In a case where the ownership is transferred by winning a successful tender to a third party when a provisional registration for preserving a claim for ownership transfer registration is completed on the basis of a pre-sale agreement for the land within the land transaction permission zone concluded without permission for land transaction, the validity of the principal registration on the basis of the said provisional registration

Article 21-3 (1) (see current Article 118 (1) and (7) (see current Article 118 (6) of the National Land Planning and Utilization Act) of the former Act on the Utilization and Management of the National Territory (repealed by Article 2 of the Addenda to the National Land Planning and Utilization Act, Act No. 655 of Feb. 4, 2002)

Plaintiff (Law Firm Shin Jae, Attorneys Lee Sang-soo et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Lee Jae-chul, Counsel for defendant-appellant)

Incheon District Court Decision 2011Na25145 Decided September 13, 2012

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

The grounds of appeal are examined.

1. Article 21-3(1) of the former Act on the Utilization and Management of the National Territory (amended by Act No. 6655, Feb. 4, 2002) provides that "any party who intends to enter into a contract to transfer or establish ownership or superficies on the land located in the zone subject to permission (including any reservation; hereinafter "land transaction contract") shall jointly obtain permission from the head of a Si/Gun/Gu under the conditions as prescribed by the Presidential Decree." Paragraph (7) provides that "no land transaction contract entered into without obtaining permission under the provisions of paragraph (1) shall take effect" (Article 118 of the National Land Planning and Utilization Act, which was enacted thereafter). Thus, the land transaction contract or the pre-contract without obtaining such permission does not take effect difference in the effect of the pre-sale. However, if a land transaction contract is based on the premise that permission is to be granted, then the so-called land transaction contract becomes void retroactively, and if non-permission becomes final and conclusive on the contrary, it shall be deemed null and void even if it becomes null and void without any special reason.

2. According to the reasoning of the judgment below, the court below acknowledged the following facts based on the following facts: ① the Defendant completed the registration of the right to claim ownership transfer on the instant real estate owned by the Nonparty on January 8, 2003 on the ground of “sale reservation on December 29, 2002”; ② the registration of ownership transfer on the ground of “sale on January 15, 2003” was completed on March 21, 201; ② the Plaintiff started the compulsory auction procedure on July 15, 2004 and completed the registration of ownership transfer on January 20, 201 upon the commencement of the real estate auction procedure on January 5, 201; ③ the instant real estate was designated as the land transaction contract area from November 20, 202 to the land transaction contract area; and the Defendant did not file an application for land transaction permit with the Nonparty.

Furthermore, as long as it is difficult to deem that the purchase and sale reservation, etc. between the Defendant and the Nonparty regarding the instant real estate was concluded prior to November 20, 2002 as the Defendant’s assertion, the above sale reservation, etc. is all null and void, and since the Plaintiff acquired the instant real estate by winning a successful bid at the above auction procedure and thereby the obligation to transfer ownership to the Nonparty’s Defendant was impossible, the above sale reservation, etc., which was in a state of genetic invalidation, was finally null and void, and the above provisional registration and the principal registration, which were completed accordingly,

Upon examining the above legal principles in light of the records, the above provisional registration and the principal registration based thereon, which were concluded without permission from the competent administrative agency with respect to the instant real estate located within the land transaction permission zone, are all null and void. Furthermore, since the Plaintiff acquired the ownership of the instant real estate in the auction procedure and thereby becomes null and void both the land transaction contract between the Defendant and the Nonparty and the aforementioned provisional registration and the principal registration based thereon are final and conclusive, the above judgment of the court below is just, and there is no violation of law by misapprehending legal principles or violating the principle of free evaluation of evidence against logical and empirical rules alleged in the grounds for appeal

3. The appeal is dismissed by the assent of all participating Justices, 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.

Justices Kim Chang-suk (Presiding Justice)