[1] Whether a seller’s duty to cooperate in the procedure of applying for permission for land transaction and a seller’s duty to pay capital gains tax equivalent to the purchase price or agreement is concurrently performed (negative)

[2] In order to preserve the right to claim the performance of the duty to cooperate in the application procedure for land transaction permission to the debtor, whether a third party can seek the performance of the duty to cooperate with the debtor (affirmative)

[1] Where a sale contract is concluded without permission from the competent authority on land transaction within the land transaction regulation zone under the Act on the Utilization and Management of the National Territory and the purchaser claims the seller to cooperate in the procedure for applying for permission on the land transaction contract in order to complete the contract with the effect of the contract, the seller’s obligation to cooperate in the procedure for applying for permission on the land transaction contract, and the seller’s obligation to pay the purchase price to be performed by the purchaser according to the terms and conditions of the sale contract, or the transfer income tax equivalent to the transfer income tax agreed upon by the purchaser to be borne by the purchaser incidental thereto, shall not be deemed as having a mutual performance. Thus, the seller cannot refuse to perform his/her duty to cooperate until there

[2] In a case where a land purchase delegation contract, including a transfer agreement between A and B, for land within a land transaction regulation zone, is concluded between B and B, and the land purchase and sale contract between B and B, the agent Eul, and the landowner Byung, the buyer is entitled to claim cooperation from B in the procedure of application for permission of land transaction so that the delegation contract can be completed as effective, and in order to preserve the right to claim cooperation in the procedure of application for permission of land transaction, Gap may claim against B, who sold the land, for cooperation in the procedure of application for permission of land transaction between B and C.

[1] Article 583(1) and (2) of the Civil Act, Article 21-3 of the Act on the Utilization and Management of the National Territory / [2] Article 404 of the Civil Act, Article 21-3 of the Act on the

[1] Supreme Court Decision 93Da15366 delivered on August 27, 1993 (Gong1993Ha, 2620) / [2] Supreme Court Decision 92Da56575 delivered on March 9, 1993 (Gong1993Sang, 1159), Supreme Court Decision 94Da4806 delivered on December 27, 1994 (Gong195Sang, 658), Supreme Court Decision 95Da22917 delivered on September 5, 195 (Gong195Ha, 3358)

Plaintiff (Attorney Park Jong-chul, Counsel for the plaintiff-appellant)

Defendant 1 and one other (Attorneys Lee Jong-soo et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 95Na27280 delivered on April 30, 1996

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

The defendants' attorney's grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below acknowledged the following facts based on the following facts: the plaintiff paid 350,000,000 won as purchase price of the Gyeonggi-gun land within a zone subject to permission of land transaction contract under the Act on the Utilization and Management of the National Territory in accordance with Defendant 3's proposal on March 1990, and delegated the purchase; without indicating the plaintiff's representative on the 25th of the same month, the defendant 3 did not indicate that the land in this case was 250,000,000 won and paid all the purchase price to the owner by June 5 of the same year; according to the above facts, it should be deemed that the agreement was made immediately after the plaintiff acquired the land in this case and the defendant 3 transferred it to the plaintiff, and there is no error in the misapprehension of legal principles as to the agreement between the plaintiff and the seller on the sale and purchase of the land in this case, as otherwise alleged in the grounds for the agreement or the agreement that the seller did not have any error in law regarding the sale of land.

2. Where a sale contract is concluded without a land transaction permission from the competent authority on the land within the land transaction regulation zone under the Act on the Utilization and Management of the National Territory, and the purchaser requests the seller to cooperate in the procedure for applying for permission for the land transaction contract in order to complete the said contract with the effect of the said contract, the seller’s obligation to cooperate in the procedure for applying for permission for the land transaction contract, and the seller’s obligation to pay the purchase price to be performed by the purchaser in accordance with the terms and conditions of the sale contract, or to pay the purchase price to be borne by the purchaser in addition thereto, cannot be deemed as having a mutual performance. Thus, the seller cannot refuse the performance of the above cooperation obligation until there is a provision of such obligation (see Supreme Court Decision 93Da15366, Aug. 27, 1993).

The decision of the court below to the same purport is just, and there is no error of law by misunderstanding the legal principles on the procedure of application for permission for land transaction as in the contract of sale and purchase as in the theory of lawsuit, and as in the execution relation in the contract of sale and purchase.

3. The Plaintiff has the right to request cooperation from Defendant 3 regarding the delegation contract of this case, including the agreement on the transfer of rights on March 25, 1990 on the land within the land transaction regulation zone under the Act on the Utilization and Management of the National Territory, which was entered into with Defendant 3, so that the contract can be completed as effective, and in order to preserve the right to demand cooperation on the land transaction permission procedure, Defendant 3, the seller, in subrogation of Defendant 3, who sold the land of this case without the land transaction permission, may demand cooperation among the Defendants (see, e.g., Supreme Court Decisions 92Da56575, Mar. 9, 193; 94Da4806, Dec. 27, 1994). In order to preserve the right to demand cooperation on the land transaction permission procedure, the Plaintiff is entitled to exercise the obligee’s right of subrogation between the Plaintiff and Defendant 3.

We cannot accept the argument that criticizes the judgment of the court below from another view.

4. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Chang-tae (Presiding Justice)