Plaintiff 1 and 9 (Attorney Song-dae et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Rate, Attorneys Shin Sung-sung et al., Counsel for the defendant-appellant)

May 18, 2007

Seoul Central District Court Decision 2003Gahap12163 Delivered on December 23, 2004

1. Revocation of a judgment of the first instance;

2. The following facts are confirmed: (a) the golf membership No. 1 on the Defendant’s management ○○ Golf club (the change of name to BBC) indicated on the annexed golf membership No. 1 on the following: (b) the Plaintiff 1; (c) the Plaintiff 2 through 8; (d) the Plaintiff 3; (e) the Plaintiff 11 membership, the Plaintiff 4; (e) the Plaintiff 5; (e) the 12, 13 membership, the 14, and 15 membership, the 16 membership, the 7, the 17, and 18 membership, the 19 membership, and the 19 membership to the Plaintiff 9; and (e) the 20, and the 21 membership to the Plaintiff 10.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Facts of recognition;

The following facts may be acknowledged by comprehensively taking account of the following facts: Gap evidence 1 through 21, 2-2, 4-1, 8, 9, 10, 17, 20, 21, 24, 30, 39, 44, 64, 67, 68-1, 2, 69-1, 2, 2, 3, 3, 3-3, 4-1 through 4, 5-1, 5-2, 6-1, 2, 2-2, 2-3, 2-1, 3, 4-4, 4-1 through 4, 5-1, 2, 6-2, 20-1, 20, 20-1, 20, 20-1, 20 of the testimony of the witness of the court of Gangwon-do:

A. The non-party 1 corporation (the non-party 1 corporation of the judgment of the Supreme Court) established a “Seong Golf club” and the “△△ Golf club” on the land and its surrounding day in the Seocho-gu Seoul Special Self-Governing Province (number 1 omitted), thereby running the sports facility business. On February 7, 1990, the non-party 1 corporation commenced construction work around December 1995 upon obtaining approval of the business plan therefor from the Gangwon-do Governor.

B. When the construction of the above golf course was developed to a certain extent, the non-party 1 corporation reported to the Gangwon-do Governor of Gangwon-do about 30 members per golf club and the recruitment period from February 2, 1998 to February 28, 1998 as shown in the attached Table 2-1 to prepare investment funds invested in the construction project, and reported to the Gangwon-do Governor of Gangwon-do about the change of 30 members with respect to the golf club from the first recruitment of members as the result of the receipt of the above report from February 20, 1998 to February 28, 1998.

C. The non-party 1 corporation accepted the second membership recruitment report on April 1, 1998, on the golf club of this case, 50 persons (in case of the golf club of this case, 30 persons, 20, 150,000 won per person), 40 persons (in case of the golf club of this case, 130,000 won per person, 130,000 won), and the recruitment period from April 10, 1998 to June 9, 1998, and reported the second membership recruitment report as to the golf club of this case, around April 10, 1998, 198, 30,000 won per person per person, 11,170,000 won per person per person, and 10,700,000 won per person per person per person, 10,700,000 won per person per person per person, and 130,000 won per person per report on the change.

D. The non-party 1 Co., Ltd. did not offer the second membership, and it was impossible to pay the construction cost to the creditors of the construction cost because it was difficult to raise funds due to the refusal of the payment of the bill on April 28, 1998. By May 15, 1998, upon receiving a report on the claim from the creditors, the non-party 1 Co., Ltd. notarized a promissory note amounting to the total face value of 25.36,55,000 won for the payment of the bonds. On May 19, 1998, the non-party 1 Co., Ltd. convened the representative meeting of the bond group on May 19, 1998 to pay the total amount of the construction cost as membership. The amount of the subscription price of the bonds shall be reduced to KRW 79,00,000,000 for the bond and the financial bond group shall be the joint principal of the bond and agreed to cover the payment of the bond.

E. On May 198, in order to reduce the membership recruitment amount in accordance with the above contents of the agreement, and to settle the existing debts with the sale price according to the membership recruitment, the non-party 1 corporation made a report on the amendment of the membership recruitment plan to change the membership recruitment period from June 9, 1998 to October 30, 198, with 500 membership fee per head, 79 million membership fee per head, 100 membership fee per head, 79 million membership fee per head, and 79 million membership fee per head, and the Governor of Gangwon-do accepted the report on the amendment of the membership recruitment plan around June 2, 1998.

F. The non-party 1 corporation agreed to collect promissory notes issued for the payment of the construction cost obligation from the creditors of construction cost, who received reimbursement demand from them, and from them, to substitute the construction cost claim as payment in lieu of the membership fee per capita, and agreed to issue golf membership fees for the instant golf club to them.

G. According to the above agreement, Nonparty 1 Co., Ltd. issued membership rights in attached Form 21 (hereinafter “instant membership rights”) on the following grounds: (a) from June 24, 1998 to October 22, 1998, the construction cost holders or the Plaintiffs designated as members who will join the said association; (b) obtained confirmation from the president of the Korea Golf Activity Association; and (c) issued membership rights in attached Table 11 (hereinafter “instant membership rights”).

