[부동산등기특별조치법위반][미간행]
[1] Whether Articles 2 (3) and 6 of the Act on Special Measures for the Registration of Real Estate apply to invalid contracts (negative)
[2] The case holding that in a case where a parcel of land within an area subject to permission under the National Land Planning and Utilization Act was purchased and the registration of ownership transfer was resold without completing the registration of ownership transfer, the crime of violation of Article 8 subparag. 2, Article 6, Article 8 subparag. 1, and Article 2(3) of the Act on Special Measures for the Registration of Real Estate is not established on the grounds that each sale contract becomes null and void in its entirety on the grounds that it is obvious from the beginning
[1] Articles 2(1) and (3), 6, and 8 subparag. 2 of the Act on Special Measures for the Registration of Real Estate / [2] Articles 6 and 8 subparag. 2 of the Act on Special Measures for the Registration of Real Estate
[1] Supreme Court Decision 2000Do3867 decided Apr. 10, 2001 (Gong2006Sang, 199) Supreme Court Decision 2005Do6557 decided Dec. 22, 2005
Defendant
Prosecutor
Suwon District Court Decision 2005No3769 Decided December 7, 2005
The appeal is dismissed.
Article 2(3) of the Act provides that where a person who entered into a contract with a third party on or before the date stipulated in each subparagraph of Article 2(1) of the Act on Special Measures for the Registration of Real Estate (hereinafter “the Act”) enters into a contract with a third party on or before the date stipulated in each subparagraph of Article 2(1) of the Act on Special Measures for the Registration of Real Estate (hereinafter “the Act”), a contract with the contents of the transfer of real estate ownership should be effective by itself within the prescribed period of time. (See Supreme Court Decisions 2000Do3867, Apr. 10, 201; 2005Do657, Dec. 22, 2005; 2005Do657, etc.) provides that where a contract with a third party is subject to the transfer of ownership, such real estate shall be subject to the cancellation of ownership transfer registration by entering a false ground for registration in the application for registration, or where such transfer of ownership should be invalidated by entering the contract into a contract with the content of transfer of ownership, it shall be deemed null and void.
On the other hand, a contract for land transaction within an area subject to permission under the National Land Planning and Utilization Act shall take effect only with permission from the competent authority and shall be null and void in principle before obtaining permission. However, a contract which is concluded on the premise that permission should be granted (the contract in a state of flexible invalidation) shall take effect retroactively after obtaining permission. However, if a contract is entered into with the terms of excluding or evading permission from the beginning, it shall be null and void finally (see, e.g., Supreme Court en banc Decision 90Da12243, Dec. 24, 191).
In light of the records, even if the Defendant purchased the land within the land transaction permission zone, it is not eligible to obtain the land transaction permission zone, but for the purpose of obtaining profits from the market price through pre-sale and the most gift with the knowledge that it would not require any land transaction permission. On May 4, 2003, the Defendant purchased the land of this case, which is within the permission zone under the National Land Planning and Utilization Act, from Non-Indicted 1, and omitted the registration of transfer of ownership under the name of the Defendant, and again sold it to Non-Indicted 2, who was not eligible to obtain the land purchase permission within the land transaction permission zone, and completed the registration of transfer of ownership by donation under the name of Non-Indicted 2 as if Non-Indicted 1 donated the land of this case directly from Non-Indicted 1. In light of these facts, the sale contract between Non-Indicted 1 and the Defendant on May 4, 2003 and the subsequent Defendant on May 6, 2003, all of such a sale contract becomes null and void.
Since both the above sales contract and the above sales contract between the defendant and the non-indicted 2 are null and void, the court below reversed the judgment of the court of first instance which found the defendant guilty of this part of the charges, and found the defendant not guilty of this part of the charges in accordance with the above legal principles, and just and acceptable, and there are no errors in the misapprehension of legal principles as to the special measures for the registration of real estate as alleged in the grounds of appeal.
Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Park Si-hwan (Presiding Justice)