[1] In the case of a sale and purchase contract for land within the area subject to permission of land transaction contract under the National Land Planning and Utilization Act, whether an application for prohibition of provisional disposal of real estate holding a right to claim ownership transfer registration as a preserved right is allowed (negative)

[2] Whether the assignee of the object of provisional disposition can apply for the revocation of provisional disposition due to changes in circumstances in case where the transferee of the object of provisional disposition has no right to preserve the right but has decided to prohibit provisional disposition under the old room called preservation of the right

[1] A sales contract based on the premise that a permission from the competent authority is obtained for the land within the area subject to permission for a land transaction contract under the National Land Planning and Utilization Act is null and void as it is a legally completed juristic act before the permission is granted. Thus, in light of the purport that the purchaser cannot demand any performance for the transfer or creation of rights against the seller, and in light of the purport that the claim for performance is not permitted, a claim for the transfer registration of ownership or the permission for a land transaction contract based on the sales contract is not allowed.

[2] Where a provisional disposition is executed without the right to be preserved but with the decision of prohibition of the provisional disposition, the effect of the act cannot be disregarded by the provisional disposition even if it is against the provisional disposition after the provisional disposition, and the fact that there is no right to be preserved may be a ground for objection against the provisional disposition, but it is clearly clear that there is no right to be preserved, in view of the change of circumstances, the application for cancellation of provisional disposition due to the change of circumstances under Articles 301 and 288 of the Civil Execution Act may be filed, and the transferee of the object of provisional disposition may also apply for cancellation of provisional disposition due to the change of circumstances.

[1] Article 118 of the National Land Planning and Utilization Act / [2] Articles 288 and 301 of the Civil Execution Act

[1] Supreme Court en banc Decision 90Da12243 delivered on December 24, 1991 (Gong1992, 642), Supreme Court Decision 95Da54501 delivered on June 28, 1996 (Gong1996Ha, 2340), Supreme Court Decision 96Da54164 delivered on March 25, 1997 / [2] Supreme Court Decision 67Da1057 delivered on September 19, 196 (No 15-3, 85), Supreme Court Decision 93Da60434 delivered on April 29, 1994 (Gong194Sang, 1613), Supreme Court Decision 94Da4996 delivered on October 13, 1995 (No 194, 1613), and Supreme Court Decision 2005Da397594 delivered on March 26, 2005)

Applicant (Attorney Park Woo and one other, Counsel for the plaintiff-appellant)

Respondent 1 and 3 others

Seoul High Court Order 2010Kahap486 dated April 1, 2010

The order of the court below is reversed, and the case is remanded to Seoul High Court.

The grounds of reappeal are examined.

1. As to the first ground for reappeal

A. In light of the purport that a sales contract under the premise that a permission from the competent authority is obtained for the land within an area subject to permission for a land transaction contract under the National Land Planning and Utilization Act is null and void as it is a legal act with no effect before permission is granted, and that a purchaser cannot demand any performance for the transfer or creation of rights against a seller (see Supreme Court en banc Decision 90Da12243, Dec. 24, 191; Supreme Court Decision 95Da54501, Jun. 28, 1996). In light of the purport that a request for performance is not permitted, it is reasonable to deem that an application for provisional disposition against the transfer of real estate under the condition that a claim for ownership transfer registration is granted for the right to claim for ownership transfer registration or the right to claim for land transaction contract under the sales contract is not allowed (see Supreme Court Decision 96Da54164, Mar. 25, 197).

B. The court below held that the provisional disposition decision of this case cannot be deemed null and void as a matter of course solely on the ground that the respondent's right to be preserved was not definitely created at the time of the application and that the claim that had not already existed at the time of the application for the provisional disposition was the preserved right, and that the respondent entered into a sales contract with the non-party on August 4, 2005 as to each real estate listed in the separate sheet, and that the land transaction permission was also granted from the chemical market on November 28, 2008. Thus, the above sales contract was retroactively effective, and the respondent has the right to claim ownership transfer registration of each of the above real estate, and the respondent has the right to claim ownership transfer registration of each of the above real estate.

C. However, in light of the aforementioned legal principles and records, we cannot agree with the above determination by the court below for the following reasons.

