[1] In a case where a person who obtained permission for a land transaction contract does not specify that the land should be used directly, whether the permitted person can be deemed not to have used the land for the permitted purpose (negative in principle)

[2] Requirements for the application of Article 124-3 (3) 2 of the Enforcement Decree of the National Land Planning and Utilization Act

[1] Article 124(1) of the former National Land Planning and Utilization Act (amended by Act No. 9442 of Feb. 6, 2009) provides that a person who has obtained permission for a land transaction contract shall use the land for the permitted purpose. In this case, as a matter of principle, the purpose of permission should be indicated in the permission for a land transaction contract. Thus, barring any special circumstance, barring any special circumstance, it cannot be deemed that the permitted person did not use the land for the permitted purpose, even if he leased the land without directly using the land.

[2] Article 124(1) of the former National Land Planning and Utilization Act (amended by Act No. 9442 of Feb. 6, 2009; hereinafter “National Land Planning Act”) provides that the enforcement fine under Article 124-3(3) of the Enforcement Decree of the National Land Planning and Utilization Act regulating the amount of enforcement fine to be imposed on a person who fails to comply with an order to perform the obligation to utilize the land under Article 124(1) of the former National Land Planning and Utilization Act shall be the amount equivalent to 7/100 of the acquisition value of the land (hereinafter “Enforcement Decree provision of this case”). The enforcement decree of this case provides that the amount of enforcement fine under Article 124-2(2) of the former National Land Planning and Utilization Act shall be determined within the limit of 10/100 of the acquisition value of the land, and it does not newly provide for the obligation to use the land, and thus, it shall be applied only to the case where a person acquires another person’s land by obtaining permission for land transaction contract.

[1] Article 124(1) of the former National Land Planning and Utilization Act (amended by Act No. 9442 of Feb. 6, 2009) / [2] Articles 124(1) and 124-2(2) of the former National Land Planning and Utilization Act (amended by Act No. 9442 of Feb. 6, 2009), Article 124-3(3) of the Enforcement Decree of the National Land Planning and Utilization Act

[1] Supreme Court Order 2008Ma414 Decided May 19, 2008 (Gong2008Ha, 887) Supreme Court Order 2009Ma218 Decided May 14, 2009

Plaintiff (Law Firm Tae & Yang LLC, Attorneys Choi Gyeong-jin et al., Counsel for the plaintiff-appellant)

The head of Gangseo-gu Seoul Metropolitan Government (Law Firm Hanm, Attorneys Kim Jong-soo et al., Counsel for the plaintiff-appellant

Seoul High Court Decision 2011Nu2516 decided February 10, 2012

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 2 and 5

A. Article 124(1) of the former National Land Planning and Utilization Act (amended by Act No. 9442, Feb. 6, 2009; hereinafter “former National Land Planning Act”) provides that a person who has obtained permission for a land transaction contract shall use the land for the permitted purpose. In such cases, the purpose of the permission should be based on the entry of the permission for a land transaction contract in principle (see, e.g., Supreme Court Order 2006Ma658, Jul. 13, 2006; Supreme Court Order 2008Ma414, May 19, 2008; Supreme Court Order 2009Ma218, May 14, 2009; etc.). Unless there is any special circumstance that a person who has obtained the permission for a land transaction contract should directly use the land, the permission person cannot be deemed to have used the land for the permitted purpose, even if he did not directly use the land.

Meanwhile, Article 124-3(3)2 of the Enforcement Decree of the National Land Planning and Utilization Act, which regulates the amount of enforcement fines to be imposed on a person who fails to perform an order to use the land under Article 124(1) of the former National Land Planning and Utilization Act, provides for the amount equivalent to 7/100 of the acquisition value of the land where “where a person who acquired the land by obtaining permission for land transaction contract leases the land without direct use” (hereinafter “Enforcement Decree provision of this case”). The enforcement Decree of this case only sets the specific standard for enforcement fines according to the purport delegated within the limit of 10/100 of the acquisition value of the land by enforcement fines, and it does not newly set the details of the duty to use the land. Thus, Article 124(1) of the former National Land Planning and Utilization Act applies only where a person who acquired the land by obtaining permission for land transaction contract is deemed liable to directly use the land.”

B. However, on the basis that Article 119 subparagraph 1 (e) of the former National Land Planning Act, which provides for the permission criteria for land transaction permission of this case, limits the subject of use of the land in addition to the purpose of use of the land, the lower court, based on the premise that the Plaintiff was obligated to directly use the land of this case on the ground that the Plaintiff did not directly use the land of this case for the purpose of permission and the disposition imposing the enforcement fine of this case which applied the Enforcement Decree provision of this case, etc. on the ground of the reasons indicated in its reasoning, determined that there was no ground for invalidation in the disposition imposing the enforcement fine of this case which applied the instant land transaction contract of this case. The lower court rejected the Plaintiff’s assertion that the Plaintiff did not violate the former National Land Planning Act, without directly holding

C. First, among the reasoning of the judgment below, the part that the enforcement decree of this case did not deviate from the delegation scope of Article 124-2(2) of the former National Land Planning and Utilization Act is not unlawful as it is in accordance with the

However, the judgment of the court below to the effect that the Plaintiff is obligated to directly use the instant land on the sole basis of the provisions of subparagraph 1 (e) of Article 119 of the former National Land Planning and Utilization Act, without considering the details stated in the permission for land transaction contract as to the instant land, is inconsistent with the aforementioned legal principles. In addition, according to the reasoning of the judgment below and the evidence duly admitted, the permission for land transaction contract as to the instant land transaction permission, as alleged by the Plaintiff, merely stated the “business” as the purpose of use, and did not indicate that the Plaintiff directly uses the instant land or carries on business. Thus, barring any special circumstances, even if the Plaintiff leased the instant land without directly using it pursuant to the aforementioned legal principles, it cannot be deemed that it was not used for the permitted purpose. On the premise that the Plaintiff is obligated to directly use the instant land, there is a defect in violation of the provisions of the former National Land Planning and Utilization Act in the disposition imposing enforcement

D. Therefore, the above judgment of the court below is erroneous in the misapprehension of legal principles as to land use obligations where only the purpose of use is specified in the permission of land transaction contract, and failing to exhaust all necessary deliberations, which affected the conclusion of

As such, the part concerning the primary claim of the lower judgment should be reversed, and so long as the part concerning the primary claim is reversed, the part concerning the primary claim shall also be reversed without the need to determine the grounds of appeal as to it.

2. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment below is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)