[2] The case reversing the judgment of the court below that a person who violated Article 21-3 (1) and (7) of the former Act on the Utilization and Management of the National Territory constitutes a violation of the principle of trust and good faith

[2] The case reversing the judgment of the court below on the ground that the person who violated Article 21-3 (1) and (7) of the former Act on the Utilization and Management of the National Territory (amended by Act No. 4572 of Aug. 5, 1993) is against the principle of trust and good faith to assert the invalidation on his own, is against the principle of trust and good faith

1. On the first ground for appeal

A. According to the reasoning of the lower judgment, the lower court recognized the following facts by comprehensively taking account of the evidence adopted in its judgment.

On November 25, 1990, the plaintiff Kim Jae-sik entered into a contract for new construction of the building at the time of the original adjudication with the non-party Kim Jae-mun, and endorsed and deliver to Kim Jae-mun a promissory note of KRW 146,00,000 at par value as a performance bond for the construction, and let the plaintiff Cho Jae-chul execute the part of the civil construction among the construction works of the building, and thereafter, a promissory note issued by Kim Jae-mun issued as a payment for the construction work was suspended from the above construction works by the plaintiffs, or the plaintiffs were to repay the said construction work by evaluating the payment for the construction work amount of KRW 384,00,000, and the above promissory note paid as the performance bond for the construction work was returned to the plaintiff Kim Jae-sik and thus the plaintiff Kim

On the other hand, on September 12, 1991, the plaintiffs and Kim Jae-mun purchased at KRW 130,00,000 the Jung-gu Incheon Metropolitan City land (hereinafter the "real estate, etc. of this case") at the time of the original adjudication on the real estate of this case, and at the time, the successful bid was permitted for KRW 95,100,00 to four persons, such as the non-party A Young-gu upon a request for auction by the Korea Mutual Saving and Finance Company, which was the mortgagee of the real estate of this case. Therefore, the plaintiffs decided to adjust the above auction procedure by paying the amount equivalent to the principal and interest of the secured obligation to the above bank of Kim Jae-sik, and if Kim Jae-mun paid the repayment and the above promissorysory note paid as the construction work performance deposit within one month, the above sale shall be null and void, and if the plaintiffs fail to adjust the above auction, the above sale shall also be null and void.

On November 7, 191, the decision of permission of the above successful bid became final and the payment date was designated as October 10, 1991, the plaintiffs concluded a sales contract to sell the real estate of this case for 250,000 won to the defendant on December 17, 1991 (the defendant purchased the real estate of this case for the purpose of using it as the site for religious facilities or social welfare facilities).

On December 18, 1991, the Defendant knew that the payment of the successful bid price was due on the 20th of the same month, and agreed upon Kim Jae-mun at the end of the above sale contract. Since Kim Jae-chul lost ownership of the real estate due to auction, it was judged that transferring the real estate of this case to the Defendant who is a religious organization, to the Defendant, again entered into a contract with the Defendant on December 19, 191 with the charge that the Defendant would donate the real estate of this case to the Defendant if the Defendant repaid the above safe of KRW 95,10,000, which is equivalent to the above successful bid price, to the Defendant. Accordingly, the Defendant directly paid the above safe KRW 95,100,00,000, and thereafter Kim Jae-mun raised an objection against the above decision on the commencement of auction, and thereafter, he completed the registration of ownership transfer on the real estate of this case on the 20th of the same month, and completed the auction on the 30th of the same month.

B. In light of the records, the fact-finding by the court below is justified and there is no error of law in finding facts against the rules of evidence or the rules of experience. The grounds for appeal pointing this out cannot be accepted.

2. On the second ground for appeal

A. If a person who violated Article 21-3(1) and (7) of the former Act on the Utilization and Management of the National Territory (amended by Act No. 4572 of Aug. 5, 1993, hereinafter referred to as the "Act on the Utilization and Management of the National Territory"), which is a mandatory law, refuses the claim for invalidation on the ground that the person who violated Article 21-3(1) and (7) violates the principle of trust and good faith, it would be completely dismissed the legislative intent of the Act on the Utilization and Management of the National Territory. Thus, if a transaction application is filed with the competent authority in accordance with the contents and purpose of the agreement between the parties to the transaction, the application can be obtained in compliance with the standards for permission under the Act on the Utilization and Management of the National Territory, unless there are special circumstances that can be deemed to be avoided due to other urgent circumstances (see Supreme Court Decision 93Da4319, 44326, Dec. 24, 193, etc.).

B. However, according to the reasoning of the judgment below, since it is reasonable to view that the above-paid donation contract between Kim Jae-mun and the defendant is a contract for the transfer of rights in return for the consideration under the Act on the Utilization and Management of the National Territory, the above-paid donation is eligible for permission if it does not fall under the land transaction for speculative purpose and applied for land transaction permission in accordance with the contents and purpose of use among the parties to the transaction. However, in this case, the above-paid donation was made at the location where Kim Jae-mun will lose ownership due to the successful bid of the real estate in this case, and it was difficult for the defendant to acquire ownership if he did not immediately transfer his ownership because Kim Jae-mun bears a large amount of other debts, and since the acquisition cause of the real estate in this case was a form, Kim Jae-mun or the defendant did not consider it as a contract for the transfer of rights in return for the consideration under the Act on the Utilization and Management of the National Territory, and it is reasonable to deem that there was any special reason to avoid this procedure in the future due to the lack of permission under Article 21-4.

C. However, according to the records, it is clear that the real estate in this case is a forest which is designated as a development-restricted zone or park site on the urban planning facilities (No. 17 of the certificate No. 1, No. 287 of the record No. 287, No. 25 of the Act). On the other hand, Article 21-4(1)3 of the Act on the Utilization and Management of the National Territory provides that land shall not be permitted to use land in a case where the purpose of use of land is not appropriate for a plan for the utilization of national land, urban planning and other plan for the use of land. Article 21 of the Urban Planning Act provides that the construction of a building in violation of the purpose of the designation of a development-restricted zone, installation of a structure, alteration of the form and quality of land, division of the land area or an urban planning project shall not be permitted to use the land in a development-restricted zone (amended by Presidential Decree No. 13684 of Jul. 1, 192), Article 20 of the former Enforcement Decree of the Urban Planning Act (amended by Ordinance No. 518).

In addition, the circumstances where the court below judged that the plaintiffs' claims are contrary to the principle of good faith do not seem to be an urgent circumstance that may not be permitted for land transaction under the Act on the Utilization and Management of the National Territory.

D. Nevertheless, the court below held that the defendant's acquisition of the real estate of this case was intended for the use as a site for religious facilities or social welfare facilities, but there were special circumstances that could have avoided this procedure due to other urgent circumstances even though it was possible to obtain land transaction permission for the above-paid donation contract, and thus, the court below did not err in the misapprehension of legal principles as to the Act on the Utilization and Management of the National Territory and the principle of good faith, which affected the conclusion of the judgment. The part of the grounds of appeal assigning this error is with merit.

3. Therefore, the part of the judgment of the court below regarding the conjunctive claim is reversed, and that part of the case is remanded to the court below for a new trial and determination, and the plaintiffs' remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-chul (Presiding Justice)