Boreg Development Co., Ltd. (Law Firm Woo et al., Counsel for the plaintiff-appellant)

Defendant 1 and five others (Law Firm Jeong et al., Counsel for the defendant-appellant)

April 2, 2009

1. The plaintiff's primary claims against the defendant 1 (the non-party 1 of the judgment of the Supreme Court), 2 (the non-party 2 of the judgment of the Supreme Court), 3 (the non-party 2 of the judgment of the Supreme Court), 4 (the non-party 3 of the judgment of the appellate court and the decision of the Supreme Court) and 5 (the defendant 4 of the judgment of the appellate court and the defendant

2. The Plaintiff:

A. Defendant 1 on October 30, 2006, subject to the designation of an urban development project zone and the disposition of designating a project implementer, with respect to each land listed in paragraph 1 of the attached Table:

B. Defendant 2 on November 22, 2006, subject to the designation of an urban development project zone and the disposition of designating a project implementer, with respect to the land specified in paragraph 2 of the attached list:

C. Defendant 3 on November 21, 2006, subject to the designation of an urban development project zone and the disposition of designating a project implementer, with respect to the land specified in paragraph 3 of the attached list:

D. As to the land listed in paragraph 4 of the annexed Schedule, Defendant 4 was caused by sale on November 21, 2006, subject to the designation of an urban development project zone by the head of Bupyeong-gu Incheon Metropolitan City and the disposition of designating a project implementer:

E. Defendant 5 caused a sale on November 11, 2007, subject to the designation of an urban development project zone and the disposition of designating a project implementer with respect to each land listed in paragraph 5 of the attached Table.

Each procedure for filing a land transaction application shall be implemented.

3. The Defendant Coin Assets Trust Co., Ltd.:

A. As to each land listed in paragraph 1 of the annexed Schedule, the provisional registration of the right to claim transfer of ownership completed on December 26, 2006 by the Incheon District Court, North Incheon District Court, Incheon District Office of Registration of December 26, 2006;

B. As to the land listed in paragraph 2 of the attached list, the provisional registration of the right to claim transfer of ownership completed on January 11, 2007 by the above registry office No. 2941;

C. As to the land listed in paragraph 3 of the attached list, the provisional registration of the right to claim transfer of ownership completed on December 27, 2006 by the above registry office No. 123142;

D. As to the land listed in paragraph 4 of the attached list, the provisional registration of the right to claim transfer of ownership completed on December 28, 2006 by the above registry office No. 124082;

E. The provisional registration of the right to claim transfer of ownership completed on December 13, 2007 by the registration office No. 109429 with respect to each land listed in paragraph (5) of the attached list

Each cancellation registration procedure shall be implemented.

4. The costs of lawsuit shall be borne by the Defendants.

The primary purport of claim is to the Plaintiff and Paragraph (3) of this Article; Defendant 1, as to each land listed in Paragraph (1) of the Attached Table No. 1, on October 30, 2006, on the land listed in Paragraph (2) of the Attached Table No. 2; Defendant 3, on November 22, 2006, on the land listed in Paragraph (3) of the Attached Table No. 3, on November 21, 2006; Defendant 4, on the land listed in Paragraph (4) of the Attached Table No. 4, on November 21, 2006; Defendant 5, on each land listed in Paragraph (5) of the Attached Table No. 5, performed each procedure for applying for land transaction permission on November 11, 2007 (hereinafter referred to as the "seller; and all the land listed in the Attached Table No. 2 shall be referred to as the "real estate of this case").

Preliminary Claim: Section 2 of the Disposition and Section 1 of the Attached Table No. 122394, Dec. 26, 2006, the Incheon District Court's North Incheon District Court's receipt of each land listed in Section 1 of the Attached List No. 122394, Dec. 26, 2006, Defendant 2 as to the land listed in Section 2 of the Attached Table No. 2 of the above registry office's receipt No. 2941, Jan. 11, 2007; and Defendant 3 as to each land listed in Section 3 of the Attached List No. 123142, Dec. 27, 2006; Defendant 4 as to the land listed in Section 4 of the Attached Table No. 2 of the above registry office's receipt of the Additional Claim No. 124082, Dec. 28, 2006; and Defendant 5 as to each of the above preliminary reasons for cancellation of ownership transfer registration.

1. Basic facts

A. The Plaintiff is a stock company with the purpose of housing construction business. On October 30, 206, Defendant 1 concluded a sales contract with Defendant 1 for each of the lands listed in paragraph (1) of the attached Table No. 1,629,795,000, with Defendant 2 on November 22, 2006, with Defendant 2 for the price of KRW 1,497,030,000, with Defendant 3 for each of the lands listed in paragraph (3) of the attached Table No. 3 from November 21, 2006, with Defendant 3 for the price of KRW 1,311,52,00,000, with Defendant 4 for each of the above lands listed in paragraph (4) of the attached Table No. 7,350,000,000,000, and with Defendant 5 for the purchase price of each of the above lands for KRW 1684,00,00.

