[1] In a case where a person who obtained permission for a land transaction contract fails to obtain permission from the competent authority for development activities, such as changing the form and quality of land, in violation of the relevant statutes, whether the case constitutes “the case where it is impossible to use the land for the permitted purpose due to reasons not attributable to the person who obtained permission for a land transaction contract, such as the implementation of public works, but for reasons not attributable to the person who obtained permission for

[2] In a case where the head of the Gu grants permission for land transaction contract for the purpose of use to Gap as "welfare facility" and issued an order for performance of obligation to use for the purpose of fulfillment after the permission, but Gap failed to comply with the order, the case holding that the judgment below erred in the misapprehension of legal principles in holding that the disposition imposing a non-performance penalty is unlawful on the ground that "the case where it is impossible to use it for the permitted purpose due to reasons not attributable to oneself" under Article 124 (1) 7 of the former Enforcement Decree of the National Land Planning and Utilization Act.

[1] In light of the contents and purport of relevant statutes, such as Articles 56(1), 124(1), and 124-2(1) and (2) of the former National Land Planning and Utilization Act (amended by Act No. 9442 of Feb. 6, 2009), and Article 124(1)7 of the former Enforcement Decree of the National Land Planning and Utilization Act (amended by Presidential Decree No. 21038 of Sept. 25, 2008), the land transaction contract permission system aims to prevent speculative transactions in areas where land transactions are more frequent or land price increase rapidly, and speculative transactions in such areas where land price increase rapidly. Thus, the competent authority merely permits a land transaction contract in compliance with the above legislative purport of the National Land Planning and Utilization Act, and it does not necessarily mean that a person who obtained permission from a person who obtained permission to engage in development activities, such as permission, fails to obtain permission to enter into a land transaction contract separate from the former Enforcement Decree of the National Land Planning and Utilization Act, and thus, does not necessarily mean that a person who obtained permission to change the form and quality of land transaction contract.

[2] In a case where the head of the Gu ordered Gap to use land transaction contract with the purpose of use as "welfare facilities" and to perform the duty to use the land for the purpose of use after obtaining permission, and Gap applied for development activities for site creation of multi-family housing site before the expiration of the implementation period for land use (land form and quality change) and again did not use land for the purpose of use and did not perform the order, the case holding that the court below erred in the misapprehension of the legal principles as to Gap's land form and quality alteration as to Gap's land transaction contract and development activities, upon notifying Gap of the permission for land transaction contract, and the head of the Gu made it clear that Gap's land transaction contract and development activities should be separate, and the obligation to use land for the purpose of permission should not be fulfilled as originally planned, even if the construction plan of the applicant for permission for land transaction contract does not comply with the relevant Acts and subordinate statutes, and it is difficult for Gap to grant permission for development activities, such as change of land form and quality, which conflict with the relevant Acts and subordinate statutes, and it can be seen that Gap's land form and quality change can not be adjusted.

[1] Articles 56(1), 124(1), and 124-2(1) and (2) of the former National Land Planning and Utilization Act (amended by Act No. 9442 of Feb. 6, 2009); Article 124(1)7 of the former Enforcement Decree of the National Land Planning and Utilization Act (amended by Presidential Decree No. 21038 of Sept. 25, 2008) / [2] Articles 56(1), 124(1), and 124-2(1) and (2) of the former National Land Planning and Utilization Act; Article 124(1)7 of the former Enforcement Decree of the National Land Planning and Utilization Act (amended by Presidential Decree No. 21038 of Sep. 25, 2008)

Korea Life Insurance Co., Ltd. (Law Firm Apex et al., Counsel for the defendant-appellant)

The head of Yeongdeungpo-si Office

Seoul High Court Decision 2010Nu3956 decided December 17, 2010

The part of the judgment below against the defendant is reversed and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. Under the former National Land Planning and Utilization Act (amended by Act No. 9442, Feb. 6, 2009; hereinafter “National Land Planning Act”), a person who has obtained permission for a land transaction contract shall use the land for the permitted purpose for a period prescribed by the Presidential Decree not exceeding five years, unless any ground prescribed by the Presidential Decree exists (Article 124(1)), and the head of a Si/Gun/Gu may order a person who fails to perform the duty to utilize the land under the above provision to fulfill the duty to utilize the land for a reasonable period prescribed by the Presidential Decree: Provided, That where any ground prescribed by the Presidential Decree exists, he/she need not order the fulfillment of the duty to use the land (Article 124-2(1)); where a person fails to perform the duty within the prescribed period of implementation, the head of a Si/Gun/Gu shall separately impose the amount prescribed by the Presidential Decree within the limit of 10/100 of the acquisition value of the land (Article 124-2(2)); and a person who has obtained permission for a land transaction contract for the purpose prescribed by the National Land Planning Act.

