[소유권이전등기등][공1993.3.1.(939),691]
A. The validity of a contract concluded on the condition that the land is permitted for the land within the land transaction regulation zone under the Act on the Utilization and Management of the National Territory (=dynamic invalidity)
B. Whether both parties are jointly obligated to apply for the permission of the competent authority in a case where a contract for land within the regulatory zone has been concluded (affirmative); and whether the other party who does not cooperate in the procedure for the application for the permission has the interest to seek the performance of the duty of cooperation by litigation
C. In a case where an application for approval of a project plan under the Act on the Installation and Utilization of Sports Facilities on Land within the Regulation Zone is not accepted by the authority, whether it can be deemed impossible to grant permission for land transaction (negative), and whether the procedure for application for permission for land transaction has to be equipped with the certificate of farmland sale or forest land sale (negative)
A. The land transaction contract within the land transaction regulation zone under the Act on the Utilization and Management of the National Territory takes effect only with the permission of the competent authority, and the effect of the contract is null and void as well as the effect of the claim before obtaining the permission. However, in the case of a contract with the content that the contract prior to obtaining the permission excludes the permission from the beginning, it is not likely to become null and void as it is final and conclusive, but in the case of a contract based on the premise that the permission is granted, there is no possibility that it will take effect as a final and conclusive legal act until obtaining the permission. However, in the case of a contract based on the premise that it does not take effect at all until obtaining the permission, the contract becomes null and void retroactively, and the contract becomes null and void when obtaining the permission.
(b) In the case of the parties who have entered into a contract for land within a regulatory zone, both parties to the contract are obligated to jointly apply for permission from the competent authorities, and the other party who does not cooperate in the application procedure for permission in breach of this duty is entitled to seek the performance of the duty of cooperation by litigation.
C. Even though the application for approval of the project plan under the Installation and Utilization of Sports Facilities Act on the land within the regulatory zone was not accepted by the authority, the approval of the authority on the project plan is not necessarily required to be prior to the land transaction permission procedure, and thus, it cannot be said that the land transaction permission was impossible. The procedure for applying for the land transaction permission does not necessarily require proof of farmland trade or forest land transaction.
Article 21-3 of the Act on Utilization and Management
A.B. Supreme Court en banc Decision 90Da12243 Decided December 24, 1991 (Gong1992,642). Supreme Court Decision 91Da33612 Decided July 28, 1992 (Gong1992,2544). Supreme Court Decision 92Da3414 Decided October 27, 1992 (Gong192,3295).
Plaintiff 5, et al., Counsel for the defendant-appellant-appellee
Defendant 1 et al., Defendant 1 and one other, Defendant 1 et al., the attorney Kim Yong-sung et al., Counsel for the defendant-appellant of the deceased Nonparty
Seoul High Court Decision 91Na67297 delivered on July 14, 1992
All appeals are dismissed.
The costs of appeal shall be assessed against the defendants.
We examine the grounds of appeal.
The land transaction contract within the area of land transaction regulation under the Act on the Utilization and Management of the National Territory shall take effect only with the permission of the competent authority, and the effect of the contract shall be null and void as well as the effect of the claim before the permission takes effect. However, in the case of a contract for which the contract prior to the permission takes effect from the beginning, there is no possibility to take effect after final invalidation, but in the case of a contract under the premise that the permission takes effect, it shall not take effect at all until the permission takes effect as a legal complete juristic act and the transaction for the transfer or creation of rights, such as ownership, etc. is granted, and it shall be deemed null and void once the permission takes place, and it shall be deemed null and void until the permission takes effect. Thus, in the case of the parties who entered into such a contract, there is no obligation to cooperate with the competent authority for the execution of the contract, and there is no error of law between the Plaintiff and the contracting party claiming for the execution of the contract without having been in violation of the above duty to cooperate with the competent authority after the conclusion of the contract.
In addition, even if the Plaintiff’s application for approval of the project plan under the Installation and Utilization of Sports Facilities Act on the instant land was not accepted by the authority, the approval of the authority on the relevant project plan is not necessarily required to be prior to the land transaction permission procedure, and thus, it cannot be said that the land transaction permission was impossible. Moreover, the land transaction permission procedure does not necessarily require proof of farmland trade or forest land transaction.
The assertion runs counter to the judgment of the court below in a different view.
Therefore, all appeals are 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.