[1] Whether a business operator who installs or operates incidental facilities through a contract with a business operator who implements a main purpose project can obtain permission for temporary use of farmland for other purposes or permission for its modification (affirmative)

[2] In a case where a person who obtained permission for development activities to construct a building (land form and quality alteration) transfers ownership or other rights to a building, whether the transferee can obtain permission for development activities for the purpose of succeeding the status of a person who obtained permission for development activities (land form and quality alteration) (affirmative)

[3] In the process of purchasing a temporary building in the vicinity of a subcontracted construction site to use it as a worker accommodation, etc., and reporting on the new construction of a temporary building, the case affirming the judgment below holding that the company Eul can lawfully use a temporary building by obtaining permission for temporary use of farmland for another purpose after obtaining permission for temporary use permission for another purpose and obtaining permission for change of land form and use permission for temporary use of farmland to change a project implementer under the Farmland Act to Gap company, and entering into a contract for temporary use of farmland for the purpose of purchasing a temporary building from Gap company to provide it as a temporary accommodation for workers belonging to Gap company at the same time, and concluding a contract for temporary use with Eul company for the purpose of supplying the temporary building from Gap company as a temporary accommodation for workers belonging to Gap company.

[1] The legislative purpose of Article 36 of the Farmland Act is to resolve inconvenience that permission for temporary use of farmland for other purposes is to allow temporary use of farmland for other purposes, other than agricultural management, on the premise that farmland is restored to farmland. Moreover, Article 36(1)2 of the Farmland Act does not limit a person subject to permission for temporary use to a business entity performing a main purpose project, nor does the person subject to permission is required to be a business entity subject to permission for temporary use of farmland for other purposes as prescribed by subordinate statutes. In addition, there is a need for a business entity performing a main purpose project to install and operate incidental facilities, etc. for the main purpose project. Comprehensively taking into account these circumstances, it should be deemed that another business entity who installs or operates incidental facilities, etc. through a contract, etc. with a business entity performing a main purpose project can obtain permission for temporary use of farmland for other purposes or permission for change thereof.

[2] Article 56 (1) 2 of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”) provides that “any person who intends to change the form and quality of land shall obtain permission from the Special Metropolitan City Mayor, Metropolitan City Mayor, Special Self-Governing City Mayor, Special Self-Governing Province Governor, or the head of Si/Gun (hereinafter “permission for development acts”).” Article 56 (2) provides that “Where a permission for development acts is altered, paragraph (1) shall apply mutatis mutandis to the alteration of matters permitted: Provided, That the same shall not apply to the alteration of minor matters prescribed by Presidential Decree.” The title of permission for development acts does not fall under minor alterations of permission for development activities under each subparagraph of Article 52 (1) of the Enforcement Decree of the National Land Planning and Utilization Act. Moreover, Article 135 (2) of the National Land Planning and Utilization Act provides that “any disposition, other procedures and other acts under this Act or this Act shall have effect on the successor to the land or buildings related to such acts.”

In full view of the above provisions of the National Land Planning and Utilization Act, when a person who obtained permission for development of a building (land form and quality change) transfers ownership or other rights to a building, the transferee shall be deemed to have obtained permission for development activities (land form and quality change) by changing the name of permission in order to succeed to the status of the permitted person.

[3] Where Gap corporation purchased a temporary building in the vicinity of a subcontracted construction site to use it as workers' accommodation, etc. and then sought a return of the purchase price of a temporary building from Gap corporation under the National Land Planning and Utilization Act (hereinafter "National Land Planning Act"), the case affirming the judgment below which determined that Eul corporation's use of a temporary building for other purposes can be changed from Gap corporation to Gap corporation, and that Eul corporation's temporary use of farmland for other purposes can be changed from Gap corporation under the Farmland Act, and that "the sale contract becomes null and void if it is impossible to change Gap corporation's name to make it impossible to change Gap corporation's temporary building," and it constitutes a change of the name of Eul corporation's temporary building for other purposes, and it constitutes a change of the name of Eul corporation's temporary building for other purposes, and it constitutes a change of the right to use the temporary building under Article 56 (1) 2 of the National Land Planning and Utilization Act, and it constitutes a change of the right to use the temporary building under Article 56 (1) 2 of the same Act, and it constitutes a change of the land for other purposes.

