담보신탁에 따른 공매절차에 대한 체육시설법 제27조의 적용 여부 - 대법원 2018. 10. 18. 선고 2016다220143 전원합의체 판결 -

The Supreme Court En Banc made a decision for the first time regarding the case 2016Da220143 ruled on Dec. 18th 2018 that is about recent dispute over the golf club membership, of whether the succession regulation of Article 27 of Sports Facilities Act had been applied in the public sale procedure for collateral trust. The majority opinion concluded that Article 27 of Sports Facilities Act also applies to the public sale procedure for collateral trust based on the demonstration of legislative purpose, statutory interpretation and procedural similarity. The conclusion of this judgment is agreeable for the following reasons besides the arguments that has been elaborated by the majority. Since it is clear that the purpose of legislation of Article 27 of Sports Facilities Act is to protect the rights of sports club members, it is appropriate to interpret the law in accordance with the obvious intention of the legislator. Also, in determining the procedural similarity with other systems, the substantiality should be more emphasized than the formality. The substance of a collateral trust can be regarded as a collateral, and it is doubtful whether it is appropriate to fully recognize the bankruptcy remoteness of the collateral trust. Furthermore, the theory of succession may not only effectively resolve the disputes among interested parties, but is also appropriate in terms of comprehensive interest balancing among the persons concerned. However, Article 27 of Sports Facilities Act also needs to be partially complemented in the aspect of legislation, and it is necessary to prepare measures in order to solve remaining problems that are not settled even with the conclusion of this judgment.