Plaintiff (Attorney Kang-won, Counsel for the plaintiff-appellant)

Full Do-gun (Attorney Seo-gu et al., Counsel for the defendant-appellant)

June 13, 2019

Gwangju District Court Decision 2016Da515099 Decided May 4, 2018

1. The part of the judgment of the court of first instance against the defendant shall be revoked.

2. The plaintiff's claim corresponding to the above cancellation part is dismissed.

3. The plaintiff's appeal is dismissed.

4. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The defendant shall pay to the plaintiff 25,00,000 won with 5% interest per annum from the day following the day of service of a copy of the complaint of this case to the day of pronouncement of the judgment of the court of first instance, and 15% interest per annum from the next day to the day of full payment.

2. Purport of appeal

○: The part against the Plaintiff in the judgment of the first instance is revoked. The Defendant shall pay to the Plaintiff 25,00,000 won with 5% interest per annum from the day following the day of service of a copy of the complaint of this case to the day of rendering a judgment of the first instance, and 15% interest per annum from the next day to the day of full payment.

○ Defendant: The part against the Defendant in the first instance judgment shall be revoked, and the Plaintiff’s claim corresponding to the revoked part shall be dismissed.

1. Basic facts

A. On July 5, 2013, the Plaintiff issued a written confirmation of the land use plan on the instant land from the Defendant in order to determine that the height (number omitted) and 25 parcels (hereinafter referred to as “instant land”) outside of the Geumdo-do-gun, Jeonnam-do (hereinafter referred to as “instant land”) are suitable for the installation of solar power infrastructure, while the Plaintiff colored the site for the solar power generation project. In order to verify whether development activities are possible on the instant land, the said written confirmation was written only in the area, district, etc. of the said written confirmation, and only written “production control area” and “livestock breeding restriction area.”

B. Accordingly, on July 6, 2013, the Plaintiff determined that solar power infrastructure can be installed on the instant land, concluded a contract to purchase the instant land from the Nonparty for KRW 474,660,000 (hereinafter “instant contract”) and paid KRW 50,000 to the Nonparty on the same day.

C. Since then, the Plaintiff became aware that the instant land cannot be used as a site for solar power infrastructure since it was designated as an area subject to permission for the alteration of the current state of cultural heritage.

D. The Plaintiff renounced down payment of KRW 50,000,000 and rescinded the instant contract.

E. Relevant statutes concerning the designation, etc. of zones subject to permission for alteration of the current state of cultural heritage applicable to the instant case are as shown in the

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 4, 5, and 6 (including branch numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff

The Defendant, who is the subject of preparation and management of a written confirmation of the land use plan concerning the instant land, did not indicate the fact that the instant land is “area subject to permission for change of present conditions” on the land use plan confirmation letter. The Plaintiff concluded the instant contract with the knowledge that the instant land is a zone subject to permission for change of present state with the belief of the matters to be stated in the land use plan confirmation of the instant land and the fact that the instant land is an area subject to permission for change of present state, but concluded the instant contract with the knowledge that it is possible to install solar power facilities on

B. Defendant

1) As the Defendant did not receive any notification from the Administrator of the Cultural Heritage Administration on the fact that the instant land was designated as an area subject to permission for the alteration of the current state, the Defendant did not have a duty to register the instant land as an area subject to permission for alteration of the current state

2) The Plaintiff concluded the instant contract without sufficiently examining whether the instant land constitutes a zone subject to permission for alteration of the current state. The rescission of the instant contract is due to the Plaintiff’s negligence.

3. Determination

A. Whether the land of this case constitutes information to be registered on the national land use information system because it is "area subject to permission for change of phenomena"

1) Article 9(1) of the former Framework Act on the Regulation of Land Use (amended by Act No. 9366, Jan. 30, 2009; hereinafter “former Land Use Regulation Act”) provides that the Minister of Land, Transport and Maritime Affairs and the head of a local government shall provide the general public with the designation of an area, district, etc. and the details of restrictions on activities by lot using a national land use information system. Here, “area, district, etc.” refers to a group of land subject to restrictions on the use and preservation of land, such as restrictions on development activities regardless of names such as an area, district, zone, region, complex, urban planning facility, etc., or obtaining authorization, permission, etc. related to land use (Article 2 subparag. 1 of the former Land Use Regulation Act). Article 5 of the former Land Use Regulation Act provides that an area, district, etc. is an area, district, etc. prescribed in attached Table of the former Land Use Regulation Act (Article 2 subparag. 1), and an area, district, etc. prescribed by Presidential Decree by delegation of other Acts and Ordinance of the Ministry of Land,

Meanwhile, Article 34 Subparag. 3 of the former Cultural Heritage Protection Act (amended by Act No. 9401 of Jan. 30, 2009; hereinafter “former Cultural Heritage Protection Act”) and Article 30(2)2 of the former Enforcement Rule of the Cultural Heritage Protection Act (amended by Ordinance of the Ministry of Culture, Sports and Tourism No. 34 of May 21, 2009; hereinafter “former Enforcement Rule of the Cultural Heritage Protection Act”) provide that a person who intends to engage in an act that is likely to affect the preservation of State-designated cultural heritage shall obtain permission from the Administrator of the Cultural Heritage Administration. Article 30(3) of the former Enforcement Rule of the Cultural Heritage Protection Act provides that the Administrator of the Cultural Heritage Administration shall determine and publicly notify the specific scope of “an act of altering the current state of State-designated cultural heritage within 50 meters from the outer boundary of the State-designated cultural heritage subject to permission within one year from the date the designation is publicly notified.”

