No contract shall be deemed to have been finally null and void or to have been rescinded by agreement.

Since it cannot be deemed that both a seller and a buyer clearly expressed their intent not to perform their duty to cooperate in land transaction permission, it cannot be deemed that the sale contract has been finally null and void, and the seller’s notification of the seller’s demand to pay the purchase price and to cancel the sale contract at the time without responding to the buyer’s demand to do so cannot be deemed to have been rescinded by the agreement.

2012 Gohap 1022 Action demanding payment of seized Claim

Korea

gender AAA and eight other persons

December 6, 2012

January 17, 2013

1. All of the plaintiff's claims are dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendants pay to the plaintiff 5% interest per annum on each money set forth in the separate sheet to the service date of a copy of the complaint of this case from the calculation date of the separate sheet to the service date of a copy of the complaint of this case, and 20% interest per annum from the following day to the full payment date.

1. Basic facts

A. Non-party BB logistics Co., Ltd. (hereinafter referred to as "non-party BB logistics company") concluded a sales contract individually with the Defendants for the purchase of more than 450,000 square meters between May 8, 2007 to June 26, 2007, OO and OO and OO and OOO in the Chang-si, Macheon-si, Macheon-si, for the purpose of creating the site for the golf course, and paid each down payment to the Defendants.

B. The real estate for which the non-party company entered into a sales contract as above was located within the land transaction permission zone under the National Land Planning and Utilization Act, and the Defendants, upon receiving the first intermediate payment from the non-party company, issued a written consent for the formulation of the urban management planning proposal under the National Land Planning and Utilization Act to apply for the approval of the development project.

C. From July 2007 to December 2007, the Defendants notified the non-party company to pay the purchase price to the non-party company, and expressed the intent that the sales contract will be cancelled when the payment deadline expires.

D. On July 23, 2008, the non-party company received part of the down payment between the defendant SungAA, KimO, KimO, and KimO on December 1, 2008, and agreed with the above Defendants that the sales contract with the above Defendants should be null and void, and no longer file a civil or criminal objection against the transactional order. At that time, the non-party company received part of the down payment from the above Defendants.

E. Meanwhile, the Plaintiff failed to pay KRW 000,000,000, including corporate tax on June 30, 2009, which is the time limit for payment, and the Plaintiff seized each claim around March 2012 on the grounds that the Nonparty Company had a claim for the return of down payment equivalent to the amount stated in the claim against the Defendants, and notified Nonparty Company and the Defendants of the seizure of the claim around 00.

[Based on Recognition] The non-contentious facts, Gap evidence 1 to 13, Eul evidence 1, Eul evidence 1, Eul evidence 1, Eul evidence 1, Eul evidence 1, Eul evidence 1, and Eul evidence 1 (including various numbers), and the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

1) The non-party company was urged to pay the purchase price from August 2007 to December 2007 by the Defendants, but did not pay the purchase price with the intent to refuse the performance of the obligation to cooperate with the land transaction permission, and expressed clearly the intent to refuse the performance of the obligation to cooperate with the non-party company and the Defendants. The sale contract between the non-party company and the Defendants became null and void.

2) In addition, although the non-party corporation concluded a sales contract with the Defendants for the establishment of a golf course, the non-party corporation included an ecological class 1 area where it is impossible to establish a golf course in the subject-matter of sale, the above sales contract becomes null

3) On the other hand, the non-party company intended to rescind the contract with the defendant UO, EO, EO, and EO, and expressed its intent that the above Defendants would not respond to any demand for payment of the purchase price, and that the above Defendants would cancel the sales contract with the time limit for payment by demanding the payment of the purchase price. The sales contract between the non-party company and the above Defendants was rescinded by mutual agreement.

4) Finally, the agreement that the non-party company and the defendant Sung AA, KimO, KimO, and TaO agreed to return part of the down payment and to reverse the sales contract shall be revoked by a declaration of intention made by mistake that the non-party company may receive the full down payment from the defendants in unjust enrichment.

5) Therefore, the Defendants are obligated to pay each of the money indicated in the separate sheet, which is the remainder remaining after fully paying or returning the down payment received from the Nonparty Company, to the Plaintiff, an execution creditor.

B. The defendants' assertion

1) The Defendants did not have expressed against the non-party company the intent to refuse to comply with the obligation to cooperate with the application for land transaction permission.

2) In addition, Defendant Sung AA, KimO, KimO, MaO, and MaOO shall cancel the sales contract with the non-party company, return part of the original contract deposit and did not raise any objection thereafter, and thus, it cannot respond to the Plaintiff’s request.

3) Meanwhile, there is no agreement between Defendant UO, EO, and EO to cancel the sales contract with the non-party company, and since the real estate purchased by the non-party company was cancelled in the land transaction permission zone and the sales contract becomes conclusive conclusive, the non-party company is liable to pay the remainder of the sales price in accordance with the initial sales contract.

