Where Party A applied for issuance of qualification certificate for acquisition of farmland on behalf of Party B for compulsory execution after completing the registration of transfer of ownership under the name of Party B with respect to land for which Party B purchased, but the head of the competent Myeon rejected the disposition, the case holding that Party A may exercise the right to apply on behalf of Party B to preserve the principal and interest of loan, and that Party A shall not return the above application for issuance on the ground that no agricultural management plan prepared by Party

In a case where Party A applied for issuance of the qualification certificate for acquisition of farmland on behalf of Party B for compulsory execution after completing the registration of ownership transfer under the name of Party B, but the competent Myeon governor did not issue the qualification certificate for acquisition of farmland on the ground that it cannot be issued on the ground that the certificate for acquisition of farmland cannot be issued on the ground that the right to apply for issuance of the qualification certificate for acquisition of farmland is a kind of property right claiming the issuance of the qualification certificate for acquisition of farmland to realize the registration of ownership transfer, and it cannot be deemed that the right to apply for issuance of the qualification certificate for acquisition of farmland cannot be deemed as a right to apply for issuance of the qualification certificate for acquisition of farmland on the ground that the right to apply for issuance of the qualification certificate for acquisition of farmland is a kind of property right that claims the issuance of the qualification certificate for acquisition of farmland to realize the registration of ownership transfer, and on the ground that Party A cannot exercise the right to apply

Article 8(1), (2), and (4) of the Farmland Act; Article 404 of the Civil Act

Strengthening Agricultural Cooperatives (Law Firm Hun-Ma, Attorney Ha Dong-young et al., Counsel for defendant-appellant)

Mayor of the Incheon Strengthening Military Branch (Attorney Man-tae, Counsel for the defendant-appellant)

Incheon District Court Decision 2013Guhap1724 decided September 5, 2013

March 14, 2014

1. Revocation of the first instance judgment.

2. The Defendant’s rejection of the qualification certificate for acquisition of farmland against the Plaintiff on March 26, 2013 is revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff’s claim for loans against Nonparty 1 (Counter-party): existence of the Plaintiff’s claim for loans

On October 17, 1980, the registration of ownership transfer was completed in the name of Nonparty 2 with respect to the 4546 square meters in Incheon Strengthening-gun ( Address 1 omitted). On May 8, 2008, Nonparty 2 sold the above land to Nonparty 1 and Nonparty 3 in one-half equity shares, and Nonparty 3 sold one-half equity shares in the above land to Nonparty 4 on February 2, 2009.

On April 23, 2010, the said land was divided into a 2273 square meters ( Address 1 omitted) and a 2273 square meters ( Address 2 omitted). Nonparty 1, who purchased 1/2 of the 4546 square meters in response to ( Address 1 omitted), obtained a qualification certificate for acquisition of farmland on April 27, 2010 and completed the registration of ownership transfer on May 6, 2010. On the same day, Nonparty 220,000,000 won was extended from the Plaintiff on June 18, 2010.

On October 21, 201, Nonparty 4: (a) filed a claim against Nonparty 3 for the implementation of the procedure for registration of cancellation of ownership transfer; (b) Nonparty 1/2 of the instant land divided into the said land; and (c) Nonparty 1’s claim against Nonparty 1 for the implementation of the procedure for registration of cancellation of ownership transfer; and (d) Nonparty 2 of the instant land, the lower court rendered a favorable judgment on October 21, 201, Incheon District Court Decision 2010Du12629, the said judgment became final and conclusive on November 17, 2011; (b) Nonparty 4 filed a claim against the Plaintiff for the implementation of the procedure for registration of cancellation of ownership transfer registration of one-half of the instant land divided into the said land; and (c) Nonparty 2 of the instant land registered under the name of Nonparty 2, Incheon District Court Decision 201No11717, May 15, 2012; and (c) Nonparty 21/214 of the instant land registered on March 21, 214.

On April 3, 2012, the Plaintiff filed a claim against Nonparty 1 for the payment of the above principal and interest of KRW 207,372,948 as well as damages for delay from March 30, 2012 on the balance of the loan principal of KRW 200,00,000, and on the ground that the registration of establishment of a neighboring mortgage on the one-half portion of the land ( Address 2 omitted) is insufficient to repay the debt of Nonparty 1 and there is no specific property to Nonparty 1, the Plaintiff filed a claim against Nonparty 2 for the implementation of the registration procedure for ownership transfer on behalf of Nonparty 1 on August 17, 2012, and the above judgment became final and conclusive on September 4, 2012 on the ground that the registration of establishment of a neighboring mortgage on the one-half portion of the land in the name of Nonparty 2 was insufficient to repay the debt of Nonparty 1 and Nonparty 1 did not have any specific property.

