예탁금제 골프장 회원권 부인으로 인한 손해의 산정—대법원 2015.1.29. 선고 2013다100750 판결을 중심으로—

Abstract

Depending on the company in operation, golf clubs hold various types of membership program, which can be classified into three types: incorporated association type, shareholder type and deposit type member- ship. In Korea, the majority of the golf clubs operate under the deposit type membership. The deposit type golf membership entails one to deposit an admission fee and use the golf courses and facilities as a member. As the legal nature of the golf club membership is a contractual right, under the circumstance that the owner of the golf club denies an individual's golf membership, a liability for damages is warranted by default. However, it is not immediately considered a neglect of obligations that a golf club operator denies all of the accumulated memberships. In the case of a view that recognizes the repudiation of contract as a type of independent contract breach, there is still a question as to whether the repudiation of contract itself can be compensated for, and the criteria for calculating the claim. On another note, damages caused by failure to exercise the rights as a member is similar to the case where a person who has the right to use a facility is unable to use the facility. In the event of the destruction or damage of properties due by torts, the cost of procuring substitutes and the amount equivalent to rents are recognized as ordinary damages. Therefore, it would be reasonable to apply this lost use theory to determine the equivalent amount of the rent for membership in the case of denied deposit type membership. The Supreme Court Decision 2013DA100750 delivered on Jan 29, 2015 also recognizes the damages caused by the denial of the status of a member as "damage caused by loss of use due to failure to exercise rights". This is significant in that it provides a specific criteria for calculating the loss corresponding to the rent in the absence of membership lease. Meanwhile, the Supreme Court ruled that golf membership with deposit money has a legal nature as Bailment subject to Consumption. In addition, it was pointed out that the damage was calculated by the rate of interest at a fixed deposit rate based on the market price of golf membership or admission fee and is not considered as ordinary damages. However, it seems reasonable to assume that the admission fee is in a legal relationship similar to a lease deposit, rather than a Bailment subject to Consumption, as it guarantees membership and is intended to be paid in exchange for the preferential right of use for the facility. In addition, it is true that the plaintiffs' acquisition of membership rights is due to the reimbursement of the existing bonds, and that at the time of membership acquisition, the investment value of golf membership was significantly higher than now. Therefore, it is necessary to consider these aspects together in determining the damage caused by a denied golf club membership.