The law firm Cheongchul (Lead attorneys: Park Jong-han, Bae Gi-hyung) recently proceeded with compulsory execution procedures against an affiliate that jointly guaranteed the obligation to return the deposit under the membership contract linked to a membership golf course and resort facilities, and obtained a victory in a lawsuit rejecting all claims of the plaintiff in a lawsuit filed by the affiliate, who is the joint guarantor, against the compulsory execution.

• The client, a large corporation, wanted to hold a non-named golf course usage right for business needs, and coincidentally, a company called L Resort was selling a product that allows access to a golf course operated by its affiliate upon signing a membership contract for its resort facilities. Therefore, the client entered into a membership contract for the resort facilities sold by L Resort and simultaneously signed a special agreement stating that I Development Company, a special relationship company (with the same CEO) of L Resort, would jointly guarantee the membership deposit under the membership contract.

• Subsequently, a voluntary auction for the resort operated by L Resort was applied for, and in that auction process, a company called B Spaland acquired the resort and obtained ownership. However, B Spaland had no financial capacity, and on the other hand, a rehabilitation process was initiated for I Development Company.

• In this situation, the client requested the return of the deposit from I Development Company, as it had jointly guaranteed the deposit return claim under the membership contract between the client and L Resort. In contrast, I Development Company argued that since ownership of the resort was transferred due to the auction and that B Spaland, under Article 8 Paragraph 2 of the Tourism Promotion Act, assumed all obligations including the deposit return obligations towards the resort members, it had no further joint guarantee obligations.

• Later, the client executed compulsory execution on the assets of I Development Company, and I Development Company filed an objection to that compulsory execution and initiated a lawsuit for objection against the claim.

If the opposing party's claims were accepted, the client would no longer be able to hold I Development Company liable for the joint guarantee regarding the deposit return claim related to the membership contract, and since the main debtor, B Spaland, had no financial capacity, the client was at risk of losing their deposit (membership fee) for the membership contract of the resort.

In relation to the above, Cheongchul argued that,

1. in the case of continuous contractual relationships, strong reliability is required between the parties, and in the case of lease contracts, when the lessor changes, the lessee has the right to object to the succession of the lease relationship.

2. Similarly, it should be noted that under the Tourism Promotion Act, if tourism business facilities are acquired, a member of the tourism business facility can escape from the binding nature of the membership contract that is succeeded by raising an objection within a reasonable period after learning of the fact of the transfer of the facility.

3. The client raised an objection within a reasonable period after learning that the resort in this case was taken over by B Spaland, and thus, could escape from the binding nature of the respective membership contract relationships that are succeeded.

4. Even if B Spaland assumed the liability for the return of the membership fee to the client without obligation, Article 459 of the Civil Code is a provision intended to adjust the understanding between the parties on the premise of the assumption of debts under a 'contract'. In this particular case, the guarantor, I Development Company foresaw the deterioration of L Resort, the main debtor, at the time of the guarantee agreement, so there is no need to protect the guarantor, thus the application of Article 459 of the Civil Code is excluded. Thus, it was emphasized and argued that the court fully accepted Cheongchul's opinions.

The court ruled to dismiss the plaintiff's claims entirely.

This resort and L Resort Company have been frequently mentioned in various news articles (see links below). Criminally, there was an issue of embezzlement involving the chairman's family, who were the operators at the time, and civilly, whether it was possible to sell the resort and golf course in conjunction under the Tourism Promotion Act has been a major issue, just like this case regarding whether I Development Company could still be held liable.

https://www.shilbo.kr/news/articleView.html?idxno=110367

https://m.naeil.com/m_news_view.php?id_art=455064

Particularly in this lawsuit, when the client claimed the return of the deposit from I Development Company, I Development Company rejected the claim by stating, 'There is a Supreme Court ruling that dismissed a similar claim from another creditor against I Development Company in the past, so we have no responsibility for the return of the deposit,' indicating that the lawsuit was conducted under very unfavorable conditions.

Nevertheless, the law firm Cheongchul concluded this case with a victory through reasoning separate from other creditors' claims, which is of great significance as this conclusion complies with common sense and the principle of good faith.

The law firm Cheongchul promises to continue to do its best for the interests of its clients in the future.