土地去來許可區域 內의 土地收用과 收用補償金에 대한 買受人의 權利

Abstract

In general, the Korean Supreme Court affirms that a buyer has the right of claim on the substitutional compensation money when the seller receives the money on the basis of expropriation. Such a decision is recognized by the assumption that the sales contract is valid. But in this case, the object of sales contract is the land in the Area of Transaction by Permission. In Korea, for the restraint of speculative trade of real estate in particular area, Article 118 of Program and Utilization for National Land Development Act provides that one who shall buy or sell the land in particular area must acquire the permission of government. It also provides that the contract without such permission should be ineffective. The general view and judicial precedents have interpreted the Article on the basis of the Doctrine of Floating Void.1Under this doctrine, a party could not demand to the other party the performance of the obligation, because prior to the permission, the contract does not carry it into effect. If the permission is granted, the contract shall be valid definitely. Therefore, in this case, the Supreme Court does not recognize the buyer's right of claim on the compensation money based on expropriation. But I think that such attitudes of judicial precedents should be criticized in comparison with prior two decisions of the Supreme Court which the contract without permission should be ineffective and the buyer has a right of claim on the substitutional compensation money without legal sources in the expropriation. The following explains in detail. The first, the Supreme Court decides that the contract without permission in particular area should be ineffective, but it also decides that the contracting parties must cooperate for getting the permission as legal obligations.2That is to say, it affirms that the parties of contract can not refuse the performance of cooperating obligation3and the one party must pay for damages to the other party on the basis of non-performance of cooperating obligation.4Moreover it decides that, as unjust enrichment, the one party cannot demand the repayment of the earnest money which he had payed to the other party on the time of contract.5And it also decides that the permission of transaction is not the "permission" of trade prohibited by law but the "authorization" toward the effect of contract.6 However the Doctrine of Floating Void created by the Supreme Court cannot bar effectively any speculative trades, and moreover it is a theoretical repugnance. Because, while the Doctrine of Floating Void by the Supreme Court has the assumption which the contract without permission is null and void in particular area, the Supreme Court recognizes that the parties of contract have the legal duty of cooperation for getting the permission, the refusal of repayment of the earnest money as unjust enrichment, and the regard the "permission" as the "authorization" on the basis of the validity of contract. Therefore it is appropriate view that the permission for transaction in special area should be the special condition for the transfer of property. I think that the contract without permission has a general validity if it meets the general qualifications, and the legal duty of cooperation for getting the permission ought to be recognized from the general validity of contract. Also I think that the contract carries it into effect definitely when the special condition is fulfilled, and therefore the obligations of contracting parties, such as payment and registration, are actualized by the acquisition of permission. The second, the Supreme Court decides that the buyer has the right of claim on the compensation money when the seller receives the money on the basis of expropriation.7About the origin of the decision, the Supreme Court also decides that there is no reason to deny the buyer's right, even if the Korean Civil Code does not provide the right. But, for grant a legal right to the parties of contract, the legal sources must be in existence, and the necessity to correct the unfairness or inequity between the parties must be distinct. Our Civil Code provides that if the seller cannot perform the contractual obligations by his mistakes, the buyer may recover damages by the claim for compensation, and it also provides that if the seller cannot perform the contractual obligations without seller's faults, the seller cannot demand the payment of the sales money of the buyer on the basis of the risk of loss. In spite of such buyer's protective means, it is too inequal for the buyer to demand additionally the payment of the substitutional compensation money which the seller had received on the basis of expropriation. Therefore, in this case, it is very good decision that the Supreme Court denies the buyer's claim definitely, but it is very hard to understand that the reason of denial exists the void of contract without permission. I think that the land transaction contract without permission should be valid but the buyer has not the right of claim on the substitutional compensation money.