[Defendant-Appellant] The Korea Development Bank (Law Firm Gwangju, Attorney Hwang Il-woo, Counsel for defendant-appellant-appellant)

The head of Seongbuk-gu Seoul Metropolitan Government (Law Firm Shin, Attorney Park Jae-young, Counsel for the plaintiff-appellant)

September 15, 2010

1. The Defendant’s imposition of a penalty surcharge of KRW 1,537,373,60 against the Plaintiff on January 2, 2010 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff (formerly named: Co., Ltd.) is a company mainly responsible for real estate development business, and is a company affiliated with the so-called “gym-called “gym-fam-fam-fam-bam-bam-bam-bam-bam-bam-bam-bam-bam-bam-bam-bam-bam-bam-bam-bam-bam-bam-bam-bam-bam-bam-bam-bam-bam-bam-bam-bam-b

B. On August 13, 1982, the Plaintiff entered into a contract with Nonparty 1 (the Nonparty in the judgment of the Supreme Court) to purchase the sale price of KRW 8.5 million (hereinafter “the instant contract”) with the land indicated in the real estate list of [Attachment 1] attached thereto, which is the neighboring farmland, for the golf course business, for the purpose of Nonparty 1 (the Nonparty in the judgment of the Supreme Court), 234,050 square meters of forest land (number 1 omitted), 434,878 square meters of forest land (number 2 omitted) in Sung-dong, Seo-gu, Sung-gu, Sung-gu, Sung-gu, Seoul (hereinafter “instant forest land”), and paid the purchase price in full on January 31, 1983. The instant land, which is farmland, was not land necessary for the golf course business, but if Nonparty 1 purchased the instant forest only with the instant forest, it did not purchase the entire forest and forest land together with the instant land.

C. However, the Plaintiff completed the registration of transfer of ownership in its name on October 18, 1985 with regard to the forest land of this case, but it is anticipated that the land of this case cannot be registered for transfer of ownership because it cannot be certified for sale of farmland. As such, the Plaintiff completed the provisional registration on October 18, 1985 as the registration office of Suwon District Court Branch Branch of Sungwon District Court Branch of Sungwon District on October 18, 1985, the right to claim for transfer of ownership was completed.

D. Meanwhile, if the provisional registration status of the land of this case continues, there is a concern for dispute with the heir in the event of the death of the elderly non-party 1, and due to the amendment of the Income Tax Act on December 31, 2005, the Plaintiff transferred the right to claim for transfer of ownership based on the above provisional registration to non-party 3.5 billion won on the land of this case on December 30, 2005 by discovering the problem that the transfer of real estate for non-business use should be reported and paid on the basis of the actual transaction price. In order to waive the right to claim for golf course business compensation and to resolve the unregistered state of the land of this case on December 30, 205, the non-party 2 is a farming company actually engaged in farming, which is one shareholder of the non-party 2, and the representative director transferred the right to claim transfer of ownership based on the above provisional registration to the non-party 4 and the non-party 2's right to claim transfer of ownership based on the ownership registration of each of this case on February 26, 26.

E. The defendant was notified by the Suwon District Prosecutors' Office that the plaintiff violated the Act on the Registration of Real Estate under Actual Titleholder's Name (hereinafter "Real Estate Real Name Act"), and on September 18, 2008, the plaintiff imposed a penalty of KRW 2,008,801,250 pursuant to Article 5 of the Real Estate Real Name Act on the ground that the registration of this case was a title trust registration against the non-party 4, and the plaintiff filed a lawsuit for cancellation of the above disposition of imposition of the penalty surcharge (this Court Decision 2008Gudan6718, this Court), claiming that the above registration is not a title trust registration, and then the plaintiff was indicted on the ground that the non-party 2, who is the plaintiff's company owner, completed the registration of this case under title trust registration (this Court Decision 2008Da218, Dec. 24, 2008). The court rendered the above judgment of not guilty on the ground that the title trust registration in this case was not a title trust registration.

F. Accordingly, on January 12, 2010, the Defendant imposed a penalty surcharge of KRW 1,537,373,600 on the ground that the Plaintiff violated Article 10(1) of the Real Estate Real Name Act by failing to file an application for the registration of transfer of ownership within the remaining payment date, namely, the remaining payment date of the consideration for the instant land from January 31, 1983 [Provided, That Article 3 of the Addenda to the Real Estate Real Name Act (the date on which the performance of opposite payment is completed) stipulated in Article 10(1) before the enforcement date (the date on which the performance of opposite payment is completed in accordance with Article 1 of the Addenda to the Real Estate Real Name Act).

