[2] In a case where a land transaction contract designated as a land transaction permission zone under the Act on the Utilization and Management of the National Territory has not been re-designated as an area subject to permission despite the cancellation of the designation of the land transaction permission zone or the expiration of the designation period of the area subject to permission, whether the land transaction contract becomes effective finally and conclusively

[3] Whether a party to a contract in a state of dynamic invalidation may unilaterally rescind a contract contract in a state of dynamic invalidation on the grounds of the other party’s failure to perform his/her duty to cooperate in the completion of the other party’s contract (negative)

[2] [Majority Opinion] Although the Minister of Construction and Transportation cancels the designation of a land transaction permission area or the designation period of a permission area has expired, the purpose of not re-designation of a land transaction permission area (hereinafter referred to as "cancellation, etc.") is to prevent any further permission with respect to individual land transaction within the pertinent area, since the public interest of achieving the land transaction permission system, such as the character and conduct of speculative land transaction and the prevention of a rapid increase in the land price arising therefrom, has become no longer impeded, and the necessity of permission has ceased to exist. Thus, if permission with respect to the land transaction contract within the permission area, the land transaction contract is treated as permission for the land transaction contract within the permission area so that the parties to the transaction can realize private autonomy, which the parties to the transaction intend to achieve as the relevant land transaction contract by cancelling the regulation under public law as to the private autonomy, and without permission for land transaction contract, the land transaction contract becomes null and void before the designation of the permission area becomes final and conclusive without permission from the competent administrative agency. Thus, a transaction party can still be deemed null and void by the contract.

[Dissenting Opinion] As long as the land transaction permission system under the Act on the Utilization and Management of the National Territory is not abolished and remains intact, the transaction contract concluded on the land within the designated period of permission is still valid even after the cancellation of designation, etc. of permission. It is in line with the contents and purport of the above system. It is not unreasonable in terms of legal theory. According to the Majority Opinion, it is unreasonable to allow speculative transactions in the past after the designated period of permission expires without considering the problems of speculative transactions in the past, and it is contrary to the basic economic policy of the country to encourage sound investment and consumption and to prevent the inflow into speculative transactions. Furthermore, it is contrary to the basic economic policy of the country to establish land use order.

[3] A party to a contract in a state of dynamic invalidation may not rescind a contract itself in a state of dynamic invalidation on the sole ground that the other party has not fulfilled his/her obligation to cooperate in the completion of the validity of the contract.

1. According to the reasoning of the lower judgment, the facts and judgment acknowledged by the lower court are as follows.

A. On June 4, 1981 between the plaintiff 1 and the defendant, the plaintiff 1, the deceased non-party 1, the deceased non-party 1, and the defendant, pursuant to the original exchange contract, the ownership transfer registration made in the name of 202 square meters (hereinafter referred to as " 00 square meters") in the defendant's wife 2, the non-party 3 was cancelled on January 21, 1988 based on the final judgment of the lawsuit claiming the cancellation of the ownership transfer registration filed against the deceased non-party 1 and the non-party 2, the non-party 1, and the non-party 3, the non-party 9 and the non-party 1, the non-party 2, the non-party 1, who was on behalf of the deceased non-party 1, and the non-party 2, the non-party 1, the non-party 1 and the defendant, who were designated as the non-party 2, were transferred the ownership transfer registration of the forest and the non-party 1, the non-party 2.

B. Based on these facts, the lower court determined that the Defendant is obligated to implement the procedure for the registration of ownership transfer on the ground of the instant exchange contract with respect to the remaining part of the instant land except for the burial ground. Furthermore, on December 12, 1990, the Defendant sent all necessary documents to a certified judicial scrivener, entrusted the Defendant to perform the procedure for the registration of ownership transfer of the instant land, and notified the Plaintiff 1 to perform the Defendant’s obligation under the instant exchange contract several times after completing the Defendant’s preparation to perform the obligation under the instant exchange contract. However, the Plaintiff 1 was in a situation in which it was impossible to transfer ownership of the instant land at the time, and it was clearly indicated that the Defendant had expressed his intent not to perform the obligation under the instant exchange contract by lowering the location of ○○ Ri land for three years since 191 and expressed his intention not to perform the obligation under the instant exchange contract, and thus, rejected the Plaintiffs’ remaining claim for the registration of ownership transfer of the instant land except for the Plaintiff 1’s obligation under the instant exchange contract.