H. The instant golf club membership is a golf club membership with the principal of all the obligations as a member, such as the right to preferentially use the instant golf club facilities and the right to receive a refund of principal and the payment of usage fees, etc., for five years after depositing a prescribed membership fee, which guarantees the right to preferentially use the instant golf club facilities, and the right to receive a refund of principal when withdrawing from the membership. The instant golf club membership provides that the transfer and acquisition of membership shall be in accordance with the procedures determined by the company, but shall obtain approval from the board

I. On December 3, 1998, the non-party 1 corporation accepted the above change of membership with respect to the golf club in this case from 500 to 520, with respect to the golf club in this case, from 100 to 124, with respect to the membership recruitment period extended from 30 on October 30, 1998 to 31 March 1, 1999. The non-party 1 corporation received the above change of membership with respect to the 1st quarter of 1998, and the non-party 1 corporation reported that the membership recruitment period was not reported in the 1st quarter of 94th quarter of 198 to 3th quarter of 198 to 4th quarter of 198 to 3th quarter of 194 to 94th quarter of 199 to 194 to 3th quarter of 199 to 4th quarter of 199 to 4th quarter of 199.

(j) Meanwhile, Nonparty 3 Co., Ltd., a creditor and mortgagee of Nonparty 1 Co., Ltd., on September 1, 1998, filed an application for the sale of the golf club site of this case with the 3,243,635 square meters [3,319,99 square meters in total (number 1 omitted) and 11 square meters in the 3,319,989 square meters in lots, a total of 76,534 square meters in lots, which were recognized by an auction appraiser as not a land subject to business. As seen thereafter, as seen earlier, as to the entire golf club site of this case, including the 24,783 square meters in lots purchased separately from Nonparty 1 Co., Ltd., Ltd., 9.2% [3,243,635/635 + 24,2783] of the total site of this case, the land bid price of this case was changed to 200 million won as of 29.2985 billion won in auction procedure.

(k) On July 23, 1999, in order to acquire the instant golf clubs, etc., the Defendant entered into a contract with Nonparty 1 Co., Ltd. to take over the business rights of the instant golf clubs, etc. (hereinafter “instant acquisition contract”). On September 15, 1999, the Defendant entered into a contract with Nonparty 1 Co., Ltd. to take over the instant golf clubs, etc. (hereinafter “instant acquisition right”). Accordingly, Nonparty 1 Co., Ltd, upon a special resolution of the general meeting of shareholders and the resolution of the board of directors, acquired the ownership of the said successful bid on February 14, 200, the Defendant acquired the ownership of the said successful bid on February 19, 200, and made a report of succession to the business plan under the former Installation and Utilization of Sports Facilities Act (amended by Act No. 6907, May 29, 200).

(l) The Defendant entered into the instant acquisition contract with Nonparty 1 Co., Ltd., as seen earlier, and on the same day, included seven buildings, such as a club club house, etc., which were under construction on the said golf club business site at the time from Nonparty 1 Co., Ltd., but did not fall under the said business site, but succeeded to the employment of part of the employees who did not leave the said 50 persons from among the employees of Nonparty 1 Co., Ltd., for the total land of 3,898 square meters, including the total land of 522 square meters, and the total land of 592,097 square meters and the total land of 44 square meters, adjacent to the instant golf club, and the total land of 592,885 square meters and the site of access road.

(m) At present, the Defendant completed the golf club of this case, and changed its name into “Burieeebale club” and operates it.

2. Determination

A. Validity of the membership agreement of this case

(1) Comprehensively taking account of the purport of the statement in Gap evidence No. 8, the golf club of this case provides that the membership fee shall be acquired by obtaining the membership fee from the person who wishes to become a member after paying the membership fee and obtaining the approval of the company through the prescribed membership procedure. In addition, there are no special provisions such as cash payment method. As seen earlier, so long as the above creditors of the construction fee pay the membership fee in lieu of the membership fee with the approval of the non-party No. 1 corporation under the payment agreement between the non-party No. 1 corporation and the non-party No. 1 corporation, and receive the membership fee in lieu of the membership fee, it is reasonable to view that the above golf club membership agreement between the non-party No. 1 corporation and the above creditors of the construction price were valid for each of the above golf club's membership agreement regarding the above membership [this case's membership fee No. 9, No. 10-1, No. 38 through 45, No. 48-1, 50, etc., and No. 57 are found to be found to have the defendant's.

(2) The defendant asserts that the sales contract of this case's membership was concluded by a false declaration of intention between the parties, but there is no evidence to acknowledge it, and the above assertion is without merit.

(3) The defendant asserts that the membership of this case is not protected in accordance with the legal provisions because the contract is concluded in accordance with the procedure stipulated in Article 19 of the Act or the membership is not issued.

