[1] Whether a land transaction contract constitutes a violation of Article 141 subparagraph 6 of the former National Land Planning and Utilization Act is limited to a commercial contract (affirmative)

[2] In a case where the defendant obtained permission for a land transaction contract by attaching a false forest management plan to the land donated free from her husband, the case holding that the crime of violation of Article 141 subparagraph 6 of the former National Land Planning and Utilization Act cannot be established on the ground that the land subject to permission for a land transaction contract constitutes a case where

[1] The permission system for a land transaction contract under the former National Land Planning and Utilization Act (amended by Act No. 9442 of Feb. 6, 2009) is to prevent speculative transactions in the area where land transactions are prevalent or the land price rapidly increases, and speculative transactions in the area where such concerns exist, and is applied only to the case where the ownership or superficies is transferred or established at the price for the consideration as stated in Articles 117(1) and 118(1). Accordingly, it is limited to the penal provisions following the violation of the permission system for a land transaction contract, i.e., Article 141 subparag. 6 of the said Act.

[2] In a case where the defendant obtained permission for a land transaction contract by attaching a false forest management plan to the land donated free from her husband, the case holding that the crime of violation of Article 141 subparagraph 6 of the former National Land Planning and Utilization Act (amended by Act No. 9442 of Feb. 6, 2009) cannot be established on the ground that the land at issue constitutes a case where permission for a land transaction contract is not required from the beginning

[1] Articles 18(1) and 141 subparag. 6 (see current Article 141 subparag. 5) of the former National Land Planning and Utilization Act (amended by Act No. 9442 of Feb. 6, 2009) / [2] Articles 118(1) and 141 subparag. 6 (see current Article 141 subparag. 5) of the former National Land Planning and Utilization Act (amended by Act No. 9442 of Feb. 6, 2009)

Defendant

Prosecutor

Suwon District Court Decision 2008No3570 Decided January 14, 2009

The appeal is dismissed.

We examine the grounds of appeal.

Article 141 Subparag. 6 of the former National Land Planning and Utilization Act (amended by Act No. 9442, Feb. 6, 2009; hereinafter “Act”) provides that “any party who intends to enter into a land transaction contract or to obtain permission for a land transaction contract by fraudulent or other illegal means without obtaining permission or permission for alteration under Article 118(1).” Article 118 of the Act provides that “The parties shall jointly obtain permission from the head of a Si/Gun/Gu, as prescribed by Presidential Decree.” Article 118 of the Act provides that “The parties who intend to enter into a contract (including any right for the purpose of acquiring the ownership or superficies) on the land located within the permitted zone (including any right for the purpose of acquiring the ownership or superficies) under the title “permission for a land transaction contract.”

The system of permission for land transaction contract is to prevent speculative transactions in an area where land speculation is personality and conduct or the price increase rapidly, and speculative transactions in such an area are likely to be made (Article 117(1) of the Act). As stated in Article 118(1) of the Act, where ownership or superficies is transferred or created in return for consideration, that is, where ownership or superficies is transferred or created in return for consideration, it is limited to a contract for consideration. Therefore, it is reasonable to interpret that the system of permission for land transaction contract is limited to a contract for consideration, namely, Article 141 subparag. 6 of the Act.

In the above purport, the court below is just in holding that even if the defendant obtained permission for a land transaction contract from her husband with a false forest management plan attached, the crime of violation of Article 141 subparagraph 6 of the Act is not established, and there is no error in the misapprehension of legal principles as argued in the Grounds for Appeal.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)