[2] The legal nature of the statutes that stipulate requirements and procedures to be followed when a local government enters into a contract under private law with a private person, and whether it is against the good faith principle to deny or claim invalidation of a contract in violation of a mandatory provision (negative)

[2] Relevant Acts and subordinate statutes stipulating the requirements and procedures to be complied with when a local government enters into a contract with a private person as the subject of the private economy shall clarify the contents of the contract, ensure that the local government takes lawful procedures in entering into a contract with a private person, and they are mandatory provisions. If the local government denies the establishment of a contract in violation of the mandatory provisions or denies the claim for invalidation on the ground that it is an exercise of a right contrary to the good faith principle, it would be blind of the above legislative intent, and such assertion shall not be deemed to violate the good faith principle, barring special circumstances

1. As to whether an exchange contract for the plaintiff's assertion is concluded

A. According to the reasoning of the judgment below, the court below rejected the Plaintiff’s assertion that it was difficult for the Plaintiff to exchange the above list 72-2 of the school site in Mapo-gu, Seoul (hereinafter “instant land”) owned by the Defendant with the above list 17 under the former Enforcement Decree No. 2 of the Local Finance Act (amended by Presidential Decree No. 97, Dec. 27, 1977; Presidential Decree No. 1756, Apr. 1, 197; Presidential Decree No. 2064; Presidential Decree No. 2486, Dec. 27, 197; Presidential Decree No. 20675, Feb. 197; Presidential Decree No. 20674; Presidential Decree No. 2497, Feb. 27, 1977; Presidential Decree No. 20658; Presidential Decree No. 20677, Feb. 27, 2007) to exchange the Plaintiff’s own property and each of the instant land.

B. Article 52-5 of the former Local Finance Act (amended by Act No. 4006 of Apr. 6, 198) which was in force at the time of the Plaintiff’s assertion on December 27, 197 provides that the provisions of Chapter 6 (contract) of the Budget and Accounts Act shall apply mutatis mutandis to the contract to which the local government is a party, except as otherwise provided in this Act and other Acts and subordinate statutes, and Article 70-6 (1) and (2) of the former Budget and Accounts Act (amended by Act No. 4102 of Mar. 31, 1989) which is a provision applicable mutatis mutandis, provides that the head of each central government agency or a public official delegated by him shall prepare a contract stating the purpose, contract amount, period, contract deposit, risk burden, liquidated damages, and other necessary matters, and that the public official and the other party to the contract shall enter into the contract under Article 98-19 of the former Enforcement Decree of the Budget and Accounts Act (amended by Presidential Decree No. 98198, Dec. 26, 19898).

In light of the above legal principles, the purport of the local government's determination of the policy to exchange the land of this case owned by the plaintiff with the land owned by the plaintiff and then notifying the plaintiff of the intention to conclude an exchange contract after going through the requirements and procedures prescribed in the above Local Finance Act and the Decree of the Budget and Accounts Act is consistent with the party's genuine intent. Thus, the defendant's notification of exchange policy to the plaintiff and the plaintiff's consent thereto cannot be deemed as the contract for exchange of this case's land of this case can not be immediately concluded merely because the plaintiff consented to it. Even if the contract for exchange of the plaintiff's assertion was concluded, unless it is concluded in accordance with the requirements and procedures prescribed in the above related Acts and subordinate statutes, the plaintiff cannot seek implementation of the procedure for registration of transfer of ownership for the land of this case against the defendant as the result of the above exchange contract. It does not change

In addition, the defect in the above requirements and procedures is not a defect that can be cured by the ratification of the defendant.

C. Although the reasoning of the court below is somewhat insufficient, it is just to dismiss the plaintiff's claim on the ground that the plaintiff did not have a contract to exchange the land of this case between the plaintiff and the defendant, and there is no error in the misapprehension of the legal principles or inconsistent reasoning, as otherwise alleged in the ground of appeal.

The Supreme Court precedents cited in the grounds of appeal are different from the case and purport, and it is not appropriate to invoke the case in this case.

2. As to the assertion of good faith

The above-related Acts and subordinate statutes stipulating the requirements and procedures to be complied with when a local government enters into a contract with a private person as the subject of the private economy shall clarify the contents of the contract, ensure that the local government takes lawful procedures in entering into a contract with a private person, and shall be subject to compulsory provisions. If the local government denies or denies the formation of a contract in violation of the compulsory provisions and denies it on the ground that it is an exercise of a right contrary to the good faith principle, such assertion may be dismissed, and barring any special circumstances, it shall not be deemed that such assertion violates the good faith principle. The circumstances asserted by the plaintiff in this case cannot be viewed as having any special circumstances.

The reasoning of the court below is somewhat insufficient, but it is just in its conclusion that the defendant's rejection of the plaintiff's assertion that denying the formation of an exchange contract on the land of this case goes against the good faith principle, and there is no error of law by misapprehending the principle of good faith or the legal principles on urban planning projects, as

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Shin-chul (Presiding Justice)