[1] The case where a contract in a state of dynamic invalidation is finally null and void without permission for land transaction

[2] In a case where an insolvent debtor entered into a sale contract with a third party for his own share of land located within the land transaction permission zone, and designated a third party as the priority beneficiary and entrusted the share of the above land to a trust company without any land transaction permission, and the creditor filed a lawsuit for cancellation of a trust and received a final and conclusive judgment in favor of the trust company, the case holding that it is reasonable to deem that the debtor's obligation to transfer the ownership of the third party to the third party cannot be expected to be performed by social norms, and therefore, the above sale contract in the state of flexible invalidation has become null and void finally and conclusively

[3] In a case where a contract which forms the legal relationship between a abortion and a summary in a contract for a third party is null and void or cancelled, whether the abortionr may seek the return of the contract against the third party on the ground of restitution based on the termination of the contract or unjust enrichment (negative)

[4] In a case where a seller Gap and Eul entered into a contract with a third party for the share of land in a land transaction permission zone and the buyer Eul paid the purchase price to Byung, and thereafter the buyer Eul paid the purchase price to Byung, and the above contract becomes null and void finally, the case holding that Eul cannot seek a return of unjust enrichment equivalent to the purchase price to Byung, barring any special circumstance, on the ground that the liquidation of the contract relationship should be conducted between Gap and Eul, a summary, and Eul, who was the weak and the weak

[1] In a case where a transaction contract is in a state of flexible invalidation due to a land transaction permit under the National Land Planning and Utilization Act, not only when there is a non-permission disposition by the competent authority, but also when both parties clearly express their intent to refuse the performance of the duty of permission and cooperation, a contract in a state of flexible invalidation shall not be deemed to continue to be the relationship between the former transaction contract, i.e., the flexible invalidation of the contract, and its contractual relationship shall be deemed to be null and void finally, and such legal principle also applies in a case where it is apparent that a party’s obligation under the contract is impossible to perform and the other party does not continue to continue

[2] In a case where a insolvent debtor entered into a sale contract with a third party for his own share of land located within the land transaction permission zone, and designated a third party as a priority beneficiary and entrusted the share of the above land to a trust company without obtaining land transaction permission, and the creditor filed a lawsuit for cancellation of a trust with a trust company, the case holding that, in a case where the creditor, based on the judgment, is anticipated to cancel the trust registration completed in the trust company in the future of the trust company, and commence compulsory execution against the debtor, it is reasonable to deem that the debtor's obligation to transfer the ownership of the third party under the above sale contract has reached the impossibility of performance as it is impossible to expect the performance by social norms, and therefore, the above sale contract in the state of flexible invalidation has become null and void.

[3] In a case where a contract which forms the legal relationship between the abortion and the summary in a contract for a third party is invalidated or terminated, the liquidation of the contract shall be performed between the abortion and the summary who are the party to the contract. Thus, even if the abortion has already been paid to the third party, the abortion may not seek the return of the contract against the third party on the ground of restitution or unjust enrichment due to the termination of the contract, etc., even if the abortion has already been paid to the third party.

[4] In a case where a seller Gap and Eul entered into a contract with a third party for the share of land in a land transaction permission zone and the buyer Eul paid the purchase price to Byung, and thereafter the buyer Eul paid the purchase price to Byung, but the above contract becomes null and void as a flexible invalidation due to the lack of land transaction permission, the case holding that Eul cannot seek a return of unjust enrichment equivalent to the purchase price to Byung, barring special circumstances, since the liquidation of the contract is performed between Gap and Eul, a summary, and Eul, a weak person

[1] Article 118(1) and (6) of the National Land Planning and Utilization Act, Article 546 of the Civil Act / [2] Article 118(1) and (6) of the National Land Planning and Utilization Act, Article 546 of the Civil Act / [3] Articles 539, 548, and 741 of the Civil Act / [4] Articles 539 and 741 of the Civil Act, Article 118(1) and (6) of the National Land Planning and Utilization Act

[1] Supreme Court Decision 97Da4357, 4364 delivered on July 25, 1997 (Gong1997Ha, 2682) / [3] Supreme Court Decision 2005Da7566, 7573 Delivered on July 22, 2005

KCFS Specialized Company

Defendant (Attorney Kim Jae-chul, Counsel for the defendant-appellant)

Seoul High Court Decision 200Na11488 decided May 2, 200

Seoul High Court Decision 2009Na77015, 112710 decided March 19, 2010

The appeal is dismissed. The costs of appeal are assessed against the independent party intervenor.

