法律行爲의 要件體系와 土地去來許可

• 영문명: The Conditions of Contract and the Permission of Land Transaction
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 鄭相鉉(Sang-Hyun Jung)
• 간행물 정보: 『비교사법』比較私法 제15권 제2호, 167~213쪽, 전체 47쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2008.06.01

영문 초록

  The Article 118 of Program and Utilization for National Land Development Act provides that one who shall buy or sell the land must be acquire the gourvernment"s permission, for restraint the speculative trade of real estate in particular area. It also provides that the land transaction contract without such permission should be ineffective. 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. But this doctrine cannot bar effectively any speculative trades. Moreover it is a theoretical repugnance that the legal duty of cooperation for getting the permission is based upon the validity of contract, while the contract without permission is null and void.
  Therefore it is necessary to conceive a new idea for solution of this matter. 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 special condition. For the conditions of general contract, the general view have interpreted them to devide the condition of conclusion and the condition of effect. But this division of conception is incorrect from a different standpoint. In view of the nature of contract, it cannot be admitted that a contract concluded is ineffective. I think that there two kinds of conditions for the effective contract. The one is general conditions, that is to say, contractant of capacity, corrective intention, accordance of offer and acceptance, moral and lawful purposes, the other one is special conditions, that is to say, right representative, acquisition of permission, achievement of suspended condition, etc.
  Therefore I suggests that all contracts are effective when the general condition is fulfilled, and the legal duty of cooperation for getting the permission ought to be recognized from the provisional validity of contract. And also suggests, the contract carries it into effect definitely when the special condition(permission) is fulfilled, and therefore the obligations of contractant, such as payment and registration, are actualized by the acquisition of permission.

목차

Ⅰ. 서설
Ⅱ. 허가 없는 토지거래계약의 효력에 대한 이론전개
Ⅲ. 법률행위의 요건체계와 토지거래허가
Ⅳ. 결어
【참고문헌】
[Abstract]

키워드

토지거래허가 인가 국토의 계획 및 이용에 관한 법률 국토이용관리법 유동적 무효 위헌법률심판 토지거래법 국토이용계획법 정지조건 투기거래 허가협력의무 Condition of Contract Permission Land Transaction Program and Utilization for National Land Development Act Doctrine of Floating Void Legal Duty of Cooperation for Getting the Permission Validity General Conditions Contractant of Capacity Corrective Intention Accordance of Offer and Acceptance Moral and Lawful Purposes Special Conditions Right Representative Acquisition of Permission Achievement of Suspended Condition