207Da74409 (Counterclaim) Implementation of the procedure for filing an application for land transaction permission

The costs of appeal are assessed against the plaintiff (Counterclaim defendant).

Article 565(1) of the Civil Act, where one of the parties to a sale and purchase delivers the down payment to the other party at the time of performance of the contract, barring any other agreement between the parties, the person who delivers the down payment may waive it and rescind the contract until the other party commences performance of the contract. The other party may reimburse a double of the down payment and rescind the contract, which limits the existence of the right of rescission. However, in cases where the contract is separately set forth in the grounds for cancellation at the time of conclusion of the contract, the restriction on the continuation of the right of rescission as stipulated in Article 565(1) of the Civil Act is not applicable to the exercise of the right of rescission on the grounds of occurrence of the grounds for cancellation as stipulated in Article 565(1) of the Civil Act (see Supreme Court Decision 2005Da58571, May 11, 2006). Thus, Article 565(1) of the Civil Act does not apply to the contract where the contract becomes a fluid null and void state without permission for land transaction as stipulated in the former National Land Planning Act.

Examining the record in light of the above legal principles, if the Plaintiff (Counterclaim Defendant; hereinafter referred to as the “Plaintiff”) had no effect on October 203, 200, the Plaintiff and the Defendant (Counterclaim Plaintiff; hereinafter referred to as the “Defendant”) sold the instant land within the area designated as an area subject to transaction permission under the former National Land Planning and Utilization Act to the Defendant, but the contract deposit amount of KRW 15 million on the date of the contract, and KRW 45 million on March 25, 2004. Article 6 of the real estate sales contract (Evidence 1) prepared at the time of the contract of this case provides for the return of the intermediate payment to the Plaintiff at KRW 50,000,000,000,000,000,000,000 won, which is no longer than 60,000,000 won before the date of the contract of this case’s cancellation, and the buyer may waive the contract and cancel the contract for the said KRW 16,500,000,00,000.

Although the plaintiff's exercise of the right of rescission is based on the reservation clause, it is somewhat inappropriate in the judgment of the court below that judged the validity of the declaration of intent to cancel under the premise that Article 565 (1) of the Civil Act is applied to the existence of the right of rescission, but it is not somewhat inappropriate in the reasoning of the judgment below. However, the conclusion that rejected the plaintiff's claim on the right of rescission is just and it is not erroneous in the misapprehension of legal principles as to interpretation and application of Article 565

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.

Justices Kim Young-ran

Justices Kim Hwang-sik

Justices Lee Hong-hoon