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(영문) 대전고등법원 2006. 9. 21. 선고 2006누93 판결
[골프장회원권모집계획승인처분취소][미간행]
Plaintiff and appellant

Plaintiff (Law Firm Young, Attorneys Yoon Young-young et al., Counsel for the plaintiff-appellant)

Defendant, Appellant

Do Governor of Chungcheongbuk-do

Intervenor joining the Intervenor

Defendant Intervenor (Attorney Cho Jae-chul, Counsel for the defendant-appellant)

Conclusion of Pleadings

August 31, 2006

The first instance judgment

Cheongju District Court Decision 2005Guhap1416 Decided December 16, 2005

Text

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff, including the costs of supplementary participation.

Purport of claim and appeal

The judgment of the first instance shall be revoked. The defendant's disposition of approving the recruitment of golf course members against the Intervenor joining the Defendant on October 16, 2004 (hereinafter referred to as "participating") shall be revoked.

Reasons

1. Details of the disposition;

A. On September 11, 1989, Nonparty 1 Co., Ltd. was established for the purpose of golf club business, real estate leasing business, and business incidental thereto. In order to construct a golf course (hereinafter “instant golf course”) on the ground of Chungcheong City (hereinafter omitted), Nonparty 1 Co., Ltd. (hereinafter “instant golf course”) conducted construction work from around November 1, 1989 with the approval of the business plan for golf course construction from Defendant around 190, and defaulted on January 1, 1997.

The non-party 1, from April 20, 1992 to May 26, 1997, shall invite its members after setting the total amount of membership recruitment within the limit of the expenses invested in the installation of business facilities and submitting it to the defendant. The non-party 1, as of February 28, 1997, about 56,321,821,747 won as to the total amount of membership recruitment within the limit of 58.137 billion won until February 28, 1997, the non-party 1, as of July 3, 1997, the total number of membership recruitment was 46.45 billion won, 194 (the non-party 1,49 members, the non-party 1, the non-party 1, the total number of membership recruitment was 9.7 billion won to the defendant, and the non-party 1, the non-party 1,979 members recruitment period was 9.7 billion won to invite its members.

B. Meanwhile, the non-party 2 corporation was established for the purpose of selling and brokerage business of golf membership on October 8, 1991, and agent business of domestic and foreign golf courseing. The non-party 1 corporation prepared an agreement (Evidence 5-1, hereinafter "Agreement") and a transfer and takeover agreement (Evidence 5-2, 3) signed on June 24, 1997 between the date of preparation and the non-party 1 corporation, and authenticated the above agreement on July 22, 1997.

The contents of the above agreement are as follows: “Non-party 1 corporation shall pay 8.5 billion won (2.5 billion won (2.5 billion won) out of the 2.5 billion won (2.5 billion won) price of the bill to the non-party 2 corporation; Non-party 1 corporation shall pay 98 copies of 98 (12-247-247-12-344) the face value of 100 million won (7.20 million won (7.5 million won number: G04-50-946-96) to the non-party 2 corporation; the non-party 1 corporation shall have all rights to the substitute goods; the non-party 2 corporation shall have the right to deposit money and its substitute goods with the non-party 1 corporation on July 19, 1997 upon deposit with the non-party 1 corporation on a regular basis or upon deposit with the non-party 2 corporation on a deposit basis of the above general agreement to the non-party 1 corporation on July 19, 1997.

Meanwhile, the above transfer/acquisition agreement states that the non-party 2 corporation received the first agreement membership from the non-party 1 corporation, and the non-party 5 who was registered as the representative director of the non-party 2 corporation at the time is currently the plaintiff's auditor, who was registered as the representative director of the non-party 1 corporation at the time.

C. After that, in order to recruit members on October 28, 200, the non-party 1 corporation prepared a membership recruitment plan with "146 regular recruitment members, 10.22 billion won for recruitment, and 10.2 billion won for recruitment period from November 8, 2000 to September 30, 2001 (hereinafter "8th membership recruitment plan")" and submitted it to the defendant on November 7, 2000. However, on November 21, 2000, it was impossible for the non-party 2 corporation to invite members within the above provisional disposition period due to the provisional disposition against the non-party 1 corporation as Seoul District Court Decision 2000Kahap3181, which was filed against the non-party 1 corporation. The non-party 1 corporation failed to invite members within the same period as above.