B. The plaintiff's subrogation right and the disposition of this case

The Plaintiff filed an application for registration of ownership transfer in the name of Nonparty 1 for compulsory execution after the completion of the registration of ownership transfer in the name of Nonparty 1, but was rejected on the ground that Nonparty 1’s application for registration of ownership transfer was not accompanied by Nonparty 1’s qualification certificate. In other words, on March 25, 2013, the Plaintiff filed an application for registration of farmland acquisition with the Defendant on behalf of Nonparty 1 on behalf of Nonparty 1, and Nonparty 1 did not submit an agricultural management plan on the ground that the purpose of Nonparty 1’s application for registration of farmland acquisition is to enforce compulsory execution. Accordingly, on March 26, 2013, the Defendant issued a return disposition on the ground that “the qualification certificate for acquisition of farmland shall be filed by a person who wishes to acquire farmland pursuant to Article 8 of the Farmland Act and Article 6(1) of the Guidelines for the Examination of Issuance of the qualification certificate for Acquisition of Farmland, and it is impossible to issue the qualification certificate for acquisition of farmland through delegation by the person who wishes to acquire the farmland in inevitable circumstances.”

Meanwhile, on October 1, 2013, the Plaintiff filed a claim against Nonparty 1 for the implementation of the procedure for applying for the issuance of the qualification certificate for acquisition of farmland with respect to 1/2 shares out of the instant land on the ground that Nonparty 1 did not file an application for the issuance of the qualification certificate for acquisition of farmland with a view to avoiding compulsory execution even though Nonparty 1 had a farmland acquisition qualification or intent, and was awarded a favorable judgment on December 30, 2013 at Incheon District Court Decision 2013Da77309, which became final and conclusive on February 12, 2014.

[Evidence] Each entry of Gap evidence Nos. 1 through 5 and 9 (including paper numbers; hereinafter the same shall apply) and the purport of the whole pleading

2. Relevant statutes;

○ Farmland Act

Article 3 (Basic Ideology concerning Farmland)

(1) Since farmland is the foundation necessary for supplying food to the people and preserving the national environment, and is a limited valuable resource that affects the harmonious development of agriculture and the national economy, it shall be carefully preserved and properly managed for public welfare, and the exercise of the rights to farmland shall entail necessary restrictions and obligations.

(2) Farmland shall be owned and used in a manner that enhances agricultural productivity, and shall not become an object of speculation.

Article 8 (Issuance of Certification of Farmland Acquisition)

(1) A person who intends to acquire farmland shall obtain a qualification certificate for acquisition of farmland from the head of a Si/Gun/Gu having jurisdiction over the location of farmland, the head of an Eup/Myeon (hereinafter referred to as the "head of a Si/Gu/Eup/Myeon")

(2) A person who intends to obtain a qualification certificate for acquisition of farmland under paragraph (1) shall prepare an agricultural management plan containing all the following matters and apply for issuance to the head of a Si/Gu/Eup/Myeon having jurisdiction over the location of the farmland:

1. Area of the farmland to be acquired;

2. A plan for securing labor force, agricultural machinery, equipment, and facilities required for the agricultural management of the farmland to be acquired;

3. Status of use of farmland owned (limited to farmland owners).

(4) When a person who acquires farmland with a qualification certificate for acquisition of farmland issued under the main sentence of paragraph (1) and paragraph (2) applies for registration of ownership, the qualification certificate for acquisition of farmland shall be attached thereto.

○ Guidelines for Issuing Certification of Farmland Acquisition (Ordinance of the Ministry for Food, Agriculture, Forestry and Fisheries No. 42)

Article 1 (Purpose) The purpose of these Guidelines is to achieve the principle of light freedom under Article 121 (1) of the Constitution and to realize the basic ideology concerning farmland under Article 3 of the Farmland Act by prescribing detailed matters necessary for the issuance of qualification certificates for acquisition of farmland under Article 8 of the Farmland Act (hereinafter referred to as the "Act"), Articles 6 and 7 of the Enforcement Decree of the same Act (hereinafter referred to as the "Decree"), and Article 7 of the Enforcement Rule of the same Act (hereinafter referred to as the "Rules").

Article 2 (Definitions) The definitions of terms used in these Guidelines shall be as follows:

(5) The term "agricultural management" means that a farmer or an agricultural corporation cultivates crops or cultivates perennial plants in farmland on his/her own account and responsibility.

Certification of qualification shall be issued to any of the following persons:

1. Any of the following persons who intends to acquire the farmland:

(a) A person who intends to become a farmer or farmer;

(b) Agricultural corporations;

Article 6 (Applicant for Certification of Qualification)

(1) A person who intends to acquire a farmland shall apply for certification of qualification.

3. Whether the instant disposition is lawful

A. Whether the right to apply for issuance of the qualification certificate for acquisition of farmland is the object of creditor’s subrogation;

According to the above facts, it is reasonable to view that the plaintiff needs to preserve the above obligation to return the principal and interest of loan to the non-party 1 due date, and since the non-party 1 does not apply for the issuance of the qualification certificate for acquisition of farmland on the one-half portion of the land in this case, the plaintiff can exercise the above right in subrogation of the non-party 1. In other words, the above right to request the non-party 1 who purchased the 1/2 share of the land in this case requests the issuance of the qualification certificate for acquisition of farmland to the non-party 1 to realize the registration of ownership transfer, and it cannot be deemed that the exercise of the right is a right of trust on the exercise that is entirely entrusted to the non-party 1's free decision-making for personal interest. Thus, notwithstanding Article 8 of the Farmland Act and Article 6 of the Guidelines for

Therefore, the disposition of this case is unlawful on the premise that the right to apply for the qualification certificate for acquisition of farmland cannot be the object of creditor's subrogation right.

