Plaintiff (Law Firm, Kim & Lee LLC, Attorneys Cho Jae-young et al., Counsel for the plaintiff-appellant)

Market of Pakistan

April 3, 2009

Suwon District Court Decision 2008Guhap1301 Decided September 30, 2008

1. Revocation of a judgment of the first instance;

2. The defendant's disposition of imposing the penalty surcharge of KRW 515,363,50 against the plaintiff on December 10, 2007 shall be revoked.

3. All costs of the lawsuit shall be borne by the defendant.

The decision is as follows (However, the part on December 14, 2007, which on the date of the disposition, seems to be a mistake or clerical error).

1. Details of the disposition;

A. On January 11, 2002, the Plaintiff is a company that merges with Nonparty 1 Co., Ltd. (Supreme Court Decision 2002).

B. Around April 17, 1990 to construct cement storage facilities, Nonparty 1 Co., Ltd.: (a) entered into a sale contract with Nonparty 2 for the land transaction permission area (number 1 omitted) with the land transaction permission area (hereinafter “the instant forest”); (b) KRW 2,768,381,200; and (c) KRW 7,835 square meters prior to the said Ri (number 2 omitted); and (d) KRW 367,350,000 (hereinafter “the instant land purchase contract”) prior to the said Ri (number 3 omitted); and (c) jointly paid the price for each of the instant land transaction to Nonparty 3,90 square meters prior to the said Ri (hereinafter “each of the instant land”). (d) concluded a sale contract with Nonparty 3,310,000, with each of the instant land transaction permission procedures, with each of the said two lots of land transaction agreements to provide the price for each of the instant land.

C. The non-party 1 corporation completed the registration of transfer of ownership on September 21, 1990 with the permission for forest sale and purchase and sale contract for the forest of this case. However, when it is anticipated that each of the farmland of this case is unable to obtain the registration of transfer of ownership because it was impossible to obtain the registration of transfer of ownership because it was impossible to obtain the registration of transfer of ownership due to the change of land category in the process of constructing the forest of this case, it did not

D. Since then, the non-party 1 corporation filed an application for forest damage permission twice with respect to the forest land of this case, but finally returned on July 19, 191 and failed to carry out the project, the non-party 2 and the non-party 3, who sold the land of this case, shall obtain the cooperation of the seller and the non-party 2 and the third party. As to this, the non-party 1 corporation completed the registration of ownership transfer due to trust in the future of the Korea Real Estate Trust Corporation on November 14, 1996 and March 31, 197, respectively.

E. On February 28, 1997, the non-party 1 corporation entered into a contract with the non-party 4 corporation to sell the forest land of this case and each of the farmland of this case to KRW 9,047,50,000,000, and paid all the proceeds excluding KRW 100,000,000, but around November 200, the plaintiff who merged the non-party 4 corporation with the non-party 1 corporation, who was declared bankrupt, rescinded the agreement between the trustee in bankruptcy of the non-party 4 corporation on December 23, 200.

F. After that, on December 27, 2003, the Plaintiff entered into a contract with Nonparty 5 to sell each of the instant farmland in KRW 1,930,781,060, and returned each of the instant farmland to Nonparty 2 and 3 by cancelling each of the above trust registrations on August 10, 2005, and completed the registration of ownership transfer on August 23, 2005 and October 11, 2005, respectively, on the ground of the said sale.

G. On December 10, 2007, the Defendant did not file an application for the registration of transfer of ownership with the Plaintiff on December 10, 2007, for the period of three years [Provided, That Article 3 of the Addenda of the Act on the Registration of Real Estate under Actual Titleholder’s Name (hereinafter “Real Estate Real Name Act”) shall be calculated from the enforcement date of the Act on the Registration of Real Estate under Actual Titleholder’s Name (the enforcement date of July 1, 1995) where the date (the date the performance of opposite payment is completed) stipulated in Article 10(1) has expired before the enforcement date (the enforcement date of July 1, 1995). Thus, the period of three years in this case shall be calculated from the enforcement date of the Act on the Registration of Real Estate under Actual Titleholder’s Name (the starting date of the above period shall be deemed to coincide with July 1, 195), and thus, did not apply for the registration of transfer of ownership, thereby imposing penalty surcharges of five 15,363,50 won (hereinafter “instant disposition”).

【Ground of recognition】 The facts without dispute, Gap evidence 1-1 through Gap evidence 15 (including provisional number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The instant disposition, based on the premise that the non-party 1 corporation has no obligation to file an application for ownership transfer registration for the following reasons, is unlawful.

(A) Since each of the instant sales contracts was in a state of flexible invalidation by failing to obtain permission as a sales contract for land within the land transaction permission zone, there is no obligation to file an application for ownership transfer registration under the proviso of Article 2(1) of the Act on Special Measures for the Registration of Real Estate (hereinafter “Special Measures Act”).

