Open Decision Ledger · Customary law & property rights
Refund guarantee over common contributions and the general meeting resolution
Supreme Court, Aug. 14, 2025, 2024Da292679 (judgment)
Case name: 계약금등반환청구의소[지역주택조합 조합원이 분담금의 반환을 청구하는 사건]
Official text on the National Law Information Center
Question
Where a regional housing cooperative or its organising committee concludes together with a membership agreement a refund guarantee promising to return the member's paid contributions if the business is stopped or fails, does that guarantee amount to a disposition of common property under Article 276(1) of the Civil Act, so that it is void without a resolution of the general meeting, and can that voidness be a ground for invalidity or cancellation of the membership agreement concluded with it?
Holding
Yes on each point. The Supreme Court held that the disposition of common property in Article 276(1) of the Civil Act means a legal or factual act disposing of the common property itself, so that a juristic obligation entailing such a disposition is also a disposition act. A member's contribution is common property of the cooperative because its scope, payment time and safekeeping method are fixed by the membership agreement and its use is earmarked for the cooperative's business, and the refund guarantee is such an obligation. Without a resolution of the general meeting it is void, and that voidness may be a ground for invalidity or cancellation of the membership agreement concluded with it.
Summary of the holding, verbatim
비법인사단인 지역주택조합이나 추진위원회가 조합가입계약과 함께 ‘사업을 중단하거나 사업에 실패할 경우에는 조합원이 납입한 분담금을 반환하겠다.’는 취지의 환불보장약정을 체결한 경우, 위 환불보장약정은 조합원들의 총유물로 귀속되는 분담금 자체를 일정 조건하에 원상회복하여 주겠다는 취지의 약정으로서 총유물인 분담금 자체의 처분이 따르는 채무부담행위로 보아야 한다.
Unofficial English translation
Where a regional housing cooperative, which is an unincorporated association, or a promotion committee has entered into, together with a membership agreement, a refund guarantee agreement to the effect that 'if the project is suspended or the project fails, the contributions paid by the members will be returned,' the said refund guarantee agreement is an agreement to the effect that the contributions, which are attributed to the members as their co-owned property, themselves will be restored to their original state upon certain conditions, and thus must be regarded as an act of assumption of obligation accompanied by the disposal of the contributions themselves, which are co-owned property.
Disposition
Reversed and remanded Stated in the decision
원심판결을 파기하고, 사건을 서울중앙지방법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court.
Form of the test
Elements stated Stated in the decision
민법 제276조 제1항에서 말하는 총유물의 처분이란 총유물 그 자체에 관한 법률적·사실적 처분행위를 의미하므로, 총유물 그 자체의 처분이 따르는 채무부담행위는 총유물의 처분행위에 해당한다.
Unofficial English translation
The disposal of co-owned property as referred to in Article 276 (1) of the Civil Act means a legal or factual act of disposal concerning the co-owned property itself; accordingly, an act of assumption of obligation accompanied by the disposal of the co-owned property itself constitutes a disposition of co-owned property.
Factors
- 총유물 그 자체에 관한 법률적·사실적 처분행위를 의미하므로
- 그 범위와 지급 시기, 보관방법이 정해져 있고 그 용도가 토지매입비, 건축공사비 등 지역주택조합의 사업을 위하여 특정된 금원으로서
- 조합원들의 총유물로 귀속되는 분담금 자체를 일정 조건하에 원상회복하여 주겠다는 취지의 약정으로서
- 총회 결의 없는 총유물의 처분행위에 해당하여 무효이고, 이는 함께 체결한 조합가입계약의 무효 또는 취소 원인이 될 수 있다
Unofficial English translation
• in that it means a legal or factual act of disposal concerning the co-owned property itself,
• where the scope, time of payment, and method of custody are determined, and the funds, the use of which is specified for the project of the regional housing cooperative, such as land acquisition costs and construction costs, are monies designated for such purposes,
• an agreement to the effect that the contributions, which are attributed to the members as their co-owned property, themselves will be restored to their original state upon certain conditions, and thus,
• it constitutes a disposition of co-owned property without a resolution of the general meeting and is void, and this may constitute a ground for invalidation or rescission of the membership agreement entered into at the same time
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2009. 11. 26. 선고 2009다64383 판결(공2010상, 38)
Unofficial English translation
Supreme Court Decision 2009Da64383 decided November 26, 2009 (Gong 2010 Sang, 38)
Decisions referred to
대법원 2009. 11. 26. 선고 2009다64383 판결(공2010상, 38), 대법원 2025. 5. 15. 선고 2024다239692 판결
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
When the refund guarantee is void, does the membership agreement itself become wholly void under Article 137 of the Civil Act, or may the member instead cancel it and claim the return of the KRW 56,500,000 already paid?
The remand judgment of the Seoul Central District Court on whether the void guarantee is bound up with the membership agreement, and on invalidity or cancellation, would settle the point this decision left open. A later decision treating refund guarantees of regional housing cooperatives differently, or an amendment to Articles 275 or 276(1) of the Civil Act, would also require this entry to be read again.
Cross-family AI independent reading & axis check
8 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 all 8 axes.