3. Determination

(a) Whether the sale contract has become final and conclusive as an intention to refuse the performance of the duty to cooperate in the application for land transaction permission;

In a case where a land transaction contract is in a state of the grounds and passive invalidation due to the lack of a land transaction permission under the National Land Planning and Utilization Act, such a contract in a state of passive invalidation is not only when the competent authority has rendered non-permission, but also when both parties clearly express their intent to refuse the performance of the duty to cooperate with a permission, the former transaction contract is not deemed to continue to exist, and the former transaction contract, i.e., the contractual relationship is null and void finally (see, e., Supreme Court Decision 2010Da31860, 31877, Aug. 19, 2010). Moreover, solely on the ground that the non-party company did not respond to the notice of payment of the purchase price by the Defendants, it cannot be deemed that the Defendants expressed their intent not to perform the duty to cooperate with the Defendants, and on the land within the region where the land transaction permission is granted, it cannot be readily concluded that the Defendants expressed their intent not to perform the duty to cooperate with the Defendants, and that the Defendants expressed their intent not to cooperate with the Defendants.

B. Whether the contract was invalid due to the Defendants’ breach of duty of disclosure

The plaintiff argues that the contract was null and void because the defendants deceptiond the plaintiff because the defendants did not notify the plaintiff although the area of ecological class 1 where the plaintiff could not establish a golf course was included in the object of the contract, but there is no evidence to prove that the defendants deceptiond the plaintiff about the present condition of the object, etc., and there is no assertion or proof as to the circumstance that the contract was null and void as a matter of course from the beginning, and

C. Whether the sales contract between the non-party company and the defendant UO, EO, EO, and EO has been terminated

1) A contract termination or termination is a new contract, regardless of whether the contract is rescinded or not, which requires both parties to the contract to terminate the validity of the existing contract by agreement and return to the same state as the one for which the contract had not been concluded initially, and in order to cancel the contract, it is required that the expression of conflicting intent, like the formation of the contract, of offer and acceptance of the contract, should be consistent with each other. In order to establish this agreement, the contents of the intent expressed in the expression of both parties must be objectively identical, and on the other hand, to recognize the rescission of the contract as having been made by implied agreement between both parties as well as explicitly and implicitly, it is insufficient to say that both parties have failed to perform the remaining obligations over a long period of time under the condition that the contract was concluded and partially performed (see, e.g., Supreme Court Decision 2010Da77385, Feb. 10, 2011).

2) In addition, there is no evidence to prove that the non-party company expressed its intent to cancel the sales contract to the above Defendants, and the non-party company neglected the notification that the above Defendants would cancel the sales contract in the event of demanding the payment of the purchase price and its maturity. The non-party company did not take any action against the non-party company to demand the return of the down payment to the Defendants, or the above Defendants did not return the down payment to the non-party company. In addition, the above Defendants did not explicitly express their intent to refuse the registration of ownership transfer or the performance of the duty to cooperate in land transaction permission, and there is no evidence to deem that the above Defendants actually concluded the sales contract with the non-party company and the above Defendants, in light of the fact that the sales contract between the non-party company and the above Defendants was rescinded explicitly or implicitly.

3) On the other hand, the plaintiff argued that each contract is terminated when the deadline for the payment of the purchase price has expired, but it violates the good faith principle to reverse the argument that the sales contract again is valid. However, the sales contract, which is a state of flexible invalidation without obtaining land transaction permission under the National Land Planning and Utilization Act, cannot be effective according to the terms and conditions of the contract, and the non-party company has no obligation to pay the purchase price at the time of the notice for the payment of the purchase price to the above defendants, and the above defendants cannot claim the purchase price and cancel the sales contract on the ground of non-performance, and the above defendants' declaration of intent to cancel the sales contract has no effect. Furthermore, the non-party company cannot be deemed to have a legitimate trust as to the fact that the sales contract was terminated merely because the non-party company did not respond to the above defendants' declaration of intent to cancel the sale price.

D. Whether the conclusion of the contract for destruction between the non-party company and the defendant corporation, the MaAA, the MaO, the KimO, and the MaO was cancelled as an error

The fact that the non-party company agreed to refund part of the down payment and cancel the sales contract with the above Defendants is as seen earlier, but there is no evidence to acknowledge that the non-party company was unable to receive the full refund of the down payment, and there is no intention to discuss the cancellation of the sales contract, even though the non-party company could receive the full refund of the down payment, and on the contrary, it is possible to automatically conclude the sales contract in the case where the transaction balance is not paid at the due date for a separate agreement between the parties without obtaining a land transaction permit under the National Land Planning and Utilization Act (see, e.g., Supreme Court Decisions 2007Da74393, Mar. 13, 2008; 2007Da74409, Mar. 13, 2008). Accordingly, it seems that the agreement between the non-party company and the above Defendants to return part of the down payment and to cancel the sales contract is valid, and therefore, the plaintiff

E. Sub-committee

Therefore, there is no right to claim the return of down payment against the defendants of the non-party company, and the plaintiff's claim on the premise different from that of the non-party company is without reason to further examine.

4. Conclusion

Therefore, the plaintiff's claim against the defendants is dismissed in its entirety, and it is so decided as per Disposition.