Whether a person who sells land without obtaining a transaction permit prescribed by the Act on the Utilization and Management of the National Territory can be the subject of breach of trust.

The transaction contract for the transfer or establishment of rights, such as ownership, to the land located within the regulation zone stipulated in Article 21-2 of the Act on the Utilization and Management of the National Territory takes effect after obtaining permission from the competent authority under Article 21-3 (1) of the same Act, and the effect of real rights as well as the effect of claims does not take place before obtaining permission. Thus, even if the sale of the land does not have the effect of the contract, if the sale of the land does not obtain the permission for the sale of the land, it cannot be deemed that the seller has the duty to cooperate with the buyer in the registration of the transfer

Article 355(2) of the Criminal Act, Article 21-3(1) of the Act on the Utilization and Management of the National Territory

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Gyeong-soo et al., Counsel for plaintiff-appellant)

Defendant

Defendant

Attorney Kim Sang-chul

Seoul Criminal Court Decision 93No5832 delivered on January 28, 1994

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

The grounds of appeal are examined.

The summary of the facts charged of this case is that the defendant sold the land of this case to the victims and received the full amount of the price, but at will, the defendant acquired pecuniary benefits and sustained pecuniary losses by obtaining a loan from the Hanjin Agricultural Cooperatives, etc. by establishing a collateral security on the land of this case.

The court below rejected the defendant's appeal on the ground that the contract contract of the land of this case is not subject to breach of trust since the defendant is not subject to permission of the competent authority under the Act on the Utilization and Management of the National Territory, since the contract contract of land, etc. within the regulatory zone under the Act on the Utilization and Management of the National Territory has a duty to cooperate with the competent authority in the procedure of permission for the execution of the contract, since the parties who concluded the contract have a duty to cooperate with each other in the procedure of permission for the competent authority until the permission is granted, unlike the case where the contract is finally null

However, the transaction contract for the transfer or establishment of rights, such as ownership, to the land located within the regulation zone under Article 21-2 of the Act on the Utilization and Management of the National Territory, takes effect after obtaining permission from the competent authority under Article 21-3 (1) of the same Act, and the effect of real rights as well as mortgage does not take effect before obtaining permission. Thus, even if the defendant sold the land to the victims, if he did not obtain permission for the transaction under the Act on the Utilization and Management of the National Territory, the contract does not have a contractual effect, and thus, it cannot be deemed that the defendant has a duty to cooperate with the victims in the registration of transfer of ownership, and therefore, the defendant cannot be regarded as a person who administers another's business (see Supreme Court Decision 92Do1070

Therefore, the court below erred by misapprehending the legal principles on a person who administers another's business in accordance with the Act on the Utilization and Management of the National Territory and the Act on the Management of the National Territory, which affected the conclusion of the judgment.

Therefore, the judgment of the court below shall be reversed and remanded, and it is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-ju (Presiding Justice)