Raw 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 Seoul Central District Court, in its judgment of 24 September 2024 (2024Na220), held that the disposition of common property in Article 276(1) of the Civil Act means the disposition of existing common property itself. The refund guarantee concerned contributions the defendant would acquire from the plaintiff in the future under the membership agreement, so it was not a juristic act over existing common property. Concluding the guarantee did not make the defendant return the contributions on the spot, since it only put it under an obligation to return them, the court below held it was not a disposition act either, and that the guarantee and the membership agreement concluded with it were not void for want of a general meeting resolution.
Supreme Court standard: The Supreme Court reversed. A juristic obligation entailing the disposition of the common property itself is itself a disposition act, and the contributions are common property because their scope, payment time and safekeeping method are fixed by the membership agreement and their use is earmarked for the land purchase and construction costs of the cooperative's business. The refund guarantee restores the contribution itself under a stated condition, so it is such an obligation, and without a general meeting resolution it is void and may ground the invalidity or cancellation of the membership agreement. The court below misconceived the legal character of the refund guarantee and failed to hold the hearing needed, so the case was sent back to the Seoul Central District Court on the unanimous opinion of the Justices.
Distinguishing conditions
- Contributions whose scope, payment time and safekeeping method are not fixed by the membership agreement, or whose use is not earmarked for the cooperative's business, since common property status rested on those features.
- A refund guarantee approved by a resolution of the general meeting, since the decision makes the lack of such a resolution the ground of voidness.
- An undertaking that does not promise to restore the contribution itself under a stated condition, so that no disposition of the common property follows it.
Record verification notes
Set the membership agreement against the three features the Court named: whether the scope, payment time and safekeeping of the contribution were fixed, and whether the money was earmarked for land purchase or construction. Then look for general meeting minutes resolving the refund guarantee, because a missing resolution makes it void on this decision's reasoning. Note also that the Court said the void guarantee 'can be' a ground for invalidity or cancellation, and referred to Article 137 of the Civil Act among the provisions, so check how closely the guarantee was tied to the membership agreement and which remedy is asserted.
From the official text
Points at issue
총유물 그 자체의 처분이 따르는 채무부담행위가 민법 제276조 제1항에서 말하는 총유물의 처분행위에 해당하는지 여부(적극) / 지역주택조합의 조합원 분담금이 조합원들의 총유물인지 여부(적극) / 비법인사단인 지역주택조합이나 추진위원회가 조합가입계약과 함께 ‘사업을 중단하거나 사업에 실패할 경우에는 조합원이 납입한 분담금을 반환하겠다.’는 취지의 환불보장약정을 체결한 경우, 총유물인 분담금 자체의 처분이 따르는 채무부담행위를 한 것인지 여부(적극) / 환불보장약정에 대하여 총회의 결의를 거치지 않은 경우, 그 약정의 효력(무효) 및 환불보장약정이 총회의 결의가 없어 무효라는 사정이 함께 체결한 조합가입계약의 무효 또는 취소 원인이 될 수 있는지 여부(적극)
Unofficial English translation
Whether an act of assumption of obligation accompanied by the disposal of the co-owned property itself constitutes a disposition of co-owned property as referred to in Article 276 (1) of the Civil Act (affirmative) / Whether the contributions borne by the members of a regional housing cooperative constitute the members' co-owned property (affirmative) / Where a regional housing cooperative, which is an unincorporated association, or a promotion committee has entered into, together with a membership agreement, a refund guarantee agreement to the effect that 'if the project is suspended or the project fails, the contributions paid by the members will be returned,' whether an act of assumption of obligation accompanied by the disposal of the contributions themselves, which are co-owned property, has been undertaken (affirmative) / Where the refund guarantee agreement has not been approved by a resolution of the general meeting, the effect of that agreement (void) and whether the fact that the refund guarantee agreement is void for want of a resolution of the general meeting may constitute a ground for invalidation or rescission of the membership agreement entered into at the same time (affirmative)
Summary of the holding
민법 제276조 제1항에서 말하는 총유물의 처분이란 총유물 그 자체에 관한 법률적·사실적 처분행위를 의미하므로, 총유물 그 자체의 처분이 따르는 채무부담행위는 총유물의 처분행위에 해당한다. 지역주택조합의 조합원 분담금은 조합가입계약에 의하여 그 범위와 지급 시기, 보관방법이 정해져 있고 그 용도가 토지매입비, 건축공사비 등 지역주택조합의 사업을 위하여 특정된 금원으로서 조합원들의 총유물이라고 보아야 한다. 비법인사단인 지역주택조합이나 추진위원회가 조합가입계약과 함께 ‘사업을 중단하거나 사업에 실패할 경우에는 조합원이 납입한 분담금을 반환하겠다.’는 취지의 환불보장약정을 체결한 경우, 위 환불보장약정은 조합원들의 총유물로 귀속되는 분담금 자체를 일정 조건하에 원상회복하여 주겠다는 취지의 약정으로서 총유물인 분담금 자체의 처분이 따르는 채무부담행위로 보아야 한다. 따라서 환불보장약정에 대하여 총회의 결의를 거치지 않았다면, 그러한 환불보장약정은 총회 결의 없는 총유물의 처분행위에 해당하여 무효이고, 이는 함께 체결한 조합가입계약의 무효 또는 취소 원인이 될 수 있다.
Order
원심판결을 파기하고, 사건을 서울중앙지방법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court.
Provisions referred to
민법 제137조, 제275조, 제276조 제1항
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.
Back to the ledger