The defendant shall pay to the plaintiff 27,10,000 won with 5% interest per annum from October 29, 2014 to May 30, 2017, and 15% interest per annum from the next day to the day of full payment.

2. The defendant's remaining appeal is dismissed.

3. Of the total litigation costs, 60% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

The defendant shall pay to the plaintiff 105,250,000 won with 15% interest per annum from the day after the delivery of a copy of the complaint of this case to the day of complete payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

The reasons stated in this part are as follows, given that there are reasons for the judgment of the court of first instance other than those to be used or added as follows, they are cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.

A. The part to be dried

On October 4, 2013, the Seoul Special Metropolitan City amended the "Standards for Installation of Facilities and Installation of Annexed Parking Lots" on October 4, 2013. "(1) Seoul Special Metropolitan City amended the "Seoul Special Metropolitan City Ordinance on the Establishment and Management of Parking Lots" on October 4, 2013. The Seoul Special Metropolitan City amended the "Seoul Special Metropolitan City Ordinance on the Installation and Management of Parking Lots" on October 4, 2013, and the "Standards for Installation of Facilities and Installation of Annexed Parking Lots 2" [Attachment 2] was also amended.

B. Additional parts

○ The first instance court's decision is 'the summary of the defendant's assertion'. Part 7 of the 'the summary of the defendant's assertion is added to the following as follows:

“4) Even if the instant consulting contract is valid, brokerage commission for illegal real estate brokerage should be deducted from the amount agreed upon under the instant consulting contract, and the amount of agreement stipulated under the instant consulting contract should be reduced drastically because it is excessively excessive.”

3. Determination

A. Nature of the instant consulting contract

The first instance court determined that the instant consulting contract cannot be deemed to be an ordinary real estate brokerage contract, and it is reasonable to deem that at least the elements of the instant real estate consulting contract are included, considering the circumstances cited by the first instance court. Considering the circumstances added under the circumstances cited by the first instance court, such a determination by the first instance court is justifiable.

Therefore, this court's reasoning is acceptable in accordance with the main sentence of Article 420 of the Civil Procedure Act, since it is identical to the reasoning of the judgment of the first instance except for the following addition.

○ On the 9th decision of the first instance court, the following shall be added.

“Around the time of the conclusion of the instant consulting contract, the instant building was interrupted by the Defendant’s large-scale repair work to change the purpose of use to a hospital. At that time, the inside of the instant building was exposed to concrete walls and ceilings without completion of the construction work, such as electricity, pipes, or windows, entrance doors, seals, etc., and without completion of the construction work, and the outside of the building was installed of concrete walls and ceilings, and the outside of the building was installed. When selling such building in such a state, the obligation of the sales price or the seller’s sales contract may vary depending on whether the construction is continued or whether the construction is modified, etc. In addition, the seller may demand that the buyer do not make any administrative defects related to the construction, and thus, it would be necessary for the seller to observe his own interest in each case, and to perform duties based on the knowledge and knowledge related to the construction and construction work to prepare for this. The Defendant appears to have concluded the instant consulting contract with the Plaintiff to carry out such duties together with the sale and purchase of the instant real estate.”

B. Whether the Plaintiff provided consulting services

(i) distinguish between real estate consulting and brokerage;

In general, the term "real estate consulting" means advice or presentation of resolution methods with respect to measures for efficient use of real estate and all related matters. On the other hand, the term "mediation" subject to the regulation of the Licensed Real Estate Agents Act refers to the mediation of sale, exchange, lease, and other gain, loss, and transfer of rights between the parties to a transaction with respect to the object of brokerage, such as land, buildings, etc. under Article 3 of the same Act. In light of the purport of the legal provisions that aim to protect the parties to a transaction, the determination of whether a certain act constitutes brokerage shall be based on whether a broker's act is objectively deemed as an act for brokerage and good offices in light of social norms (see, e.g., Supreme Court Decision 2012Da5883, Dec. 26, 2013).

2) The plaintiff's assertion

The Plaintiff provided consulting services under the instant consulting contract so that the alteration of the purpose of use to the convalescent hospital for the instant building can be made. Accordingly, the Defendant could sell the instant building to F without cancelling the instant sales contract.

① New design drawings and fire-fighting drawings based on the premise that the instant building is operated as a convalescent hospital were produced.

② A new statement on the subject of treatment of sewage facilities and the sewage volume calculation report for the building of this case, the table of fire-fighting installation plan, and the invoice of fire-fighting pressure water delivery system, etc. were prepared.

③ Along with the foregoing documents, the F would be subject to a secondary building permit.

④ From February 2014 to the date of the closing of argument in the first instance trial, F and Nonparty F provided consultation necessary for the change of use of the instant building with a direct call of ten or more times more than 100 times.

⑤ Data, etc. necessary to change the use of the instant building was provided from time to time with F or Defendant-related persons.