On the other hand, the instant real estate is located within the land transaction permission area.

B. The instant sales contract between the Plaintiff, Defendant 1, 2, 3, and 4 includes the following:

1) The instant sales contract is for the Plaintiff to promote the construction project of collective housing through an urban development project in the instant real estate lot. The Plaintiff and the said Defendants are fully aware of the conclusion of the instant sales contract on the condition that they obtain land transaction permission.

2)The down payment shall be paid on the following day of the contract and the balance shall be paid within 15 days after the designation of the urban development project zone and of the project implementer

3) The said Defendants shall deliver all documents necessary for the authorization and permission for the construction of multi-family housing to the Plaintiff after concluding a contract without any condition, and actively cooperate so that the Plaintiff may obtain land transaction permission.

4) Where the implementation of an urban development project is not possible, the instant sales contract is null and void, and the said Defendants must return the sales price paid by the Plaintiff.

C. The instant sales contract between the Plaintiff and Defendant 5 includes the following:

1) The purpose of the instant sales contract is to implement an urban development project and development project in the instant real estate lot.

(ii)The down payment shall be paid within 10 days from the date of receipt of the proposal for the designation of an area under the Urban Development Act to the Office concerned or at the Plaintiff’s option before receipt of the proposal, the intermediate payment shall be paid within one month after the designation of an urban development project area and the completion of the designation of a project implementer, or at the Plaintiff’s option, within one month after

3) Defendant 5 should provide the Plaintiff with all kinds of authorization and permission-related documents prescribed by the Urban Development Act, etc. for the Plaintiff’s urban development project.

4) Where an urban development project is not implemented, the Plaintiff may rescind the instant sales contract.

5) The Plaintiff may transfer the name of the purchaser or the business operator under the instant sales contract to a third party.

D. Meanwhile, after concluding the instant sales contract with the Plaintiff, the said Defendants entered into a contract to sell the instant real estate again (hereinafter “second sales contract”) with the Daelim Industrial Co., Ltd. and D Cases Construction Co., Ltd. (hereinafter “Molim Industrial Co., Ltd.,” and D Cases Construction Co., Ltd. (hereinafter “D Cases Construction,” and the two companies together with “second purchaser”). At the time of concluding the contract, the second purchaser presented to the said Defendants a legal opinion to the effect that double sales within the land transaction permission area did not have any civil or criminal problems, and subsequently, concluded the second sales contract by actively obtaining opinions from the said Defendants, such as: (a) the second purchaser would be responsible for double sales within the said area; and (b) the second purchaser would be held responsible for the occurrence of a problem.

E. The above Defendants entered into a contract of the second sale and purchase, and entered into a real estate disposal trust agreement (hereinafter “instant trust agreement”) with the second buyer and the Defendant Cocco Asset Trust Co., Ltd. (hereinafter “Defendant Trust Company”), whereby the Defendant seller, the trustee, the trust company of the Defendant, the first beneficiary of the trust principal, the second beneficiary of the case construction, the second beneficiary of the case construction, and the Defendant seller’s seller as beneficiary of the trust principal and profit.

The terms and conditions of the instant trust agreement include the following:

1) A second purchaser shall be designated as the joint purchaser of the instant real estate. The purpose of this special agreement is to carry out the affairs of disposal for the safe transfer of ownership to the prospective purchaser and the management of ownership for the smooth progress of the real estate development project, and the matters of special agreement shall have the priority over this contract.

2) The Defendant seller, along with the instant trust agreement, shall submit all the documents required for the registration of the disposal trust to the Defendant trust company, and the Defendant trust company shall immediately complete the registration of the trust. The Defendant trust company is issued at the request of the second buyer without the consent of the Defendant seller for administrative affairs such as the preservation and management of ownership as the owner on the registry and all the authorization and permission necessary for the progress of the development project. The Defendant seller does not raise any objection thereto.

3) The first first beneficiary may directly designate the purchaser, the time of disposal, and the method of disposal of the instant real estate. Accordingly, the Defendant seller and the prospective purchaser do not raise any objection thereto. The first beneficiary may request the Defendant trust company to change the beneficiary in writing.

F. The Defendant trust company, based on the instant trust agreement, completed the provisional registration of this case on the ground of each promise for trust regarding the instant real estate. On the other hand, the expenses for the prepayment of the provisional registration of this case were paid by D Cases Construction, and the trust fees were agreed to be paid by D Cases Construction at the time of the principal registration.

