispute between the parties that the total number of representatives of the defendant is only 24 persons.

However, in full view of the above evidence and evidence evidence Nos. 2 and the purport of the whole pleadings, the above provision is related to the composition of a deliberative body for the defendant's execution of duties, and it is reasonable to interpret that the total number of representatives shall be at least 25 but not more than 30 persons who can properly represent the union members. Thus, if the number of representatives for the operation of the union actually becomes mother or exceeds the number of representatives for the operation of the association, it is difficult to regard the above provision as the purport of nullifying the decision of the board of representatives. In fact, the defendant elected 24 representatives through the general meeting and the election procedure for representatives by the union members and carried out the affairs of the union according to the resolution of the board of representatives. The defendant seems to have never raised any objection against the resolution from the special general meeting of the union members or the defendant, and the defendant holds the fourth meeting composed of the president of the union and the 24 representatives on December 22, 2015. Thus, the above resolution cannot be deemed null and void by considering the following reasons.

3) Sub-decisions

Thus, as the plaintiffs legally withdraw from the defendant association, the defendant is obligated to return each contribution to the plaintiffs pursuant to Article 7 (3) and (4) of the subscription agreement of this case, unless there are special circumstances.

(b) Whether the obligation to return contributions arrives;

1) Nature of the provision on the timing for refund of contributions: Undetermined time limit

According to Article 7 (4) of the subscription contract of this case and each notification to the plaintiffs by the defendant, the time of refund for each plaintiffs' contribution is within 10 days after the payment is completed due to substitution of members or general buyers.

In general, a juristic act attached to an associate officer should be deemed as a condition in cases where it is reasonable to deem that an additional officer does not perform his/her obligation if the fact indicated in the subordinate officer occurs, and in cases where it is reasonable to deem that an additional officer does not perform his/her obligation even if the indicated fact has occurred or any objection has been confirmed, the occurrence of the fact indicated should be determined as an indefinite term. Therefore, in cases where certain facts are attached to an additional officer with regard to the repayment of the obligation already borne, barring any special circumstance, the time limit shall expire when the occurrence of the obligation is deferred, as well as when the fact has not occurred or is confirmed not to occur, as well as when the fact has not occurred within a reasonable period (see, e.g., Supreme Court Decisions 2003Da24215, Aug. 19, 2003; 209Da1643, May 14, 2009).

However, the above facts and the purport of the whole argument are acknowledged as follows:

In other words, the obligation to return the instant contribution to the plaintiffs has already occurred by the resolution of the council of representatives approved by the plaintiff who applied for withdrawal of the plaintiffs; ② Article 7 (4) of the subscription agreement of this case clearly stipulates that the time for refund of the contribution is the time for refund; and the defendant does not pay the contribution to the plaintiffs if the additional members or general buyers substitute for the payment of the contribution, it goes beyond the meaning of the above language; ③ the defendant provides that the payment of the contribution is not made to the plaintiffs; ③ the payment of the withdrawal and refund of the union members dispatched by the defendant to the plaintiffs. The time for refund: Article 7 (4) of the subscription agreement of this case provides that the payment of the contribution of this case is "payment of the refund" under Article 7 (4) of the subscription agreement of this case. It is reasonable to see that it is a provision under which the defendant stipulates that the plaintiffs shall pay the contribution of this case to the plaintiffs.

2) Whether the due date due to the substitution of an association member arrives

The Plaintiffs asserted that, with respect to the fulfillment period of the obligation to return the instant contribution, the Defendant recruited more than 213 additional members and received contributions from them. On December 24, 2015, the Plaintiff asserted that the Defendant’s obligation to return the contribution to the Plaintiffs was due on January 3, 2016, 100 after the 213 additional members were replaced by the said 213 additional members on December 24, 2015. On the other hand, the Defendant asserted that the Defendant’s obligation to return the contribution to the Plaintiffs was due, on the grounds that there was no additional recruitment of members replacing the Plaintiffs, and that the Defendant’s obligation to return the contribution to

However, in addition to the purport of the entire evidence duly admitted, the Defendant applied for the stock price recruitment of 213 members to the Sung-gu Office on July 13, 2015 and obtained the approval thereof on the same day, and completed the additional recruitment of the full number of members (the first recruitment) from July 14, 2015 to August 10, 2015. The Plaintiff, after the additional recruitment of the members of the association (the first recruitment), shall withdraw from the Defendant from October 2015 after the said additional recruitment (the first recruitment).

The facts of the commencement of the Cheongsung. The defendant, according to the addition and withdrawal of a member, can recognize the fact that at the same time, 15 members, including the plaintiffs, have obtained approval for the withdrawal from the Sung-gu Office on December 24, 2015 as well as approval for additional recruitment of 213 members (the first recruitment). Therefore, the defendant's execution of additional recruitment (the first recruitment) for 213 members as above is aimed at increasing the number of members as a whole. It is not deemed to substitute for the status of the plaintiffs who were withdrawn after the above additional recruitment (the first recruitment), and there is no evidence to recognize that the plaintiffs were recruited as substitute for the plaintiffs. Thus, the above argument by the plaintiffs is without merit.

