담보신탁계약에 의한 공매 등 매각절차에서 골프장시설을 취득한 자의 입회보증금반환채무 승계 여부-대법원 2018.10.18. 선고 2016다220143 판결-

Since security trust is used a lot as a means of security for credit, various legal problems occur accordingly. The one which became an issue from the earlier times among these problems was whether the rights and obligations under the private laws between sports facilities operator and members as well as the rights and obligations under the public laws established in relation to sports facilities business were succeeded to and by a business assignee or a sports-required facilities undertaker, if sports facilities business or sports-required facilities were assigned to another person by a public auction sale or a private contract due to a real property security trust. In this regard, the Supreme Court 2016da220143 decision rendered on October 18, 2018 expressly stated that the public auction sale due to security trust fell under Article 27 Paragraph 2 No. 4 of the Installation and Utilization of Sports Facilities Act, admitting the undertaker’s succession to the member agreement. The conclusion of targeted decision is reasonable in that there are no substantial differences to distinguish the cases of a public auction sale or a private contract based on the security trust agreement under the Trust Act from the auction procedures for the execution of security rights as provided in Article 27 Paragraph 2 No. 1-3 of the Installation and Utilization of Sports Facilities Act. On the other hand, the purpose of rehabilitation procedure is intended to regulate the legal relations of stakeholders including creditors, shareholders against debtor on the verge of bankruptcy due to financial difficulties and promote the efficient rehabilitation of debtor or business thereof (the Debtor Rehabilitation And Bankruptcy Act, Article 1). However, in the event of assignment of a golf course, the sports-required facilities as described in the case of rehabilitation of a membership golf course, if the rights and obligations due to the register or report of sports facilities business pursuant to Article 27 Paragraph 2 of the Installation and Utilization of Sports Facilities Act as well as the rights and obligations under the private law-based agreement between sports facilities operator and members are succeeded to and by an assignee, it may result in depriving the debtor of opportunities for rehabilitation. Most of the membership golf courses in Korea are operated as an admission fee membership, which refers to the right which entitles the member to use golf course facilities preferentially (the right to use golf course facilities), and receive the return of the already-paid admission fee if any causes of contractual expiration for membership occur including withdrawal or termination of agreement (the right to claim for return of admission fee). The provision in Article 27 Paragraph 2 No. 1-3 of the Installation and Utilization of Sports Facilities Act admitting the succession of the rights and obligations under the private law-based agreement between sports facilities operator and members does not conform to the system of the Debtor Rehabilitation And Bankruptcy Act in case of property realization under the Debtor Rehabilitation And Bankruptcy Act. Therefore, in case of property realization under the Debtor Rehabilitation And Bankruptcy Act, it is required to legislatively stipulate a provision not to admit the succession of the rights and obligations under the private law-based agreement between sports facilities operator and members.