[소유권이전등기등][공2006.3.1.(245),331]
[1] Whether the qualification certificate for acquisition of farmland under the Farmland Act is an effective requirement for a legal act which causes acquisition of farmland (negative), and whether the claim may be refused on the ground that the qualification certificate for acquisition of farmland was not granted in a lawsuit claiming the registration of acquisition of farmland (negative)
[2] The case affirming the judgment of the court below that where a clan acquires farmland to use it for a memorial hall and registers it in the name of a person other than a clan at the time of the enforcement of the former Farmland Reform Act, the title trust cannot be deemed to be aimed at avoiding legal restrictions, and thus, it is valid pursuant to Article 8 subparagraph 1 of the Act on the Registration of Real Estate
[1] The qualification certificate for acquisition of farmland under Article 8 (1) of the Farmland Act is a document to be attached when a person who acquired farmland applies for the registration of ownership, and it does not constitute a requirement that establishes the effect of a juristic act which constitutes the cause of acquisition of farmland, and thus, even if the Plaintiff failed to obtain the qualification certificate for acquisition of farmland by the time of the closing of argument in the lawsuit for registration of ownership transfer, the Defendant cannot reject the Plaintiff’s claim on the ground that the obligation for registration of ownership transfer is impossible.
[2] The case affirming the judgment of the court below that although a clan cannot acquire farmland in principle, it is exceptionally permitted to acquire farmland within a certain extent under the former Farmland Reform Act (repealed by Article 2 subparagraph 1 of the Addenda to the Farmland Act, Law No. 4817 of December 22, 1994), in case where a clan acquired farmland to use it for the above farmland and stated it in the name of a person other than a clan at the time of the enforcement of the former Farmland Reform Act, the title trust cannot be deemed to be for avoiding legal restrictions, and therefore, it is valid pursuant to Article 8 subparagraph 1 of the Act on the Registration of Real Estate under Actual Titleholder's Name.
[1] Article 8 of the Farmland Act / [2] Article 6 (1) 7 of the former Farmland Reform Act (repealed by Act No. 4817 of Dec. 22, 1994); Article 8 subparagraph 1 of the Act on the Registration of Real Estate under Actual Titleholder's Name; Article 6 (1) of the Farmland Act
[1] Supreme Court Decision 97Da49251 delivered on February 27, 1998 (Gong1998Sang, 897) Supreme Court Decision 97Da5314 delivered on May 8, 1998
Plaintiff’s clan (Attorney Kang Jae-sik, Counsel for defendant-appellant)
Defendant (Attorney Kim Dae-young et al., Counsel for the defendant-appellant)
Supreme Court Decision 2002Da37207 Delivered on January 14, 2005
Changwon District Court Decision 2005Na2695 decided September 23, 2005
The appeal is dismissed. The costs of appeal are assessed against the defendant.
1. The court below, based on the evidence of its employment, found facts as stated in its reasoning, and found that the real estate of this case was owned by the plaintiff clan and was entrusted to the defendant, and further, rejected the defendant's assertion that the real estate of this case was owned by the defendant, i.e., the real estate of this case, No. 1 and 3 as stated in the judgment of the court below, which was owned by the defendant or purchased by the defendant with his own contribution, under the condition that the plaintiff clan would stop purchasing the plaintiff's clans 1,000 as a condition to further purchase the plaintiff's clans 1,00 as a result of its endeavor to purchase the plaintiff's clans. In light of the records, the above fact-finding and judgment of the court below are just and acceptable, and there is no error of law such as violation of the rules of evidence
2. The qualification certificate for acquisition of farmland under Article 8 (1) of the Farmland Act is a document to be attached when a person who acquired farmland applies for a registration of ownership (Article 8 (4) of the Farmland Act), and it is not a requirement that establishes the effect of a legal act which causes the acquisition of farmland. Thus, even if the Plaintiff failed to obtain the qualification certificate for acquisition of farmland until the closing of argument in the lawsuit for registration of ownership transfer, the Defendant cannot refuse the Plaintiff’s request on the ground that the obligation for registration of ownership transfer is impossible (see, e.g., Supreme Court Decisions 97Da49251, Feb. 27, 1998; 97Da53144, May 8, 1998).
In the same purport, the court below rejected the defendant's assertion that the defendant's obligation to transfer ownership registration of the real estate of this case cannot be determined as null and void because the defendant's obligation to transfer ownership registration of this case is not fulfilled, or that the real estate of this case is not used for the cultivation of crops or for the perennial plant cultivation by the document issued by the competent authority, and thus, it is possible for the plaintiff clan to acquire ownership of the real estate of this case. In light of the above legal principles, it is proper in light of the above legal principles, and there is no error of law such as misunderstanding of legal principles as to impossibility of performance, or misunderstanding of legal principles as to acquisition certificate of farmland of Article 8 of the Farmland Act, as alleged in the ground of appeal No. 1.
On the other hand, the court precedents cited by the defendant in the supplemental appellate brief are the precedents at the time of the enforcement of the abolished Farmland Reform Act, or are different from this case and its purport, and thus, it cannot be viewed as appropriate precedents in this case.
3. According to the former Farmland Reform Act (amended by Act No. 4817, Jan. 1, 1996 pursuant to Article 2 of the Addenda of the Farmland Act, Act No. 4817) which was enforced on January 1, 1995 or around March 1995 by the Plaintiff clan title trust the land of this case to the Defendant, a clan is not entitled to acquire farmland in principle, but in light of the purport of Article 6(1)7 of the same Act, in a case where the clan intends to newly acquire farmland of not more than 600 square meters per grave for the protection of graves without the previous farmland, it shall be entitled to file an application for ownership transfer registration for farmland along with a farmland trade certificate stating such purport, so the clan may acquire farmland within the limited purpose and size.
The court below is justified in rejecting the defendant's assertion that the title trust of this case against the defendant by the defendant of the plaintiff clan cannot be deemed to be aimed at avoiding legal restrictions on the premise of such legal principles and that the title trust of this case is null and void in accordance with the Act on the Registration of Real Estate under Actual Titleholder's Name. There is no error in the misapprehension of legal principles as to the former Farmland Reform Act and the Act on the Registration of Real Estate
4. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition.
Justices Kim Hwang-sik (Presiding Justice)