Plaintiff (Law Firm Oi, Attorneys Doh-ju et al., Counsel for plaintiff-appellant)

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

April 29, 2011

1. On June 16, 2003, the Defendant implemented the procedure for applying for permission of land transaction on the ground of a sale contract on June 16, 2003 with respect to each of the real estates listed in the separate sheet to the Plaintiff.

2. The plaintiff's remaining claims are dismissed.

3. 3/5 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

The defendant will pay to the plaintiff the amount equivalent to 1,2,3, 4 and 20% per annum from July 15, 2010 to the day of full payment with respect to the share distribution agreement dated May 6, 2005 or the sale and purchase agreement dated June 16, 2003 with respect to the share of 455/1085 among the real estate listed in the attached list 1,2, 3, 4 and 5 real estate listed in the attached list.

1. Basic facts

A. Sales contract between the plaintiff and the non-party 1

1) On June 16, 2003, the Plaintiff, Nonparty 3, and Nonparty 2 entered into a contract with the Defendant on behalf of Nonparty 1 (the mother of the Defendant) to purchase KRW 10,312 square meters of forest land (number 4 omitted) located in the land transaction permission zone at KRW 1,128,50,000 (hereinafter “land before division”). Of the above purchase objects, the Plaintiff and Nonparty 3 and Nonparty 2 acquired shares of KRW 1/2, and Nonparty 3 and 2 acquired shares of KRW 1/4, respectively. The content of the instant sales contract is as follows.

○○ down payment of KRW 200,000,000 shall be paid at the time of the contract and the balance of KRW 928,500,000 shall be paid on October 20, 2003.

○ Special Clause: (2) The change of title after land transaction permission is granted simultaneously with the contract, and the balance shall be set up as a collateral.

2) According to the instant sales contract, the Plaintiff paid KRW 100,00,000 to the Defendant who represented Nonparty 1 as the down payment, respectively, by Nonparty 3 and 2, respectively, on the day of the contract.

3) Meanwhile, on March 11, 2003, prior to the conclusion of the instant sales contract, the Plaintiff and Nonparty 3 drafted a written statement to the Defendant and Nonparty 1, stating, “The Defendant and Nonparty 1 may not file any claim against the Defendant on the grounds that the name of the person who has obtained permission to change the form and quality of the land before division was changed to the Defendant.” ② By April 30, 2003, the Plaintiff and Nonparty 3 paid the down payment of KRW 200,000,000 to Nonparty 1, and at the same time, entered into a sales contract for part of the land before division and changed the name of the person who has obtained permission to change the form and quality of the land, and ③ if the matters set forth in the above are not observed, the Defendant and Nonparty 1 do not file any claim (including a claim for compensation for money and mental damage and a claim for beneficial

(b) Registration of partial transfer of ownership and division of land under the defendant's name;

1) After the conclusion of the instant sales contract, Nonparty 1, as of June 16, 2003, entered into a sales contract with respect to 7,464 square meters of land before division, the date of the instant sales contract was the same as that of the instant sales contract, and the sales price was also the same as KRW 1,128,50,000 (a contract amount of KRW 150,500,000,000, is stated as payment and receipt at the time of the contract, and the balance of KRW 978,50,000,000, is stated as payment on December 29, 2003).

2) Accordingly, with the consent of the Plaintiff, Nonparty 3, and 2 on October 2003, Nonparty 1 completed the ownership transfer registration for the portion of 7,464/10,312 of the land before subdivision due to the purchase and sale contract as of September 24, 2003. However, the Plaintiff was liable for the total of 19,002,150 won of the registration tax, acquisition tax, etc. on the said portion of ownership transfer registration.

3) On October 20, 2003, the Defendant delegated the authority regarding permission for the development of the land before subdivision to the Plaintiff and Nonparty 7, the wife of the Plaintiff, and the Plaintiff, regarding the construction work and the housing site development project. On November 28, 2003, the Plaintiff entered into a contract for changing the form and quality of the land before subdivision and for completing construction work, with Nonparty 10, with the service cost of KRW 16,500,000.

4) On July 1, 2005, the defendant and the non-party 1 decided that three parcels of land, including the land number 1 omitted) through (number 2 omitted) and the land number 12 (number 3 omitted) in the name of the defendant in the name of the non-party 1, including the same (number 10 omitted) and (number 11 omitted) of the same (number 11 omitted), shall be completed on July 4, 2005. Accordingly, the plaintiff bears the expenses of the total amount of co-owner's share transfer registration, including the registration tax and the education tax, etc. pertaining to the above registration.