2. The land transaction contract, which was concluded without obtaining permission from the competent administrative agency on the land within the zone designated as the zone for permission of the land transaction contract under the Act on the Utilization and Management of the National Territory, is no longer effective after the final invalidation is made. However, in the case of a contract which is based on the premise that permission is to be granted, there is no obligatory effect of the contract as a legally complete juristic act until the permission is granted. However, once the permission is granted, the contract shall be deemed to be retroactively effective, and if a non-permission is granted, the contract shall be deemed to be in the state of dynamic invalidation finalized (see Supreme Court en banc Decision 90Da1243 delivered on December 24, 191).

However, according to the facts duly established by the court below, under the premise that at the time when the plaintiff 1 and the defendant entered into the exchange contract of this case on July 23, 1990, the land of this case was the land within the zone designated as the land transaction permission zone, and there was no evidence to acknowledge that the land transaction permission was obtained from the competent administrative agency after the conclusion of the exchange contract of this case, the court below, after which the designation of the land transaction permission zone was cancelled on April 20, 1998 (the Minister of Construction and Transportation cancelled the land transaction permission zone designated and publicly announced by the Minister of Construction and Transportation except for the area designated and publicly announced by the Mayor/Do governor on January 24, 1998 pursuant to Article 198-24 of the Public Notice of the Ministry of Construction and Transportation (the plaintiff cancelled the land transaction permission zone designated and publicly announced by the Minister of Construction and Transportation as of January 31, 198) on the land of this case.

Unless there is a non-permission regarding an application for permission for land transaction, or both parties clearly express their intent to refuse the performance of their duty to cooperate, or it is obvious that one of the parties is unable to perform his duty under the contract and the other party is no longer able to continue to perform the contract (see Supreme Court Decisions 91Da33766, Jul. 27, 1993; 97Da4357, 4364, Jul. 25, 1997) and the land transaction permission becomes final and conclusive, it shall be deemed that there is still a state of dynamic invalidation, except where it becomes final and conclusive with the permission for land transaction.

However, as in the instant case, even if the Minister of Construction and Transportation cancels the designation of a land transaction permission area or the designation period of a permission area has expired, the purport of not re-designation of a land transaction permission area (hereinafter “designation, etc.”) is to prevent any further permission with respect to individual land transaction within the relevant area, since the public interest of the implementation of the land transaction permission system, such as the character and conduct of speculative land transaction and the prevention of a rapid increase in the land price arising therefrom, has no effect on the public interest, and the necessity of permission has ceased to exist. As such, as permission was granted on the land transaction contract within the permission area, treating the land as well as the permission granted on the land transaction contract within the permission area, so that the transaction party can realize the private autonomy that the transaction party intended to achieve as the relevant land transaction contract by cancelling the regulation under public law on the private autonomy and achieves the relevant land transaction contract. Therefore, unless the land transaction contract was concluded within the permission period without obtaining any land transaction permission, the land transaction permission becomes null and void as seen earlier before the designation of the permission area becomes void.

Therefore, as pointed out in the ground of appeal by the Plaintiff, the reason that the Plaintiff failed to perform its duty to cooperate in completing the validity of the exchange contract of this case has become final and conclusive due to the cancellation of designation of the permitted area of this case unless there are grounds to invalidate the exchange contract of this case as final and conclusive.

3. However, according to the reasoning of the judgment below, the court below rejected the defendant's defense of cancellation on the ground that there is no evidence to acknowledge that the defendant did not provide legitimate performance of his obligation, and that the plaintiff clearly expressed his intent not to perform his obligation under the exchange contract. The court below rejected the defendant's assertion that the contract of this case was lawfully rescinded on September 2, 1994 on the ground of the plaintiff's non-performance of obligation to cooperate in the validity of the exchange contract of this case in a state of dynamic invalidation, but the court below rejected the defendant's allegation that the contract of this case was legally void on the ground that the parties to the contract in a state of dynamic invalidation did not perform their obligation to cooperate with the other party to complete the validity of the contract of this case, and there is no error of law by misunderstanding the legal principles as to the cancellation of the contract of this case on the ground that the contract of this case was void on the ground that it did not constitute an unlawful cancellation of the contract of this case as well as the defendant's rejection of the above part of the grounds for appeal.

4. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the appellant. It is so decided as per Disposition by the assent of all participating Justices, except for a dissenting opinion by Justice Park Jong-chul, Justice Lee Jae-hee, Justice Cho Jae-hee, Justice Cho Jae-sik, and Justice Song Jin-hun as to the judgment of paragraph (2).

5. The Dissenting Opinion by Justice Park Jong-chul, Justice Lee In-hee, Justice Lee Jae-hee, Justice Cho Chang-hee, Justice Song Sung-sik, and Justice Song Jin-hun as to the part of the determination under paragraph (2) is as follows.

The Majority Opinion argues that, when a land transaction contract is concluded without obtaining permission from the competent administrative agency for land transaction permission on the land within the designated period of a zone subject to permission under the Act on the Utilization and Management of the National Territory, and the Minister of Construction and Transportation cancels the designation of a zone subject to permission or fails to re-designated a zone subject to permission even after the designated period of a zone has expired, the transaction party may demand the performance of the claim for the transfer or creation of the right, such as the ownership of the land, on the basis of the contract, and the other party may make a claim for the counter-performance. However, we cannot agree with the Majority on the following grounds.

(1) As acknowledged by the Majority Opinion, a contract concluded without obtaining permission from the competent administrative agency regarding land within a permitted area during the designated period under the land transaction permission system under the Act on the Utilization and Management of the National Territory is a legally completed juristic act until permission is granted, and the effect of the contract does not take place as well as the effect of the real right. In principle, the effect of a juristic act is determined by the laws and regulations at the time that such act takes place. As long as a contract is concluded on land within a permitted area, insofar as the contract is concluded after the Minister of Construction and Transportation cancels the designation of a permitted area, or even if the designation of a permitted area was not re-designated even though the designation period has expired, the contract can be deemed valid only after obtaining permission

(2) Although the Majority Opinion does not have any express provision, it is reasonable to interpret that, in a case where a cancellation, etc. of the permission area was made contrary to the aforementioned principles, the transaction contract concluded without obtaining permission becomes final and conclusive. The purpose of cancellation, etc. of permission by the Minister of Construction and Transportation is to ensure the realization of private autonomy, which the parties to the transaction intend to achieve by treating the transaction contract on the land within the permission area, as well as by treating it as obtaining permission for the transaction contract on the land in question, inasmuch as the public interest to achieve the land transaction permission system, such as the character and conduct of speculative land transaction and the prevention of a sudden increase in the land price resulting therefrom, even if no permission is obtained for individual land transaction within the said area.

However, in light of the purpose and contents of the land transaction permission system under the Act on the Utilization and Management of the National Territory, the purport of the land transaction permission system cannot be deemed to be included as stated in the Majority Opinion. The purpose of the land transaction permission system is to promote normal transaction by preventing speculative transactions of land. To achieve that purpose, the Minister of Construction and Transportation may designate an area at any time as a land transaction permission zone, or cancel or re-designation such designation. As such, the designation period is limited to not more than five years (see Article 21-2(1) and (6) of the Act on the Utilization and Management of the National Territory). Since the Minister of Construction and Transportation’s failure to cancel or re-designation the designation of an area subject to permission is not based on final judgment that no land transaction contract has been concluded or will be concluded in the future, but rather on the grounds that there may still be concerns about the possibility of land speculation in the area subject to permission, which has been concluded at any time prior to the cancellation of designation, etc. of an area subject to permission.

In addition, the permission for land transaction under the Act on the Utilization and Management of the National Territory is required to individually examine whether the land transaction contract satisfies the criteria for permission at the time of application by the party concerned (see Articles 21-3(1) and 21-4(1) of the same Act). Thus, the permission to treat the land located within the permission area as in the same manner as the permission is granted by combining all unspecified transaction contracts entered into with respect to the land within the permission area is not scheduled under the Act. In addition, when the Minister of Construction and Transportation designates and publicly announces the permission area, the time of the designation period and the date of termination shall be specified and the cancellation date shall be specified in the public announcement of the designation of the area. Thus, the act of cancelling the designation of the area by the Minister of Construction and Transportation is merely interpreted as not regulating the permission for the land transaction contract after the date of cancellation, and it does not be construed

Therefore, it cannot be deemed that the purport of treating the transaction contract concluded with respect to the land located within the permission area of the Minister of Construction and Transportation, such as the cancellation of designation, etc. of the permission area is included.