We examine the grounds of appeal.

1. As to the validity of the instant sales contract

In a case where a contract is in a state of flexible invalidation due to a land transaction permit under the National Land Planning and Utilization Act, and where both parties clearly express their intent to refuse the performance of the duty to cooperate with the permission, a contract in a state of flexible invalidation shall not be deemed to continue not only when a permission is granted by the competent authority, but also when both parties express their intent to refuse the performance of the duty to cooperate with the permission, and the contract relationship shall be deemed to be null and void on a conclusive basis. The same legal principle applies to a case where it is obvious that one party’s obligation is impossible to perform and the other party’s existence of the contract is no longer (see Supreme Court Decision 97Da4357, 4364, Jul. 25, 1997, etc.).

Meanwhile, in light of the empirical rules or the concept of transaction in a social life rather than simply an absolute and physical impossibility, a creditor is unable to expect the realization of a debtor’s performance (see, e.g., Supreme Court Decisions 96Da14616, Jul. 26, 1996; 200Da22850, Jan. 24, 2003).

According to the facts established by the court below and the records, the plaintiff received 17,401,363,368 won and damages for delay from the non-party specialized in the exchange of K assets. As of April 17, 2008, the principal and interest claim amounting to 28,54 won as of April 17, 2008. However, active property of the non-party is merely 16,728,398,98,983 won and thus, it is impossible for the non-party to file a lawsuit against the non-party 2 to cancel the registration of land transaction with the non-party 1, 237,062 square meters (hereinafter referred to as "the non-party 200,000,000 won) on the ground that the non-party 2 was not entitled to the non-party 70,000,000 won and the non-party 1,000,000 won (hereinafter referred to as "the non-party 1,070,0,0

Examining these facts in light of the legal principles as seen earlier, it is anticipated that the Plaintiff, who was subject to the judgment of revocation of the above private trust, will cancel the registration of the trust completed in the future of the land trust on the basis of the judgment, and commence compulsory execution based on the claim against the Nonparty against the Nonparty. Since the Nonparty is insolvent, it is no reason to block this. Therefore, it is reasonable to deem that the Nonparty’s obligation to transfer ownership to the Intervenor based on the sales contract of this case was impossible to expect the performance under the social norms, and therefore, the sales contract of this case, which was in a flexible invalidation, has become final and conclusive.

Nevertheless, the lower court determined otherwise that the instant sales contract still remains in a state of dynamic invalidation. In so doing, it erred by the lower court’s determination.

2. As to whether the intervenor's request for return of unjust enrichment was made or not

In a case where a contract which forms a legal relationship between a abortion and a summary in a contractual relationship for a third party is null and void or cancelled, the liquidation of the contractual relationship shall be conducted between a person who is a party to the contract and a summary. Thus, even if the abortion has already been paid to a third party, the abortion may not seek the return of the contractual relationship against the third party on the ground of restitution or unjust enrichment based on the termination of the contract, etc. (see Supreme Court Decision 2005Da7566, 7573, Jul. 22, 2005, etc.).

In preparation for the facts as seen earlier, it is deemed that the Nonparty and the Intervenor’s payment of KRW 1.2 billion to the Defendant under the instant sales contract is a contract for a third party. However, the instant sales contract was finally null and void as seen earlier, but the liquidation of such contractual relationship should be made between the Nonparty and the Intervenor, who is a summary of the contractual relationship, and thus, barring any special circumstance, the Intervenor may not seek a return of the amount equivalent to the purchase price paid to the Defendant, who is the beneficiary, as unjust enrichment.

Therefore, the court below's rejection of the Intervenor's claim against the Defendant is just, and the judgment below's error does not affect the conclusion of the judgment. The court below did not err in violation of the rules of evidence, incomplete hearing, or misapprehension of legal principles as

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Young-ran (Presiding Justice)