B. Whether the subrogation claim exists

1) The fact that the Plaintiff applied for the issuance of a qualification certificate for acquisition of farmland on behalf of Nonparty 1 on behalf of Nonparty 1, and did not submit an agricultural management plan prepared by Nonparty 1 on behalf of Nonparty 1 is as above.

Therefore, the defendant asserts that the disposition of this case, which rejected the plaintiff's application for issuance of qualification certificate for acquisition of farmland, is legitimate, since the non-party 1 did not prepare an agricultural management plan and cannot be deemed to have an intention of agricultural management to the non-party 1, that is, the non-party 1's right to request the issuance of qualification certificate for acquisition of farmland

However, we examine whether the above disposition ground of the defendant's assertion is permissible because it is without the written disposition of this case.

The addition of the grounds for disposition is limited to the extent that the identity of the original grounds for disposition and basic factual relations is recognized in light of the dispute resolution, the request for litigation economy, the guarantee of the right of defense of the counter-party to disposition, and the purpose of the duty of presentation of reasons for disposition. The ground for disposition in this case is that the request for subrogation of the qualification certificate for acquisition of farmland was not made, and the additional grounds for disposition are not the existence of the right of subrogation, and it is difficult to view that the social factual relations, which form the basis, are the same in the basic point of view. However, in this case where the plaintiff filed an application on behalf of the plaintiff while the non-party 1 declared that the addition of the above grounds for disposition is not prepared for the purpose of avoiding compulsory execution, even if the permission for the addition of the above grounds for disposition is granted, it does not impede the plaintiff'

2) If a debtor fails to prepare an agricultural management plan after purchasing farmland and file an application for the qualification certificate for acquisition of farmland, the creditor shall be deemed to be able to file an application for the qualification certificate for acquisition of farmland on behalf of the debtor for compulsory execution after completing the registration of ownership transfer under the name of the debtor. If the creditor does not file an application for compulsory execution after completing the registration of ownership transfer under the name of the debtor, and the debtor does not also engage in agricultural management, the head of the Si/Gun/Gu may order the debtor to dispose of the farmland, and the debtor may file a claim for purchase of the farmland with the Korea Rural Community Corporation (Articles 10 and 11 of the Farmland Act), and there is no concern that the principle of freedom of transfer may be undermined. In such cases, even if there is no agricultural management plan under the name of the debtor, the head of the Si/Gu/Eup/Myeon shall examine whether the debtor wishes to engage in agricultural management, and shall not return the creditor

On May 8, 2008, Nonparty 1 purchased 1/2 shares of 4546 square meters in ( Address 1 omitted) from Nonparty 2. However, on April 27, 2010, the ownership transfer registration is completed on May 6, 2010 with the qualification certificate for acquisition of farmland issued on April 27, 2010 with respect to the land divided from the said land ( Address 2 omitted). However, Nonparty 1’s land subject to the registration of ownership transfer is the ( Address 2 omitted) 1/2 shares in 2273 square meters in paddy-gu and the instant land (2273 square meters) and 1/2 shares in the instant land (273 square meters).

However, it is insufficient to recognize that Nonparty 1 did not intend to engage in agricultural management as to the portion of 1/2 of the instant land at the time of the instant disposition. Rather, in full view of the overall purport of pleadings as to the entries in the evidence Nos. 6 through 8, and 10, the Plaintiff filed a lawsuit seeking revocation of the pre-sale agreement, which sells the forest owned by Nonparty 1 to Nonparty 5, as the Incheon District Court 2013Da7966, on the ground that the pre-sale agreement, which sells the forest owned by Nonparty 1 to Nonparty 5, was a fraudulent act. In the lawsuit, Nonparty 1 testified that Nonparty 1 did not want to cooperate with the Plaintiff, but did not request the Plaintiff to file an application for the qualification certificate for acquisition of farmland. According to this, Nonparty 1 testified that Nonparty 1 was the Plaintiff’s member, at the time of issuance of the qualification certificate for acquisition of farmland as to the land ( Address 2 omitted), as well as the share of the land at the time of the issuance of the qualification certificate for acquisition of farmland.

Therefore, the reason why Nonparty 1 did not prepare an agricultural management plan for the share of 1/2 of the land of this case, and that the disposition of this case is lawful due to Nonparty 1’s absence of an intention of agricultural management is also without merit.

4. Conclusion

Thus, the disposition of this case shall be revoked in an unlawful manner, and the judgment of the court of first instance shall be revoked as it is unfair to conclude otherwise, so it is so decided as per Disposition by the judgment of the court of first instance and the disposition of this case.

Judges Lee Jae-won (Presiding Judge) et al.