[1] The case where a sales contract in a state of passive invalidation is finally null and void due to a land transaction permit

[2] The validity of liquidated damages in cases where one of the parties violates the duty of cooperation for obtaining permission in a sale contract for land within the land transaction permission area

[3] The probative value of a final and conclusive civil judgment

[1] Article 117 of the National Land Planning and Utilization Act / [2] Article 398 (1) of the Civil Act / [3] Article 202 of the Civil Procedure Act

[1] Supreme Court Decision 97Da36996 delivered on March 27, 1998 (Gong1998Sang, 1180) / [2] Supreme Court Decision 93Da59526 delivered on December 26, 1995 (Gong1996Sang, 512), Supreme Court Decision 95Da18673 delivered on March 8, 1996 (Gong196Sang, 1194) / [3] Supreme Court Decision 94Da47292 delivered on June 29, 195 (Gong195Ha, 2527), Supreme Court Decision 87Da2832, 2833 delivered on March 28, 198 (Gong1989, 667)

Plaintiff (Law Firm Lee & Lee, Attorneys Gyeong-do et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Park Jae-sik, Counsel for the defendant-appellant)

Seoul High Court Decision 2006Na48009 decided April 17, 2007

1. The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court. 2. The Plaintiff’s appeal is dismissed on February.

We examine the grounds of appeal.

1. As to the Defendant’s ground of appeal

A. A sale and purchase contract for land within a zone subject to land transaction permission is in the so-called flexible invalidation until a land transaction permission is obtained from the competent authority. If not only the competent authority's non-permission but both parties clearly express their intent to refuse the performance of the duty to cooperate with the permission, a contract with the former contract, i.e., the flexible invalidation of the contract, is no longer deemed to continue, and the contract relationship becomes final and conclusive (see Supreme Court Decision 97Da36996, Mar. 27, 1998, etc.).

In addition, the parties who have entered into such flexible invalid contract are obligated to cooperate with each other so that both parties can be completed with the validity of the contract. In such a case, at the time of entering into such a contract, an agreement between the parties to compensate the other party for a certain amount of damages is valid if either party fails to perform his/her duty to cooperate for obtaining land transaction permission or unilaterally withdraws the contract before the application for permission was reached (see, e.g., Supreme Court Decisions 93Da59526, Dec. 26, 1995; 95Da18673, Mar. 8, 196).

On the other hand, even though it is not bound by the facts established in the judgment of other civil cases, etc., the facts established in the already established civil cases cannot be rejected without reasonable grounds, unless there are special circumstances. In particular, the facts that the two previous and previous civil cases are the same as the parties and are the basis of the dispute are the same, but it is more so in the case where a new claim can be filed as a result of the difference in the subject matter of lawsuit and does not conflict with the res judicata (see Supreme Court Decisions 94Da47292 delivered on June 29, 1995; 87Da2832, 2833 delivered on March 28, 1998, etc.).

B. Examining the aforementioned legal principles and the evidence employed by the lower court, based on the Plaintiff’s land transaction agreement No. 2, and the records, the Plaintiff concluded a sale contract with the Defendant for purchasing KRW 1.20 million on September 1, 204, and the intermediate payment was paid on October 15, 2004, and the remaining KRW 70 million was paid to the Defendant for the remaining 40 billion on the land at the same time. According to the above sale contract, the Defendant was entitled to compensate the Defendant for the remainder of KRW 70,000,000,000,000,000,000,000 for the remaining 70,000,000,000,0000,000,000,000,000,000,000,000,000,000,000,000,00,000,00.

According to the above legal principles and the above-mentioned facts, the sales contract of this case clearly expresses the plaintiff's intention not to perform the contract of this case by waiving the obligation under the land transaction permission and the sales contract, and for this reason, the defendant expressed his intent not to perform the contract of this case, which eventually leads to the case where both parties clearly express their intent not to perform the duty to cooperate in the application for permission as to the above sales contract, and eventually becomes null and void on December 27, 2004, and the above sales contract becomes null and void as above is caused by the plaintiff's cause attributable to the plaintiff. Thus, the down payment of KRW 100 million is attributed to the defendant according to the contract of compensation for damages of this case, and the defendant is not obligated to return the down payment

However, according to the court below's decision, the court below rejected the plaintiff's claim for cooperation in the procedure of application for land transaction permission, not because the plaintiff did not perform the duty of cooperation on land transaction permission or unilaterally withdrawn the sales contract, which is acknowledged in the previous final and conclusive judgment, which is a civil case which became final and conclusive, "the plaintiff avoided the application for land transaction permission for the purpose of resale of unregistered land although it is possible to permit land transaction of this case, and clearly expressed his intention not to perform the contract of this case by waiver of the obligation under the land transaction permission application and the sales contract since the remaining amount was not prepared." Furthermore, the court below rejected the plaintiff's claim for cooperation in the procedure of application for land transaction permission, not because the plaintiff did not waive the obligation under the land transaction permission and the execution of obligation under the land transaction contract, but the sale contract of this case finally null and void is not because the plaintiff did not perform the duty of cooperation on the land transaction permission or unilaterally withdrawn the sales contract. Thus, the court below determined that the plaintiff's claim against the defendant in this lawsuit was finally dismissed, and the plaintiff's claim was finally and conclusively invalidated.

However, upon examining the evidence Nos. 4 and 5, the Plaintiff’s employee of the real estate company as the Defendant’s agent after purchasing the instant land from the Defendant, sold it to Nonparty 1 and Nonparty 2, but it was impossible to obtain land transaction permission from the Nonparty, and thus, caused a dispute over the implementation of the resale contract, and the resale contract was not concluded. As such, each of the above documentary evidence can be deemed as evidence supporting the fact that the Plaintiff renounced the performance of its duties under the sales contract with the Defendant, as recognized by the previous final and conclusive judgment, and there is no other evidence to reject this.

Therefore, the above judgment of the court below is erroneous in the misapprehension of the rules of evidence or the legal principles as to the conclusive invalidation of a sales contract in a state of passive invalidation, which affected the conclusion of the judgment. The defendant's ground of appeal pointing this out is with merit.

2. Plaintiff’s ground of appeal

The Plaintiff’s ground of appeal is premised on the Defendant’s recognition of the Defendant’s obligation to return the down payment to the Plaintiff, and as seen earlier, the Defendant’s obligation to return the down payment to the Plaintiff is not recognized. Therefore, the Plaintiff’s ground of appeal is without merit without examining further.

3. Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Plaintiff’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-dam (Presiding Justice)