許可 없는 土地去來契約의 效力에 관한 法理 小考

허가 없는 토지거래계약의 효력을 법리적으로 검토한다.

For restraint the 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 must be acquire the gourvernment's pemnssion. It also provides that the land transaction contract without such pemrlssion should be ineffective. However the general view and judicial precedents have interpreted the Article based on the Doctrine of Floating Void. Under tills doctrme, a party could not demend the performance of the obligatIon, because pnor to the pemnssion, the contract does not canry It into effect. As legal obligations, the contracting parties must cooperate for getting the pemrlssion.

If the pemnssion is granted, the contract shall become valid definitely. But this doctrine CaJmot bar effectively any speculative trades. Moreover it is a theoretical repugnance that the legal duty of cooperation for getting the pemrlssion IS based upon the valicl1ty of contract, while the contract Without pemnssion is null and void Therefore it is appropnate view that the contract Without pemrlssion is valid, provided that Its effect ought to be suspended until the acquisition of pemrlssion.

Tills article suggests that the pemnssion for land transaction is the legal provisional concl1tion, and the legal duty of cooperation for getting the pemrission ought to be recognized from the provisional vallcl1ty of contract. Also suggests, the contract carnes It into effect definitely when the legal provisional condition(pemrlssion) is fulfilled, and therefore the obhgations of contractant, such as payment and registration, are actualized by the acquisition of permission.

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 contraction.