Good faith after a void refund promise in a housing cooperative

1. 01Question

   Where a regional housing cooperative promised to refund a member's contributions if a project step was not completed, without a resolution of the members' meeting, is the refund promise void and a ground for invalidating or avoiding the membership contract, and may the member still rely on that invalidity once the promised procedure has been carried out and the project is going ahead normally, and what is the scope of reversal when only the defendant appealed?

2. 02Holding

   The Supreme Court held that a refund promise made without a members' meeting resolution may be void as an act disposing of common property, and may in turn make the membership contract void or avoidable. But once the procedure the promise set as the condition for a refund has in fact been carried out, the project is proceeding normally and the risk the member feared has gone, claiming that invalidity afterwards contrary to the promise's purpose may breach good faith or abuse a right. Because only the defendant appealed, the Court reversed not only the parts in which the defendant lost but also the corresponding part of the primary tort claim, and remanded the case to the Busan District Court.

   Summary of the holding, verbatim

   그 후 조합원이 환불보장약정의 목적과 취지를 벗어나 환불보장약정의 무효 및 그에 따른 조합가입계약의 무효 또는 취소를 주장하는 것은 신의성실의 원칙에 어긋나거나 권리의 남용이 될 수 있다.

   Unofficial English translation

   Thereafter, an assertion by the member of the nullity of the refund guarantee agreement and of the nullity or rescission of the membership agreement resulting therefrom, going beyond the purpose and intent of the refund guarantee agreement, may contravene the principle of good faith or constitute an abuse of right.

3. 03Disposition

   Partly reversed and remanded Stated in the decision

   원심판결 중 피고 패소 부분과 이에 해당하는 주위적 청구 부분을 파기하고, 이 부분 사건을 부산지방법원에 환송한다.

   Unofficial English translation

   The part of the judgment of the court below finding against the defendant and the corresponding part of the principal claim are reversed, and this part of the case is remanded to the Busan District Court.

4. 04Form of the test

   Elements stated Stated in the decision

   조합원이 환불보장약정의 무효나 그에 따른 조합가입계약의 무효 또는 취소를 주장하지 않고 있는 동안 환불보장약정에서 환불의 소극적 조건으로 삼은 절차가 결국 이행되어 환불보장약정의 목적이 달성되고 더 나아가 주택건설사업이 무산될 우려 없이 절차에 따라 정상적으로 진행되고 있다면

   Unofficial English translation

   if, while a member does not assert the nullity of the refund guarantee agreement or the nullity or rescission of the membership agreement resulting therefrom, the procedures stipulated in the refund guarantee agreement as a negative condition for the refund are ultimately performed, the purpose of the refund guarantee agreement is achieved, and the housing construction project proceeds normally in accordance with the procedures without any risk of falling through,

5. 05Factors

   • 조합원이 조합가입계약과 함께 환불보장약정을 체결하는 주된 목적은 조합가입계약의 목적 달성 실패로 인한 손해를 최소화하려는 것이지 분담금 반환을 절대적으로 보장받으려는 데 있다고 보기 어렵다
   • 환불보장약정이 무효로 되어 환불을 받을 수 없게 되었더라도
   • 환불보장약정과 조합가입계약의 궁극적 목적인 ‘신축 아파트 소유권 취득’에는 지장이 없는 경우가 있을 수 있다
   • 환불보장약정에서 환불의 소극적 조건으로 삼은 절차가 결국 이행되어 환불보장약정의 목적이 달성되고
   • 주택건설사업이 무산될 우려 없이 절차에 따라 정상적으로 진행되고 있다면

   Unofficial English translation

   • It is difficult to regard the principal purpose for which a member enters into a refund guarantee agreement together with a membership agreement as being to obtain an absolute guarantee of the return of contributions, rather than to minimize the losses arising from a failure to achieve the purpose of the membership agreement

   • even though a member becomes unable to receive a refund because the refund guarantee agreement is rendered null and void,

   • there may be cases in which there is no impediment to the ultimate purpose of the refund guarantee agreement and the membership agreement, namely the 'acquisition of ownership of a newly built apartment'

   • the procedures stipulated in the refund guarantee agreement as a negative condition for the refund are ultimately performed, and the purpose of the refund guarantee agreement is achieved, and

   • if the housing construction project is proceeding normally in accordance with the procedures without any risk of falling through,

6. 06Relation to precedent

   Follows earlier decisions Stated in the decision

   대법원 2014. 12. 24. 선고 2012다35675 판결

   Unofficial English translation

   Supreme Court Decision 2012Da35675 decided December 24, 2014

   Decisions referred to

   [1] 대법원 2025. 8. 14. 선고 2024다292679 판결(공2025하, 1675) / [2] 대법원 2014. 12. 24. 선고 2012다35675 판결, 대법원 2022. 3. 31. 선고 2017다247145 판결(공2022상, 771), 대법원 2024. 6. 27. 선고 2020다259100 판결

7. 07Burden of proof

   Not addressed Not in the decision

8. 08Open question and revisit condition

   After the deadline set in the refund promise has passed, how long must the member wait before demanding a return without that demand being treated as an implicit withdrawal of the intention to leave the contract early?

   The remand judgment of the Busan District Court, once it decides whether the plaintiff may still claim invalidity after the project plan approval, will show how this rule is applied on the record. Any amendment to Article 276(1) of the Civil Act or to Article 11-3 of the Housing Act on recruiting new members after approval would require this entry to be read again.

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.

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