[1] Whether the parties who concluded a contract for the land within a zone designated as a contract zone under the National Land Planning and Utilization Act are obligated to cooperate for the completion of the contract (affirmative), and whether the procedure for applying for the permission to occupy and use public waters under the Public Waters Management Act, which differs from the purpose and procedure of the permission, is also included in the duty of cooperation (affirmative)

[2] The case holding that, in light of the overall circumstances such as the contents of a sales contract and the provisions of the relevant laws and regulations regarding land within a zone where permission for land transaction is granted, the seller's obligation under the above special agreement includes, as part of prior measures to acquire land transaction permission, an agreement to transfer the name of permission to the buyer when the seller receives any balance after obtaining the permission for occupation and use of public waters in his/her name

[3] In a land transaction contract within a regulatory zone under the National Land Planning and Utilization Act, whether one party may demand the other party, who does not cooperate in the procedure for applying for permission of land transaction, to perform his/her duty of cooperation (affirmative), and whether the party may demand performance of the procedure for authorization and permission relating to the land use plan, which is the object of the transaction, based on the agreement between the parties as a part

[4] Whether a party to a land transaction contract, which is a state of flexible invalidation prior to the acquisition of permission for land transaction, can unilaterally rescind the transaction contract only on the grounds that the other party does not cooperate in the procedure for applying for permission for land transaction (negative)

[5] The case holding that where a party agreed to cooperate in the procedure for applying for permission for occupation and use of public waters as a part of the prior measures to acquire land transaction permission procedures as a part of an agreement between the parties in a land transaction contract which is the state of dynamic invalidation, it cannot be deemed that the said land transaction contract was finally invalidated on the ground that the other party's refusal to comply with the other party's request for cooperation on the procedure for applying for permission for occupation and use of public waters is a case where the other party made clear intention

[1] Articles 117(1) and 118(1) and (6) of the National Land Planning and Utilization Act, Article 5 of the Public Waters Management Act, Articles 2(1) and 563 of the Civil Act / [2] Articles 5 and 11 of the Public Waters Management Act, Article 19 of the Enforcement Decree of the Public Waters Management Act, Article 118(1), (3), and (6) of the National Land Planning and Utilization Act, Article 21(1)1 of the Enforcement Rule of the National Land Planning and Utilization Act, Articles 105 and 563 of the Civil Act / [3] Article 118(1) and (6) of the National Land Planning and Utilization Act, Article 2(1), 105, and 563 of the Civil Act, Article 248 of the Civil Act / [4] Article 18(1) of the National Land Planning and Utilization Act, Article 5(1) and (6) of the Civil Act, Article 563 of the Civil Act

[3] Supreme Court en banc Decision 90Da12243 delivered on December 24, 1991 (Gong1992, 642), Supreme Court Decision 95Da28236 delivered on December 12, 1995 (Gong1996Sang, 368) / [4] Supreme Court Decision 92Da19989 delivered on September 8, 1992 (Gong1992, 2846), Supreme Court Decision 97Da4357, 4364 delivered on July 25, 1997 (Gong197Ha, 2682), Supreme Court en banc Decision 98Da40459 delivered on June 17, 199 (Gong199, 139Ha, 1398)

Plaintiff (Law Firm Han, Attorneys Lee Ho-moo et al., Counsel for the plaintiff-appellant)

Defendant 1 and three others (Attorney Lee Young-young, Counsel for the defendant-appellant)

Seoul High Court Decision 2004Na29530 delivered on August 11, 2005

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

The Defendants are obligated to cooperate with each other so that the contract agreement can be completed as effective with respect to the land within the zone designated as the land transaction contract area under the National Land Planning and Utilization Act (hereinafter “National Land Utilization Act”). However, barring any special circumstance, it cannot be concluded that such cooperation obligation includes the obligation to cooperate with respect to the procedure for application for permission to occupy and use public waters under the Public Waters Management Act, which differs from the purpose and procedure of such permission, and the same applies to the above case, even if there are procedural convenience in replacing the submission and examination of the land use plan necessary for the application for permission to use and use of land as the above, as stated by the lower court, the aforementioned assertion in the grounds of appeal is reasonable. However, it is not reasonable to view that the Defendants’ request for permission to use and use land in the name of the seller under the same Articles 1 and 4 of the Special Agreement on Land Transaction and bear the burden of expenses, and that the above acquired permission and use permit should be transferred to the purchaser or the third party designated by the seller, and that the Defendants’ request for approval and use permit should be submitted under the relevant land use permit under the name of public waters Act.

2. As to the grounds of appeal Nos. 2 and 3

Since a land transaction contract within a regulatory area under the National Land Utilization Act is in a state of passive invalidation prior to obtaining a land transaction permit, the contractual performance for the transfer of rights, such as ownership, may not be claimed. However, even in that case, the other party who does not cooperate in the procedure for application for permission of land transaction may seek performance of the duty of cooperation by lawsuit (see Supreme Court en banc Decision 90Da12243, Dec. 24, 1991; Supreme Court Decision 95Da28236, Dec. 12, 1995, etc.). As part of the procedure for permission of land transaction, seeking implementation of the procedure for authorization and permission relating to the land use plan, which is the object of the transaction between the parties, based on the agreement between the parties as part of the procedure for permission of land transaction, is also permitted.

The court below acknowledged that the contract of this case's land purchase and use for public waters under the special agreement does not take effect as the transfer or establishment of rights or the claim of the contract, while the defendants' duty to cooperate in the procedure of application for permission for occupancy and use of public waters under the special agreement is for convenience under the procedure of application for land transaction permission. The plaintiff's right to cooperate is justified in light of the above legal principles and records, and rejection of the defendants' defense on the ground that the contract itself is an agreement separate from the contract of this case. In addition, as long as the plaintiff clearly stated that the defendants' duty to cooperate in applying for permission for occupancy and use of public waters in the name of the defendants on the ground of the special agreement clause, the defendants' duty to cooperate is denied, and the plaintiff's intent not to perform the above duty of cooperation, such as voluntary withdrawal of the application for permission for occupancy and use of public waters submitted by the plaintiff at Kim Jong-po, the plaintiff has a legal interest in seeking the performance of the above duty of cooperation by lawsuit. This is also justified in the judgment of the court below.

3. As to the fourth ground for appeal

Inasmuch as the obligation to pay the purchase price under the contract is not yet incurred prior to the acquisition of land transaction permission, even if the Plaintiff asserts that the payment of the purchase price under the contract was not made even after the date of the intermediate payment payment, and rather reduced without any justifiable reason, the Defendants cannot unilaterally rescind the contract. Furthermore, the parties to the land transaction contract, which is a dynamic invalidation state, can seek a claim by lawsuit even if the other party does not cooperate in the procedure of application for permission of land transaction, it cannot be unilaterally rescinded the contract itself (see Supreme Court Decisions 92Da1989 delivered on September 8, 1992, 97Da4357 delivered on July 25, 1997, 98Da40459 delivered on June 17, 199, etc.). In addition, the lower court’s rejection of the Defendants’ assertion that the Plaintiff’s claim for the performance of obligation to cooperate in the occupancy and use permission of public waters constitutes a legitimate ground for rejection of the above contract’s execution of obligation under the terms and conditions as stated in the ground for appeal.

4. Conclusion

Therefore, all appeals are 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 Lee Hong-hoon (Presiding Justice)