Open Decision Ledger · Civil obligations & remedies
A cooperative resolution's deduction as reducible liquidated damages
Supreme Court, Oct. 16, 2025, 2023Da203221 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 분담금반환청구의소·정산금
Official text on the National Law Information Center
Question
Where a regional housing cooperative resolved at its general meeting to withhold 20% of the total contribution and all of the service fee from members who lost their status, was that deduction a stipulation of damages under Article 398(1) of the Civil Act, and does Article 398(2) allow a court to reduce it as unduly excessive?
Holding
Yes on both points. A resolution of the general meeting fixing the amount to be deducted is a stipulation of damages, and Article 398(2) of the Civil Act applies to such a joint act of a non-corporate association, so a court may reduce an amount that is unduly excessive. Here 20% of the total contribution was unduly excessive and its reduction to 10% was right, so the cooperative's appeals were dismissed.
Points at issue, verbatim
위 의결에서 공제금을 정한 것은 손해배상액의 예정에 해당하고, 이 경우에도 민법 제398조 제2항이 적용되는데, 전체 분담금의 20%을 공제금으로 정한 것은 부당히 과다하므로 이를 전체 분담금의 10%로 감액함이 타당하다고
Unofficial English translation
the deduction amount set forth in the above resolution constitutes liquidated damages, that Article 398, paragraph (2) of the Civil Act applies in such case as well, and that since fixing the deduction amount at 20% of the total contribution is unreasonably excessive it is appropriate to reduce it to 10% of the total contribution, which
Disposition
Dismissed Stated in the decision
상고를 모두 기각한다. 상고비용은 피고(반소원고)가 부담한다.
Unofficial English translation
All appeals are dismissed. The cost of the final appeal shall be borne by the defendant (counterclaim plaintiff).
Form of the test
Existing test applied Read from the decision
전체 분담금의 20%을 공제금으로 정한 것은 부당히 과다하므로 이를 전체 분담금의 10%로 감액함이 타당하다고
Unofficial English translation
since fixing the deduction amount at 20% of the total contribution is unreasonably excessive it is appropriate to reduce it to 10% of the total contribution, which
Factors
- 위 의결에서 공제금을 정한 것은 손해배상액의 예정에 해당하고
- 이 경우에도 민법 제398조 제2항이 적용되는데
- 전체 분담금의 20%을 공제금으로 정한 것은 부당히 과다하므로
- 이를 전체 분담금의 10%로 감액함이 타당하다고
Unofficial English translation
• the deduction amount set forth in the above resolution constitutes liquidated damages,
• Article 398, paragraph (2) of the Civil Act applies in such case as well, and
• since fixing the deduction amount at 20% of the total contribution is unreasonably excessive,
• it is appropriate to reduce it to 10% of the total contribution, which
Relation to precedent
Cannot be determined Not in the decision
Decisions referred to
해당 본문 참조
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
Would a deduction of amounts the members actually paid as promotion expenses, or a refund governed only by the membership contract's own clause without a general meeting resolution, be treated as a stipulation of damages open to reduction under Article 398(2) of the Civil Act?
A later Supreme Court decision on when Article 398(2) of the Civil Act may be applied to a resolution of a non-corporate association, or a statutory change to Article 11(9) of the Housing Act or to the rules governing regional housing cooperative bylaws, would require this entry to be read again. Materials on the actual loss the cooperative suffered would also change the excessiveness assessment.
Cross-family AI independent reading & axis check
6 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-24
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on 6 of the 8 axes; the readings differed on axis 5 (factors), axis 8 (open question and revisit condition).
Axis 5 (Factors): Primary “위 의결에서 공제금을 정한 것은 손해배상액의 예정에 해당하고 / 이 경우에도 민법 제398조 제2항이 적용되는데 / 전체 분담금의 20%을 공제금으로 정한 것은 부당히 과다하므로 / 이를 전체 분담금의 10%로 감액함이 타당하다고” vs Independent “조합규약에 따라 정기총회에서 / 탈퇴, 조합원 자격의 상실, 제명 등으로 조합원의 지위를 상실한 자 / 전체 분담금의 20%와 업무용역비 100%를 제외한 잔액을 반환한다. / 위 의결에서 공제금을 정한 것은 손해배상액의 예정에 해당하고”
The primary reading centers on statutory applicability, excessiveness, and the reduced amount, while the independent reading centers on the resolution's basis, membership loss, and deduction terms, sharing mainly the characterization as liquidated damages.
조합규약에 따라 정기총회에서Axis 8 (Open question and revisit condition): Primary “Would a deduction of amounts the members actually paid as promotion expenses, or a refund governed only by the membership contract's own clause without a general meeting resolution, be treated as a stipulation of damages open to reduction under Article 398(2) of the Civil Act?” vs Independent “Which specific reasons for the reduction were inappropriate, and which remaining circumstances justified reducing the deduction to 10 percent?”
