농지취득자격증명이 없는 농지거래행위와 소유권이전등기의 효력

Abstract

According to the Article 19 of previous Farmland Reform Act, the owners could buy and sell the farmland on their own acquiring farmland purchase and sale certificate, and the certificate was proof of permission and held constitutional effectiveness which one could not make contract. Without the certificate, the registration of ownership transfer as well as farmland purchase and sale has invalidity. However, the qualification certificates for acquisition of farmland in the Article 8 of current Farmland Act are only as a simple confirmation which does not have constitutional effectiveness. In addition, according to the Article 6 of the same Act, the person who acquires the farmland is not obligated to have an intention for self-cultivating or self-management of the land. Therefore, the precedent that the ownership is not acquired without qualification certificates for acquisition of farmland even though the registration of ownership transfer on farmland is completed is unjustified, while not regarding qualification certificates for acquisition of farmland as constitutional effectiveness. On the other hand, the seventh phrase of first clause of Article 10 in Farmland Act states that where it has been proved that the farmland was acquired with the qualification certificate for acquisition of farmland issued by fraudulent or other unjust means, an owner of farmland shall dispose of the farmland within one year from the date of occurrence of the relevant cause, so the buyer acquires ownership of the farmland. No phrases indicates deny of effectiveness of farmland transaction without qualification certificates for acquisition of farmland. Therefore, to accomplish a principle of farmer ownership, it is desirable to revise the fourth clause of Article 8 in Farmland Act as following; "Farmland transaction shall be nullified without the rightful certificate complied in Article 1". Meanwhile, according to auction practice, the highest-bidding declared buyer needs to submit the qualification certificates for acquisition of farmland as the special sale condition by the date of decision to sell. Since auction is judicially defined as transaction, legal principles of civil law are applied as long as the transaction does not violate the regulation of civil execution act. Therefore, if highest-bidding declared buyer does not submit the qualification certificates for acquisition of farmland by the date of decision to sell, it could be a reason for non-permission of sale. Even if bidders have paid the price according to decision on permission of sale by a court of execution, the auction shall be invalid since the condition is disqualified. In conclusion, special transaction conditions have constitutional effectiveness in auction transactions.