[1] Whether a contract for the transfer of real estate ownership is subject to penalty surcharges under Article 10(1) of the former Act on the Registration of Real Estate under Actual Titleholder’s Name where a contract for the transfer of real estate ownership did not take effect or lapses retroactively (negative)

[2] In a case where a corporation that entered into a farmland sales contract at the time of the enforcement of the former Farmland Reform Act fails to file an application for the registration of ownership transfer within the period stipulated by Article 10(1) of the former Act and Article 3 of the Addenda (amended by March 30, 1995) of the former Act, whether a penalty surcharge may be imposed pursuant to Article 10(1) of

[3] In a case where Gap corporation, the main purpose of which is real estate development business, concluded a contract to purchase land to Eul for the construction of a golf course and paid the price in full, and the head of the competent Gu imposes a penalty surcharge on Gap corporation on the ground that it did not apply for the registration of ownership transfer within the period prescribed in Article 10 (1) of the former Act on the Registration of Real Estate under Actual Titleholder's Name and violated it, the case holding that Gap corporation cannot impose a penalty surcharge under Article 10 (1) of the said Act

[1] In light of Article 10(1) of the former Act on the Registration of Real Estate under Actual Titleholder’s Name (amended by Act No. 10203, Mar. 31, 2010; hereinafter “former Real Estate Real Name Act”), the content and system of relevant statutes, such as Article 2(1) of the Act on Special Measures for the Registration of Real Estate and Article 2 of the Addenda to the Act No. 4244, where a contract with respect to the transfer of real estate ownership did not take effect or expires retroactively, it shall be deemed that the said contract is not subject to penalty surcharges under Article 10(1) of the former Real Estate Real Name Act.

[2] Even if a corporation, such as a stock company at the time of the enforcement of the former Farmland Reform Act (repealed by Act No. 4817, Dec. 22, 1994; hereinafter the same), enters into a farmland sale contract, barring special circumstances, such as where it falls under the proviso of Article 51 (1) of the former Enforcement Rule of the Farmland Reform Act (amended by Ordinance of the Ministry of Agriculture and Forestry No. 1006, Nov. 3, 198), the former Farmland Reform Act or the former Farmland Lease Management Act (amended by Act No. 4817, Dec. 22, 1994) cannot obtain ownership of farmland. In this case, the obligation to transfer ownership to the purchaser according to the farmland sale contract shall be deemed to be completely impossible, and even if the farmland sale contract for the purpose of payment, which is an original impossible performance, was concluded with the owner of the farmland, it shall not be deemed to be null and void, unless there are special circumstances prescribed by the former Farmland Reform Act and Article 130 of the Farmland Lease Management Act (amended by Act).

[3] In a case where Gap corporation, the main purpose of which is real estate development business, concluded a contract to purchase land to Eul for the construction of a golf course and paid all the price, and the head of the competent Gu imposed a penalty surcharge on Gap corporation on the ground that Gap corporation did not file an application for the registration of ownership transfer within the period prescribed in Article 10(1) of the former Act on the Registration of Real Estate under Actual Titleholder’s Name (amended by Act No. 10203, Mar. 31, 2010; hereinafter “former Real Estate Real Name Act”) and Article 3 of the Addenda (amended by March 30, 1995), the court affirmed the judgment below that the above sales contract was not a penalty surcharge imposed on Gap corporation on the ground that Gap corporation did not apply for the registration of ownership transfer within the period prescribed in Article 10(1) of the former Act on the Registration of Real Estate under Actual Titleholder’s Name (amended by Act No. 4817, Dec. 22, 1994)

[1] Article 10(1) of the former Act on the Registration of Real Estate under Actual Titleholder’s Name (amended by Act No. 10203, Mar. 31, 2010); Article 3 of the Addenda (amended by Ordinance of the Ministry of Agriculture, Forestry and Fisheries, Mar. 30, 1995); Article 2 of the Addenda (amended by Ordinance of the Ministry of Agriculture, Forestry and Fisheries, Aug. 1, 1990) / [2] Article 19 subparag. 3 of the former Farmland Reform Act (amended by Act No. 4817, Dec. 22, 1994; Article 8 of the Farmland Act); Article 51(1) of the former Enforcement Rule of the Farmland Reform Act (amended by Ordinance of the Ministry of Agriculture, and Fisheries No. 1006, Nov. 3, 198; Article 19(1) of the former Enforcement Rule of the Farmland Act (amended by Ordinance of the Ministry of Agriculture, Forestry and Fisheries No. 301, Mar. 13, 2019)

