[2] In a case where a sales contract was concluded by specifying part of the land subject to permission from an administrative agency for subdivision of land in accordance with the statutes, but the area of the land is limited by the statutory permission for subdivision, and thus it is impossible to divide it, whether the seller’s duty to register ownership transfer is impossible (affirmative in principle)

[3] In a case where Party A entered into a sales contract on the purchase of 628 square meters of a specific location among the forest land within a piece of land located in Ansan-dong from Party B, and at the time, the former Municipal Ordinance on the City Planning of Ansan-si provides that “where land is divided into forest land without obtaining permission, approval, etc. pursuant to the relevant Acts and subordinate statutes within a green belt area, planned management area, or production management area, the divided area shall be at least 90 square meters, the case holding that the obligation to transfer ownership of Party B, which is premised on division, is impossible, barring special circumstances, where the said land

The impossibility of performing an obligation does not include cases where an obligee cannot expect the realization of the obligor’s performance in light of the empirical rule or the concept of transaction in social life, rather than cases where it is absolute and physical impossible to perform an obligation. The same applies to cases where the performance of an obligation is prohibited by law, and thus, it is legally impossible to realize

[2] Although a sales contract was concluded by specifying a part of the land subject to permission from an administrative agency for subdivision of land in accordance with the statutes, if it is impossible for a seller to divide the land because the area of the part falls under the limited area of the permission for subdivision under the statutes, the seller cannot perform the procedure for registration of ownership transfer, barring any special circumstance, the seller’s obligation to register ownership transfer

[3] In a case where Party A entered into a sales contract with a specific location of 628 square meters among the forests and fields located in Ansan-si from Party B, and where Party B’s land category is divided into forest land without obtaining permission, authorization, etc. under the relevant Acts and subordinate statutes within the green belt area, planned management area, and production management area without obtaining authorization, etc. under the relevant Acts and subordinate statutes at the time, the case holding that Party B’s duty to register ownership transfer of Party B, based on the premise of division, is impossible, on the ground that the land category, which is forest land, falls under the restricted area of land division, and the said land is located within a green belt, planned management area, and production management area, barring special circumstances, barring special circumstances, where Party B, a seller, is located in a green belt, planned management area, and production management area, and barring special circumstances, is unable to implement the procedure for registration of ownership transfer.

1. As to the appeal against Defendant 1

With respect to this part of the appeal, no grounds of appeal are stated in the petition of appeal or the appellate brief.

2. As to the appeal against Defendant Clean Water Development Co., Ltd. (hereinafter “Defendant Clean Water Development”)

A. The main claim

With respect to this part of the appeal, no grounds of appeal are stated in the petition of appeal or the appellate brief.

B. Preliminary Claim

1) Where the performance of an obligation becomes impossible without any cause attributable to both parties after the conclusion of a contract in a bilateral contract, the obligor is exempted from the obligation to perform the obligation, and the obligor is also unable to claim any consideration. In the event of absence of any payment, the contractual relationship terminates, and the performance of the obligation is a performance without any legal cause, and the claim for restitution of unjust enrichment may be made in accordance with the legal doctrine of unjust enrichment (see Supreme Court Decision 2008Da9865, 98662, May 28, 2009). Meanwhile, barring any special circumstance, barring any special circumstance, the obligee is not allowed to seek the performance of the obligation, and the performance of the obligation already has already been performed is exempt from the obligation to perform the obligation. Furthermore, the right may be recovered by enforcing the liability for negligence under the contract under Article 535 of the Civil Act (see Supreme Court Decision 2016Da212524, Aug. 29, 2017).

The impossibility of performing obligations does not include absolute and physical impossibility, but also includes cases where an obligee cannot expect the realization of the obligor’s performance in light of the empirical rule or the concept of transaction in the social life (see, e.g., Supreme Court Decision 94Da42020, Feb. 28, 1995). This also applies where an act of performing obligations is prohibited by law, and it is legally impossible to realize such act (see Supreme Court Decision 2016Da212524, Aug. 29, 2017).

2) According to the reasoning of the lower judgment and the record, on July 26, 2013, the Plaintiff entered into a sales contract (hereinafter “instant sales contract”) with the content that the Plaintiff purchases a specific location of 628 square meters (hereinafter “instant land”) out of 20,286 square meters from the Defendant Cheongdong-si’s ( Address omitted) forest and 20,286 square meters from the Defendant Cheongdong-si Development.

According to Article 56(1)4 of the former National Land Planning and Utilization Act (amended by Act No. 11922, Jul. 16, 2013; hereinafter “former National Land Planning Act”), and Article 51(1)5(a) of the Enforcement Decree of the same Act, a person who intends to divide land without obtaining permission, approval, etc. under the relevant Acts and subordinate statutes within a green area, control area, agricultural and forest area, and natural environment conservation area, unless it is a case by an urban or Gun planning project, shall obtain permission from the Special Metropolitan City Mayor, Metropolitan City Mayor, Special Self-Governing City Mayor, Special Self-Governing City Mayor, Special Self-Governing Province Governor, or head of a Si/Gun. Furthermore, according to Article 58(3) of the former National Land Planning and Utilization Act, Article 56(1)2(d)(a) of the Enforcement Decree of the same Act, and Article 51(1)5(a) of the former Ordinance on Urban Planning (amended by Ordinance No. 985, Oct. 14, 2014, 2019, hereinafter “former Ordinance”).

Therefore, even though a sales contract was concluded by specifying a part of land subject to permission from an administrative agency for subdivision in accordance with statutes, if it is impossible to divide that part of land falls under an area where permission for subdivision is limited by statutes, the seller cannot perform the procedure for ownership transfer registration, barring special circumstances, such as where the part falls under any of the subparagraphs of Article 22(2) of the former Ordinance, the seller’s obligation to register ownership transfer shall be deemed impossible to perform (see Supreme Court Decision 2016Da212524, Aug. 29, 2017).

Examining the instant sales contract in light of the aforementioned statutory provisions, since the area of the instant land, the land category of which is forest land, falls under the area subject to the restriction on division of land, the statutory permission for division of land is limited, barring any special circumstance, where the instant land is located in a green area, planned management area, or production management area, Defendant Young Water Development, a seller, cannot implement the procedures for ownership transfer registration by dividing the instant land, barring any special circumstance, and thus, it is impossible to perform the duty to transfer ownership of Defendant

3) Nevertheless, the lower court rejected the Plaintiff’s assertion on the ground that the content of the provisions of the former Ordinance alone, without examining whether the provisions of the former Ordinance, prior to the division of the instant land were applied, was insufficient to recognize that the instant sales contract was an original impossibility. In so doing, the lower court erred by misapprehending the legal doctrine on the original impossibility of performing the obligation to register ownership transfer as to a part of the land, thereby failing to exhaust all necessary deliberations. The allegation contained in the grounds of appeal on

3. Conclusion

Therefore, the part of the judgment of the court below regarding the conjunctive claim against Defendant 1 as to Defendant 1’s business development is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The Plaintiff’s appeal against Defendant 1 and the main appeal against Defendant 1’s business development are all dismissed. It is so decided as per Disposition by the assent

Justices Kim Yong-deok (Presiding Justice)