In case where a third party takes over the status of a seller under a contract for sale and purchase of land before obtaining a land transaction permit, whether the agreement on the acquisition of the status of a seller takes effect only with the permission of the competent authority on the contract for sale and purchase concluded by the first seller (negative

In light of the legislative intent of the land transaction permission system to prevent speculative transactions and form a normal transaction order, in cases where a third party takes over the status of a purchaser under a land transaction contract prior to obtaining a land transaction permission, unlike the case where a third party takes over the status of a purchaser, it does not mean that the agreement on the acquisition of the status of a seller takes effect only when the permission of the competent authority is required for the sales contract between the first seller

Article 454 of the Civil Act, Article 118(1) and (6) of the National Land Planning and Utilization Act

Plaintiff (Law Firm Oyn, Attorneys Final Gap-soo et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Cho Jong-hwan, Counsel for defendant-appellant)

Seoul High Court Decision 2011Na52897 decided December 9, 2011

The part of the lower judgment against the Plaintiff regarding the claim for performance of land transaction permission procedure among the ancillary claims is reversed, and that part of the case is remanded to the Seoul High Court. The remainder of the Plaintiff’s appeal and Defendant’s appeal

1. Judgment on the Plaintiff’s grounds of appeal

A. As to the main claim

The court below, based on the evidence submitted by the plaintiff, dismissed all of the plaintiff's primary claims by deeming that it cannot be recognized that there was a land distribution agreement between the plaintiff and the defendant on May 6, 2005. In light of the records, the above judgment of the court below is just and acceptable. There is no violation of the rules of evidence or omission of judgment, etc. contrary to the allegations in the grounds of appeal.

B. As to the claim on the implementation of the procedure for filing a land transaction application among the conjunctive claims

The lower court: (a) determined that the Defendant succeeded to the status of the seller under the instant sales contract on the grounds stated in its reasoning by deeming the subject matter of the instant sales contract as the shares 7464/10312 of the land before subdivision; and (b) accepted the Plaintiff’s preliminary claim as to the shares (=7464/10312 shares x 1/2 of the Plaintiff’s shares) in each land listed in the attached Table of the lower judgment as indicated in the lower judgment.

However, the above judgment of the court below is not acceptable for the following reasons.

According to the reasoning of the lower judgment and the record, the Plaintiff asserted that the subject matter of the instant sales contract was part of the share (7464/10312) of the land before subdivision in the original complaint, but the claim was made on July 13, 2010, and on the application form for alteration of the purpose of claim, cause, and statement of grounds for appeal as of April 21, 201, that it was a certain size (7,464 square meters) out of the land before subdivision. In the appellate court’s application for alteration of claim and cause, the Plaintiff asserted that “as of October 24, 2011, the land divided from the land before subdivision pursuant to the instant sales contract is divided into the land before subdivision (1 omitted) or (2) and (3) omitted, the Plaintiff’s claim as to the subject matter of the instant sales contract is not clearly organized.

Meanwhile, the Plaintiff and Nonparty 1 entered into the instant sales contract with the intention to sell a housing site by additional development under the condition that there has already been a development on a significant portion of the land before the partition, and it appears as a result of reflecting such intent that “(number 4 omitted) shall be indicated in the contract as “(number 7,464m2)” and “the amount shall be paid according to the increase or decrease in the horizontal number (based on the basis of the completion of construction)” as the special agreement. Moreover, the fact that the registration of ownership transfer in the name of the Defendant for shares in the name of 7464/10312 equivalent to the land area stated in the said sales contract is deemed to be for the convenience of administrative procedures, such as changing the form and quality of land, on the premise that the subject matter of the instant sales contract is a specific part of land. In light of this, it is reasonable to deem that the subject matter of the instant sales contract is a specific part of land, not a share of land before the division.

Therefore, the lower court should have deliberated and judged the Plaintiff by urginging the Plaintiff to specifically express its arguments as to whether the subject matter of the instant sales contract is a part of the entire land or a specific part of the land. Nevertheless, the lower court, which concluded that the subject matter of the instant sales contract is a share of 7464/10312 of the land before the division, without failing to exhaust all such deliberations, failed to exhaust all necessary deliberations or erred by misapprehending the interpretation of the instant sales contract, which affected the conclusion of the judgment. The allegation contained in the grounds of appeal on this point is with merit.

C. As to the claim for monetary payment among the conjunctive claim

The gist of this part of the grounds of appeal is that since half of the price received by the Defendant after selling the land of this case (number 5 omitted) that the Defendant had already decided to distribute to the Plaintiff is the Plaintiff’s share, the Defendant should return it to the Plaintiff as unjust enrichment.