(B) At the time of completion of the registration of trust with respect to each farmland of this case, Nonparty 1 Co., Ltd. and both Nonparty 1 Co., Ltd. and seller Nonparty 2 and 3 expressed their intention to refuse to perform the obligation to cooperate in land transaction permission for each of the instant sales contracts. As such, each of the instant sales contracts becomes null and void at that time, and there is no obligation to file an application for registration of ownership transfer pursuant to the proviso of Article 2(1)

(C) Since the sales contract of this case for the purchase of farmland by Non-party 1 corporation, which is not entitled to obtain the qualification certificate for acquisition of farmland, is invalid since it is a contract for the original purpose of payment, which is the original impossibility of payment, there is no obligation to file an application for the transfer of ownership pursuant to

(2) In light of the fact that the non-party 1 corporation, upon obtaining the permission to damage the forest of this case, tried to newly construct cement storage facilities by changing the land category of each of the instant farmland, but it was impossible to file an application for land transaction permission on the wind to return the application for the permission to damage the forest, and that the non-party 1 corporation intended to sell each of the instant farmland to the non-party 4 corporation but was unable to dispose of it due to the bankruptcy of the non-party 4 corporation, it constitutes a case where the non-party 1 corporation failed to register the ownership of each of the instant farmland, constitutes a case where the "justifiable reason for not filing an application for

(3) Although the Plaintiff did not file an application for ownership transfer registration for each farmland of this case, there was no purpose of evading taxes or evading statutory restrictions, 50/100 should be mitigated pursuant to the provisions of Article 4-2 of the Enforcement Decree of the Real Estate Real Name Act, the Plaintiff did not take into account all such circumstances.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

The penalty surcharges under Article 10(1) of the Act on Special Measures for the Registration of Ownership under the premise that the applicant is a person obligated to file an application for the registration of ownership transfer under Article 2(1) of the Act on Special Measures for the Registration of Real Estate Real Name. Meanwhile, Article 2(1) of the Act on Special Measures for the Registration of Ownership stipulates that there is no obligation to file

On the other hand, the transaction contract on the transfer or creation of rights, such as ownership, within the land transaction permission zone under the Act on the Utilization and Management of the National Territory shall take effect only with the permission of the competent authority, and it shall be deemed null and void as well as the effect of the claim before obtaining the permission. However, if the transaction contract prior to obtaining the permission is a contract with the contents that excludes or excludes the permission from the beginning, it shall not be effective after final invalidation. However, if the transaction contract prior to obtaining the permission is a contract under the premise that the permission should be granted (a contract with the contents that excludes or excludes the permission shall be deemed to fall under this case), it shall not be different from the above conclusive invalidation, unless the permission is granted, which means that the transfer or creation of rights, such as ownership, does not take effect at all until the permission is granted (see, e.g., Supreme Court en banc Decision 90Da1243, Dec. 24, 191).

As to the instant case, the Plaintiff entered into each of the instant sales contracts on the premise that the Plaintiff would obtain permission for each of the instant farmland located within the land transaction permission zone between Nonparty 2 and Nonparty 3, and the fact that the Plaintiff did not obtain permission for land transaction as to each of the instant sales contracts even after the Plaintiff paid the entire purchase price and then disposed of it to others is identical to the foregoing acknowledged. Therefore, each of the instant sales contracts was in the state of dynamic invalidation.

However, the flexible invalidation is effective retroactively with land transaction permission obtained later, but it does not differ from the definitive invalidation in terms of the effect of real rights as well as the effect of the claim, and Article 2(1) of the Act on Special Measures is a provision based on the premise that the situation in which an application for the registration of ownership transfer can be filed. Therefore, in light of the fact that it is difficult to deem that an application for the registration of ownership transfer cannot be filed under the circumstances in which an application for the registration of ownership transfer cannot be filed, and therefore, it is difficult to deem that an application for the registration of ownership transfer is filed (in this case, it is impossible if an application for the registration of ownership transfer is filed even if it is impossible if the obligation to apply for the registration of ownership transfer is met, and it is unfair after demanding that it would be disadvantage therefrom)

Therefore, the non-party 1 corporation had no obligation to file an application for ownership transfer registration of each farmland of this case from the beginning. Thus, the prior disposition of this case on different premise can not be exempted from its revocation because it was unlawful without examining the remaining arguments of the plaintiff.

3. Conclusion

Therefore, the plaintiff's claim seeking the cancellation of the disposition of this case shall be accepted on the grounds of its reasoning, and the judgment of the court of first instance is unfair on the grounds of its conclusion, and it is so decided as per Disposition after cancelling the judgment of the court of first instance and cancelling the disposition of this

Judges Cho Jong-chul (Presiding Judge)