土地去來의 許可取得을 위한 協力義務 違反과 契約解除

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 government'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 demand 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. 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. On the ground of such a premise, one who violates the first buyer's faith or breaches own cooperative duty must be punished criminally, and as a result, the speculative double trades of real estate committed by seller shall be restrained successfully. And there are many duties to contracting parties in all of the contracts. For example, dealing in land, seller has to transfer the ownership and buyer has to pay the money. Those are to say major duties. In addition to those, they have to pay attention to performance of major duties and have to protect their bodies, other properties, each other. Those are to say minor duties. In generally, when the one of contracting parties violates the major duties, the other side can dissolve the whole contract, but when the one of contracting parties violates the minor duties,the other side can not dissolve the whole contract and he can only ask for damages. Especially, in land transaction of particular area appointed by government, the contracting parties who shall buy and sell the land must be acquire the government's permission, and they have to cooperate for getting the permission. Those duty of cooperation for getting the permission is also the one of minor duties. But in case of this, for the transfer of land ownership between buyer and seller, they have to acquire the permission. In a certain means, the acquisition of permission is the prerequisite and material, essential element for purpose of contract to transfer the ownership, and the cooperating duty for getting the permission has also same character. Therefore when the one of contracting parties violates the cooperating duty for getting the permission, the other side has not only the right of asking for damages but also the right of dissolution the whole contract.