In a case where Party A, etc., who received membership fees from the existing members who received golf club membership fees from Party A operating a golf club and deposited membership fees, expressed the intention of withdrawal and sought the return of the membership fees, the case holding that Party A should comply with the claim for return of membership fees by transfer of Party B, etc., after the expiration of the grace period for membership fees stipulated in the rules from the date on which the existing members acquired membership fees.

In a case where Eul et al., who received membership fees from the existing members who purchased a golf club membership from the company Gap running a golf club and received the membership fees from the existing members who deposited the membership fees, sought the return of the membership fees, the case holding that Eul et al, et al., should comply with the claim for return of membership fees, such as Eul, who acquired the status of the existing members of the golf club rather than newly admitted to the golf club, and succeeded to the rights and obligations under the contract held by the existing members against the company Gap, since they acquired the status of the existing members of the golf club than newly admitted to the golf club, the term of membership or the grace period of membership fees shall start from the date on which the existing members acquired the membership fees, and the company Gap

Article 18 of the Installation and Utilization of Sports Facilities Act, Article 19 of the Enforcement Decree of the Installation and Utilization of Sports Facilities Act

Plaintiff 1 and two others (Law Firm Love, Attorneys Lee Byung-il, Counsel for the plaintiff-appellant)

Cheongong Co., Ltd. (Law Firm Apex, Attorneys Kim Hong-soo et al., Counsel for the defendant-appellant)

March 8, 2013

1. The defendant shall pay to the plaintiff 1 and 2 the amount of KRW 210,00,000 each and the interest rate of KRW 20% per annum from August 4, 2012 to the date of full payment.

2. The plaintiff 3's claim is dismissed.

3. Of the costs of lawsuit, the part arising between the plaintiff 1, 2 and the defendant is borne by the defendant, while the part arising between the plaintiff 3 and the defendant is borne by the plaintiff 3.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 3 210,000,000 won with 20% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment.

1. Basic facts

A. The Defendant is a company that operated a golf club Seoul (hereinafter “instant golf club”) which was established for the purpose of sports facility business, etc. around July 2000 and was located in Pyeong-gu, Gyeong-gu, Gyeong-gu, Gyeong-gu, Gyeong-gu.

B. Around September 2001, the Defendant: (a) sold each of the membership rights currently held by the Plaintiffs (hereinafter “each of the instant membership rights”) to the buyers; (b) received KRW 180,000,000 each of the instant membership rights from each of the buyers; and (c) borrowed KRW 30,000,000 from each of the members possessing each of the instant membership rights around 2008; and (d) agreed that the said loan shall not be transferred separately from the membership rights and shall not be returned together at the time of returning the membership fees.

C. The provisions pertaining to the transfer, acquisition, and membership fees among the golf club rules of this case (hereinafter “former golf club rules of this case”) at the time the Defendant sold each of the instant membership rights are as follows.

Article 9 (Entry) of the Table contained in the text shall obtain the approval of the company in accordance with the prescribed membership procedure, and the approval of the company may be revoked if the person who has obtained the approval of the membership pays the membership fee, obtains the membership fee, and fails to pay the membership fee. Article 11 (Entry Fee) 1. The membership fee shall be collected for five years at the time of the withdrawal of the company, and the return may be reserved for a fixed period of time according to the resolution of the board of directors in the event of force majeure such as natural disasters. Article 12 (Transfer, Acquisition, etc. of Membership Rights) 1. The transfer, acquisition, etc. of membership shall be subject to prior approval of the company: Provided, That the matters concerning the transfer, acquisition, etc. of membership shall be subject to the prescribed application; 2. The member who has obtained the approval of the change of membership may refuse the entry in accordance with the relevant Acts and subordinate statutes and the company policy; 16 (Loss of Eligibility) shall lose his membership; 2. A member who has withdrawn from his membership in accordance with Article 14.

