체육필수시설에 관한 담보신탁계약에 따른 공매와 회원에 대한 권리·의무의 승계- 대법원 2018. 10. 18. 선고 2016다220143 전원합의체 판결 -

Abstract

It was called into question whether the buyer succeeds the rights and responsibilities of members when a sports facility is transferred through a collateral trust property auction. The matter was considered in the 2018 Supreme Court decision, where the majority opinion ruled that the person who takes over an essential sports facility succeeds the rights and responsibilities related to registration or notification, because when the facility that is used as a collateral is sold through a competitive bidding process or a private contract, such a sale process falls under Article 27 Section 2 Clause 4 of Sports Facilities Act. We review if it is necessary to preferentially protect the membership holders among various creditors when essential sports facilities are transferred. According to the majority opinion, if we deny the succession of enrollment fee liability to the member in a public sale process that is based on collateral trust, it results in an unreasonable outcome where the person who acquires the essential sport facility does not take over the enrollment fee liability, even when the economic value of the facility was increased. The legal theory of the majority opinion can also be applied to cases where liabilities of various creditors, such as creditors of construction costs, were undertaken. Due to the identical outcome, it is not necessary to preferentially protect the members by separating membership holders from creditors related to other aspects of the business. And we review from the perspective of transaction safety if it is reasonable for the buyer of the facility to succeed the rights and responsibilities of members. In order to protect transaction safety at the public sale stage of trust, it is reasonable to conclude that he does not succeed the rights and responsibilities of members if the requisites for counteraction are not fulfilled.