[2] Whether the right to apply for issuance of the qualification certificate for acquisition of farmland can be subject to the exercise of creditor's subrogation right (affirmative)

[2] If a person who intends to acquire farmland acquires a claim for the registration of transfer of farmland by entering into a sales contract for farmland, he/she shall hold the right to apply for the registration of acquisition of farmland. The right to apply for the registration of acquisition of farmland may be the subject of the exercise of

1. The qualification certificate for acquisition of farmland is to certify that a person who acquires farmland has a qualification for acquiring farmland, and a person who intends to acquire farmland shall attach it when he/she files an application for the registration of ownership of farmland with the qualification certificate for acquisition of farmland issued by the head of Si/Gun/Gu having jurisdiction over the location of farmland, Eup/Myeon or Myeon (Article 8(1) and (4) of the Farmland Act). Even if a person who intends to acquire farmland completes the registration of ownership transfer of farmland, insofar as the said person did not obtain the qualification certificate for acquisition of farmland (see, e.g., Supreme Court Decisions 2006Da27451, Feb. 1, 2008; 2010Da68060, Nov. 29, 2012; 2010Da68060, Feb. 23, 1999; and see, e.g., Supreme Court Order 98Ma2604, Feb. 2604).

2. If a person who intends to acquire farmland acquires a claim for the registration of transfer of farmland by entering into a sales contract for farmland, he/she shall hold the right to apply for the registration of acquisition of farmland. The right to apply for the registration of acquisition of farmland shall be deemed to be the subject of the exercise of the creditor’s right

A. The right to apply for the issuance of the qualification certificate for acquisition of farmland is essential for the exercise of the right to request the registration of ownership transfer of farmland, and thus, is characterized as a property right. On the other hand, the qualification certificate for acquisition of farmland is merely a document attached to the application for the registration of ownership transfer of farmland, and it is not effective to form legal relations such as creating obligations to a person who intends to acquire farmland by itself. Therefore, the right to apply for the issuance of the qualification certificate for acquisition of farmland

B. If the right to apply for the issuance of the qualification certificate for acquisition of farmland cannot be the object of the exercise of the creditor’s subrogation right, the creditor is unable to transfer farmland under the name of the applicant, and thus, it is more reasonable to guarantee the creditor’s right to apply for the issuance. Therefore, even if recognizing the exercise of the right to apply for the issuance, it is more reasonable to recognize the exercise of the right to apply for the issuance of the qualification certificate for acquisition of farmland to guarantee the creditor’s right to use the farmland for his own agricultural management. Therefore, there is no concern that the evasion of the law would avoid the principle of light freedom to be achieved by the Farmland Act.

C. A creditor may obtain satisfaction of a claim by either executing a compulsory execution on farmland for which the registration of ownership transfer has been completed in the name of the applicant or completing the registration of ownership transfer in his/her own name through a subrogation of the qualification certificate for acquisition of farmland or by completing the registration of ownership transfer in his/her name. In this context, a third party who intends to purchase farmland and a creditor who intends to obtain ownership transfer in his/her name can acquire ownership on farmland in his/her name

D. Where a creditor completes the registration of ownership transfer with the qualification certificate for acquisition of farmland on behalf of the applicant for issuance, the applicant for issuance bears the duty to use the farmland for his/her own agricultural management (Article 10(1)1 of the Farmland Act). In cases where farmland is not used for his/her own agricultural management, the head of a Si/Gun/Gu may issue an order to dispose of the farmland (Article 11(1) of the Farmland Act). If a disposition order is not complied with without any justifiable reason (Article 62(1) of the Farmland Act). In such cases, the principle of light-wise can be realized through the order to dispose of farmland, the imposition of enforcement fines, etc.

E. Furthermore, to the extent that the creditor of the applicant applicant can exercise the right to apply for the qualification certificate on behalf of the creditor, even if there is no agricultural management plan prepared by the applicant, the Mayor, the head of the Gu, the head of Eup/Myeon may issue the qualification certificate for acquisition of farmland based on other data, such as the application for the qualification certificate for acquisition of farmland submitted by the creditor.

3. The lower court, on the premise that the Plaintiff, a creditor, can exercise the right to request the issuance of the qualification certificate for acquisition of farmland by the Nonparty, a debtor, determined that the instant disposition on the ground that the exercise of the right to request the issuance of the qualification certificate by proxy is unlawful in itself by itself. In addition, the lower court determined that the Nonparty’s intent of agricultural management as to the non-party’s share of 1/2 of the 2,273 square meters in Incheon

In light of the aforementioned legal principles and records, such determination by the court below is just, and contrary to what is alleged in the grounds of appeal, there were no errors of misapprehending the legal principles on the interpretation and application of the Farmland Act, by misapprehending the bounds of the principle of free evaluation of evidence against logical

4. 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 on the bench.

Justices Park Jung-hwa (Presiding Justice)