D. The plaintiff (hereinafter referred to as "the plaintiff") was originally established for the purpose of installment financing business and credit card business on December 26, 1996, and added golf, container, officetel, and other sports membership sales and sales agency business on January 14, 1999. On July 28, 2001, the non-party 2 and the non-party 2 agreed that "the non-party 2 shall pay 4.5 billion won to the plaintiff by August 31, 2001, and if the non-party 2 are unable to repay the debt by the above date: the non-party 1 corporation's golf membership, recruitment members: 146 persons: 70 million won for each of them, and 70 million won for recruitment period, and the non-party 2's ownership agreement shall be reverted to the plaintiff on November 201, 200, and the non-party 2 shall belong to the plaintiff (the above agreement shall be referred to as "the non-party 2's ownership of the above golf agreement" (the above agreement).

E. The Intervenor (hereinafter “Plaintiff”) participated in the voluntary auction procedure conducted on December 1, 2003 and acquired ownership by fully paying the price on July 1, 2004, when the dispute surrounding the establishment and operation of the instant golf course was continued and its normal operation became difficult. Thus, the Intervenor (hereinafter “Plaintiff”) was established around January 200 by converting Nonparty 1 Co., Ltd.’s Consultative Council composed of Nonparty 1 Co., Ltd. around early 200 in order to promote the normal operation of the golf course and protect the rights and interests of its members.

F. Meanwhile, the non-party 2 corporation filed a lawsuit against the non-party 1 corporation seeking the delivery of the non-party 1 corporation as Seoul District Court 2001Gahap10859, and on September 3, 2004, the settlement was concluded between the plaintiff and the plaintiff who succeeded to the lawsuit as the creditor of the non-party 2 corporation, the non-party 1 corporation and the non-party 2 corporation, and the non-party 1 corporation issued the non-party 2 membership certificate to the plaintiff on the same day.

G. On September 8, 2004, the intervenor filed an application with the defendant for the approval of the change of the business plan from Non-Party 1 to Non-Party 8 and 9, and on September 9, 2004, the intervenor filed a notification of the change of the trade name and representative with the defendant on September 14, 2004, 199 (the number of 1,393 members (448 members, 945 members, 249 members, 945 members) out of the total number of 1,393 members recruitment plan (the number of members, 249 members, 995 members), the recruitment amount of 9.95 million won, and the recruitment period from Non-Party 7 to non-party 8 and 9, and submitted the recruitment plan from the defendant on October 21, 2004 to the defendant on October 14, 2004, and submitted the recruitment plan to the defendant under subparagraph 90 (the above 9.200th members recruitment).

H. On November 20, 2004, the Plaintiff filed an administrative appeal with the Minister of Culture and Tourism seeking revocation of the approval of the recruitment plan of this case, but was dismissed on June 1, 2005, and on December 28, 2004, the Plaintiff filed an application for the provisional injunction against the sale of golf membership against the Intervenor as Cheongju District Court 2004Kahap186, Cheongju District Court 2004 (Evidence No. 14), but the appeal was dismissed on November 8, 2005 (Evidence No. 14), but the appeal was dismissed on November 8, 2005 (Evidence No. 9) and the appeal was dismissed on January 27, 2006 (Evidence No. 10).

[Reasons for Recognition] Facts without dispute, Gap evidence 1 through 5, 8, 13 evidence, Eul evidence 1 to 11, 14, Eul evidence 1, 2, 6 through 12 (including each number), part of the testimony and the whole oral argument of the non-party 10 witness of the party.

2. The plaintiff's assertion

The plaintiff already acquired the status as a member of the golf course of this case included in the scope of the approval of the 8th recruitment with the defendant's 7th recruitment approval and the above recruitment approval prior to the conclusion of the golf course of this case. The plaintiff asserts that if the non-party 1 corporation's 46 billion won and the 10.2 billion won per share of the non-party 2 corporation succeeded to by the plaintiff aggregate the total recruitment amount of 56.26.5 billion won per share of the non-party 2 corporation's membership prior to the approval of the 7th recruitment with the above recruitment approval, the non-party 1 corporation already acquired the membership of this case as a member of the golf course of this case, which is included in the scope of the 1st recruitment approval and the above recruitment approval, prior to the conclusion of the 1st recruitment agreement and the above recruitment approval, the non-party 1 corporation's 56.26.5 billion won per share of the existing recruitment approval of the membership of this case should be revoked by the plaintiff's prior approval of the existing recruitment plan of this case.

3. Relevant statutes;

The entries in the attached Table-related statutes are as follows.