D. On July 28, 2008, the Defendant held a board of directors to amend the rules of the instant golf club, and enforced the amended rules from August 1, 2008 (hereinafter “instant amended rules”). Of the instant amended rules, the provisions on the transfer, acquisition, and membership fees are as follows.

Article 9 (Entry) of the Table contained in the main text shall obtain the approval of the company in accordance with the prescribed membership procedure, and if a person who has obtained the approval of the membership fails to pay a membership fee by obtaining the approval of the membership, he/she may revoke the approval. Article 11 (Entry Fees) 1. The membership fee shall be collected at no interest rate for ten years for the company, and shall be returned only at the time of the withdrawal, and if a natural disaster or other force majeure event occurs, the return may be reserved for a fixed period of time (five years for those who have sold the membership in lots before 2008) pursuant to the resolution of the board of directors (five years for those who have held the membership). 1. The transfer and acquisition of the principal of membership shall be subject to prior approval of the company. However, at the time of this entry, the transfer and acquisition of membership shall be made in accordance with the prescribed application form; 2. Matters concerning the transfer, acquisition, etc. of membership shall be in accordance with the relevant Acts and subordinate statutes and the Company Regulations, and the company may, where a member has removed his/her membership within 15 years thereafter.

E. On December 7, 2009, Plaintiff 1 purchased the membership rights of Nonparty 1 among each of the instant membership rights and received a membership certificate and a loan certificate from the Defendant on December 8, 2009. Plaintiff 2 purchased the membership rights of each of the instant membership rights (number 2 omitted) from the previous members on August 2009 and received a certificate of membership and a loan from the Defendant on August 20, 2009. Plaintiff 3 purchased the membership rights of each of the instant membership from Nonparty 2 on August 20, 2010 and received the (number 3 omitted) from the Defendant on August 23, 2010, respectively.

F. Plaintiff 1: (a) around December 2009; (b) around August 2009, Plaintiff 2 acquired membership as above and submitted an application form for membership to the Defendant; and (c) the said application form for membership (hereinafter “instant application form”) states that “I will agree to the rules of the instant golf club and apply for membership.”

G. Around August 2010, Plaintiff 3 acquired membership and submitted an application for change of the name to the Defendant, respectively, as mentioned above. The above application for change of the membership (hereinafter “application 2 of this case”) states that “I will confirm and consent that the membership period shall be ten years from the date of entry (the date of change of the name) and shall be automatically extended for ten years if I do not request a return in writing for 30 days before the expiration of the membership period, and that I will automatically extend the membership period.” The above application for change of the name shall be made as follows: “I shall apply for change of the name of the standing member (the date of change of the name) and shall be understood as being sufficiently explained and approved. This application will take precedence over the meeting, and the transferee’s membership (the opening period) shall be ten years from the time when the transferee completely pays the transfer fee to the club, and if I do not request a return in writing for 30 days before the expiration of the membership period, I will confirm and consent to it automatically for ten years.”

H. The Plaintiffs filed the instant lawsuit and expressed the Defendant’s intent to withdraw the instant golf club, and each of the instant costs of KRW 210,000,000 (i.e., 180,000,000 + borrowed money + KRW 30,00,000) and damages for delay as stated in the purport of the claim.

[Reasons for Recognition] Facts without dispute, Gap evidence 1 to 4, Eul evidence 1 to 5, and Eul evidence 9 (including branch numbers), the purport of the whole pleadings

2. The parties' assertion

A. The plaintiffs' assertion

According to the previous rules of this case at the time of sale of each member's membership, the member may deposit the membership security deposit with the defendant for five years, and seek the return of the membership security deposit after the expiration of the period.

The plaintiffs succeeded to the qualification of the previous members after acquiring membership rights of the golf club in this case from the defendant around August 2009 to August 201, 201 and obtaining membership fees from the deposited members (hereinafter referred to as "existing members"). Since they can be deemed to be members for whom five years have elapsed from the date of sale of membership rights, the plaintiffs sought the return of membership fees and borrowed money from the defendant.

