The validity of the above sales contract where the parties to the contract agree to invalidate the sales contract where the parties to the contract are unable to obtain land transaction permission in the contract for the site located within the zone subject to land transaction permission (negative)

In full view of the provisions of Articles 21-2(1), 21-3(1) and (7) of the Act on the Utilization and Management of the National Territory, Article 23 of the Enforcement Decree of the same Act, and Article 31-2 of the same Act, the purport of the above Act is to achieve the purpose of suppression of speculation, suppression of land price, etc. by prohibiting the conclusion of a contract which has the obligatory binding force between the parties prior to the permission of the competent Do Governor, and it is reasonable to deem that the contract prior to the permission of the competent Do Governor is null and void as an act of crime in violation of Article 21-3(7) of the above Act or Article 31-2 of the above Act, since the contract is entered into for a site located within the land transaction permission zone, if the parties to the contract agree to invalidate the contract if the land transaction permission is not obtained between the parties to the contract, such agreement is a contract for cancellation of land transaction, and thus, is null and void.

Article 151 of the Civil Act, Articles 21-2(1), 21-3(1), 21-3(7), and 31-2 of the Act on the Utilization and Management of the National Territory

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Lee Dong-young et al., Counsel for plaintiff-appellant)

[Plaintiff-Appellant] Park Yong-ro, Counsel for plaintiff-appellant

Defendant Kim Jong-dae, Counsel for the defendant-appellant

Daegu District Court Decision 90Na7508 delivered on January 18, 1991

The judgment below is reversed, and the case is remanded to Daegu District Court Panel Division.

The grounds of appeal are examined.

1. The lower court: (a) on March 23, 1989, the Plaintiff purchased the instant land and its ground buildings owned by the Defendant from the Defendant on 93,00,000 won; (b) on the date of the contract, an intermediate payment of KRW 30,000,000 shall be paid on April 10 of the same year to the Plaintiff; (c) on the grounds that the seller violated the contract, two times the down payment shall be paid to the Plaintiff; (d) on the date of the contract, the Plaintiff did not have any obligation to claim the return of the down payment if the Plaintiff violated the contract; and (e) on the date of the contract, the Plaintiff did not lawfully receive the down payment of KRW 10,00,000 from the Plaintiff on March 30, 1989; and (e) on the date of the contract, the Defendant notified the Plaintiff of the fact that the said contract was cancelled on March 30, 1989, and the Defendant did not have any obligation to claim the down payment to the said Plaintiff on the same day.

2. According to Article 21-2 (1) of the Act on the Utilization and Management of the National Territory, the Minister of Construction and Transportation may designate a zone where speculative land transactions are character and conduct or are likely to increase rapidly, and the land price may increase or increase rapidly, as a regulatory zone for a fixed period not exceeding five years. According to Article 21-3 (1) of the Act and Article 23 of the Enforcement Decree of the Act, the parties who intend to enter into a contract or pre-contract for the transfer or establishment of the ownership, superficies, lease right, etc. of the land located within the regulatory zone shall jointly obtain permission from the competent Do governor. Article 21-2 (7) of the Act provides that the contract for the land, etc. entered into without such permission shall not take effect, and Article 31-2 of the Act provides that the person who has obtained permission for the contract for land, etc. in violation of Article 21-3 (1) shall be subject to criminal punishment without permission or by fraudulent or other illegal means. In full view of the above provisions, the purport of the Act is to achieve Article 19-19 (2) of the Act.

According to the court below's legal determination, the land of this case is located within the land transaction permission zone, and the plaintiff and the defendant agreed to invalidate the contract of this case where the land transaction permission for the land of this case is not obtained at the time of the contract of this case, and the contract of this case, which is subject to the condition of rescission of land transaction non-permission, shall be null and void as a criminal act in violation of Article 21-3 (7) of the above Act or Article 31-2 of the above Act.

However, on the premise that the contract of this case between the plaintiff and the defendant is valid, the court below ordered the defendant to pay a sum of KRW 10,000,000 as the liquidated damages according to the terms and conditions of the contract. The court below erred by misunderstanding the legal principles on the validity of the contract in violation of the Act on the Utilization and Management of the National Territory, which affected the conclusion of the judgment.

3. Therefore, without examining the remaining grounds of appeal, we reverse the judgment below and remand the case to the Daegu District Court Panel Division. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Woo-soo (Presiding Justice)