3) Whether additional recruitment by union members or general buyers is impossible or due to the lapse of a reasonable period of time

The plaintiffs asserted that even if it cannot be deemed that the additional members were replaced by the authorization to change the establishment of the association on December 24, 2015, the defendant failed to recruit additional members after January 2016, and that the defendant failed to promote the defendant's project promotion plan properly due to disputes among the members, the defendant's financial difficulties in securing the land, etc., and that the defendant's business in this case was actually failed or a considerable period of time for replacing union members should be deemed to have been exceeded. Thus, since it is impossible to replace union members or general buyers under Article 7 (4) of the subscription contract in this case, the indefinite period under Article 7 (4) of the subscription contract in this case shall be deemed to have already arrived.

In a case where an agreement is reached to set the due date when not only a final and conclusive period but also a time limit when the fact does not occur within a reasonable period is as seen earlier, and where an agreement is reached to set the due date, the due date shall be deemed to come when the obligor’s performance is reasonable and reasonable and considerable period has elapsed (see Supreme Court Decision 2006Da25745, Dec. 24, 2008).

However, in light of the following circumstances and facts acknowledged in accordance with the overall purport of Gap evidence Nos. 20 to 31, Eul evidence Nos. 35, Eul evidence Nos. 45 to 47, Eul evidence Nos. 53, 60, and 62 (including the serial numbers) and the whole purport of pleadings, the progress of this case by the defendant association is somewhat delayed than the original plan, but it cannot be deemed that a considerable period of time has elapsed for replacing a union member or a general buyer to the extent that the stock owner is unable to replace a union member or a general buyer due to the actual failure of the business in this case, and there is no evidence to acknowledge it otherwise. Accordingly, the plaintiffs' assertion that the period of non-determination has already arrived is without merit.

A) On May 28, 2017, the Defendant: (a) held an extraordinary general meeting and selected AS Dong-dong Co., Ltd. as an implementer of construction; (b) held an extraordinary general meeting on October 15, 2017 and resolved to select the said company as a contractor and sign a contract for construction; (c) accordingly, on December 4, 2017, the Defendant concluded a contract on the instant project between the said company and the company on May 5, 2017 (50 months from the date of commencement of construction: 5 units, 1,358 units, 59 units, 1,358 units, 540 units, officetels, sports facilities, and other ancillary welfare facilities, and construction period: 50 months from the date of commencement of construction). From December 7, 2017 to December 22, 2017, it is difficult to view that the land continues to purchase land by preparing approximately 1,67.7 billion won, and that the instant application was already interrupted or impossible in light of data necessary for the implementation of the instant project plan.

B) Most of the Defendant members are paying the contributions in good faith, and the procedures for internal decision-making, such as an ordinary general meeting or a representative meeting, are also underway. Furthermore, the Defendant members resolved to bear the additional contributions of KRW 319,00,000 (250,000 when the sale price is not applied to the upper limit limit system) at the extraordinary general meeting held on October 15, 2017, and accordingly, the Defendant and the Defendant have multiple partners.

It concluded a contract for modification of membership, which includes the content of additional contributions.

C) In addition to the Plaintiffs, the number of union members to be refunded by the Defendant to some union members is deemed to reach a false name because some union members either express their intention to withdraw or are found disqualified (as of November 30, 2016: 64 persons who were to be refunded: 15 persons who were disqualified on September 6, 2016). However, in light of the overall number of union members (as of September 6, 2016, 1,173 persons who were disqualified on September 6, 2016), the Defendant’s operation or the progress of the instant project is not not to be the degree to suspend the operation of the Plaintiff or the instant project, and there is no association members who expressed their intention to additionally withdraw from the project since January 12, 2016

D) In addition to the appointment of the contractor as above, it seems that the Defendant is trying to smoothly carry out the instant project under its own specific plan for carrying out the instant project until the approval of the project plan and the invitation of the general buyers.

E) In general, a housing construction project that is implemented by a regional and workplace housing association is a project undertaker and implements a project, such as the purchase of land, financing, and the selection of a contractor. As such, there are many variables and changes in the process, so long as considerable time takes place, there is only a case where the project period intended to be observed is not observed. However, it can be deemed that it can be seen that, as a member of the association, even those members who assume the responsibilities and obligations under the partnership regulations are able to anticipate such circumstances.

F) In light of the current situation of the instant project that selected a construction project and entered into a construction contract, and secured considerable parts of the land subject to the project, it is difficult to readily conclude that a reasonable and considerable period of time required to recruit additional members or general buyers instead of the Plaintiffs has elapsed solely on the sole ground that the scheduled project period is delayed.

C. Whether the principle of good faith or abuse of rights is violated

In light of the fact that the securing of land for housing construction is an important element of the project in this case, and the deposit is for the cancellation of the execution following the provisional seizure of land for the project in this case by the plaintiffs, the failure to return the contributions to the plaintiffs on the ground that the defendant did not have arrived at the expiration date does not violate the good faith principle or constitute an abuse of rights. The plaintiffs' assertion on this part is rejected as it is without merit.

D. Sub-committee

Until the closing date of the argument in this case, the period during which the Defendant’s obligation to return the instant contribution under Article 7(4) of the Agreement has not yet arrived. On this premise, the Plaintiffs’ claim for refund of the instant contribution that immediately seeks to pay the full amount of each of the instant contributions is without merit, without further examining the amount of the contribution to be refunded.

4. Conclusion

Therefore, the plaintiffs' claim of this case is dismissed due to the lack of reason, and the judgment of the court of first instance is just and it is dismissed as the plaintiffs' appeal is without merit.

The presiding judge shall have jurisdiction over a judge

Judges Song privateization

Judges Yellow-gu