4. Whether the lawsuit in this case is lawful

A. The defendant's main defense

The defendant, on December 1, 2003, already lost all essential facilities, such as the golf course site and the golf club room, and was unable to promote the golf course business, and on September 3, 2004, the defendant did not have a status to issue the golf course membership. Since the 8 period of membership recruitment for the non-party 1 corporation terminated on September 30, 2001, the non-party 1 corporation issued a golf course membership on September 30, 2004, and thus, it cannot be deemed that the plaintiff acquired legitimate golf membership because it cannot be deemed a legitimate membership. Even if the approval of membership recruitment plan of this case is revoked, the plaintiff cannot acquire membership because it does not have a right to issue membership to the non-party 1 corporation, and the plaintiff as a third party does not have a legal interest to seek revocation of the membership recruitment plan of this case against the intervenor. Thus, the plaintiff asserts that the lawsuit of this case is unlawful.

B. Determination

(1) According to the Installation and Utilization of Sports Facilities Act (hereinafter “Act”), “member” means a person who has agreed with a sports facility business entity (including a person who has obtained approval of a business plan under Article 12) to bear the costs invested in the installation of a sports facility business and to preferentially use the facility (Article 12). Meanwhile, according to Article 2 Subparag. 4 of the Act attached to Article 9 of the Act, “A member may use facilities attached to a golf course or golf club operated by the company for conditions and treatment more favorable than ordinary non-member members (Article 16 Subparag. 1); and “A member shall have priority rights to use all kinds of facilities and may use them under mutual convenience in connection with other golf courses or golf clubs (Article 16 Subparag. 3); while a member shall pay a fee to the company under Article 17 subparag. 1 of the Act, if he/she faithfully complies with the rules and the terms and conditions of use of the golf club and its rules.”

In full view of the above provisions, a golf course member has the obligation to bear the expenses invested in the establishment of facilities for the sports facility business and has the right to preferentially use the facilities. Meanwhile, since the rights and duties of a member occur under the relevant statutes or an agreement with the sports facility business operator, a member shall have the rights and duties of a sports facility business operator in accordance with the relevant statutes or the said agreement.

(2) The approval of the recruitment plan of this case is a beneficial administrative act that serves the validity of the golf course membership recruitment plan applied by the defendant to the non-party 1 corporation as a result of supplementing the validity of the golf course membership recruitment plan applied by the defendant to the non-party 1 corporation, and it is an administrative disposition subject to appeal litigation. On the other hand, even if a third party who is not the other party to an administrative act directly has a legal interest in seeking the revocation of the administrative disposition, standing to sue is recognized. However, legal interest here refers to a case where there is a direct and specific interest protected by the law based on the relevant disposition, but it does not include cases where it is merely an indirect or factual interest (see Supreme Court Decisions 98Du18404, Jan. 16, 2001; 96Nu10614, Jun. 11, 199; 94Nu12487, Mar. 8, 1996, etc.).

According to the above facts, the application for approval of the membership recruitment plan of this case was made by the intervenor on October 14, 2004 and the opposing party to the disposition of the membership recruitment plan of this case is obvious. Thus, even if the plaintiff succeeded to the approval plan of the golf course business of the non-party 1 corporation or non-party 1 corporation as alleged by the plaintiff, the plaintiff was not subject to the disposition of membership recruitment plan of this case, and even if the plaintiff's assertion was made, the plaintiff has preferential rights to the above golf course facilities as a member of the above golf course. Thus, as long as the plaintiff is not the opposing party to the disposition of membership recruitment approval of this case, it is difficult to view that the plaintiff was affected by the disposition of membership recruitment approval of this case's membership recruitment plan of this case as a member of the golf course of this case, and it is reasonable to view that the plaintiff's right to use the golf course of this case was damaged indirectly or indirectly due to the decrease in the frequency of usage of the golf course due to the increase of the members' membership recruitment plan of this case.

[B] Even if it is acknowledged that the non-party 2 corporation has standing to sue to seek revocation of the approval of the membership recruitment plan of this case, in order to acquire the membership of the golf course of this case operated by the non-party 1 corporation, the non-party 2 corporation should pay the membership fee to the non-party 1 corporation and obtain the membership certificate through the prescribed procedure. However, according to the above facts, the non-party 1 agreement is not a regular membership agreement with the purport that the non-party 2 corporation should be present as a golf course member of the non-party 1 corporation, but it is merely an agreement with the purport that the non-party 2 corporation would acquire the membership fee and transfer the membership fee to the non-party 2 corporation as well as the non-party 1 corporation's membership membership payment to the non-party 1 corporation under the above agreement on behalf of the non-party 1 corporation, and it is difficult to view that the non-party 2 corporation acquired the right to the non-party 2 corporation's membership qualification under the pertinent law as a security right of the plaintiff 1.

5. Conclusion

Therefore, the lawsuit of this case shall be dismissed in an unlawful manner, and the judgment of the court of first instance is just in its conclusion, and the plaintiff's appeal against it is dismissed as it is without merit. It is so decided as per Disposition.

Judge Sung Pung-sung(Presiding Judge)

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