Pursuant to Article 19 of the Act, the Enforcement Decree, and the Enforcement Rule thereof, where a person who intends to operate a golf course facility business recruits members, he/she shall prepare and submit a membership recruitment plan within a certain extent out of the investment expenses, and a Mayor/Do Governor shall prepare and submit a membership recruitment agreement, business facility installation completion certificate, and a total amount of membership recruitment to the Mayor/Do Governor by the specified date prior to the commencement of membership recruitment. The Mayor/Do Governor shall review the submitted member recruitment agreement and the documents attached thereto, and notify the other party of the results thereof within 10 days from the date of receipt, and shall issue an order for correction if there is corrective matters among the contents of the member recruitment plan, and the person who submitted the member recruitment plan shall prepare the status of membership recruitment (including the number of members and amount of membership recruitment) as of the end of each quarter and report it to the Mayor/Do Governor by the 10th day of

However, as recognized earlier, the non-party 1 corporation, unlike the details of the second alteration plan of the second alteration plan reported to the Gangwon-do Governor, has recruited corporate construction price creditors as members, and has been reduced to 70 million won, and the membership fee was reduced to 70 million won. The non-party 1 corporation reported to the Governor of Gangwon-do that there was no member recruitment at the first time in February 4, 1999, but did not comply with the above law, such as correcting the status of member recruitment at the 3/4 quarter of the same year and additionally reporting the status of member recruitment at the 2/4 quarter.

However, golf membership with a deposit system is derived from the formation of a membership agreement. The membership agreement is established upon the consent of an individual or corporation who wishes to attend as a matter of principle by a golf club facility business operator. Article 19 of the Act and other relevant provisions stipulate procedures for promoting the sound fostering and development of sports facility business by preventing sports facility business operators, such as a golf club facility business operator, from causing harm that may arise from the recruitment of members or the remaining issuance of membership membership without being equipped with facilities, and establishing a desirable order of membership recruitment. Thus, even if Non-Party 1 did not properly comply with the details of the procedure, such as where he/she engaged in solicitation different from the reported contents of the membership recruitment plan or failure to observe the statutory period, it cannot be said that the above contract becomes null and void, or that the instant membership certificate issued under the above contract cannot be protected pursuant to Article 30 of the Act.

Therefore, the defendant's above assertion is without merit.

B. Whether the defendant succeeded to the membership of this case

(1) Article 30(1) of the 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 established by the merger shall succeed to the rights and duties following the registration or report of the relevant sports facility business (including the matters agreed upon between the sports facility business operator and his/her members where members are recruited under Article 19),” and Paragraph (3) thereof provides that “The provisions of paragraph (1) shall apply mutatis mutandis to the succession of the approval of a business plan under Article 12.”

However, the term "transfer of business of a sports facility business entity" under Article 30 (1) of the Act means "transfer of human resources and material resources organized to carry on the business of installing and operating sports facilities for profit-making purposes to a whole unit while maintaining their identity." Paragraph (1) of Article 30 of the Act applies mutatis mutandis under Article 30 (3) of the Act, but the term "transfer of business as a requirement for succession of rights and obligations pursuant to the approval of a business plan before the completion of the construction of sports facilities as a whole means "transfer of human resources and material resources organized for the purpose of completing the construction of sports facilities for the purpose of registering the sports facilities for the purpose of maintaining their identity as a whole" (see Supreme Court Decision 2004Da10213, Oct. 28, 2004; Supreme Court Decision 2004Da10213, Oct. 28, 2004; Supreme Court Decision 2000Da31020, Feb. 12, 2002>

(2) Therefore, the following circumstances acknowledged by the above facts are as follows: the defendant was established for the purpose of acquiring the golf club of this case; the defendant's participation in the auction procedure; the acquisition of sports facility business before the decision to permit a successful bid; and the acquisition of ownership of land subject to auction due to the full payment of successful bid price; the participation in the auction procedure to acquire most of the site of this case and the succession to the business plan of this case to the effect that the other golf club businesses are acquired, etc. of this case were conducted through a separate procedure in law; however, the defendant succeeded to the business plan of this case from the non-party 1 corporation, but it seems that most of the site of the golf club of this case were acquired through the above auction procedure; in light of the overall transfer process of the golf club of this case and its contents; and the subsequent progress, the defendant continued to acquire the right to the golf club of this case from the non-party 1 corporation with the purpose of completing the construction of the golf club of this case; therefore, the defendant is deemed to have succeeded to the right to the golf club of this case.

(3) Therefore, the plaintiffs received the instant golf club valid under the provisions of the Act, and the defendant received the transfer of business as to the instant golf club from the non-party 1 corporation. Thus, the plaintiffs are members based on the instant golf club operated by the defendant, and as long as the defendant is dissatisfied with this, the plaintiffs are entitled to the benefits of confirmation.

3. Conclusion

If so, all of the plaintiffs' claims are justified, and the judgment of the court of first instance is unfair with different conclusions, so it is revoked, and all of the plaintiffs' claims are accepted. It is so decided as per Disposition.

[Attachment 1, 2-1, 2-2]

Judges Don-Cung (Presiding Judge)