On the other hand, even if the cancellation of permission was made, if the relevant area was re-designated as an area subject to permission, the need to obtain permission for a land transaction contract which was concluded during the previous period of permission even from the perspective of public interest within the majority opinion, but has not been implemented until that period, should be considered again. However, according to the majority opinion, such a land transaction contract cannot be considered as conclusive and effective at the same time as the cancellation of designation of an area subject to permission, which would result in unreasonable result that it cannot be required to obtain permission for the relevant transaction contract even if the necessity of permission is recognized. Such unreasonable result from the majority opinion that is derived from the point that the current land transaction permission system cannot be harmonized with the existing land transaction permission system,

Ultimately, the Majority Opinion argues that the need to maintain the current land transaction permission system has completely ceased to exist and that there is only reasonable room for the abolition of the said system, and that even if the Minister of Construction and Transportation cancels the permission area, the above system itself for the purpose of preventing speculative transactions in land is still maintained.

(3) As stated in the majority opinion, if a contract for land transaction within a permitted area is required to be permitted only within the designated period and all of the permitted periods are considered to be valid definitely without permission, the effectiveness of the land transaction permission system may not be guaranteed, and any result may be contrary to the equity among the persons who have entered into the contract for land within the permitted area.

In other words, if both parties to a transaction contract on land within a permitted area agree not to file an application for permission within the designated period and to transfer or register the creation of rights such as ownership after the expiration of the designated period, such agreement will lose logical grounds to regard it as null and void on a conclusive basis, notwithstanding the fact that it is a contract to circumvent the permission, and even if it is not so, it is virtually difficult to prevent the execution of such permission-free contract, and it is likely to create an opportunity and conditions of speculative transactions by transferring the status under a contract to seek the performance of the obligation immediately after the lapse of the designated period of permission.

In addition, in a case where a land transaction contract for which an application for permission was not filed is an speculative transaction that fails to meet the criteria for permission, it violates the equity between persons who already filed an application for permission and persons who failed to obtain permission. Meanwhile, even in a case where a land transaction contract for which no application for permission was filed meets the criteria for permission, a person who received an application for permission shall be punished by a fine for negligence if the land is not used for the permitted purpose (Articles 33-2(2)6 and 21-18(1) of the Act on the Utilization and Management of the National Territory and Article 33-2(2)6 of the Act on the Utilization and Management of the National Territory and Article 21-18(1) of the Act on the Utilization and Management of the National Territory and Article 33-2(2)1 of the Act on the Management of the National Territory and its purpose

In light of the above various points, insofar as a land transaction permission system under the Act on the Utilization and Management of the National Territory is not abolished and has been maintained during the designated period, the transaction contract concluded on the land within the permitted period can still be interpreted as valid even after the cancellation of designation, etc. of permission, and it is consistent with the contents and purport of the above system, which aims at the regulation of speculative transactions of land, and it is not unreasonable in terms of legal theory. According to the Majority Opinion, after the designated period expires, the transaction contract, which was concluded on the land within the permitted period, may still be interpreted as valid after the cancellation of designation, is in line with the contents and purport of the above system, and it would not be unreasonable in terms of legal theory.

As to this case, since the land of this case was located within the land transaction permission zone at the time of concluding the land exchange contract of this case, the above land exchange contract of this case shall not take effect unless it is recognized that the designation of the zone was cancelled later, and therefore, the plaintiffs who are the deceased non-party 1's inheritors who are the parties to the above land exchange contract of this case cannot file a claim for the registration of ownership transfer against the defendant as the fulfillment of obligations under the contract of this case.

2. On the other hand, on the other hand, on the other hand, on the other hand, on the other hand, on the other hand. On the other hand, on the other hand, on the other hand, on the other hand, on the other hand, on the other hand.