In light of the contents and purport of the aforementioned relevant laws and regulations, permission system for a land transaction contract is to prevent speculative transactions in an area where speculative transactions of land are more frequent or land price increases rapidly, and an area where such concerns exist, and the competent authority grants permission to a person who intends to enter into a land transaction contract so that a land transaction contract can enter into a land transaction contract in a case where the purpose of land use by the person who intends to enter into the land transaction contract meets the criteria for permission under the National Land Planning Act, taking into account the legislative intent as above, and does not necessarily premised on permission prescribed by other Acts and subordinate statutes, such as permission for development activities in the land at the time of permission. Therefore, it is a matter separate from permission for a land transaction contract. Therefore, just because a person who obtained permission for a land transaction contract violates the relevant laws and regulations and fails to obtain permission for development activities, such as changing the form and quality of the land in the land, etc. from the competent authority, it cannot be said that it constitutes “where it is impossible to use the land for the permitted purpose for reasons not attributable to the person who obtained permission for a

2. Comprehensively taking account of the reasoning of the lower judgment (including the reasoning of the first instance judgment cited by the lower judgment) and the evidence employed, the Defendant: on December 29, 2006, issued an order to perform the duty to use the instant land for the purpose of obtaining permission for a land transaction contract with the purpose of using the instant six lots of land applied by the Plaintiff as “welfare facilities”; on March 20, 2008, the Defendant applied for the implementation period from March 25, 2008 to June 25, 2008; on the ground that “where construction is not performed, it shall be determined as the actual commencement (minimum basic construction)”; on the ground that the Plaintiff did not request the Defendant to suspend the performance of his/her duty to use the instant land for the purpose of obtaining permission for the implementation of the said land for the purpose of obtaining permission for a total of KRW 19,90 square meters of land different from two parcels of the instant land (hereinafter “instant land destruction”) (hereinafter “instant order”), and on the ground that the Defendant did not request for the alteration of form and quality alteration of the instant land (hereinafter “instant”).

3. In addition to the above facts, the court below acknowledged the facts as stated in its holding, and held that the plaintiff was obligated to use the land of this case for the permitted purpose, and the defendant also rendered permission for the land transaction contract of this case on the premise that the plaintiff should use the land of this case for the permitted purpose. Thus, the plaintiff can use the land of this case for the permitted purpose. Thus, as long as the disposition of this case was rejected and the non-permission disposition of this case cannot be deemed unlawful, the plaintiff's land of this case can not be used for the permitted purpose. Thus, the ground that the land of this case cannot be used for the permitted purpose is possible at the time of permission for the land transaction contract, and the defendant's construction of a dormitory building of this case can be permitted at the time of permission for the land transaction contract of this case, but since the land of this case was rejected for changing the form and quality of land to newly construct a dormitory at the request of this case, the plaintiff cannot use the land of this case for the permitted purpose as well as the data of this case's disposition of this case.

4. However, in light of the above legal principles, it is difficult to accept the above judgment of the court below for the following reasons.

The court below held that it is difficult to see that the Plaintiff’s failure to use the instant land for the permitted purpose on the basis that the Defendant permitted a land transaction contract on the premise that it is possible to construct a dormitory on the instant land.

However, the following circumstances revealed in the record: (a) the Defendant examined whether permission for development activities is possible in the process of examining whether the land is appropriate for the purpose of use of the land in the process of permission for the land transaction contract in this case; (b) it appears that there was no detailed review on natural landscape and aesthetic damage, environmental pollution, ecosystem destruction, risk occurrence, green-belt cutting, etc., which are the main reasons for the non-permission for the land transaction contract in this case; and (c) the Defendant notified the Plaintiff of the permission for the land transaction contract in this case, stating that “this permission is possible to enter into a land transaction contract, and it is not possible for the Plaintiff to enter into a land use contract, and if the purpose of acquisition is for the purpose of development, it is different from the permission for the land transaction contract in this case, and it is difficult to see that the Plaintiff would have obtained permission for the land use as originally planned for the purpose of use; and (d) it is difficult to 2080 square meters or more for the Plaintiff to enter into the form and quality change of land for the purpose of permission in this case.

Nevertheless, the court below held that the above circumstance alone constitutes a case where it is impossible to use it for permitted purposes due to the reasons not attributable to itself under Article 124(1)7 of the Enforcement Decree of the National Land Planning and Utilization Act due to its own fault. In so determining, the court below erred by misapprehending the legal principles on the scope of application under Article 124(1)7 of the Enforcement Decree of the National Land Planning and Utilization Act, which affected the conclusion of the judgment. The ground of appeal assigning

5. Conclusion

Therefore, the part of the judgment below against the defendant is reversed, and this part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok (Presiding Justice)