許可없는 土地去來契約의 效力에 관한 判例 再檢討

• 영문명: An Analysis of Judicial Precedents on the Land Transaction Contracts without Permission
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 정상현(Sang-Hyun Jung)
• 간행물 정보: 『비교사법』비교사법 제12권 2호, 249~278쪽, 전체 30쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2005.06.01

영문 초록

The Article 118 of Act on the Program and Utilization for National Land provides that one who shall buy or sell the land must be acquire the gourvernment's permission and also provides that the land transaction contract without such permission should be ineffective. It aims at for restraint the speculative trade of real estate in particular area. However the general view and judicial precedents have interpreted the Article based on the Doctrine of Floating Void. Under this doctrine, a party could not demend the performance of the obligation, because prior to the permission, the contract does not carry it into effect. As legal obligations, the contracting parties must cooperate for getting the permission. If the permission is granted, the contract shall become valid definitely. And in relation to those points, judicial precedents concretely show the following facts that this permission makes the validity of a floating void, that earnest money cannot be returned as unjust enrichment and that the contracts can be canceled by buyer's giving up the money and saler's double repayment. But this doctrine and precedents cannot bar effectively any speculative trades. Because a certain seller may abuse it speculatively, that the contract without permission is null and void. Namely, the typical form of those speculative trades is that after the seller made contracts without permission on the trades of real estate in special region, while he delays the acquisition of permission intentionally, induces other buyers to contract double or triple trades, finally he transfers and registers own property to the buyer who proposed the highest price. In this case, if the first contract without permission was null and void, the seller should not violate the first buyer's faith, he also should not breach any duties that have to cooperate for the first buyer in order to acquire the permission and registration. Because the floating void, voidance and nullity of contracts means that any legal duty or obligation does not exist. Therefore it is appropriate view that the contract without permission is valid, provided that its effect ought to be suspended until the acquisition of permission. This article suggests that the permission for land transaction is the legal suspensive condition, and the legal duty of cooperation for getting the permission ought to be recognized from the provisional validity of contract. Also suggests, the contract carries it into effect definitely when the legal suspensive condition(permission) is fulfilled, and therefore the obligations of contractant, such as payment and registration, are actualized by the acquisition of permission. A legal effect of like this can be founded out of following. That is to say, because the Article 148 of Korean Civil Law provides that the rights and duties of the parties during the pendency of a condition may be disposed of, inherited, preserved or secured in accordance with the general rules, even if the permission as legal suspensive condition does not be acquired, the land transaction contract carries it into effect. Furthermore the legal foundation of a cooperative duty, for the applications of permission and registration, based on the Article 148 of Korean Civil Law referring to prohibition for infringement of conditional right and Article 150 referring to prohibition for the anti-fidelity behaviors of contractant in acquisition of condition.

목차

Ⅰ. 序論

Ⅱ. 國土計劃利用法上 許可 없는 土地去來契約의 效力

Ⅲ. 具體的인 判例의 動向과 檢討

Ⅳ. 結論

[참고문헌]

【ABSTRACT】