[Ground of recognition] Facts without dispute, Gap's 1 to 30, 32 to 35, Eul's 1 to 3 (including each number), non-party 5's testimony and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

① According to the former Farmland Reform Act (repealed by Act No. 4817, Dec. 22, 1994; hereinafter “former Farmland Reform Act”), the Plaintiff, a stock company with the main purpose of real estate development business, etc., cannot obtain ownership of farmland as a result, because it is impossible for the Plaintiff, a stock company with the main purpose of real estate development business, etc. to obtain certification. Since the instant sales contract is a contract with the objective of providing benefits, it is null and void as it is for an original impossibility, there is no obligation to apply for ownership transfer registration pursuant to the proviso to Article 2(1) of the Act on Special Measures for the Registration of Real Estate (hereinafter “Special Measures

② Since the Plaintiff’s failure to complete the registration of ownership transfer for the instant land before the lapse of the grace period is due to the restriction of the former Farmland Reform Act that prevents the Plaintiff from acquiring farmland as a juristic person, the Plaintiff made a normal effort for the registration of ownership transfer such as requesting cooperation for the approval of golf course business or the permission of farmland diversion. The Plaintiff’s completion of provisional registration after acquiring the instant land in the name of the Plaintiff, and inclusion of the instant land in the Plaintiff’s land account in the Plaintiff’s balance sheet, etc., did not constitute an anti-social purpose for speculation, tax evasion, and evasion of law. Thus, the Plaintiff constitutes a case where “justifiable cause” as stipulated in the proviso of Article

③ Even if the Plaintiff is a person not registered for a long time, the instant disposition that did not fully consider such circumstances is unlawful by abusing discretion, even though it is necessary to reduce 50/100 pursuant to the provisions of Article 4-2 of the Enforcement Decree of the Real Estate Real Name Act, since the Plaintiff did not evade taxes or avoid restrictions under the laws and regulations.

(b) Statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) Article 10(1) of the Real Estate Real Name Act provides that a person subject to the application of Article 2(1) and Article 111 of the Act on Special Measures and Article 2 of the Addenda (Act No. 4244) is entitled to exercise the right to claim the transfer of ownership, but fails to file an application for the transfer of ownership within three years from the date on which the right to claim the transfer of ownership is completed, and Article 2(1) of the Act on Special Measures provides that “a person who enters into a contract whose ownership is a transfer of real estate shall file an application for the transfer of ownership within 60 days from the date specified in any of the following subparagraphs: Provided, That the same shall not apply where the contract is revoked, rescinded, or null and void: Provided, That in light of the content and structure of the relevant Act and subordinate statutes, if the contract does not take effect even if it was concluded, or becomes retroactively null and void, it shall be deemed that the contract is not subject to penalty surcharges under Article 10(1) of the Real Estate Real Name Act (see Supreme Court Decision 2009Du8090

Meanwhile, the qualification of a person eligible to purchase farmland under the former Farmland Reform Act (amended by Act No. 4817 of Dec. 22, 1994; hereinafter the same) is required to be a person with the purpose of self-defising or self-sustaining farmland at the time of sale or purchase, even if he is not a farming household at the time of purchase or sale, or a person who intends to be a farming household if he is again called, and a farmer referred to in the same Act is a natural person. Thus, even if a corporation like a stock company entered into a farmland purchase or sale contract, it constitutes the proviso of Article 51 (1) of the former Enforcement Rule of the Farmland Reform Act (amended by Ordinance of the Ministry of Agriculture and Forestry No. 105 of Dec. 4, 1990) unless there are special circumstances such as the former Farmland Reform Act or the former Farmland Lease Management Act (amended by Act No. 4817 of Dec. 22, 1994; hereinafter the same shall apply) and thus, the seller cannot obtain ownership of farmland at the time of 260.5.

Therefore, even if a corporation that purchased farmland under the former Farmland Reform Act did not apply for the registration of ownership transfer within the period stipulated in Article 10 (1) of the Act on Real Estate Real Name, it shall not be deemed that a penalty may not be imposed pursuant to the above Article

The plaintiff is a corporation with the main purpose of real estate development business. The sales contract of this case was concluded prior to the repeal of the former Farmland Reform Act, and thus becomes null and void as it aims at providing benefits, which is an original impossibility. The null and void contract is not valid once the defendant obtained permission to divert farmland and obtained a qualification certificate for acquisition of farmland based thereon pursuant to the provisions of the current Farmland Act. Thus, it cannot be said that the plaintiff is liable to file an application for ownership transfer registration under Article 10 (1) of the Act on Real Estate Real Name. Accordingly, the disposition of this case made on a different premise is unlawful.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition by admitting it.

[Attachment]

Judges Choi Jae-han (Presiding Judge)