[1] Under the single intent of continuing a business conducted for the purpose of registering the sports facility business by completing the construction of the sports facility, a part of the business asset is acquired by being awarded a successful bid in the auction procedure, and the remaining assets and goodwill, etc. are acquired by a contract for acquisition by transfer concluded with the previous business operator, whether it constitutes “business transfer” under Article 30(1) of the former Installation and Utilization of Sports Facilities Act (affirmative)

[2] Whether the submission of a membership recruitment plan and the submission of membership recruitment, but the method of recruitment is different or not reported to the competent administrative agency, may affect the validity of membership contracts (negative), and whether the so-called “deposit-based golf course” restricts the membership fees payment method (negative in principle)

[1] Article 30 (1) (see current Article 27 (1)) and (3) (see current Article 27 (3)) of the former Installation and Utilization of Sports Facilities Act (amended by Act No. 6907 of May 29, 2003) / [2] Article 17 (1) and (3) of the Installation and Utilization of Sports Facilities Act

[1] Supreme Court Decision 2005Da5379 Decided November 23, 2006 (Gong2007Sang, 26) Supreme Court Decision 2007Da38663 Decided July 9, 2009 / [2] Supreme Court Decision 2008Da49844 Decided July 6, 2009

Plaintiff 1 and one other (Law Firm Jeong, Attorneys Kim Gyeong-hee et al., Counsel for the plaintiff-appellant)

C&L Development Co., Ltd. (Law Firm L&B Partners et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2012Na27935 decided September 11, 2013

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Article 30(1) of the former Installation and Utilization of Sports Facilities Act (amended by Act No. 6907 of May 29, 2003; hereinafter "the Act") provides that the rights and obligations under the existing recruitment agreement shall be succeeded to a transferee of a business in the case of a transfer of a business, etc. of a completed sports facility in order to protect members more strongly than general creditors. For the same reason, Article 30(3) of the Act provides that the above Paragraph (1) shall apply mutatis mutandis to succession of a business plan accompanied by a transfer of a business, etc. before the completion of the sports facility. A single intention is to continue a business conducted for the purpose of the registration of a sports facility business after completion of the construction of the sports facility by succession of a new facility from a previous business operator. On the other hand, some assets for business are acquired through a successful bid in the auction procedure, and the remaining assets for business and goodwill are acquired through a series of acquisition contracts concluded with the previous business operator, and thus, the entire business is deemed to have been transferred as one with the previous business operator’s identity.

According to the judgment of the court of first instance, the court below accepted the judgment of the court of first instance that the defendant was established for the purpose of acquiring the golf club in this case; the defendant's participation in the auction procedure; the defendant's acquisition of sports facility business prior to the determination of successful bid price; and the acquisition of ownership in the land subject to auction due to the full payment of successful bid price; the defendant's participation in the auction procedure to acquire most of the site of the golf club in this case; and the succession of the contract and the business plan plan to acquire the right to the golf club, etc. to acquire the right to the golf club in this case, has been carried out as a separate procedure, but the contract and the succession of the business plan to acquire the right to the golf club in this case had been carried out at the same time, but the defendant succeeded to the business plan of this case from the new leisure industry corporation (hereinafter referred to as the "Dong Leisure"), which had been premised on the acquisition of most lots of the site of the golf club in this case through the above auction procedure; in light of the whole, the defendant was transferred the business plan and its identity with the previous golf club 30.

In light of the above legal principles and records, the judgment of the court below is just and acceptable, and there is no error in the misapprehension of legal principles as to the limitation of transfer of business or general succession liability under Article 30 (3) and (1) of the Act, as otherwise alleged in the ground of appeal.

2. Regarding ground of appeal No. 2

Even if a membership recruitment plan is submitted and the recruitment method is different or the recruitment status is not reported to the competent administrative agency, it is reasonable to deem that the validity of membership agreements concluded between a sports facility business entity such as a golf course and a member is not affected. Since a membership agreement is established in a golf course as a claim agreement between a golf course facility business entity and a member, the membership agreement is not limited unless otherwise provided in a membership recruitment agreement, etc. (see Supreme Court Decision 2008Da49844, Jul. 6, 2009, etc.).

In full view of the circumstances stated in its reasoning, the court below determined that even if the agreement of June 24, 1998 was refused to recognize the status of a member from the transferee of the golf club on the ground that the defendant had already refused to accept the status of a member on the ground that the defendant had not succeeded to the right and duty of the member due to the payment of the construction price, the agreement is deemed not to be a security for the payment of the construction price to the creditors, but is an agreement to issue the membership of the golf club in lieu of the repayment of the debt. Since the non-party 1 and the non-party 2 issued the membership in this case pursuant to the agreement, they shall be deemed to have paid the membership fee with the intent to join the members of the golf club in this case, and unless there are special circumstances that the rules of the golf club in this case provide that the defendant shall obtain the approval of the company's transfer and acquisition of the membership in this case, and that the defendant did not have any obligation to reject the application from the defendant under the objective circumstances that the plaintiffs had to reject the application.

In light of the above legal principles and records, the judgment of the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the legal effect in the case of failure to approve the board of directors due to the interpretation of Articles 2, 30 (1) and (3) of the Act or the acquisition of membership rights or contrary to the reasoning

3. As to the third ground for appeal

The lower court determined that: (a) the golf club rules of this case did not stipulate any restriction on the payment of the membership fee in a certain manner; and (b) there is no ground to view that the membership fee should be actually deposited in cash; and (c) the payment of the membership fee can be substituted with the bonds for construction payment; and (d) if the payment of the membership fee is substituted with the bonds for the construction payment,

In light of the relevant legal principles and records, we affirm the judgment of the court below, and there is no error in the misapprehension of legal principles as to the requirements for the claim for refund of membership fee and the scope of return, as otherwise alleged in the ground of appeal.

4. As to the fourth ground for appeal

For reasons indicated in its holding, the lower court rejected the Defendant’s claim for the completion of extinctive prescription against the Plaintiffs’ right to claim the return of membership fees, on the grounds that there is no evidence supporting the Defendant’s refusal of the Plaintiffs’ membership status or the request for the use of the golf course facilities, and there is no other ground to deem the statute of limitations run.

In light of the relevant legal principles and records, the judgment of the court below is just, and there is no error of law by misapprehending the legal principles as to the starting point of extinctive prescription.

5. Ground of appeal No. 5

For reasons indicated in its holding, the lower court determined that the Defendant is liable for delay of performance from the time when it received a declaration of intention of withdrawal from the Plaintiffs and a claim for refund of the membership fee, on the ground that the obligation of the Defendant to return the membership fee and the obligation of the Plaintiffs to return the membership fee are in simultaneous performance relationship, but this is aimed at preventing

Examining the records in light of the relevant legal principles, such judgment of the court below is just, and there is no error of law by misapprehending the legal principles as to the simultaneous performance defense and the liability for delay of performance as otherwise alleged in the ground of

6. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Ko Young-han (Presiding Justice)