(a) Where a sale contract is concluded without permission from the competent authority for the land transaction regulation zone under the Act on the Utilization and Management of the National Territory, whether the purchaser may seek for the cancellation registration procedure in the name of a third party in subrogation of the seller in order to preserve the right to claim for the performance of the duty to cooperate in

(b)in the event that the registration of ownership transfer has been made on the ground of donation for the purpose of evading land transaction permission with the acquisition of the land in paragraph (a) above, the validity of such registration;

A. The obligee’s subrogation right under Article 404 of the Civil Code refers to the right of the obligor to exercise the obligee’s right to a third party when it is necessary for the obligee to preserve his claim against the obligor. In this case, the preserved claim is sufficient if the cause of the claim is no longer the necessity for preservation and the due date comes into existence. Even if the sale contract is concluded without the permission of the competent authority on the land within the land transaction regulation zone under the Act on the Utilization and Management of the National Territory, both parties to the contract are obligated to jointly apply for the permission of the competent authority, and the other party who does not cooperate in the application for the permission is entitled to claim the performance of the duty of cooperation. Thus, even if the sale contract on the land located within the land transaction regulation zone between the buyer and the seller was concluded without the permission of the competent authority, the buyer may seek the cancellation registration of the ownership transfer registration in the name of the third party by subrogation of the seller in order to preserve the seller’s right to cooperate in the procedure of land transaction permission.

B. If the land within the land transaction regulation zone under the Act on the Utilization and Management of the National Territory is acquired for consideration, and the registration of ownership transfer is made for the reason of donation without obtaining any land transaction permission from the competent authority, the transaction contract on the land is finally null and void at least from the time when the registration of ownership transfer is made for the purpose of avoiding this without obtaining any land transaction permission, and the registration of ownership transfer based on it is also null and void.

(a) Article 21-3(1) and (7) of the Act on the Utilization and Management of the National Territory;

A. Supreme Court Decision 92Da56575 delivered on March 9, 1993 (Gong1993Sang,159). Supreme Court Decision 91Da41316 delivered on September 14, 1993 (Gong1993Ha, 2740) 93Da44319, 44326 delivered on December 24, 1993 (Gong194Sang, 505)

[Plaintiff-Appellant] Law Firm North East-dong Office, Attorneys Park Byung-il et al., Counsel for plaintiff-appellant-appellant-appellee

Defendant 1 and two others

Seoul Civil District Court Decision 93Na15525 delivered on December 1, 1993

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

Each of the Defendants’ grounds of appeal are also examined.

1. On each first ground for appeal

The creditor's subrogation right under Article 404 of the Civil Code refers to the right of the debtor to exercise the right to a third party when it is necessary for the creditor to preserve his claim against the debtor. In this case, the preserved claim is sufficient if the cause of the claim is no longer the necessity of preservation and the due date occurs. Even if the contract is concluded without permission of the competent authority concerning the land within the land transaction regulation zone under the Act on the Utilization and Management of the National Territory, both parties to the contract have the duty to cooperate so that the contract can be completed as effective. Both parties to the contract are jointly obligated to apply for permission of the competent authority, and the other party can claim for the fulfillment of the duty of cooperation against the party who does not cooperate in the application for permission because the contract violates such duty. Thus, even if the sale contract for the land of this case within the land transaction regulation zone between the plaintiff and the non-party was concluded without permission of the competent authority, the plaintiff can seek the cancellation registration procedure under the name of the defendants by subrogation of the non-party (refer to the plaintiff's claim for cooperation against the non-party).

In other opinions, we cannot accept the argument that the judgment of the court below contains an error of incomplete deliberation.

2. On each second ground for appeal

If the Defendants acquired the instant land within the land transaction regulation zone under the Act on the Utilization and Management of the National Territory and completed the registration of ownership transfer on the ground of donation without obtaining any land transaction permission from the competent authority, at least when the Defendants decided to complete the registration of ownership transfer on the ground of donation for the purpose of avoiding this without obtaining any land transaction permission, the transaction contract on the instant land was finally null and void, and the registration of ownership transfer in the name of the Defendants is also null and void (see, e.g., Supreme Court Decision 93Da44319, 4326, Dec. 24, 1993).

The court below's decision that the registration of ownership transfer in the name of the defendants was null and void is justified, and the court below did not err in the misapprehension of legal principles, such as the theory of lawsuit, or in the violation of good faith

In a case where a party to a transaction is entirely unable to predict whether a land transaction permit is to be obtained, or where a land transaction permit authority has given an administrative guidance so that a registration may be made without a land transaction permit because the land transaction permit is deemed unnecessary, the petition for the lawsuit that the registration resulting therefrom cannot be invalidated shall also be accepted. All arguments are without merit.

3. 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 Lee Jae-soo (Presiding Justice)