B. Defendant’s assertion

The Plaintiffs’ acquisition of the instant golf club membership constitutes a new membership of a new member in relation to the Defendant, and thus, the Plaintiffs can seek the return of the said membership fee after ten or five years (the Defendant primarily asserts that the instant amendments were applied to the Plaintiffs, and that the previous rules were applied) have passed since the Plaintiffs were admitted to be a member of the instant golf club. However, the Plaintiffs cannot seek the return of the said membership fee, since ten or five years have not passed since they were admitted to be a member of the instant golf club.

3. Determination

(a) The legal nature of membership and membership fees and the starting point of counting a grace period of membership fees;

(1) The golf club's membership fee is to acquire the membership of the instant golf club, and the agreement on the membership of the instant golf club constitutes a contract for the membership of the said golf club. The main contents of the agreement are to preferentially use the golf club facilities owned and operated by the Defendant and to return the membership fee already paid by the Defendant to the golf club where the operation of the golf club is suspended after the lapse of a grace period, or where the operation of the golf club is suspended. The legal relationship on the deposit membership system is the contractual rights and obligations between the members and the golf club management company that operates the golf club, and the rules on the operation thereof was established by the golf club management company to apply the golf club uniformly to many unspecified persons, and constitutes the content of contractual rights and obligations between the members and the company that wishes to join the golf club, and the provisions on the rights and obligations of the parties, such as the procedure for the transfer and acquisition of membership, are characterized as a standardized contract (see, e.g., Supreme Court Decision 9Da7084, Mar. 10, 200).

(2) Therefore, according to the defendant's rules of each of the instant golf clubs, there are two methods by which the method of acquiring membership of the instant golf club is to pay the defendant directly to the defendant and join a new membership, and to acquire the rights of the existing members. The grounds for losing membership are divided into the transfer of membership and the withdrawal of membership in addition to the expulsion. In the case of membership fees, the security deposit for membership shall be collected for five years or ten years, and the amount shall be returned to the defendant as a security deposit for membership. The right to claim the right to claim the right to return the membership fee is a bond under the condition of suspending the withdrawal. Thus, even though the defendant's each of the instant golf clubs does not have any explicit provision on the duration of membership, the above five years or ten years shall be interpreted as the duration of membership at the same time as the grace period of the membership fee.

Therefore, a person who has paid a membership fee to the defendant and newly acquired a membership fee cannot seek a return of the membership fee to the defendant, except in extenuating circumstances, before five years elapse from his/her membership. However, he/she is disqualified from membership by transfer and is only paid a transfer price in lieu of his/her membership fee paid by the transferee.

(3) Meanwhile, the Plaintiffs, who received membership fees from the existing members and obtained the Defendant’s approval, are new members in relation to the Defendant. However, as seen earlier, the Defendant’s rules stipulate that ① the transfer of membership and the withdrawal of membership are divided into the Defendant’s membership number; ② the number assigned to the Plaintiff is the same as the number of the existing members; ③ there is no reasonable ground to distinguish the case where the Plaintiff seeks the return of membership fees from the previous members in accordance with the previous rules of the instant golf club while the previous members continued to own membership; and the Plaintiff’s claim for the return of membership fees from the previous members in relation to the use of the instant golf club. Considering the circumstances that the Plaintiff would pay the fixed transfer fees at the time of the transfer of membership, the Defendant’s burden is the same; ④ According to Article 17 of the Installation and Utilization of Sports Facilities Act, if the sports facility business entity intends to recruit members, the Plaintiff should prepare and submit the membership fees, and there is no evidence that the Plaintiff submitted such membership fees to the existing golf club from around the time when the Defendant acquired the membership.

(4) Therefore, in the instant case where the Plaintiffs who acquired each of the instant membership rights have sought the return of the membership fees to the Defendant after five (5) years (five (5) years) have elapsed from September 2001 when the existing members acquired the Defendant’s membership, and five (5) years have passed from September 2001 when the previous members acquired the Defendant’s membership, barring special circumstances, the Defendant shall comply with the Plaintiffs’ request.

