Requirements for rescinding a sales contract concluded on the premise of land transaction permission on the ground of delay in performance

In the case of a contract of sale on the basis of land transaction permission under the Act on the Utilization and Management of the National Territory, the seller is not obligated to pay the purchase price according to the terms and conditions of the contract before the permission is granted. Therefore, even if the seller provided the documents required for the registration of transfer of ownership before the survey, the buyer is not liable for the delay of performance, but the buyer is entitled to cancel the contract only when the buyer gives the notice of the payment and fails to comply

Article 21-3 of the Act on the Utilization and Management of the National Territory, Article 544 of the Civil Act

Supreme Court en banc Decision 90Da12243 delivered on December 24, 1991 (Gong1992,642), 91Da33612 delivered on July 28, 1992 (Gong1992,2544), 93Da22043 delivered on January 11, 1994 (Gong194,685)

Plaintiff

[Defendant-Appellee] Defendant 1 et al.

Daegu High Court Decision 93Na6301 delivered on April 6, 1994

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The defendant's attorney's grounds of appeal are examined.

In the case of a sale contract which is a premise of land transaction permission under the Act on the Utilization and Management of the National Territory, there is no obligation for the buyer to pay the purchase price according to the terms and conditions of the contract before the permission is granted. Thus, even if the seller provided the documents required for the registration of transfer of ownership before the survey, the buyer is not liable for the delay of performance, but can cancel the contract if the buyer gives the notice of payment and fails to comply with the notice of payment after the permission was granted and the buyer fails to comply with it (see each of the Decisions 91Da33612, Jul. 28, 1992; 90Da1243, Dec. 24, 191).

As legally determined by the court below, if the sales contract of this case is a contract based on a land transaction permit under the Act on the Utilization and Management of the National Territory, and the land transaction permission for the above sales contract was made on April 1, 193, even if the plaintiff did not pay the remainder after receiving the documents required for the registration of transfer of ownership from the defendant before the above permission was granted, the defendant's expression of intent on February 1, 1990 cannot be deemed lawful, and it cannot be deemed that the above declaration of intent takes effect retroactively at the time of the above permission. Thus, the court below's rejection of the defendant's letter of contract cancellation is just and there is no error of law such as the theory of lawsuit.

In addition, we examine the reasoning of the judgment below in comparison with records, we affirm the court below's rejection of the defendant's assertion that the plaintiff's claim of this case violates the principle of good faith or the principle of fairness or constitutes abuse of rights, and there is no error of law like the theory of lawsuit.

All arguments are without merit.

Therefore, the appeal is dismissed and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Cho Chang-tae (Presiding Justice)