[소유권이전등기][미간행]
[1] Legislative intent of Article 35 of the Act on the Budgeting and Management of Subsidies and whether such provision is effective (affirmative)
[2] Whether a person who violates the mandatory law voluntarily asserts the invalidity of the agreement is against the good faith principle (negative), and the requirement to deny the exercise of his/her right on the ground that it violates the good faith principle (negative)
[1] Article 35 of the Act on the Budgeting and Management of Subsidies, Article 105 of the Civil Code / [2] Article 2 of the Civil
[2] Supreme Court Decision 2001Da67126 decided Mar. 15, 2002 (Gong2002Sang, 886), Supreme Court Decision 2003Da2390, 2406 decided Apr. 22, 2003 (Gong2003Sang, 1192), Supreme Court Decision 2003Da1601 decided Jun. 11, 2004 (Gong2004Ha, 1148), Supreme Court Decision 2004Da5556 decided Oct. 28, 2004 (Gong2004Ha, 1946)
Cho-hee (Attorney Seo-hee et al., Counsel for the defendant-appellant)
National Agricultural Cooperative Federation (Attorney Nam-jin, Counsel for defendant-appellant)
Daegu District Court Decision 2003Na9580 Delivered on December 17, 2003
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
1. The court below acknowledged the facts after compiling the adopted evidence, and determined that the National Livestock Cooperatives Federation (hereinafter referred to as the "National Livestock Cooperatives Federation") approved the special agreement of this case only on the ground of the plaintiff's assertion that it did not recognize the fact that the special agreement of this case was approved by the Minister of Agriculture and Forestry, and there is no evidence to acknowledge the fact that the special agreement of this case was approved by the Minister of Agriculture and Forestry, and that the administrative disposition was made in the document clearly stating the special agreement of this case on May 5, 1998 and April 200, the Minister of Agriculture and Forestry rejected or suspended the request of the National Livestock Cooperatives Federation for approval of the special agreement of this case. In light of the records, the fact-finding and decision of the court below is proper and there is no error of law such as misunderstanding of facts or misunderstanding of legal principles due to violation of the rules of evidence.
In addition, Article 35 of the Act provides that "Any important property prescribed by Presidential Decree, which is acquired by a subsidized business operator by a subsidy or the utility thereof increased shall not be used for any purpose that violates the purpose of granting a subsidy, transferred, exchanged, or lent, or provided as a security, even after the completion of the subsidized business without the approval of the head of the central government agency." This provision provides that "The legislative purpose of this provision is to continuously ensure the appropriate management and the effectiveness of the subsidy by preventing the property acquired by a subsidy granted by the national budget from being used or disposed of for any purpose other than the purpose of granting the subsidy." Thus, the above provision
In light of the relevant laws, the above legal principles and records, the court below is just and acceptable to determine that the special agreement of this case is in a so-called non-exclusive invalidation state that has no effect until the Minister of Agriculture and Forestry approves it pursuant to Article 35 of the Act, on the premise that Article 35 of the Act is an effective provision, and there is no error of law by misunderstanding the legal principles as to the effective provision as alleged in the grounds of appeal.
2. If a person who violated the mandatory law voluntarily denies his claim on the ground that he is an exercise of the right in violation of the principle of good faith to assert the invalidity of the agreement, this would result in realizing the result of excluding the parties by the mandatory law, and the legislative intent is entirely entirely blind, barring any special circumstances, such assertion cannot be deemed as contrary to the principle of good faith. Meanwhile, in order to deny the exercise of the right on the ground that it violates the principle of good faith, the other party has to have been provided with good faith or had good faith objectively, and the exercise of the right against the other party's good faith should be deemed to have reached an irrecoverable level in light of the concept of justice (see, e.g., Supreme Court Decisions 2003Da2390, 2406, Apr. 22, 2003; 2003Da1601, Jun. 11, 2004).
In light of the above legal principles and records, it is proper that the court below rejected the plaintiff's assertion because the defendant asserted that the contract of this case has no validity by violating the mandatory provisions and it is not acceptable in light of the concept of justice, and thus it cannot be viewed as an abuse of rights. There is no error in the misapprehension of the legal principles as to the good faith or abuse of rights.
3. 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 Shin Shin-chul (Presiding Justice)