B. As to the defendant's defense that there was a new agreement on the grace period of the admission fee

(1) The defendant asserts that the plaintiffs' claim in this case is without merit, since they agreed to collect a membership fee for ten years from the date of entry (the date of change of the name) at the time when the plaintiffs acquired each of the membership in this case and applied for membership to the defendant.

(2) First, with respect to Plaintiff 1 and 2, the Defendant: (a) obtained membership rights from an existing member; and (b) prepared and submitted the instant application form to the Defendant at the time when the Plaintiff 1 and 2 applied for the transfer of membership and membership; and (c) as the instant application form states that the consent is given to the bylaws of the instant golf club, Plaintiff 1 and 2 agreed to collect membership fees for ten (10) years pursuant to Article 11 of the Addenda of the instant amendment, which was enforced by the Defendant and the Defendant.

As seen earlier, Plaintiff 1 and Plaintiff 2 who acquired membership rights from the existing members shall be deemed to have succeeded to and acquired the status of the existing members of the instant golf club, rather than newly admitted membership to the instant golf club. As such, even if they agreed to the instant amendment rules in the course of applying for transfer of membership and membership, it shall not be allowed to amend the rules of the instant golf club as amended by the Defendant (it shall not be allowed for the Defendant to amend the rules of the instant golf club to the effect that the rights of the previous members are restricted at will (the instant amendment rules do not have any special meaning as a grace period of the existing members through the proviso of Article 11(1)), since they cannot be deemed to bear the obligation of paying membership fees for ten years, such as the person who paid new membership fees to the Defendant at that time, and thus, the Defendant’s assertion cannot be accepted.

(3) Next, as seen earlier, Plaintiff 3 entered into an agreement with the Defendant to collect 10 years from the date of entry (the date of entry into the title transfer) by way of preparing a written application and a written application for change of name with respect to Plaintiff 3 and submitting it to the Defendant (hereinafter “instant agreement”). As such, the Defendant’s assertion on this part against Plaintiff 3 is with merit.

As to this, Plaintiff 3 argues that the agreement of this case was printed in the 2 application form of this case and the vice versa, and it was not known that Plaintiff 3 purchased Defendant's membership rights through a membership exchange, the content of the agreement of this case is merely a simple example and thus null and void. However, as seen earlier, Plaintiff 3's assertion is not accepted since the content of the agreement of this case is stated in ① the part signed and sealed by Plaintiff 3 in the 2 application form of this case, ② The application form for the change of name prepared by Plaintiff 3 is not only the confirmation of the contents of the agreement of this case by stating that "I are aware of the substance of this case and consent thereto." In light of the fact that most of the written contents are related to the agreement of this case, it cannot be deemed that the contents of the agreement of this case as stated in the 2 application form of this case are merely a simple example.

C. As to the plaintiff 3's second defense that the reason for the withdrawal occurred due to the objection

Plaintiff 3, even if the agreement of this case is valid, Article 17 (1) of the Rules of the Amendment of this case provides that a voluntary withdrawal may be made if it is inevitable for the withdrawal due to the interest of the members, etc. of this case. Since Plaintiff 3 does not reside in Korea due to the present interest, it is alleged that Plaintiff 3 voluntarily surrendered under the above provisions, but there is no evidence to acknowledge this, the above assertion by Plaintiff 3 is without merit.

D. Sub-committee

Therefore, the defendant is obligated to pay to the plaintiff 1 and 2 the amount of KRW 210,00,000 each and the amount of KRW 20% per annum from August 4, 2012 to the date of full payment, which is obvious from August 4, 2012 to the date of delivery of a copy of the complaint of this case. The plaintiff 3's claim against the defendant is without merit.

4. Conclusion

Therefore, the plaintiff 1 and 2's claims are accepted on the grounds of their reasoning, and the plaintiff 3's claims are dismissed on the grounds of their merit. It is so decided as per Disposition.

Judges Ansan-won (Presiding Judge)