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임명순(Lim, Myeong Soon),정상현(Jung, Sang Hyun) 성균관대학교 법학연구소 2010 성균관법학 Vol.22 No.2
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.
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이상원(SANG-WON LEE),임명순(MYEONG-SOON LIM) 한국민간경비학회 2007 한국민간경비학회보 Vol.10 No.-
이 연구의 목적은 국내외 정세의 변화에 따른 국내 치안수요의 변화와 전망 등을 예측하여 보고 특히 선진국의 민간경비 산업의 전망 등을 분석한 결과들을 토대로 하여 한국의 민간경비산업의 동향을 분석하여 그 문제점을 파악하고, 이를 토대로 발전방안을 제시하고자 한다.<BR> 현대의 사회생활이 점점 다양해지고 복잡해지면서 우리의 안전한 삶을 위협하는 다양한 위험요인들이 존재하는데, 그 중에서도 점점발생건수가 늘어나고 수법이 지능화ㆍ신속화ㆍ흉포화 되어 가는 범죄문제는 많은 사회구성원들에게 두려움을 주는 심각한 문제이다.<BR> 그 동안 우리나라는 지속적으로 민간경비 산업 분야에 있어서 많은 수요가 증가되고 요청되어 왔음에도 불구하고 그 수준은 아직 미국이나 일본의 경우와 단순 비교를 통해서 볼 때 법적으로나 제도적으로 정비해야 할 과제가 상당히 남아있는 실정이다. Despite the drastic and consistent increase in demand for the civilian guard industry in South Korea, when compared to the level of that industry in the United States or Japan, there are still various problems to be fixed in a legal or systematic manner.<BR> The civilian guard industry is expected to satisfy the diverse demands for crime-prevention of each social stratum resulting from the deepening of urbanization and industrialization and is expected to solve the safety problems of the citizens caused by limitations of police powers.<BR> The purpose of this research is to predict the changes and prospects for Korea"s demands for public safety resulting from the changes faced by domestic as well as international circumstances. Based on the results of analyzing the prospects of the civilian guard industry of different developed nations, the trend of Korea"s civilian guard industry will be analyzed and its problems identified, in order to propose a plan for development.
ScienceON
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