Whether a seller may rescind a contract under Article 565 of the Civil Act in cases where a land transaction permit has been obtained in the status of entering into a contract for the land within the land transaction permission zone and giving and receiving only the down payment (affirmative)

Where a sales contract is concluded with respect to the land located within a designated zone as an area subject to permission for a land transaction contract under the National Land Planning and Utilization Act, the parties are obligated to mutually cooperate so that the sales contract can be completed. However, such obligations are different from the seller’s obligation to transfer the property rights or the buyer’s obligation to pay the purchase price, and thus, even if both parties have obtained permission from the competent authority on the basis of the above cooperation obligation, both parties cannot be deemed to have fulfilled or commenced the obligation arising from the validity of the sales contract. In addition, if the exercise of the right to cancel under Article 565 of the Civil Act is denied on the ground that the commencement of the performance of the contract at that stage, it may result in an unfair reduction of the time limit for the exercise of the right to cancel. Therefore, even if the parties to a sales contract received only the down payment after concluding the sales contract on the land within the designated zone as an area subject to permission for a land transaction contract under the National Land Planning and Utilization Act, the parties to a sales contract cannot be deemed to have been rescinded on the sole basis of such circumstances.

Article 118(1) and (6) of the National Land Planning and Utilization Act; Article 2(1), 544, 563, and 565(1) of the Civil Act

[Defendant-Appellee] Plaintiff 1 (Attorney Gyeong-dae, Counsel for defendant-appellee)

Defendant (Attorney Ha Young-young et al., Counsel for the defendant-appellant)

Daejeon District Court Decision 2007Na6893 Decided July 18, 2008

The judgment of the court below is reversed, and the case is remanded to Daejeon District Court Panel Division.

The grounds of appeal are examined.

1. In full view of the evidence of its employment, the court below rejected the plaintiff's allegation that the plaintiff entered into the sales contract of this case with the defendant on March 25, 2004 by stipulating the purchase price of this case as KRW 41,538,00 as to the land owned by the defendant located within the area designated as an area subject to permission for the land transaction contract under the National Land Planning and Utilization Act ("the National Land Utilization Act"), and the contract deposit amount of KRW 8,307,60 as of the date of the contract, and the remaining payment was made immediately after filing an application for land transaction permission on April 21, 2004 and obtained permission from the competent authority on April 27, 2004. The non-party's provisional disposition registration was completed under the name of the non-party on some of the land of this case. According to the agreement between the plaintiff and the defendant to withhold ownership transfer registration under the sales contract of this case until a dispute over the above provisional disposition registration is settled, but the plaintiff notified the plaintiff on August 30, 20005, etc.

2. However, it is difficult to accept the above judgment of the court below for the following reasons.

In accordance with Article 565 of the Civil Act, in a case where one of the parties to a sale and purchase delivers the down payment at the time of the contract, unless otherwise agreed by the parties, the delivery may waive it and the receiver may rescind the sale and purchase contract by repaying the double amount. There is no ground to view the concept of “performance” as different from the concept of “performance” under Article 544 of the Civil Act concerning delay in performance and cancellation of the concept of “performance.” Meanwhile, in a case where a sale and purchase contract is concluded for the land located within the area designated as an area as an area subject to permission for a land transaction contract under the National Land Utilization Act, the parties have the duty to cooperate so that the contract becomes effective. However, such duty is different from the seller’s duty of property transfer arising from the effect of the contract and the duty of payment of the buyer, and even if both parties have obtained permission from the competent authority, it cannot be said that both parties have commenced the sale and purchase contract as the validity of the contract, or that both parties have commenced the sale and purchase contract upon the commencement of the contract under the Civil Act.

However, according to the facts acknowledged by the court below, the plaintiff, the purchaser of the instant land located within the area designated as the area subject to permission for the land transaction contract under the National Land Utilization Act, applied for permission for transaction and obtained permission for land transaction from the competent authority, and the defendant, the seller, notified the cancellation of the instant sales contract and deposits more than a double amount of the down payment. Thus, in light of the above legal principles, it cannot be deemed that the commencement of performance had yet been made at the time of the cancellation of the instant sales contract, and therefore, the instant sales contract was lawfully rescinded by the defendant's declaration of intent to cancel the contract.

Nevertheless, the court below held that prior to the defendant's expression of intent to cancel the contract of this case, the plaintiff started the execution of the contract of this case by obtaining land transaction permission, and that the contract of this case still remains valid without being rescinded by the above declaration of intent to cancel the contract. Thus, the court below erred by misapprehending the legal principles as to the commencement of performance in cancelling the contract by the cancellation of the contract of this case which is the premise of land transaction permission. It is clear

3. Therefore, without examining the remaining grounds of appeal, the judgment 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 Park Ill-sook (Presiding Justice)