[1] Article 36 (1) 2 and (2) of the Farmland Act; Article 37 (1) and (2) of the Enforcement Decree of the Farmland Act; Article 32 (1) and (2) of the Enforcement Rule of the Farmland Act / [2] Article 56 (1) 2 and (2) of the National Land Planning and Utilization Act; Article 52 (1) of the Enforcement Decree of the National Land Planning and Utilization Act / [3] Article 36 (1) 2 and (2) of the Farmland Act; Article 37 (1) and (2) of the Enforcement Decree of the Farmland Act; Article 32 (1) and (2) of the Enforcement Rule of the Farmland Act; Article 56 (1) 2 and (2) of the National Land Planning and Utilization Act; Article 52 (1) of the Enforcement Decree of the National Land Planning and Utilization Act; Article 20 (3) of the Building Act; Article 15 (3) 3 of the Enforcement Decree of the Building Act

Han-ro International Co., Ltd. (Law Firm Staff, Attorneys Kim Dong-young et al., Counsel for the plaintiff-appellant)

[Defendant-Appellant] Plaintiff 1 and 1 other (Law Firm LLC, Attorneys Jeon full-time et al., Counsel for defendant-appellant-appellant)

Seoul High Court Decision 2016Na2071936 decided November 24, 2017

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Case history

A. On May 2013, the Defendant purchased a temporary building (location 2 omitted) and seven lots of land (hereinafter “instant building”) from the two companies, which were subcontracted with the installation of boiler among the construction works of ○○○○○○○○○○○ and 2, which were conducted in the middle industry (hereinafter “dusan industry”) around the construction site, for the purpose of using it as the site office, workers’ accommodation, and restaurant. On June 2013, the Defendant newly filed a report on the construction of the instant building with the head of △△△-Eup around June 2013.

B. In the process, the Defendant obtained permission to change development activities (such as changing land form and quality) to the Defendant from the two industries in the two industries in accordance with Article 56(1) and (2) of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”), and obtained permission to change the temporary use of farmland for other purposes from the two industries in the two industries in accordance with Article 36(2) of the Farmland Act.

C. On May 13, 2014, Nonparty 1, Nonparty 2, etc. purchased the instant building from the Defendant for KRW 550 million under the name of Hanman International Co., Ltd., and concluded a lodging use contract with the main purpose of providing the instant building as a temporary accommodation for workers belonging to the Defendant, and rescinded the agreement. After which, Nonparty 1, Nonparty 2, etc. established the Plaintiff for the purpose of food and drink, lodging, and entrusted meal service, etc. on October 27, 2014, and the Plaintiff concluded a sales contract with the Defendant for purchasing the instant building for KRW 50 million (hereinafter “instant sales contract”). At the same time, Nonparty 1, Nonparty 2, etc. concluded a lodging use contract with the Defendant for the instant building (hereinafter “instant sales contract”).

D. According to the instant sales contract, the Plaintiff comprehensively succeeds to all rights and obligations related to a report on the construction of the instant building and permission for the temporary use of farmland (including permission for temporary use of farmland for other purposes) under the Building Act, and changes its name on its own responsibility (Article 2). In a case where it is impossible for the Plaintiff to obtain necessary authorization from the relevant administrative agency to use the instant building, or to change its name from the Defendant to the Plaintiff, the instant sales contract becomes null and void (Article 3).

E. Around May 16, 2014, the Defendant handed over the instant building to the Defendant, and the Plaintiff provided the instant building as an accommodation for the employees, etc. employed by the Defendant, and again handed over the instant building to the Defendant on or around May 2015.

F. On May 2015, the Defendant reported the extension of the retention period of a temporary building on the instant building to the head of △△-Eup, and then directly used the building as a dormitory of its employees, and sold the instant building to the Sejong Forest, Inc. for the purpose of group meal service business, restaurant business, etc. around April 2016. The Sejong Forest, Inc., obtained permission to change development activities (land form and quality change) from the Sejong Forest to itself and permission to temporarily use farmland for other purposes.

2. Plaintiff’s assertion and judgment below

A. As a result of the civil petition of the relevant administrative agency, it is impossible for the Plaintiff to obtain permission to change the temporary use of farmland for other purposes under the Farmland Act and permission to change development activities under the National Land Planning Act from the Defendant, and it is impossible for the Plaintiff to obtain the name of the owner of the instant building, which is a temporary building, and thus, the instant sales contract is null and void or cancelled

B. However, the lower court rendered a judgment dismissing the Plaintiff’s claim on the following grounds.

The plaintiff is entitled to transfer the name of permission through the procedure to change the temporary use of farmland for other purposes, obtain a permission to change the name of the person permitted to use farmland from the defendant to the plaintiff, and obtain a permission to change the development act from the defendant, and obtain a transfer of the name

3. Possibility of transferring the status of a person permitted to temporarily use farmland for other purposes (ground of appeal No. 1)

A. Article 36 of the Farmland Act provides for “the permission for temporary use of farmland for other purposes.” According to this provision, a person who intends to temporarily use farmland for the purpose of installing a site office or incidental facilities or other facilities equivalent thereto for a main purpose project may obtain permission for temporary use of farmland for other purposes from the head of a Si/Gun/autonomous Gu (hereinafter “head of a Si, etc.”) under the conditions as prescribed by the Presidential Decree, on the condition that farmland is restored to its original state after using it for a certain period, and the same shall also apply to cases where he/she intends to modify the permitted matters (Article 1(2)). If the competent Minister or the head of a local government requests a consultation on temporary use of farmland for other purposes in connection with the authorization, permission, approval, etc. of a project or business plan, etc. under other Acts, the head of a Si, etc. may consult on the premise that the person who intends

