The legal nature of Article 22 of the former Farmland Act prohibiting the lease of farmland (i.e., mandatory provisions) and the validity of a lease agreement to lease farmland in violation of Article 22 of the former Farmland Act even though it does not constitute an exception under Article 22 of the same Act (negative

Article 22 (see current Article 22(1) of the Farmland Act), Article 62 subparag. 2 (see current Article 60 subparag. 2 of the Farmland Act), Article 105 of the Civil Act

Supreme Court Decision 2013Da7987, 79894 Decided March 15, 2017 (Gong2017Sang, 729)

[Judgment of the court below]

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

Gwangju District Court Decision 2015Na56365 Decided October 12, 2016

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. As to the ground of appeal on the validity of the instant lease agreement

A. The former Farmland Act (amended by Act No. 6597 of Jan. 14, 2002; hereinafter “former Farmland Act”) provides that a person who is not engaged in agricultural management temporarily due to inevitable reasons, such as disease, conscription, school attendance, and taking public office by election, shall not lease the farmland unless it falls under such reasons for exception (Article 22), and that a person who leases the farmland in violation of this provision shall be punished by a fine (Article 62 subparagraph 2).

In light of the provisions of the former Farmland Act and the legislative intent thereof, the provisions of Article 22 of the former Farmland Act prohibiting the lease of farmland should be regarded as a mandatory provision. Therefore, even though it does not constitute an exception under Article 22 of the former Farmland Act, a lease agreement to lease farmland in violation of this provision shall be deemed null and void (see Supreme Court Decision 2013Da7987, 7984, Mar. 15, 2017).

B. The lower court rejected the Defendant’s assertion that the termination of the instant lease agreement is unlawful on the premise that the instant lease agreement is null and void as a farmland lease agreement violating Article 22 of the former Farmland Act, on the grounds that the instant land constitutes farmland and the instant land constitutes an exception under any subparagraph of Article 22 of the former Farmland Act. In so determining, the lower court did not err by misapprehending the legal doctrine on the legal nature of Article 22 of the former Farmland Act, contrary to what is alleged in the grounds of appeal.

2. As to the ground of appeal on calculation of unjust enrichment

This part of the ground of appeal is nothing more than an error in the selection of evidence or fact-finding, which is the exclusive authority of the fact-finding court, and cannot be accepted.

3. Conclusion

Therefore, the appeal is 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 Lee Ki-taik (Presiding Justice)