[1] Where an administrative agency’s permission or patent name does not provide for the purport that the transfer is permitted under the pertinent Act, and the procedure for change of name is not provided, whether the action against the transferor is permissible (negative)

[2] In a case where Gap corporation was designated as an implementer of an urban planning facility project under the former National Land Planning and Utilization Act and obtained authorization, and thereafter, Eul corporation borrowed money from Eul corporation to transfer all the titles related to the implementation of the project and authorization and permission to Eul corporation or to a third party designated by Eul corporation, the case holding that Eul corporation is not allowed to file a lawsuit seeking the change of Eul corporation's name to Gap corporation according to the agreement on the provision of security for loan loans to Gap corporation

[1] Where an administrative agency's permission or a patent name provides for the purport that the transfer is permitted by the pertinent law, the transferee may file a lawsuit against the transferor seeking the implementation of the procedure for change of name against the transferor, but no provision exists in the pertinent law that permits the transfer, and no provision exists in the procedure for change of name, the transferee is allowed to file a lawsuit seeking direct change of the transferor's name license in the name of the transferee.

[2] In a case where Company A was designated as an implementer of an urban planning facility project under the former National Land Planning and Utilization Act (amended by Act No. 10599, Apr. 14, 201) and authorized the implementation plan, and thereafter, where Company B was unable to repay money from Company B, the case holding that a lawsuit seeking the change of the name of a project implementer in accordance with an agreement on the provision of security for loan obligations is not allowed on the ground that the implementer of an urban planning facility project is in the position of an administrative subject with the rights and obligations in public law, and the relevant laws and regulations do not allow the transfer of the project implementer’s status to the Party B without being subject to a contract under private law.

[1] Article 248 of the Civil Procedure Act / [2] Article 248 of the Civil Procedure Act / [2] Article 88 of the Civil Procedure Act, Articles 86, 88, 92(1), and 95 of the former National Land Planning and Utilization Act (Amended by Act No. 10599, Apr. 14, 201)

[1] Supreme Court Decision 2001Da53622 decided Feb. 26, 2002 (Gong2002Sang, 801)

Dr loan Co., Ltd. (Law Firm Bululul, Attorneys Lee Jae-woo et al., Counsel for the defendant-appellant)

(1) A person who intends to obtain permission from the head of a Si/Gun/Gu may obtain permission from the head of a Si/Gun/Gu.

Seoul Central District Court Decision 201Gahap75053 Decided October 20, 2011

May 4, 2012

1. Revocation of the judgment of the first instance. The plaintiff's lawsuit of this case is dismissed.

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

1. Purport of claim

The defendant shall implement the procedure for changing the name of the project implementer to the plaintiff with respect to the authorization of the implementation plan for the project of the Crossing-15 (sports facilities: golf courses) of the notification of the Crossing-gun No. 2011-15 (sports facilities).

2. Purport of appeal

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

1. Basic facts

A. On June 4, 2010, the head of the Gangwon-do Gun: (a) pursuant to Article 86 of the former National Land Planning and Utilization Act (amended by Act No. 10599, Apr. 14, 2011; hereinafter “National Land Planning Act”); (b) Article 96 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 23718, Apr. 10, 2012); and Article 14 of the Enforcement Rule of the same Act, the head of the Gangwon-do Gun designated and publicly notified the Defendant as the implementer of the golf course (hereinafter “instant project”). (c) pursuant to Article 2010-57 of the Crossing-gun Notice No. 2010-57 of the Crossing-gun, Seowon-do 132,176,38 square meters in place of the project, and created a golf club using a Crossing-gun urban planning facility (a sports facility).

B. On October 12, 2010, the Defendant applied for the authorization of the implementation plan for the instant project to the head of Crossing-gun, and on February 25, 2011, the said implementation plan was approved and publicly notified pursuant to Article 2011-15 of the Crossing-gun Notice pursuant to Article 88 of the National Land Planning and Utilization Act.

C. On April 29, 201, the Plaintiff leased KRW 616,00,00 to the Defendant at an annual interest rate of KRW 24%, and on September 29, 201, the due date for repayment of the borrowed amount. In the event that the Defendant fails to repay the borrowed amount, the Plaintiff changed all the names related to the implementation of the instant project and the authorization and permission to the Plaintiff or to the third party designated by the Plaintiff. On the other hand, upon entering into a contract, the Plaintiff agreed to implement the procedure for change of name when the Plaintiff filed a lawsuit claiming the performance of the procedure for change of name against the Defendant and the Defendant did not repay the borrowed amount.

[Evidence Evidence] Evidence No. 1, Evidence No. 6, and the purport of the whole pleadings

2. Determination as to the legitimacy of the instant lawsuit

A. Summary of the plaintiff's assertion

The Defendant agreed to change the name in the event that the Plaintiff or the third party designated by the Plaintiff agreed to change the name of the Plaintiff or the Plaintiff’s title related to the execution of the instant project and the authorization and permission as collateral for the loan debt, and the Plaintiff was ordered to change the name through the lawsuit, and the Defendant agreed to execute the change of the name in accordance with the above security agreement.

B. We examine ex officio the lawfulness of the instant lawsuit.

Where the relevant Act provides for allowing the transfer of an administrative agency’s license or a patent name, a transferee of such name may file a lawsuit against the transferor seeking the implementation of procedure for change of name. However, where the relevant Act does not provide for allowing the transfer, and where such change of name does not provide for the procedure for change of name, a lawsuit against the transferor seeking the performance of the transferor’s license in the name of the transferee is not allowed. Thus, the lawsuit is unlawful (Supreme Court Decision 2001Da53622 Decided February 26, 2002).

A person who is designated as an implementer of the instant project to be constructed as an urban planning facility by the head of the crossing Gun under Article 86(5) of the National Land Planning and Utilization Act and has obtained authorization for an implementation plan pursuant to Article 92(1) of the same Act. If necessary for an urban planning facility project, the implementor of the urban planning project is in the position of an administrative subject with the rights and obligations under public law (Article 95 of the National Land Planning and Utilization Act) by means of expropriation or use of land, buildings or fixtures on the land or rights other than ownership. Thus, the status of the implementor is not subject to transfer under private law (see Supreme Court Decision 81Nu318, Mar. 9, 1982). There is no provision allowing the transfer of the status of the implementor.

Therefore, it is not permissible for the Plaintiff to seek the performance of the instant project operator’s direct change of the name of the project operator in accordance with the agreement on the provision of security for the loan obligations against the Defendant. Therefore, it is unlawful to seek such performance.

3. Conclusion

If so, the plaintiff's lawsuit of this case is unlawful and thus, it shall be dismissed, and the judgment of the court of first instance is unfair, so it is revoked, and it is so decided as per Disposition with the decision to dismiss the lawsuit of this case.

[Attachment] Cut: omitted

Judges Cho Young-chul (Presiding Judge)