First, in the case of a flexible invalidation, the sales contract can be deemed to have not existed without permission for the land transaction contract in the case of at least the right to claim the transfer of ownership as a complete legal act, and such right to claim the transfer of ownership does not constitute a conditional or compulsory claim.

Second, the respondent, after the conclusion of a sales contract and the registration of provisional disposition, obtained permission for a land transaction contract from the Sungsung market on November 28, 2008, and the above sales contract was retroactively effective, and as a result, the respondent has the right to claim the transfer registration of ownership against the non-party, as stated in the judgment of the court below. However, this legal principle is a natural conclusion that the legal act is effective, and it does not equally apply to the judgment of provisional disposition (the effect of the provisional disposition is also likely to cause harm to the safety of transaction if it is interpreted by the permission and the date of permission for the future land transaction contract that is not accompanied by the registration of provisional disposition (the effect of the provisional disposition decision may also be also affected if it is interpreted by the permission and the date of permission). Since the respondent obtained permission for the land transaction contract after the provisional disposition decision, it cannot have the same effect as the "provisional disposition fully equipped with the right to preserve" retroactively or in the future.

Third, the applicant only seeks the revocation of the provisional disposition decision of this case due to changes in circumstances, and does not claim that the provisional disposition decision of this case is null and void as a matter of course. Thus, the last decision of the court below cited by the court below cannot be a proper reason for rejecting the applicant'

Fourth, the application for the provisional disposition in this case is specified as the preserved right, and there is no mentioning “land within the permitted area for land transaction contracts” as “land within the permitted area for land transaction contracts,” and the content of the preserved right is also stated as the right to claim ownership transfer registration. Thus, there is no room to harm the preserved right of the provisional disposition in this case as “the right to claim land transaction permission procedure.”

D. Ultimately, the order of the court below erred by misapprehending the legal principles on the eligibility for a provisional disposition and the validity of a provisional disposition, which affected the decision, and the grounds for re-appeal on this point are with merit (as the second ground for re-appeal is stated under the assumption that an application for a provisional disposition against the prohibition against the transfer of ownership as a preserved right is allowed on the condition that the claim against the transfer of ownership based on the sales contract or the permission for a land transaction contract should be obtained even in a passive invalidation state, and as long as an application for the prohibition against the disposal of real estate as a preserved right is not allowed, the above claim

2. As to the third ground for reappeal

A. Where a provisional injunction is executed after the provisional injunction was issued under the old order of preservation of the right, even though there is no right to be preserved, the effect of the injunction cannot be disregarded by the provisional injunction (see Supreme Court Decisions 93Da60434, Apr. 29, 1994; 94Da4996, Oct. 13, 1995). The absence of the right to be preserved can be the grounds for objection against the provisional injunction order, but it is interpreted that the application for cancellation of provisional injunction due to changes in circumstances pursuant to Articles 301 and 288 of the Civil Execution Act may be filed on the ground that there is no right to be preserved. (See Supreme Court Decision 67Da1057, Sept. 19, 196), the assignee of the object of the provisional injunction may also apply for cancellation of the provisional injunction due to changes in circumstances (see Supreme Court Decision 2002Da5325, Sep. 25, 2006).

B. The lower court determined that the applicant’s assertion that there was no preserved right at the time of the decision of provisional disposition does not constitute grounds for revocation of provisional disposition due to changes in circumstances.

However, it is clear that the provisional disposition in this case was made on the ground of the right to claim ownership transfer registration, which is a preserved right, and it is not possible to supplement the validity of the provisional disposition as above.

Therefore, it is reasonable to view that the applicant can seek the revocation of the provisional disposition of this case by filing an application for the revocation of provisional disposition due to changes in circumstances pursuant to Articles 301 and 288 of the Civil Execution Act. Therefore, the above judgment of the court below is also difficult to accept. The judgment of the court below which made a different judgment is erroneous in the misunderstanding of legal principles as to the effect of provisional disposition and the grounds for revocation of provisional disposition due to changes in circumstances, which affected the conclusion of the decision, and the part pointing this out in the grounds for reappeal is also with merit.

3. Conclusion

Therefore, the order of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cha Han-sung (Presiding Justice)