C. The plaintiff's new house construction

1) On July 10, 2005, the Defendant issued a building permit with respect to the land (attached Form 1 omitted) land (attached Form 1 omitted) in Yeongdeungpo-gu (attached Form 1 omitted) on July 10, 2005 among each land of this case, and on July 12, 2005, the Defendant changed the Plaintiff’s construction permit name on August 22, 2005 (attached Form 2) in the name of the Plaintiff’s wife, and the Plaintiff newly constructed the housing on each of the above lands and completed the registration of ownership preservation in the name of Nonparty 8 on each of the above lands on December 17, 2005 and August 7, 2006. Meanwhile, Nonparty 8 obtained the land transaction permit with respect to each of the above lands on September 29, 2005.

2) On October 7, 2007, the plaintiff and the defendant on behalf of the non-party 8 leased the above (number 1 omitted) land and buildings on its ground to the non-party 9 as KRW 200,000,000, and the non-party 8 was paid the deposit amount of KRW 200,000,000 from the non-party 9 until November 26, 2007.

(d) Establishment and loan of the right to collateral security and the Plaintiff’s loan interest burden;

1) On August 10, 2005, the Defendant was granted a loan of KRW 1,00,000,000 in total, for each of the instant lands, with respect to ten parcels of land, excluding the land at issue, which is KRW 140,000,000, the maximum debt amount for each of the instant lands, and KRW 1,00,000,000,000 in total, for each of the instant lands.

2) On January 17, 2006, the Plaintiff: (a) established a mortgage on the said (number 6 omitted); (b) the amount of the maximum debt; (c) the obligor Nonparty 8; and (d) the Korea Exchange Bank established a mortgage on the said (number 1 omitted); (d) the amount of the maximum debt on the said (number 389,000,000 won; (d) the obligor; and (e) the National Agricultural Cooperative Federation established a mortgage on the said (number 1 omitted); and (e) obtained a loan from the National Agricultural Cooperative Federation and the Korea Exchange Bank; and (e) cancelled the registration of the establishment of a mortgage on the said land (number 1 omitted); and (e) the said land and the land (number 6 omitted); and (e) the registration of the establishment of a mortgage on the said land by an agricultural cooperative composed of Korea Exchange Bank, which was completed on the said land.

3) Meanwhile, on September 12, 2006, each registration of the establishment of a neighboring mortgage, which was completed on each land of the same (number 12 omitted) through (number 8 omitted), was revoked on the same (number 12 omitted) and instead, the establishment of a collateral security, which became the debtor, the National Federation of Korea, and the debtor, the National Federation of Korea, was established on the same day.

4) On February 21, 2007, the Defendant created an additional maximum debt amount of KRW 120,000,000 with respect to the same (number 9 omitted) land from the National Agricultural Cooperative Federation, and borrowed KRW 100,000,000 from the National Agricultural Cooperative Federation.

5) Meanwhile, from November 2005 to May 2008, the Plaintiff set up a collateral security with respect to each of the instant land to the Defendant as the obligor and remitted the amount equivalent to 1/2 of interest on each of the instant land to the Defendant. The specific details are as follows.

8. 20. 20. 18. 20, 20. 10, 20. 20. 8. 20, 20. 40, 20. 40, 20. 12, 750, 306. 13. 12, 200, 200, 40. 6. 13. 20, 200, 206. 6. 8. 15, 200, 206. 15, 20. 20, 206. 15, 20. 20, 200, 200, 2007; 15. 20, 200, 2006. 14, 200, 2007;

Note 1) 50,000

E. Sale to Nonparty 5, 6, and 4 by the Defendant

1) On the other hand, on December 24, 2008, the Defendant sold to Nonparty 5 and 6 the building of 517 square meters and the 2nd floor above that of 1,085 square meters, among the buildings of 517 square meters and the 1,085 square meters on the same (number 2 omitted) road, 9 square meters in price for 700,000,000, and completed the registration of ownership transfer with respect to each of the above land on December 26, 2008.

2) On June 1, 2009, the Defendant sold 200 square meters of land to Nonparty 4 in price for 539,152,000 square meters of land among the 1,085 square meters of land under the same (number 13 omitted), the same (number 7 omitted), the same (number 7 omitted), and the same (number 2 omitted) of the same (number 2 omitted) to Nonparty 4 on June 1, 2009, and completed the registration of ownership transfer with respect to each of the above land in the name of Nonparty 4 on June 16, 2009.

[Ground of recognition] The facts without dispute, Gap's 1 through 7, 9 through 28, Eul's 1 through 9 (including each number), the witness's testimony, and the purport of the whole pleadings

2. The plaintiff's assertion

A. The Defendant succeeded to the seller’s status of the instant sales contract concluded between the Plaintiff and Nonparty 1.