However, as seen earlier, insofar as the premise fact is not acknowledged that there was a land distribution agreement between the Plaintiff and the Defendant as alleged by the Plaintiff, the instant land cannot be deemed to have been specified as belonging to the land sold by the Defendant to a third party. Therefore, by the Defendant’s sale and acquisition of land transaction permission, the instant sales contract for the land related to the said (number 5 omitted) becomes final and conclusive in the state of dynamic invalidation, and there may be room for the occurrence of a dispute over the liquidation of the sales contract relation to that part. However, the Defendant’s payment of the purchase price from the said third party would not immediately be deemed to have made unjust enrichment in relation to the Plaintiff.

Although the judgment of the court below is inadequate, it is legitimate that the court below rejected this part of the claim, and thus, this part of the ground of appeal cannot be accepted.

2. Judgment on the Defendant’s grounds of appeal

A. As to the first ground for appeal

The gist of the grounds of appeal is that the Defendant’s act of taking over the status of the seller under the instant sales contract is null and void, as long as there is no permission from the competent authority on the instant sales contract, since there is a long possibility that speculative transactions will take place with the acquisition of the seller’s status in the sales contract for land within

However, in light of the legislative purport of the land transaction permission system in order to prevent speculative transactions and form a normal transaction order, in cases where a third party takes over the status of a purchaser under a land transaction contract prior to obtaining a land transaction permission, unlike cases where a third party takes over the status of a purchaser, it does not mean that the agreement on the acquisition of a seller’s status takes effect only with the permission of the competent authority on the sale contract between the first seller and the buyer. The judgment of the court below to the same purport is justified. The allegation in the grounds of

B. On the second ground for appeal

The gist of the allegation in the grounds of appeal is that the Plaintiff entered into an impossible status with respect to the remainder payment obligations under the instant sales contract, and Nonparty 1, a seller, did not continue to exist in the instant sales contract. Accordingly, the Plaintiff’s act of completing the registration of ownership transfer for a certain portion of the land before subdivision with the consent of the Plaintiff et al. constitutes a case where both parties clearly expressed their intent to refuse the performance of the obligation to cooperate in the procedures of application for permission of land transaction, and thus the instant sales contract became null and void finally.

However, prior to obtaining land transaction permission, the instant sales contract itself cannot be yet recognized as being in a state of flexible invalidation (see, e.g., Supreme Court en banc Decision 90Da12243, Dec. 24, 191). As such, there is no circumstance to deem that the Plaintiff’s obligation to pay the purchase price in the record is in an impossible situation, regardless of whether the Plaintiff’s obligation to pay the purchase price was granted permission. As such, the grounds for nonperformance of the obligation to pay the purchase price, as alleged in the ground of appeal in the above ground of appeal, can only be an issue at the stage of performing the contract after the sales contract becomes final and conclusive, and may not be a ground for refusing the request for performance of the procedure for applying for land transaction permission. Moreover, there is no evidence to deem that Nonparty 1 or the Plaintiff, etc. clearly expressed their intent to refuse to perform the obligation to cooperate in the procedure for applying for

C. On the third ground for appeal

The argument in the grounds of appeal is without merit. The purport of the ground of appeal is that, in order for the plaintiff to claim that he had taken over the status of the seller under the contract of this case, the non-party 2 and the non-party 3, a joint purchaser, should take the same effect, but the fact that the plaintiff is a joint purchaser,

D. On the fourth ground for appeal

The allegation in the grounds of appeal is based on the premise that the Defendant acquired the status of the seller under the instant sales contract, and that the lower court rejected the land distribution agreement and recognized the Defendant acquired the status of the seller is inconsistent with the reasoning.

However, this part of the argument cannot be accepted, since it is possible for the defendant to take over the status of the seller and not conclude the land distribution agreement of the plaintiff's assertion.

E. Regarding the fifth ground for appeal

This part of the grounds of appeal is that the defendant's acquisition of the status of the seller cannot be recognized since there is no disposition document as to the acquisition of the status of the seller in this case, and the circumstances presented by the court below cannot be the basis for the judgment that the defendant acquired the status of the seller, and there is an error of violation of the rules of evidence, the lack of reason, the failure

In light of the circumstances revealed by the court below, the decision of the court below that the defendant succeeded to the status of the seller under the contract of this case by the oral or implied agreement between the plaintiff, etc. and the non-party 1 and the defendant, considering the following: (a) the defendant appears to be involved in the disposal of the land before division; (b) the plaintiff paid some expenses after the contract of this case; (c) the plaintiff contributed a considerable amount to the housing site development of the land before division; and (d) there is no obvious circumstance to deem that the contract of this case was destroyed or invalidated; and (e) the lease of each land of this case and the relationship between the plaintiff and the non-party 1 and the defendant as to the lease of each land of this case; and (e) the relationship between

3. Conclusion

Therefore, the part of the judgment below against the plaintiff as to the claim for the execution of land transaction permission procedure among the conjunctive claims of the court below is reversed, and that part of the case is remanded to the court below for a new trial and determination. The remaining appeal by the plaintiff and the appeal by the defendant are all dismissed. It is so decided as per Disposition by the assent

Justices Kim Chang-suk (Presiding Justice)