G. An urban development project in the Bupyeong-gu Incheon Metropolitan City Bupyeong-gu 4 District of the real estate of this case (hereinafter “instant urban development project”) is a stage of consulting on the method of project promotion in Incheon Metropolitan City, and the development method has not been determined.

[Ground for Recognition: Facts without dispute, Gap 1 through 7, 9 through 16, 21 through 32 (including each number), Eul 1, defendant 3's newspaper result and the purport of the whole pleadings]

2. Whether the sales contract of this case is an original impossibility

A. The Plaintiff: (a) demanded the Defendant seller to perform the duty to cooperate in the procedure for filing an application for land transaction permission based on the instant sales contract; and (b) demanded the Defendant trust company to exercise the duty to cooperate in the procedure for filing an application for land transaction permission as the preserved right; and (c) demand the Defendant seller to exercise the right to demand cancellation of provisional registration

B. As to this, the Defendants asserted that the category of real estate in this case is "the answer" and the Farmland Act applies. Thus, a corporation for housing construction business, such as the Plaintiff, cannot acquire the qualification certificate for acquisition of farmland even after entering into a farmland sales contract, and thus cannot acquire the ownership of farmland. Thus, the instant sales contract is for benefits which are an original impossibility, and is definitely null and void, and accordingly, the Defendants’ claim against the Defendant seller should be dismissed, and ② the claim against the Defendant trust company should be dismissed as the defects of the preserved right.

C. The sales contract of this case was concluded on the premise that the category of the real estate of this case was changed to the land which can be constructed as an apartment house, and the defendant seller also agreed to cooperate with the plaintiff's joint housing construction project. Thus, it cannot be deemed that the sales contract of this case was a contract aimed at providing benefits, which is an original impossibility of acquiring the qualification certificate for acquisition of farmland, on the ground that the plaintiff could not acquire the qualification certificate for acquisition of farmland. Therefore, the defendants' defense is without merit.

3. Claim against the Defendant seller

A. Judgment on the main claim

1) According to the above facts, barring any special circumstance, Defendant sellers are obligated to implement each of the procedures for applying for land transaction permission on the instant real estate based on the instant sales contract to the Plaintiff according to the instant sales contract.

2) Whether the violation of the National Land Planning and Utilization Act is null and void

㈎ 피고 매도인들은, 이 사건 매매계약이 공동주택건립사업을 추진하려는 목적으로 체결되었는데 이 사건 부동산의 지목은 ‘답’으로서 위와 같은 목적으로는 토지거래허가가 아예 불가능하므로, 결국 이 사건 매매계약이 처음부터 토지거래허가를 배제하거나 잠탈할 의사로 이루어진 것으로 확정적으로 무효라고 주장한다.

㈏ 살피건대, 토지거래허가 구역 내에 있는 토지에 관하여 체결된 매매계약이 처음부터 관할관청의 허가를 배제하거나 잠탈하는 내용의 계약일 경우에는 확정적으로 무효로서 유효하게 될 여지가 없으나, 이와 달리 허가받을 것을 전제로 한 계약일 경우에는 허가를 받을 때까지는 유동적 무효의 상태에 있다. 그리고 토지거래허가 구역 내의 토지에 관하여 체결된 매매계약이 처음부터 관할관청의 허가를 배제하거나 잠탈하는 내용의 계약인지 여부는 매매계약체결의 경위, 매매계약의 구체적 내용, 토지거래허가신청의 이행 여부, 토지거래허가신청이 지연된 경위 등을 종합적으로 고려하여 판단하여야 한다.

However, in the instant case, in full view of the following: (a) the Plaintiff anticipated to designate the instant real estate as an urban development zone; and (b) the instant sales contract between the Plaintiff, Defendant 1, 2, 3, and 4 was concluded to promote the building project of multi-family housing; and (c) the parties to the instant sales contract between the Plaintiff, Defendant 1, 2, 3, and 4 are fully aware of the conclusion of the instant sales contract on the condition that land transaction permission is obtained; and (d) the agreement on the change of the name of a purchaser under the instant sales contract between the Plaintiff and Defendant 5 can be interpreted as an agreement in preparation for a cause, such as transfer of business rights, etc. after obtaining the land transaction permission, it cannot be concluded that the instant sales contract was concluded under the intention to exclude or escape from

Therefore, the sales contract of this case at least is in the state of flexible invalidation until the cancellation of the development restriction zone and the designation of an urban development zone are determined, and the defendant's assertion on the premise that the sales contract of this case is conclusive invalidation is without merit.

3) Whether the due date has arrived or not

㈎ 피고 매도인들은, 가사 피고 매도인들에게 토지거래허가절차에 대한 협력의무가 있다 하더라도 아직 협력의무의 이행기가 도래하지 아니하였으므로 원고의 청구는 기각되어야 한다고 주장한다.

