(영문) 서울행정법원 2017.8.10.선고 2017구합794 판결

1. On January 3, 2017, the Defendant’s disposition of denying the land transaction contract with respect to 1/10 of the 1/10 of the 0,000 square meters of forest land located in Seocho-gu Seoul Metropolitan Government, Seocho-gu, Seoul.

2. The costs of the lawsuit shall be borne by the defendant.

Purport of claim

The order is as set forth in the text.

Reasons

1. Details of the disposition;

A. The Seocho-gu Seoul Metropolitan Government ○○○○○○○○○, ○○○○○ (hereinafter “instant land”) constitutes a forest land designated as a land transaction contract permission area and a development restriction area, a preserved mountainous district, etc. As such, there exists a vinyl, a farming shed, etc. on some of the instant land on the ground of the instant land.

B. On December 22, 2016, the Plaintiff entered into a sales contract with the owner of 1/10 of the instant land (hereinafter referred to as “instant land share”) to sell the instant land share to Kim Bright, and filed an application for permission for a land transaction contract with regard to the instant land share, with the purpose of “Maintenance of the present state, such as the ground trees,” jointly with the Defendant, on December 22, 2016.

C. On January 3, 2017, the Defendant rendered a disposition of non-permission for the said application on the ground that the temporary buildings, such as plastic houses and farming clubs, in the instant land, are maintained, and thus contravenes Article 12 of the Act on Special Measures for Designation and Management of Development Restriction Zones (hereinafter “Development Restriction Act”) and Article 12 of the Mountainous Districts Management Act, so it is possible to conduct land transactions after the restoration to the original state (hereinafter “instant non-permission disposition”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence Nos. 1 through 3, the purport of the whole pleadings and arguments

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The illegality of the land of this case alleged by the Defendant does not constitute grounds for non-permission of land transactions under Article 119 of the former National Land Planning and Utilization Act (amended by Act No. 13797, Jan. 19, 2016; hereinafter “National Land Planning Act”).

The instant land is an area where speculative transactions and land prices do not increase separately by being subject to various sanctions, such as development restriction zones. A vinyl, etc. installed on the ground of the instant land is a third party, which had been much longer than August 18, 2009 when the Plaintiff acquired the instant land shares, and the Plaintiff has no right to the instant vinyl. Moreover, the Defendant did not take any measures, and neglected to maintain the vinyl, and it was implied for the maintenance of the vinyl. Accordingly, non-permission of land transaction permission is an illegal disposition that deviates from the scope of discretion.

(b) Related statutes;

As shown in the attached Form.

C. Determination

1) Article 117 of the National Land Planning Act provides that, for the smooth formulation and implementation of a plan for utilization and management of national land, a smooth use of a reasonable land, etc., an speculative land transaction may be designated as a land transaction permission area by fixing a period not exceeding five years, wherein land transactions are character or land price increase rapidly, or an area likely to increase, as a land transaction permission area. Article 119 of the National Land Planning Act provides that, except where the land use purpose of the land designated as a land transaction permission area does not fall under any item of subparagraph 1, or where the land use objective falls under any item of subparagraph 2, or where the land use volume falls under any item of subparagraph 3, or where the relevant area stipulated under subparagraph 3 is deemed inappropriate in view of the purpose of use of the land

In light of the purport and contents of the above provisions, the permission system for land transaction contract is necessary to interpret the grounds for non-permission as a serious limitation on the principle of freedom of contract, which is the basic principle of the free economic system, and it is necessary to exclude the discretion of the disposition agency as to whether to grant permission or non-permission for the land transaction contract, and the requirements for disposition are limited to the judgment on the existence of non-permission grounds, in particular, the requirements for disposition are limited to the binding discretion bound by the purport of the law, and the application for non-permission without any legal grounds should be necessarily permitted.

2) As to this issue, Article 119 subparagraph 2 (a) of the National Land Planning and Utilization Act provides that where a person who intends to enter into a land transaction contract fails to comply with an urban planning and other plans for the use and management of land, and subparagraph 3 of the same Article provides that the area is deemed inappropriate for the purpose of the use of the land, permission for each land transaction contract shall not be granted if it is deemed that the area does not meet the purpose of the use of the land. The Defendant is not in compliance with a forest management plan, which is the purpose of the land transaction contract, due

As the instant non-permission disposition was rendered on the ground that it falls under subparagraphs 2 (a) and 3 of Article 119 of the National Land Planning and Utilization Act, it is deemed that the purpose of land use under the instant land transaction contract does not comply with the urban planning and other plans for land utilization and management, or that the area is inappropriate for the purpose of use of the land.

In addition to the whole purport of the pleadings in the statement of evidence Nos. 6 through 8 (including branch numbers), it is recognized that there exist five-evaluation greenhouses and farming gate (attached Form section) at the location abutting on the road surface at the bottom of the instant land. The said vinyl, etc. was installed in 1990 by the Park○○, which owned 9/10 of the instant land, and around February 2, 2015, the said vinyl, etc. was inherited and managed the said land shares and plastic houses, etc. due to inheritance due to an agreement division, due to the death of Park○○○, due to the inheritance of the said land and the inheritance of the said land. In selling the instant land shares by the Plaintiff, it can be recognized that the Plaintiff prepared a written confirmation to the effect that the instant land would be engaged in the forestry management along with the purchaser.

As can be seen, even if the part of the area of the instant land ○○○, ○○○○, or the part of the square meters of 128 meters corresponding to the instant land share is merely about 16.5m and does not remove it, it is difficult to view that the purchaser of the instant land share would make it impossible to manage the instant land by maintaining the existing ground trees, etc. in the status of the instant land, which is the purchaser of the instant land. Since the 190% of the co-ownership of the instant land is owned and managed from the 1st century, it would not be difficult to remove the said building at will or from the 2nd century. Moreover, it is difficult to view that the instant sales contract was planning to remove the said building by requesting the 1st century to remove the said illegal plastic house, etc., or to jointly manage the trees with the Plaintiff’s consent to the sale of the instant land, and that it is difficult to view that the Plaintiff and the 30th Mountainous district under Article 53 of the Mountainous Districts Management Act, which is part of the instant land use restriction or penalty provision.

Therefore, since the purpose of this case’s land share use falls under Article 119 subparag. 1 (c) of the National Land Planning Act and does not fall under any of the causes under subparagraph 2 (a) of this case’s land transaction permission for the instant sales contract is an application for permission without statutory non-permission, and thus, the Defendant ought to grant permission. Therefore,

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is so decided as per Disposition by the revocation of the non-permission disposition in this case.