토지거래허가제의 인가적 성질 = The Land Transaction Licensing System & Its Inherent Nature of approval

다국어 초록 (Multilingual Abstract)

  Land transactions are reqcired by law to be performed under lieense. ln other words they are to be transacted within an approved area after having obtained approval from the administrative authorities. Such an approval is the integral part of making such transactions becoming valid, and anyone violating such a requirement of obtaining the approval is subject to penalties.<BR>  The land transaction licensing system originated from an idea that it would help restrain land speculation together with the rise of land prices within a given area. And as specified in the law, it has two sides of "license" and "approval" in that the Govemment guides and adjusts the transactions of private persons. ln other words land transactions are reqcired by law to obtain license and the law carries the penalties for anyone violating it. This is the clear evidenee that entering into a land transaction contract involves two sides of license and approval.<BR>  And scientifically the land transactions licensing system has an innate feature of "license" in that it prohibits an unlicensed contract and takes effect only when supported by "approval" from the administrative authorities. It also scientifically has a feature of "approval" because it becomes legally valid only when complemented by the approval from the administrative authorities.<BR>  After all the land transaction licensing system has a feature of license by law, and it also has a feature of approval when seen from a scientific aspect.<BR>  Land transaction contracts essentially adopt the licensing system. However, they also have a feature of approval as seen in the law, in the theories and judicial precedents, and in the concepts of other individual laws as weIl as in the provisions of the foreign laws.<BR>  Firstly, land transaction contracts have a feature of approval when seen by the law. This is because they become legally valid when complemented by administrative measures such as approval, necessary conditions and procedures for approval, and lose validity if not supported by such measures.<BR>  Secondly, land transaction contracts have two sides of "license" and "approval" in theories. Traditionally a theory of mandate prevailed, separating the concept of "approval" from "license". Today, a theory of two sides of "license" and "approval" is widely accepted recognizing the feature of "approval" inherent in land transaction contracts.<BR>  Thirdly, judicial precedents also uphold the feature of "approval" inherent in land transaction contracts. The Constitution Court of Korea upheld the constitutionality of the land transaction licensing system, and the features of "license" and "approval" inherent in the land transaction contracts were recognized as valid in the precedents of the Supreme Court.<BR>  Fourthly, other laws recognize the feature of "approval" inherent in the land transaction contract. Examples of such laws include "The Law Concerning Foreigner"s Acquisition of Land & Its Administration", "The Traditional Temples Preservation Law", "The Nongovernmental School Law", and "The Agricultural Land Law", all of which recognizes the feature of "approval" inherent in the land transaction contracts.<BR>  Fifthly, approval for the land transaction contracts given in foreign countries goes through the legal formalities prescribed in the law. Germany can be taken as an example. ln Germany either the land transaction contracts under the Federal Construction Law or the agricultural land transaction contracts under the Farmland Transaction Law is required by law to acquire approval.<BR>  In conclusion the feature of "approval" inherent in the la

목차 (Table of Contents)

• Abstract
  Ⅰ. 서론
  Ⅱ. 토지의 재산권 보장과 거래계약
  Ⅲ. 토지거래계약의 허 · 인가
  Ⅳ. 토지거래계약 인가에 대한 법적 성질
  Ⅴ. 결론
  참고문헌