Open Decision Ledger · Civil obligations & remedies
Forfeited cooperative contributions as liquidated damages reducible under Civil Act Article 398(2)
Supreme Court, Oct. 30, 2025, 2023Da206091 (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: 부담금반환청구의소·정산금
Official text on the National Law Information Center
Question
When a regional housing cooperative resolved that a member losing cooperative status forfeits 20% of the total share contribution and 100% of the service fee, is that deduction a provision for liquidated damages subject to reduction under Article 398(2) of the Civil Act, and was reducing the share deduction to 10% correct?
Holding
It was. The deduction set by the general meeting resolution was a provision for liquidated damages, and Article 398(2) of the Civil Act applies even where the amount is agreed by a collective resolution of a non-incorporated association. Deducting 20% of the total share contribution was unduly excessive on the record, so reducing it to 10% was right, and the Supreme Court dismissed all the appeals.
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 본 원심판단의 결론이 정당하다고 한 사례
Unofficial English translation
the conclusion of the court below, to the effect that the fixing of the deduction amount in the said resolution constitutes liquidated damages, that Article 398 (2) of the Civil Act also applies in this case, and that because fixing 20% of the total share contribution as the deduction amount is unreasonably excessive, it is appropriate to reduce it to 10% of the total share contribution, was proper
Disposition
Dismissed Stated in the decision
상고를 모두 기각한다. 상고비용은 피고(반소원고)가 부담한다.
Unofficial English translation
All appeals are dismissed. The costs of appeal shall be borne by the defendant (counterclaim plaintiff).
Form of the test
Existing test applied Read from the decision
손해배상액 예정의 성립, 비법인사단 총회 결의의 해석, 민법 제398조 제2항의 적용 범위 및 감액 요건 등에 관한 법리를 오해하여 판결에 영향을 미친 잘못이 없다
Unofficial English translation
There is no error in the judgment, affecting the judgment, arising from a misunderstanding of the legal principles concerning the formation of liquidated damages, the interpretation of resolutions of the general meeting of an unincorporated association, the scope of application of Article 398 (2) of the Civil Act and the requirements for reduction, and the like
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 본 원심판단의 결론이 정당하다고
Unofficial English translation
• the fixing of the deduction amount in the said resolution constitutes liquidated damages, and
• Article 398 (2) of the Civil Act also applies in this case, whereas
• because fixing 20% of the total share contribution as the deduction amount is unreasonably excessive,
• the conclusion of the court below, to the effect that it is appropriate to reduce it to 10% of the total share contribution, was proper
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
May the deduction of 100% of the service fee also be reduced under Article 398(2) of the Civil Act as unduly excessive?
A later decision addressing whether the 100% deduction of the service fee may be reduced would call for this entry to be read again, as would an amendment to Article 398 of the Civil Act or Article 11(9) of the Housing Act. A new record showing the cooperative's actual loss from the member's loss of status would also bear on the proportion that may be deducted.
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 본 원심판단의 결론이 정당하다고” vs Independent “조합규약에 따라 정기총회에서 / 탈퇴, 조합원 자격의 상실, 제명 등으로 조합원의 지위를 상실한 자 / 전체 분담금의 20%와 업무용역비 100%를 제외한 잔액을 반환 / 위 의결에서 공제금을 정한 것은 손해배상액의 예정에 해당”
The primary emphasizes statutory applicability, excessiveness, and the justified reduction, while the independent emphasizes the resolution, former member status, and deduction terms, sharing chiefly the liquidated damages characterization.
조합규약에 따라 정기총회에서Axis 8 (Open question and revisit condition): Primary “May the deduction of 100% of the service fee also be reduced under Article 398(2) of the Civil Act as unduly excessive?” vs Independent “Which specific circumstances justify reducing the deduction to 10 percent rather than another percentage?”
The primary asks whether the service fee deduction can also be reduced, while the independent asks which circumstances justify the specific 10 percent rate.
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 사례Raw 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 15 December 2022 (2021Na52054, 59154), held that setting the deduction in the general meeting resolution of 28 April 2019 was a provision for liquidated damages, because it prevented disputes over whether the cooperative actually suffered loss and how much, and also pressured members to perform their duty to keep their qualification. It held that Article 398(2) of the Civil Act applies even where liquidated damages are agreed by a collective resolution, and that deducting 20% of the total share contribution was unduly excessive, so it reduced the deduction to 10%.
Supreme Court standard: The Supreme Court found that some of the reasons the court below gave for reducing the amount were somewhat inappropriate, but accepted its conclusion. It held that the appeal disclosed no breach of the rules of logic or experience, no departure from the limits of free evaluation, and no misreading of the law on the establishment of liquidated damages, the interpretation of a general meeting resolution of a non-incorporated association, or the scope and conditions of Article 398(2) of the Civil Act, and dismissed all the appeals by the unanimous opinion of the Justices concerned.
Distinguishing conditions
- A deduction that neither prevents disputes over whether the cooperative suffered loss and how much nor pressures members to perform their duty to keep their qualification, since those were the effects on which the court below, whose conclusion the Supreme Court accepted despite finding some of its stated reasons somewhat inappropriate, rested the liquidated-damages characterisation.
- A cooperative member who has not lost status by withdrawal, loss of qualification or expulsion, since the resolution of 28 April 2019, which the court below treated as liquidated damages, applies only to a member who has lost cooperative status in one of those ways.
- A deduction that is not unduly excessive on the record, since the reduction here rested on the finding that 20% of the total share contribution was excessive.
Record verification notes
Set Article 12(4) of the cooperative's rules and the resolution of 28 April 2019 against the deduction claimed, and check whether the deduction is presented as a fixed amount for the loss caused by the loss of status, preventing disputes over that loss and pressuring members to keep their qualification. Gather what the cooperative can show about actual loss from the member's loss of status and about the share of the total contribution taken, since the reduction to 10% was accepted although some of the stated reasons were called somewhat inappropriate. Keep the 100% deduction of the service fee in view separately, because the reduction accepted here concerned only the share contribution.
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 housing cooperative A, pursuant to its articles of association, resolved at a general meeting as follows: "Any person who has lost membership status due to withdrawal, loss of membership qualification, expulsion, or the like shall be refunded, out of the payments made by the member (share contributions + service fees), the balance remaining after excluding 20% of the total share contribution and 100% of the service fees," and thereafter B and others, who had lost their membership status, sought from cooperative A the return of the share contributions already paid, the case held that the conclusion of the court below, to the effect that the fixing of the deduction amount in the said resolution constitutes liquidated damages, that Article 398 (2) of the Civil Act also applies in this case, and that because fixing 20% of the total share contribution as the deduction amount is unreasonably excessive, it is appropriate to reduce it to 10% of the total share contribution, was proper
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 costs of 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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