[1] Supreme Court Decision 2009Du8090 Decided October 15, 2009 (Gong2009Ha, 1889) / [2] Supreme Court Decision 87Meu128 Decided February 14, 1989 (Gong1989, 405) Supreme Court Decision 2007Da65665 Decided April 24, 2008

Seoul High Court Decision 200Na1448 decided May 1, 2008

The head of Seongbuk-gu Seoul Metropolitan Government (Law Firm Shin, Attorney Park Jae-young, Counsel for the plaintiff-appellant)

Seoul High Court Decision 2010Nu42401 decided June 3, 2011

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

We examine the grounds of appeal.

In light of the contents and structure of relevant statutes, such as Article 10(1) of the former Act on the Registration of Real Estate under Actual Titleholder’s Name (amended by Act No. 10203, Mar. 31, 2010; hereinafter “Real Estate Real Name Act”), Article 2(1) of the Act on Special Measures for the Registration of Real Estate Real Estate, Article 2 of the Addenda to Act No. 4244, and Article 2 of the Addenda to the Act on Special Measures for the Registration of Real Estate Real Name (amended by Act No. 424), where a contract on the transfer of ownership of real estate did not take effect or its retroactive termination, it shall be deemed that such contract does not fall under the subject of penalty surcharge under Article 10(1) of the Real Estate Real Name Act (see, e.g., Supreme Court Decision

Meanwhile, even if a corporation, such as a stock company, at the time of the enforcement of the former Farmland Reform Act (repealed by Act No. 4817 of Dec. 22, 1994, hereinafter the same), enters into a farmland sale contract, barring special circumstances, such as the proviso of Article 51(1) of the former Enforcement Rule of the Farmland Reform Act (amended by Ordinance of the Ministry of Agriculture and Forestry No. 1006 of Nov. 3, 1988), cannot be issued with a certificate of farmland sale under the former Farmland Reform Act or the former Farmland Lease Management Act (repealed by Act No. 4817 of Dec. 22, 1994). In this case, the obligation to transfer ownership to the purchaser according to the sale contract is an original impossible performance, and the farmland sale contract for payment, which is an original impossible performance, is also null and void as a bond contract (see Supreme Court Decision 87Meu12868, Dec. 14, 198; 206Da166684, Jun. 19, 2007).

Therefore, even if a corporation, such as a corporation that entered into a farmland sales contract at the time of the enforcement of the former Farmland Reform Act, did not file an application for the registration of ownership transfer within the period prescribed by Article 10(1) of the Real Estate Real Name Act and Article 3 of the Addenda of the Act No. 4944, the penalty surcharge under the above Article cannot be imposed

According to the reasoning of the judgment below and the records, the plaintiff (the title prior to the change) which is a stock company with the main purpose of real estate development business entered into a contract to purchase the land listed in the attached Table 1 of the judgment of the court of first instance (hereinafter "the farmland of this case") with the non-party for the construction of golf clubs on August 13, 1982, and did not file an application for the registration of ownership transfer within the period stipulated in Article 10 (1) of the Real Estate Real Name Act and Article 3 of the Addenda of the Act No. 4944, although all the price was paid on January 31, 1983. However, the above sales contract is concluded by the plaintiff who is a stock company with respect to farmland at the time of the enforcement of the former Farmland Reform Act and is null and void because it is for the purpose of benefits which are original impossible. Thus, the plaintiff cannot be imposed a penalty surcharge under Article 10 (1) of the Real Estate Real Name Act on the ground that

The judgment below to the same purport is just, and there is no error in the misapprehension of legal principles as to the subject of penalty surcharge under Article 10 (1) of the Real Estate Real Name Act as alleged in the ground of appeal

The Supreme Court precedents cited in the grounds of appeal are related to the existence of justifiable grounds for not filing an application for registration under the proviso of Article 1(1) of the Real Estate Real Name Act, and it is inappropriate to apply the instant case to this case.

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.

Justices Lee In-bok (Presiding Justice)