㈏ 살피건대, 이 사건 매매계약시 원고와 피고 매도인들 사이에 이 사건 도시개발사업의 실시계획인가가 되는 단계에서 토지거래허가신청을 하기로 약정한 사실은 당사자 사이에 다툼이 없으므로, 피고 매도인들의 토지거래허가절차 협력의무는 아직 그 이행기가 도래하지 아니하였다고 할 것이어서, 이를 지적하는 피고의 위 주장은 이유 있다.

Therefore, the plaintiff's primary claim is without merit.

B. Determination on the conjunctive claim

Since the instant sales contract is concluded on the instant real estate within the land transaction permission zone and remains in the state of dynamic invalidation as a complete juristic act until permission is obtained or a development restriction zone is cancelled, etc., the parties to the contract are obligated to mutually cooperate so that the contract can be completed as effective.

Therefore, the Defendant seller is obligated to implement the procedure for application for land transaction permission based on each of the instant sales contracts, subject to the designation of an urban development project zone and the disposition of designating a project implementer, so that the instant contract can be completed as effective.

4. A claim against the defendant trust company

A. Article 5(2) of the Trust Act provides that a trust shall be null and void if its purpose is illegal or impossible, and Article 6 of the Trust Act prohibits a trust which aims at a law-making law by stipulating that a person who is unable to enjoy certain property rights pursuant to the laws and regulations shall not enjoy the same benefit as that of his/her right as a beneficiary. The purport of these provisions is to prevent a person who is not entitled to enjoy property rights from being avoided by a person who is not entitled to enjoy property rights from being able to enjoy it, and to prevent a trust from being used as a means to obtain a profit

B. Meanwhile, the legislative intent of the land transaction permission system under the National Land Planning and Utilization Act is to prevent speculative transactions of land. In light of its legislative intent, a transaction contract with the content of transferring or establishing rights, such as land ownership, shall take effect only after obtaining permission from the competent authority, and shall be deemed null and void as not only the real rights but also the obligatory effect before obtaining permission. If an obligatory effect is recognized with respect to a transaction contract prior to permission, it is possible between the parties to easily transfer the status of a purchaser under a sales contract and form an opportunity and condition for speculative transactions, and thus, it is necessary to deny the obligatory effect of a transaction contract and make it impossible to request performance or transfer the contractual status before obtaining permission (see Supreme Court en banc Decision 90Da1243, Dec. 24, 199).

C. However, under a special contract which takes effect in the instant trust contract, the second purchaser is designated as the joint purchaser of the instant real estate, and the purpose of the contract is to be designated as the second purchaser who is not the Defendant seller, and the first beneficiary is designated as the second purchaser who is not the Defendant seller. The first beneficiary can request the change of the beneficiary to the Defendant trust company without the Defendant seller’s consent, DD Construction paid the pre-registration expenses of the instant provisional registration, and the next provisional registration agreed to pay the trust fees to the Defendant trust company. The instant trust contract should be deemed as a disposal trust that preserves the right to claim the transfer registration of the ownership to the Defendant of the second purchaser rather than the Class B management trust that the truster preserves the right to claim for the transfer registration of the ownership to the Defendant of the second purchaser. Moreover, such disposal trust is deemed a sale trust that fails to obtain any right to the instant real estate from the second purchaser due to the lack of a land transaction permission, and it is not possible for the Plaintiff to obtain the status of the second purchaser as the seller under the trust contract or to exclude the status of the second purchaser.

D. Thus, the instant trust agreement is null and void in violation of Articles 5(2) and 6 of the Trust Act, as a trust for the purpose of the law purpose, concluded by the second buyer to enjoy the same benefit as the buyer who entered into a valid contract as the beneficiary by avoiding the land transaction permission system. The instant provisional registration in the name of the Defendant trust company, which was based on such trust agreement, is also invalid registration. Accordingly, the Defendant trust company has a duty to cancel the instant provisional registration against the Defendant seller.

5. Conclusion

The plaintiff's primary claim against the defendant seller is dismissed as it is without merit, and since the defendant seller clearly expresses his intention not to implement the land transaction permission procedure such as entering into the second sale contract, it is necessary to make a prior claim. Thus, the plaintiff's preliminary claim against the defendant seller is accepted as reasonable. The plaintiff can seek the implementation of the provisional registration procedure of this case by subrogation of the defendant seller as the right to cooperate in the land transaction permission procedure. Thus, the plaintiff's primary claim against the defendant trust company is accepted for the reason of merit. It is so decided as per Disposition.

[Attachment]

Judges Lee Jong-tae (Presiding Judge)