[1] The validity of a sales contract concluded with the purport of excluding or evading permission for the land within the area subject to permission of land transaction contract under the National Land Planning and Utilization Act (=final invalidation) and whether an act of falsely preparing a contract to obtain permission for land transaction contract in a normal manner is included in the act of excluding or evading such permission (affirmative)

[2] The case holding that the above sales contract is null and void since it was concluded at the time of the first conclusion of the sales contract since the purchaser who failed to meet the requirements for permission by stealing the name of a person meeting the requirements for permission and entered the purchaser into the sales contract as the purchaser at the time of the conclusion of the sales contract, and thus, the above sales contract was null and void

[1] Where a sales contract is concluded with the purport of excluding or evading permission for land within an area subject to permission for land transaction contracts under the National Land Planning and Utilization Act, the contract shall be finally null and void at the time of conclusion pursuant to Article 118(6) of the said Act. In addition, an act of excluding or avoiding such permission includes not only an act of falsely preparing a contract so that it does not require permission for land transaction, but also an act of falsely preparing a contract so that it can obtain permission for land transaction contracts in a normal manner.

[2] The case holding that the above sales contract is null and void as it was concluded at the time of the first conclusion of the sales contract, since the buyer who did not meet the requirements for permission in entering into a sales contract by misappropriation of the name of a person meeting the requirements for permission, and entered the purchaser into the sales contract as the purchaser at the time of the conclusion of the sales contract.

[1] Articles 117, 118(1) and (6), and 119 of the National Land Planning and Utilization Act / [2] Articles 117, 118(1) and (6), and 119 of the National Land Planning and Utilization Act

[1] Supreme Court Decision 90Da8121 delivered on December 11, 1990 (Gong1991, 462) Supreme Court en banc Decision 90Da12243 Delivered on December 24, 1991 (Gong1992, 642) Supreme Court Decision 92Da44671 Delivered on November 23, 1993 (Gong1994Sang, 164), Supreme Court Decision 93Da44319, 44326 Delivered on December 24, 1993 (Gong194, 505) Supreme Court Decision 2005Da615533 Delivered on February 8, 2007

Counterclaim Plaintiff (Law Firm Barun Law, Attorneys Park Ho-ju et al., Counsel for the plaintiff-appellant)

Counterclaim Defendant 1 and one other (Law Firm Ba, Attorney double-hoon, Counsel for the plaintiff-appellant)

Incheon District Court Decision 2008Na15728 decided Nov. 6, 2009

The judgment below is reversed, and the case is remanded to the Incheon District Court Panel Division.

We examine the grounds of appeal.

1. Where a sales contract is concluded with the purport of excluding or evading permission for land within an area subject to permission for a land transaction contract under the National Land Planning and Utilization Act (hereinafter “Act”), the contract shall be deemed null and void as of the time of conclusion pursuant to Article 118(6) of the Act (see, e.g., Supreme Court en banc Decision 90Da12243, Dec. 24, 191; Supreme Court Decision 2005Da6153, Feb. 8, 2007). Furthermore, an act of excluding or evading such permission shall include not only an act of falsely preparing a contract so that it falls under the necessity of permission for a land transaction contract, but also an act of falsely preparing a contract so that it may obtain permission for a land transaction contract which is not normally permitted (see, e.g., Supreme Court Decisions 90Da8121, Dec. 11, 190; 203Da42394, Apr. 36, 1993).

2. A. According to the reasoning of the lower judgment, the lower court determined that: (a) it is reasonable to deem that the Plaintiff entered into a sales contract on the premise that it would obtain a land transaction permit at the time of the instant sales contract, in light of the following: (a) the instant sales contract (Evidence A 1) contains special terms and conditions, such as “this contract is in the form of a provisional contract prior to obtaining a land transaction permit and is valid after obtaining a land transaction permit; (b) the Defendant did not cooperate with the procedure for filing an application for a land transaction permit by failing to prepare and make a power of delegation; and (c) each purchaser’s column of the “land transaction permit” and “a delegation letter” (Evidence B) demanding a counter-party Defendant to affix a seal is not Nonparty 1 but only the personal information of the counter-party; and (b) it is difficult to readily conclude that the Plaintiff entered the Plaintiff into a sales contract on the premise that the Plaintiff entered Nonparty 1 as the purchaser meeting the residing requirements at the time of the instant sales

B. However, the lower court’s determination is difficult to accept for the following reasons.

According to the reasoning of the judgment below and the records, ① on February 3, 2004, the counterclaim Defendant sold each of the instant land to Nonparty 2 within the land transaction permission zone. Nonparty 2 sold the instant land to the counterclaim without completing the registration of ownership transfer after full payment of the purchase price. ② The counterclaim entered into the instant sales contract directly with the counterclaim Defendant by paying additional KRW 20 million on March 23, 2005. ③ The Nonparty 1 without permission on the instant sales contract entered Nonparty 1 as the purchaser without permission, and the Nonparty 1 was aware that the Plaintiff and the Nonparty 1 jointly purchased the instant land. ④ The Nonparty 1 was not only subject to the ex post facto consent of Nonparty 1, but also subject to the first instance judgment (Seoul District Court Decision 2008Da10528) and the appellate court (Supreme Court Decision 2009No528, May 28, 2009) that did not meet all the requirements for the said move-in report at the time the Plaintiff did not meet the requirements for the first instance judgment.

In full view of the aforementioned legal principles and the above circumstances, it is reasonable to deem that the act of the Lessee, who did not meet the requirements for residence under the law, concluded a sales contract by stealing the name of Nonparty 1, who met the requirements for permission, constitutes a case where it was avoided from the beginning when entering into a sales contract for each of the instant land, and therefore, the sales contract in this case is null and void at the time

C. Nevertheless, the court below determined that it was difficult to conclude that there was an intention to escape land transaction permission to the counter-resident on the grounds as stated in its reasoning. The court below erred by misapprehending the rules of evidence or misapprehending the legal principles on Article 118(6) of the Act, thereby adversely affecting the conclusion of the judgment. The argument by the counter-defendant pointing this out is with merit.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)