[1] In a case where permission for a land transaction contract is obtained by submitting a false agricultural management plan to avoid a provision that ownership of farmland is impossible without self-sufficiency even though an illegal lease or entrustment management is planned, whether it constitutes a case where permission is obtained by means of “a deceitful or other unlawful means” under Article 141 subparag. 6 of the National Land Planning and Utilization Act (affirmative)

[2] The case holding that it was intentional in violation of the National Land Planning and Utilization Act, since it was aware of the fact that the preparation of an agricultural management plan necessary for acquiring farmland and all affairs related to the application for permission for a land transaction contract attached thereto were entrusted to a certified judicial scrivener in order to purchase farmland without the intention of self-defluence, and that it would be ordered to obtain permission for a land transaction contract through

[1] Article 118 and Article 141 subparagraph 6 of the National Land Planning and Utilization Act / [2] Article 118 and Article 141 subparagraph 6 of the National Land Planning and Utilization Act

[1] Supreme Court Decision 2005Do8080 Decided February 24, 2006 (Gong2006Sang, 558), Supreme Court Decision 2006Do4888 Decided November 9, 2006 (Gong2006Ha, 2125) / [2] Supreme Court Decision 2005Do802 Decided February 24, 2006

Defendant

Defendant

Law Firm Chang-Gong, Attorneys Park Jong-young et al.

Daegu District Court Decision 2006No427 Decided July 18, 2006

The appeal is dismissed.

1. As to the assertion of mistake of fact

In full view of the evidence of the first instance court and the lower court, even if the Defendant purchased each farmland of this case located within the area where permission for a land transaction contract was planned to cultivate the farmland of this case without any intention to cultivate it directly, the lower court: (a) purchased each farmland of this case under his name and delegated the procedures for permission for a land transaction contract and registration to a certified judicial scrivener through his father and the Nonindicted Party, who is his father; and (b) prepared each agricultural management plan in the name of the Defendant to the effect that the employees of the certified judicial scrivener office would secure the necessary labor force and directly engage in farming with respect to each farmland of this case; and (c) recognized that the Defendant submitted it to the competent authority by submitting an application for permission for a land transaction contract along with the application therefor. In light of all all the circumstances such as the Defendant’s occupation and experience, residence and family situation known by relevant evidence, the developments leading up to purchase of each farmland of this case, the status of cultivation after purchase, and the overall contents of each agricultural management plan, etc., as alleged in the grounds of appeal.

2. As to the assertion of misapprehension of legal principle

A. Under Article 121(1) of the Constitution, Article 121(2) provides that “The lease and entrusted management of farmland arising from the enhancement of agricultural productivity and the rational use of farmland or due to inevitable circumstances shall be recognized as prescribed by the Act.” In this regard, Article 6(1) of the Farmland Act (wholly amended by Act No. 8352, Apr. 11, 2007; hereinafter the same shall apply) provides that “The farmland shall not be owned by a person other than a person who uses or uses the farmland for his own agricultural management (referring to his own calculation and responsibility for agriculture. Article 2 subparag. 4 of the Farmland Act.)” In addition, Article 8(1) and (2) provides that “a person who intends to acquire the farmland under Article 121(2) shall, in principle, prepare an agricultural management plan including “the area of the farmland to be acquired, the labor force suitable for the agricultural management of the farmland to be acquired, and an application for issuance of a qualification certificate for acquisition of farmland to the competent government office for acquisition of farmland.”

However, if permission for a land transaction contract is obtained under Article 118 of the National Land Planning and Utilization Act pursuant to Article 126 (1) of the same Act, it shall be deemed that the qualification certificate for acquisition of farmland is obtained. In this case, the competent authority for permission for a land transaction contract shall verify whether the requirements for the issuance of the qualification certificate for acquisition of farmland are met, and for this purpose, the person who intends to obtain permission for a land transaction contract for farmland shall attach the above agricultural management plan (Article 118 of the same Act, Article 117 (1) of the Enforcement Decree of the same Act, Article 19 (1)

On the other hand, “self-cultivation” under the Farmland Act means a case where a farmer engages in the cultivation of crops or the growing of perennial plants on his own farmland at least 1/2 of the crops with his own labor (Article 2 subparag. 5 former part). The term “entrusted management” under Article 2 subparag. 6 of the Farmland Act stipulating that a farmland owner shall pay a certain amount of remuneration to others and entrusts all or part of the farming work to another person (Article 9 subparag. 1 through 5) is exceptionally permitted when the farmland owner is drafted or called up under the Military Service Act, or has a reason such as long-term overseas travel, disease, school attendance, election, execution plan for farmland utilization promotion project, etc. (Article 9 subparag. 1 through 5). In cases where part of the farming work is entrusted for reasons of lack of self-work ability, at least 1/3 of the major farming work shall be directly engaged in the farming work or at least 30 days during one year (Article 11(2) of the Enforcement Decree of the Farmland Act), and Article 2 of the Farmland Act shall be subject to the above provision or criminal punishment (see Article 20).

In light of the contents and purport of the aforementioned relevant Acts and subordinate statutes, in the process of obtaining permission for a land transaction contract for farmland, the act of obtaining permission for a land transaction contract from a public official who is unaware of such fact constitutes a case where the permission is obtained by stating in the column for "plan for securing labor force" of an agricultural management plan attached to the application for permission for a land transaction contract in order to avoid the provision that ownership of farmland is impossible unless he/she does not own it, the act of obtaining permission for a land transaction contract from a public official who is subject to punishment under Article 141 subparagraph 6 of the National Land Planning and Utilization Act constitutes a case where he/she obtains such permission by "private or other unlawful means" (see Supreme Court Decisions 2005Do8080, Feb. 24, 2006; 2006Do4888, Nov. 9, 2006).

B. Furthermore, in light of the actual state of real estate speculation in Korea and the regulatory history that has continuously restricted the ownership of farmland by non-farmers according to the light freedom principle since the establishment of the government, in the event a person who does not establish a farmer's farmland acquires farmland, it can be easily known in light of the empirical rule that there is a statutory restriction on the acquisition of farmland. However, the Defendant’s work to a certified judicial scrivener through the preparation of an agricultural management plan necessary for acquiring the farmland to purchase the farmland in this case without his/her own intent and all his/her father regarding the application for permission for a land transaction contract attached thereto shall be deemed to have been aware of the situation that the permission for a land transaction contract would be issued in violation of the statutes, and thus, it shall not be deemed that the Defendant did not have any intention to violate the National Land Planning and Utilization Act (see Supreme Court Decision 2005Do802, Feb. 24, 2006).

C. In the same purport, the court below's decision that maintained the first instance court's decision that the defendant's act constitutes a violation under Article 141 subparagraph 6 of the National Land Planning and Utilization Act is proper, and there is no error in the misapprehension of legal principles as to the interpretation and application of "the fraudulent and other unlawful means" under the above provision of the Act. The ground of appeal as to the interpretation of the above provision of the Act is merely an independent opinion, and it cannot be accepted.

3. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Hong-hoon (Presiding Justice)