B. After that, on May 6, 2005, the Defendant agreed to distribute the land among each of the instant lands to the Plaintiff on May 6, 2005, to the effect that the land was distributed to the Plaintiff on five parcels (number 1 omitted), which are (number 6 omitted), (number 5 omitted), (number 5 omitted), (number 7 omitted), and (number 8 omitted). However, the Defendant decided to distribute the land among the said five parcels of land to Nonparty 5 and 6 and pay 1/2 out of the price thereof to the Plaintiff. In lieu of selling the land (number 7 omitted) to Nonparty 4, the land was distributed to the Plaintiff under the same subparagraph (number 9 omitted), and to distribute the land to Nonparty 45/1085 shares in accordance with the area of the land distributed to use as a road among the said (number 2 omitted) land.

C. Therefore, pursuant to the instant sales contract or the agreement on May 6, 2005, the Defendant is obligated to implement the land transaction permission procedure for the Plaintiff with respect to the portion of KRW 455/1085 out of the same (number 1 omitted), (number 6 omitted), (number 9 omitted), (number 8 omitted), and (attached Table 1 through 4) of the same (attached Table 2 omitted) and (Attachment Table 5 omitted), and the Plaintiff is obligated to pay only the remainder of KRW 135,00,000 (number 5 omitted), out of the proceeds of the sale of the land, which was decided to distribute to the Plaintiff, (number 470,000,000 won, which was sold to Nonparty 5, etc.) and the secured loan of KRW 100,000,000,000, which was deducted from KRW 3770,000,000,000 for the above land.

3. Determination

A. As to the seller's succession to the status

(7) The Plaintiff: (a) concluded a contract on behalf of Nonparty 1 on behalf of the Plaintiff at the time of the conclusion of the sales contract of this case; (b) the sales contract of this case and the purchase price was 00,000,000,000 won for 10,000 won for 0,000 won for 10,000 won for 20,000 won for 0,000 won for 10,000 won for 0,000 won for 10,000 won for 0,000 won for 0,000 won for 20,000 won for 0,00 won for 0,000 won for 20,000 won for 70,00 won for 0,00 won for 0,000 won for 20,00 won for 0,000 won for 0,00 won for 20,00 won for 0,00 won for 7.

In regard to this, the defendant asserted that even if the defendant decided to take over the status of the seller, the defendant's acceptance of the status of the defendant is valid only with the land transaction permission between the non-party 1 and the plaintiff, and there was no land transaction permission between the non-party 1 and the plaintiff. Thus, the contract of this case was finally null and void. However, since the land transaction permission between the non-party 1 and the plaintiff was not granted, it is difficult to view that the contract of this case is null and void, and there is no

B. Whether a share distribution agreement was made on May 6, 2005

In light of the following circumstances revealed based on each of the above evidence, i.e., evidence No. 8 submitted by the Plaintiff based on the land distribution agreement, i.e., ① although the content of distributing each of the instant land as alleged by the Plaintiff on May 6, 2005, the evidence No. 8 submitted by the Plaintiff stated the content of distributing each of the instant land as alleged by the Plaintiff, it is only Nonparty 2’s signature and seal, and there is no document stating the land distribution agreement between the Plaintiff and the Defendant, and there is no document stating the land distribution agreement between the Plaintiff and the Plaintiff, ② even according to the witness Nonparty 2’s testimony, it is not deemed that prior delegation or consent was received from the Defendant regarding the land distribution agreement as alleged by the Plaintiff, and there is insufficient evidence to acknowledge otherwise.

C. As to the claim amounting to KRW 135,00,000

The testimony by Non-Party 2 is insufficient to recognize that the Defendant agreed to pay KRW 135,00,000 to the Plaintiff out of the proceeds from the sale of the land in the above party's land (number 5 omitted), and there is no other evidence to prove otherwise, the Plaintiff's claim for this portion is without merit.

D. Sub-committee

Therefore, the defendant is obligated to implement the procedure for applying for permission for land transaction based on the sale contract on June 16, 2003 with respect to shares [=7,464/10,312 (shares corresponding to the object of the instant sales contract among the land before division) x 1/2 (the plaintiff's share among the object of the instant sales contract)] among each real estate listed in the separate sheet in the separate sheet to the plaintiff (On the other hand, the defendant did not change the name of the person who has the permission for change of form and quality against the content of the written statement as of March 11, 2003. Thus, the plaintiff cannot make any claim against the defendant under the above separate sheet, and thus, the plaintiff's claim is groundless. However, although the statement in the evidence No. 11 of the above statement alone does not change the name of the person who has the permission for change of form and quality, it cannot be viewed that the subsequent execution of the procedure for permission for land transaction cannot be sought without any other evidence.)

4. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Kang Sung-sung (Presiding Judge)

Note 1) If the amount No. 16 of the same table is combined with that of 2,200,000 won.

2) According to a sales contract, the sales amount is KRW 700,000.