Plaintiff (Attorney Lee Byung-hee et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Barun, Attorneys Gyeong-jin et al., Counsel for defendant-appellant)

March 13, 2009

Seoul Central District Court Decision 2007Gahap53926 Decided November 15, 2007

1. Of the judgment of the court of first instance, the part against the defendant as to the 1/2 shares in the real estate listed in paragraph (3) of the attached Table shall be revoked, and the plaintiff's primary claim against the revoked part

2. The plaintiff's conjunctive claim added at the trial is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

In the first place, the Defendant rendered a judgment that the Plaintiff shall implement the procedure for the registration of ownership transfer based on the sale on December 22, 1995 with respect to shares of 1/2 of the real estate listed in the attached Table No. 3. The Defendant shall execute the land transaction permission procedure based on the sale on December 22, 1995 with respect to shares of 1/2 of the same real estate to the Plaintiff.

2. Purport of appeal

The text of paragraph (1) is as follows.

1. Basic facts

The court's explanation on this part is the same as the statement in Paragraph 1 of the judgment of the court of first instance, and therefore, this part is cited by the main text of Article 420 of the Civil Procedure Act

2. Judgment as to the main claim

A. The plaintiff's assertion

On December 22, 1995, the Plaintiff purchased each of the instant lands from Defendant and Co-Defendant 1 of the first instance trial (Nonindicted 2 of the Supreme Court Decision) on December 22, 1995, and paid to Defendant and Co-Defendant 1 of the first instance trial an amount exceeding KRW 750 million of the purchase price charges on shares of 1/2 of each of the instant lands. As such, the Defendant is obligated to implement the registration procedure for transfer of ownership based on the said sales contract as to shares of 31/2 of the instant land.

B. Determination

In light of the contents of the relevant provisions regarding permission for land transaction contract within the regulation zone under the Act on the Utilization and Management of the National Territory and the purpose of legislation, the contract which transfers or establishes the rights such as the ownership of the land shall take effect only with permission from the competent authority, and it shall be deemed null and void as well as the effect of the real right before obtaining permission (see Supreme Court Decision 90Da12243, Dec. 24, 191, etc.). In full view of the purport of the whole pleading in the statement No. 12-4 of evidence No. 12-2, the land No. 3 of this case is recognized as a natural green area, and there is no evidence to acknowledge that the plaintiff and the defendant received permission for land transaction concerning the land transaction of the third land of this case. Thus, since the contract for sale on December 22, 195 is null and void, the plaintiff's primary claim for registration of transfer is without merit under the premise that the above contract for sale is valid.

3. Judgment on the conjunctive claim

(a) Obligation to implement the procedure for applying for permission of land transaction;

Inasmuch as a land transaction contract within a regulatory area under the National Land Utilization Act is in a state of passive invalidation prior to obtaining permission for land transaction, the contractual performance for the transfer of rights, such as ownership, may not be claimed. However, even in such a case, the other party who does not cooperate in the procedure for application for permission for land transaction may seek performance of his/her duty to cooperate (see, e.g., Supreme Court en banc Decision 90Da12243, Dec. 24, 1991; Supreme Court Decision 95Da28236, Dec. 12, 195); barring any special circumstance, the Defendant is liable to implement the procedure for application for land transaction permission for the land transaction on the third land of this case to the Plaintiff.

B. Defendant’s assertion and judgment

The defendant asserts that the plaintiff's land Nos. 1 and 2 of this case are owned by the plaintiff on October 22, 2004 and November 23 of the same year between the defendant and the non-party 1. Among the land No. 3 of this case, the remaining part (19,975/29,962 shares) excluding the part for which the ownership transfer registration has already been made in the name of the racing lowest Croposium, and the non-party 1 agreed to waive all rights to each of the land of this case. Thus, the plaintiff cannot respond to the plaintiff's claim.

According to the evidence No. 1-1 and No. 2 of this case, it is difficult to conclude that Nonparty 1’s wife and Plaintiff 2 and Co-Defendant 1 of the first instance court, who are Nonparty 1’s agent, have agreed on Oct. 22, 2004 and Nov. 23, 2004 that “the remainder except for the part registered in the name of the race Posium among the land No. 3, the ownership of the Defendant is maintained, and the land No. 1 and No. 2 shall be transferred to the Plaintiff, and there is no share of Nonparty 1” (hereinafter “the agreement of this case”), but it is difficult to find that Nonparty 1’s right of representation was established or delegated to Nonparty 2 for each of the acts of selling and purchasing the land No. 7-1, 2, 3, and 5, and that it cannot be seen that the right of representation was no longer effective until May 26, 2004.”

Although the agreement between the plaintiff and the defendant is null and void, the plaintiff alleged that the agreement between the plaintiff and the defendant is valid and that the plaintiff cannot respond to the plaintiff's request. Thus, the plaintiff and the non-party 1 cannot continue to pay part of the purchase price of this case after the lapse of 8 years from the date of the contract of this case and the rise in the price of each land of this case. At the time of the agreement of this case, the plaintiff and the defendant maintained the name of the defendant as to the non-party 3 land of this case, and the defendant and the non-party 1 agreed to transfer the plaintiff's land of this case to the non-party 1, 2, 4, 6, 10, 10, 10, 100, 100, 200, 100, 200, 100, 10, 200, 10, 10, 10, 10, 20, 200.

Therefore, the plaintiff and the defendant agreed that the remaining part of the land No. 3 of this case except for the part transferred to the Young-Secho, shall be owned by the defendant. Thus, the defendant does not have any obligation to cooperate with the plaintiff in the procedure of land transaction permission permission as to the 1/2 share of the land No. 3 of this case. Thus,

3. Conclusion

Therefore, the plaintiff's claim as to the 1/2 share in the 3th land of this case shall be dismissed as it is without merit. Since the part against the defendant as to the 1/2 share in the 3th land of this case in the judgment of the court of first instance is unfair with the conclusion different, the part against the defendant as to the 1/2 share in the 3th land of this case shall be accepted by the defendant, and it shall be revoked and the plaintiff's primary claim shall

[Attachment of List]

Judges Gangnam-gu (Presiding Judge)