The primary reading asks whether other deduction arrangements are reducible, while the independent reading asks which reasons justified or failed to justify this reduction.
위 의결에서 공제금을 정한 것은 손해배상액의 예정에 해당하고, 이 경우에도 민법 제398조 제2항이 적용되는데, 전체 분담금의 20%을 공제금으로 정한 것은 부당히 과다하므로 이를 전체 분담금의 10%로 감액함이 타당하다고Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Busan High Court, in its judgment of 8 December 2022 (2021Na51884, 59161), held that the resolution of 28 April 2019 was a stipulation of damages, because it prevented disputes over whether the cooperative had actually suffered damage and how much, and also pressured members to perform their duty to keep their membership. It held that Article 398(2) of the Civil Act applies to such a joint act, and that 20% of the total contribution was unduly excessive in light of the purpose of the resolution, the positions of the parties, and the trade custom of setting the contract money at about 10% of the total price, so it reduced the deduction to 10%.
Supreme Court standard: The Supreme Court noted that parts of the appellate reasons for reducing the stipulated amount were somewhat inappropriate, but held that the conclusion could be accepted. It found that the judgment below had not breached the rules of logic and experience, had not gone beyond the limits of free evaluation, and had not misread the law on the establishment of a stipulation of damages, the construction of a resolution of a non-corporate association, or the scope and conditions of Article 398(2) of the Civil Act, and dismissed all the appeals on the unanimous opinion of the Justices concerned.
Distinguishing conditions
- A member who has not lost membership by withdrawal, loss of qualification or expulsion, so that the resolution, which reaches only those who lost the member's position, does not apply.
- A general meeting that has not resolved to set a deduction at all, since Article 12(4) of the bylaws leaves the common-borne cost to be deducted and the time of repayment to be set separately by resolution.
- A deduction fixed at a level that is not unduly excessive when set against the purpose of the resolution, the parties' positions and the surrounding trade custom, so that no reduction arises.
Record verification notes
Set the resolution's text against Article 12(4) of the bylaws and Article 3 of the membership contract, and check which version of the bylaws was in force on 28 April 2019. Then compare what the members had paid, each KRW 41,156,000 or KRW 51,756,000, KRW 73,490,000 and KRW 87,157,000 in contributions plus KRW 10,000,000 in service fees, with their final contributions of KRW 342,179,000 each and KRW 420,380,000 for the sixth plaintiff, and gather what shows the loss the cooperative actually suffered when a member lost household-head status. Note that the Supreme Court found parts of the appellate reasons for the reduction somewhat inappropriate while accepting the conclusion.
From the official text
Points at issue
갑 지역주택조합이 조합규약에 따라 정기총회에서 ‘탈퇴, 조합원 자격의 상실, 제명 등으로 조합원의 지위를 상실한 자에 대하여는 조합원이 납입한 제 납입금(분담금 + 업무용역비) 중 전체 분담금의 20%와 업무용역비 100%를 제외한 잔액을 반환한다.’는 내용으로 의결을 하였는데, 그 후 조합원 지위를 상실한 을 등이 갑 조합을 상대로 기납입 분담금의 반환을 구한 사안에서, 위 의결에서 공제금을 정한 것은 손해배상액의 예정에 해당하고, 이 경우에도 민법 제398조 제2항이 적용되는데, 전체 분담금의 20%을 공제금으로 정한 것은 부당히 과다하므로 이를 전체 분담금의 10%로 감액함이 타당하다고 본 원심판단의 결론이 정당하다고 한 사례
Unofficial English translation
In a case where the A regional housing cooperative passed a resolution at a regular general meeting under its articles of association to the effect that "a person who has lost membership status due to withdrawal, loss of membership qualification, expulsion, or the like shall be refunded the balance remaining after excluding 20% of the total contribution and 100% of the business service fees from the various payments (contributions + business service fees) paid in by the member," and thereafter B and others who had lost their membership status sought from the A cooperative the return of the contributions they had already paid, this case held that the conclusion of the judgment below, which reasoned that the deduction amount set forth in the above resolution constitutes liquidated damages, that Article 398, paragraph (2) of the Civil Act applies in such case as well, and that since fixing the deduction amount at 20% of the total contribution is unreasonably excessive it is appropriate to reduce it to 10% of the total contribution, is just.
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
상고를 모두 기각한다. 상고비용은 피고(반소원고)가 부담한다.
Unofficial English translation
All appeals are dismissed. The cost of the final appeal shall be borne by the defendant (counterclaim plaintiff).
Provisions referred to
민법 제398조 제1항, 제2항, 주택법 제11조 제9항
Read 2026-10-24 · Cross-read 2026-10-24. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
Every entry is published only after all quotes have been matched character by character against the official text, and audited by an independent second reading from a different model family across all eight axes. Both agreed axes and text-grounded interpretive divergences are recorded openly. The ledger is a research record, not an assessment of the court or advice on any matter.
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