2) In light of the contents of the above statutes, the above area under Article 30(2)2 of the Enforcement Rule of the former Cultural Heritage Protection Act (hereinafter “instant Cultural Heritage Administration”), namely, whether it constitutes information to be registered on the national land use information system as “area, district, etc.” under the former Land Use Act, the Administrator of the Cultural Heritage Administration, in full view of the purport of the entire pleadings, upon ① on May 6, 2009, pursuant to Article 30(3) of the former Enforcement Rule of the Cultural Heritage Protection Act, the Administrator of the Cultural Heritage Administration: (a) determined and publicly announced the permissible level of alteration of the current state with respect to the land around the cemetery, Dong-dong (State-designated cultural heritage and private site No. 114); and (b) on January 5, 2010, the Minister of Land, Transport and Maritime Affairs announced that the current state of the current state of the land, including the instant land, was in force as the zone without the permission of the Ministry of Land, Transport and Maritime Affairs under Article 5(3) of the former Land Use Act.

According to the above facts, the land of this case is a zone, district, etc. prescribed in the public notice of the Cultural Heritage Administration and publicly notified by the Minister of Land, Transport and Maritime Affairs in the Official Gazette, and constitutes “area, district, etc.” under Article 5 subparag. 3 of the former Land Use Act. Such designation of a zone subject to permission for alteration of the current state as above shall take effect from July 5, 2010, which is the date of entry into force of the public notice of the Ministry of Land, Transport and Maritime Affairs. Accordingly, the fact that the land of this case is “area subject to permission for alteration of the current state” constitutes information to be registered

B. Whether the Defendant breached its duty to register “the instant land was designated as an area subject to permission for the alteration of current state” on the national land use information system

1) According to the former Land Use Act, when the head of a central administrative agency designates a zone, district, etc., he/she shall prepare a drawing specifying the zone, district, etc. (hereinafter referred to as “spatial map”) on the topographical map on which the land registration is indicated in the Official Gazette, except as otherwise prescribed by Presidential Decree (Article 8(2)); when he/she intends to announce the topographical map as above, he/she shall notify the head of the relevant Si/Gun/Gu in advance of the matters prescribed by Presidential Decree, such as relevant documents and the scheduled date of publication (Article 8(8)); and upon receipt of such notification from the head of the relevant central administrative agency, the head of the Si/Gun/Gu shall register the details thereof on the information system for utilization of national land so that ordinary citizens can be seen from the date on which the designation of the zone, district, etc. becomes effective (Article 8(9)). In addition, if a zone, district, etc. is newly established, the head of the central administrative agency shall notify

2) In light of the above statutes, whether the Defendant should register the “the instant land was designated as an area subject to permission for the alteration of the current state” on the national land use information system, the Administrator of the Cultural Heritage Administration does not notify at all the relevant head of Gun of the matters concerning the public announcement of the instant cultural heritage management office before making the public announcement of the standards for permission for alteration of the current state under the former Cultural Heritage Protection Act. ② The Minister of Land, Transport and Maritime Affairs did not directly change the contents provided through the national land use information system or notify the head of Gun (the head of Gun of the relevant Gun) of the change of the contents of the national land use information system in accordance with Article 9(2) of the former Land Use Act while making the public announcement of the instant land use information system on the areas, districts, etc. under Article 5 subparag. 3 of the same Act.

According to the above facts, the defendant did not receive any notification from the Administrator of the Cultural Heritage Administration or the Minister of Land, Transport and Maritime Affairs that the instant land was designated as an area subject to permission for the alteration of the current state. It is difficult to view that the defendant was negligent for the defendant to assume the duty to register the “the fact that the instant land was designated as an area subject to permission for the alteration of the current state” on the national land use information system or to register it. Therefore, the plaintiff’s claim of this case premised on the above duty or negligence of the defendant is without merit.

4. Conclusion

Thus, the plaintiff's claim of this case shall be dismissed as it is without merit. Since the judgment of the court of first instance is unfair with different conclusions, the defendant's appeal is accepted, and the part against the defendant in the judgment of first instance against the defendant is revoked, the plaintiff's claim corresponding to the revoked part is dismissed, and the plaintiff's appeal

[Attachment]

Judges South Sea (Presiding Judge) Lee Jin-Jin Kim Young-soo