[소유권이전등기][공1992.11.1.(931),2846]
Whether a contract may be demanded for performance of a transaction contract prior to obtaining a transaction permit for land within the regulatory zone, such as land transaction (negative)
A contract for land transaction within a regulation zone subject to permission for land transaction may not be claimed for the performance of a contract because any obligatory effect has not occurred even before the permission is granted.
Article 21-3 of the Act on Utilization and Management
Supreme Court en banc Decision 90Da12243 delivered on December 24, 1991 (Gong1992,642)
Plaintiff 1 et al., Counsel for the plaintiff-appellant
[Defendant-Appellee] Defendant 1 et al.
Daegu High Court Decision 91Na7683 delivered on April 16, 1992
The appeal is dismissed.
The costs of appeal are assessed against the defendant.
1. The defendant's attorney's first ground of appeal is examined.
The summary of the theory is that the area of the land within a residential area under Article 25 (1) 2 of the Enforcement Decree of the Act on the Utilization and Management of the National Territory, for which the permission for the transaction can be granted, is limited to not more than 90 square meters, and the total area of the land in this case does not exceed the above restriction, and thus, the permission for the transaction in this case cannot be granted. Thus, the defendant, even though the court below asserted that the defendant did not have the duty to cooperate
Examining the reasoning of the judgment below in comparison with records, the court below pointed out that the above argument of the defendant is not judged. However, Article 25 of the Enforcement Decree of the Act on the Utilization and Management of the National Territory, which cited the theory of lawsuit, provides for the basic area of land sufficient as a report after concluding a contract instead of permission for transaction pursuant to Article 21-3 (2) of the Act on the Utilization and Management of the National Territory, so the above argument of the plaintiff cannot be applied to the sale and purchase land of this case, so it is obvious that the above argument of the court below is without merit
2. We examine the second ground for appeal.
Since a contract for land within a regulatory area subject to permission for land transaction is bound to the effect that it is impossible to request the performance of a contract because the contractual effect has not occurred even before the permission is granted, the judgment of the court below that held to the same effect is justifiable on the grounds that the defendant's contract rescission on the grounds of the plaintiff's non-performance of contractual obligation cannot be seen as lawful or not.
In order for the plaintiff to seek the defendant's cooperation on land transaction permission, the theory that the plaintiff must perform the obligation to pay the remainder under the terms and conditions of the contract is merely an independent opinion and is therefore groundless.
3. Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Song Man-man Lee Chang-chul et al.