Article 32(1) of the Enforcement Rule of the Farmland Act, enacted upon delegation of Article 37(1) of the Enforcement Decree of the Farmland Act, provides for an application form for permission to temporarily use farmland for other purposes (attached Form 25), and Article 32(2) of the Enforcement Rule of the Farmland Act provides for documents to be attached thereto. Upon receipt of an application form for permission to temporarily use farmland for other purposes, the Mayor, etc. shall examine the application according to the following criteria and notify the applicant of the result in writing (Article 37(2) of the Enforcement Decree

The legislative purpose of Article 36 of the Farmland Act is to resolve inconvenience to undergo farmland conversion procedures by allowing temporary use of farmland for other purposes, other than agricultural management, on the premise that farmland is restored to farmland. In addition, Article 36(1)2 of the Farmland Act does not limit the person subject to permission for temporary use to a business entity performing a main purpose project, nor does the person subject to permission for temporary use of farmland as prescribed by its subordinate statutes require to be a business entity subject to permission for temporary use of farmland, attached documents, and examination standards. In addition, there is a need for a business entity performing a main purpose project to install and operate incidental facilities, etc. for the main purpose project. Comprehensively taking into account these circumstances, it should be deemed that another business entity who installs or operates incidental facilities, etc. through a contract, etc. with a business entity performing a main purpose project may obtain permission for temporary use of farmland for other purposes or permission for change thereof.

B. The lower court determined that the Plaintiff could change the name of the person permitted to temporarily use farmland for another purpose from the Defendant to the Plaintiff through the procedure of changing permission to temporarily use farmland for another purpose. In so doing, the lower court did not err by misapprehending the legal doctrine regarding the person subject to permission to temporarily use farmland for another purpose and the transfer of the status of the person permitted to use farmland for another purpose and the possibility of change, or by misapprehending the fact beyond

4. Possibility of transfer of the name of permission holder for development activities (Ground of appeal No. 2)

A. Article 56(1)2 of the National Land Planning and Utilization Act provides that “Any person who intends to change the form and quality of land shall obtain permission from the Special Metropolitan City Mayor, Metropolitan City Mayor, Special Self-Governing City Mayor, Special Self-Governing Province Governor, or the head of a Si/Gun (hereinafter referred to as “permission for development acts”). Article 56(2) of the same Act provides that “Where any permission for development acts is altered, paragraph (1) shall apply mutatis mutandis: Provided, That this shall not apply where minor matters prescribed by Presidential Decree are altered.” The title of permission for development activities does not fall under minor changes in the permission for development activities provided for in each subparagraph of Article 52(1) of the Enforcement Decree of the National Land Planning and Utilization Act. Moreover, Article 135(2) of the National Land Planning and Utilization Act provides that “any disposition, procedures and other activities under this Act or any order thereunder shall have effect on the successor to the land

In full view of the above provisions of the National Land Planning and Utilization Act, when a person who obtained permission for development of a building (land form and quality change) transfers ownership or other rights to a building, the transferee shall be deemed to have obtained permission for development activities (land form and quality change) by changing the name of permission in order to succeed to the status of the permitted person.

B. The lower court determined that, on the grounds that Article 56(1)2 of the National Land Planning and Utilization Act provides that the change of the form and quality of land is subject to development activities, Article 56(2) of the same Act provides for the procedure for change of permission, and the competent administrative agency also changes the title holder of development activities pursuant to the provisions of the same Act, the Plaintiff may obtain permission for change of development activities

The lower judgment is based on the foregoing legal doctrine, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine regarding permission to alter development activities under the National Land Planning and Utilization Act, or by failing

5. Possibility of transferring the name of a temporary building (Ground of appeal No. 3)

A. The lower court determined as follows.

The Plaintiff’s provision of the instant building to the employees belonging to the Defendant as a temporary lodging does not constitute the subject of reporting on accommodation business under the Public Health Control Act. The instant building constitutes a temporary building for construction works as stipulated in Article 20(3) of the Building Act and Article 15(5)3 of the Enforcement Decree of the Building Act, and the Plaintiff obtained permission for temporary use of farmland for other purposes and permission for modification thereof, and subsequently, re-report on the construction of a temporary building for the instant building may be legally used by re-report on temporary use

B. Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err by misapprehending the legal doctrine regarding temporary use of farmland for other purposes or temporary buildings under the Building Act.

6. Conclusion

The Plaintiff’s appeal is dismissed as it is without merit, 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 Min You-sook (Presiding Justice)