2019Na15777 Penalty

A Stock Company

Law Firm Ppuri, Counsel for the defendant-appellant

[Defendant-Appellant]

B Agricultural Partnership Corporation

Attorney Go-dae et al., Counsel for the defendant-appellant

Daejeon District Court Decision 2019Na50467 Decided October 31, 2019

June 18, 2020

2020, 7.16

1. The plaintiff's appeal and the defendant's incidental appeal are all dismissed.

2. The costs of appeal shall be borne by the Plaintiff, and the Defendant shall bear the incidental costs of appeal.

1. Purport of claim

The defendant shall pay to the plaintiff 264,00,000 won with 15% interest per annum from the day following the service date of a copy of the complaint of this case to the day of complete payment.

2. Purport of appeal

Of the judgment of the first instance, the part against the plaintiff ordering payment shall be revoked. The defendant shall pay to the plaintiff 20 million won with 5% interest per annum from May 22, 2019 to the date of the judgment of the first instance, and 12% interest per annum from the next day to the date of full payment.

3. Purport of incidental appeal;

The part against the defendant in the judgment of the first instance shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed.

1. Quotation of the first instance judgment

The reasons for this Court concerning this case are as stated in the reasoning of the first instance judgment, except for the addition of the judgment as to the argument added or emphasized by the plaintiff and the defendant to the court below or by adding or emphasizing the plaintiff and the defendant to this court. Thus, this Court shall accept it pursuant to the main sentence of

4. The addition of "246,00,000 won" to "264,00,000 won" in the first instance judgment below 4: 2. The addition of judgment to "264,00,000 won"

A. Judgment on the plaintiff's assertion

1) The Plaintiff’s legal category of land, even if it is farmland, shall be deemed not farmland if it is practically impossible to function as farmland. The Plaintiff’s respective real estate of this case loses its function as farmland above a certain level and does not constitute farmland under the Farmland Act. Therefore, it cannot be deemed that the instant lease agreement violates Article 23 of the Farmland Act.

Whether land is identical or not shall be determined according to the actual state of the relevant land regardless of the land category in the public record, and therefore, even if the land is transferred to the public record, if the land is lost the phenomenon of farmland and its lost condition cannot be deemed temporary, it shall not be deemed farmland, and as a result, it shall not be subject to permission for diversion of farmland under the former Farmland Act (Supreme Court en banc Decision 2007Do6703 Decided April 16, 2009).

Based on the above legal principles, this case is deemed as bbbbling with respect to the evidence submitted by the Plaintiff. The sole fact of the evidence alone is insufficient to deem that each real estate of this case does not constitute farmland any longer because the present state of farmland is lost and the state of loss is no longer deemed temporary, and there is no other evidence to acknowledge this otherwise. Rather, according to each description and image of evidence B through B (including serial numbers; hereinafter the same shall apply), the category of each real estate of this case is the answer entered in the public register. The owner of each real estate of this case uses the real estate of this case as farmland, such as harvesting rice, while using each real estate of this case as farmland. Accordingly, this part of the Plaintiff’s assertion is without merit.

2) Next, even if each of the instant real estate constitutes farmland, the instant lease agreement was amended by Act No. 16073, Dec. 24, 2018 (amended by Act No. 16073, Dec. 24, 2018)

In light of the following circumstances, if it is designated as a salt damage area pursuant to the "Revised Farmland Act" (hereinafter referred to as "the amended Farmland Act") and has lost its function as farmland, it is argued that the solar power generation project can be carried out in each real estate of this case with the permission for temporary use for other purposes, and accordingly, it is a valid contract which is not contrary to Article 23 of the Farmland Act under a conditional contract which provides that the plaintiff may rent each real estate of this case. Considering the following circumstances, the above circumstances can be recognized by adding the above evidence Nos. 2 and 3, evidence No. 1, evidence No. 1, and the whole purport of oral argument, it is difficult to view that the lease contract of this case constitutes a conditional contract or it does not go against Article 23 of the Farmland Act, the plaintiff's assertion in this part is without merit

A) Article 23(1) of the former Farmland Act (amended by Act No. 16975, Feb. 11, 2020; hereinafter referred to as the "former Farmland Act") provides that any person may not rent or rent any farmland except in cases falling under any subparagraph of the subparagraphs, and provides that "any person who leases or rents any farmland falling under the provisions of Articles 6(2)1, 4 through 9, 9-2 and 10" and Article 6(2)7 provides that "the person who has obtained permission to divert farmland under Article 34(1) or has filed a report on diversion of farmland under Article 35 or 43 owns the farmland," and Article 6(2)8 provides that "the person who has completed consultation on diversion of farmland under Article 34(2) shall not rent or rent any farmland for which permission to temporarily use the farmland for other purposes has been obtained for the same purpose as the former Farmland Act does not exist in principle."

B) Under Article 36 of the amended Farmland Act and Article 38 of the Enforcement Decree of the Farmland Act (amended by Presidential Decree No. 2906, Jun. 25, 2019), the period of temporary use for the purpose of Article 36(1)4 does not exceed 20 years. According to the instant lease agreement, the Plaintiff paid the first rent to the Defendant on or around January 2, 2019. The Defendant did not conduct business for a considerable period from the date of the contract to February 7, 2019 and February 14, 2019. However, considering that the Plaintiff’s temporary use for the purpose of Article 36(1)4 of the Enforcement Decree of the Farmland Act (amended by Presidential Decree No. 29906, Jun. 25, 2019), it is difficult to view that the Plaintiff only purchased the Plaintiff’s conditional lease agreement to the effect that “the Plaintiff would be subject to the Plaintiff’s temporary use for another purpose.”

B. Judgment on the defendant's argument

In the event that the instant lease agreement is valid, the Defendant asserts that, pursuant to Article 4(f) of the instant lease agreement, KRW 44 million, among the down payment under the instant lease agreement, is the amount to be held by the Defendant, and thus, the Plaintiff is not obligated to return it to the Plaintiff. In my opinion, as the instant lease agreement is null and void in violation of Article 23 of the Farmland Act, the Defendant’s argument premised on the validity of the instant lease agreement is without merit.

3. Conclusion

Therefore, the judgment of the first instance is just, and all the plaintiff's appeal and the defendant's incidental appeal are without merit, and it is so dismissed as per Disposition.

The presiding judge, Park Jong-young

Judge Lee Jae-soo

Judges Kim Gin-sik

1) If the Plaintiff’s assertion is invalidated, KRW 44,00,000 paid to the Defendant as part of the down payment under the instant lease agreement is unreasonable.

There is no dispute about the fact that the defendant includes the assertion that the benefit should be returned.