(6) On March 11, 2014, F prepared a new parking lot drawing for the instant building and sent it by e-mail to F, thereby enabling the instant building to change its use into the convalescent hospital, even if the site for the instant attached parking lot is not otherwise secured, in addition to the instant land.

3) As to whether each of the services alleged by the Plaintiff constitutes the act of providing consulting services or not

We examine whether each of the services alleged by the Plaintiff was actually provided to the Defendant or F, and whether each of the above services constitutes consulting services.

(A) to obtain a secondary construction permit by drawing up documents such as design drawings (i.e., (ii), and (iii)

According to the purport of Gap's evidence Nos. 2, 16, 19 through 21, and 23 through 26 and the overall arguments and arguments, the first building permit concerning the building of this case is that the purpose of use is to be changed from neighborhood living facilities to medical facilities (a hospital) and permission to make a large-scale repair for this purpose. F purchased the building of this case to use it for the purpose of medical facilities (a convalescent hospital) unlike the first building permit, and accordingly, purchased the building of this case to use it for the purpose of medical facilities (a convalescent hospital). In a case where the purpose of use of the building of this case is not changed to the medical facilities (a convalescent hospital), it is acknowledged that the contract of this case was canceled; the design drawings, the number of persons to be treated as wastewater and the number calculated; the fire-fighting facilities design drawings; the fire-fighting system installation plan; the fire-fighting system installation plan; the statement; and the fact that the above documents were newly prepared on November 25, 2014.

However, according to the aforementioned evidence and the purport of the testimony and pleading by the witness F of the first instance trial, among the above documents, the design drawings, the number of persons to be treated with sewage treatment facilities and the number of errors were prepared in the G architect office (hereinafter “G”), the fire-fighting system design drawings, the fire-fighting system installation plan plans, and the pressure-free water supply statement of the fire extinguishing system are prepared in the Gyeonggi T&B site (hereinafter “K”), and F selected the service company applying for the second construction permission as G upon the Plaintiff’s consultation. The Plaintiff examined the design drawings, fire-fighting system drawings, the fire-fighting system installation plan, and the pressure-free water supply invoice. The Plaintiff bears all the secondary construction permission-related expenses including the cost of preparation of the above documents.

In light of these facts, the Plaintiff did not directly or at his own expense prepare design documents, fire-fighting books, etc. or obtain secondary construction permission, but merely provided F with advice on the selection of the service provider or design drawings, etc., and thus, the Plaintiff cannot be deemed to have provided such consulting services to the Defendant or F.

B) Providing F, etc. advice on change of use (No.4, 5)

According to the overall purport of Gap evidence Nos. 7 through 10, 16, 28 through 30 (including each number in the case of spot numbers), testimony and pleadings by the witness F of the first instance trial from February 2014 to September 2015, the plaintiff directly communicates with F at least ten times, and at least ten telephone conversationss at least ten times, and the details of the first building permit regarding the change of the purpose of use of the building of this case; the current status of the building of this case at the time of the sales contract of this case; the necessary part of the reinforcement work; the related Acts and subordinate statutes concerning the change of purpose of use; etc. The plaintiff provided overall advice and advice on the first and second building permission-related documents, parking lot drawings, model of selection of business entity, construction abandonment, construction permit-related documents, construction permit-related documents, construction permit-related construction work completion statement, construction permit-related construction work completion statement, and other related information.

In addition, the witness F of the first instance court stated to the effect that "D, a pastor belonging to the defendant, should receive consultation from the plaintiff to change the purpose of use of the building of this case into a convalescent hospital. The plaintiff examined the facility standards and design drawings necessary for changing the purpose of use of the building of this case to a convalescent hospital, tried to prepare a draft such as the placement of facilities in compliance with the witness's request, and provided advice on various matters concerning the construction of a convalescent hospital, such as providing advice on parking lot security issues, which goes beyond the level of general real estate brokerage."

According to the above facts and the testimony of the witness F of the first instance trial, the Plaintiff appears to have provided F with advice on the change of the purpose of use to medical facilities (convalescent hospital) of the instant building by utilizing professional knowledge from around the time of the instant sales contract to the time when the construction is being carried out after the second construction permit. Furthermore, such acts as the Plaintiff’s above (4) and (5) as mentioned above, beyond the scope of trade mediation and brokerage by social norms, can be deemed as an act of consulting service.

C) The act of resolving the problem of parking lot regarding the change of the use of the instant building.

According to the purport of the evidence Nos. 8-2, 19, and 20 of the evidence Nos. 8-2, 19, and 20, the following facts are acknowledged: (a) at the time of the first construction permission, the previous 13 mechanical parking facilities were removed and the 15 annexed parking lots were to be established on the land adjacent to the instant real estate; (b) around March 11, 2014, the Plaintiff notified F of the need for only seven annexed parking lots in the change of use to a medical facility (convalescent hospital) and sent by e-mail by preparing a parking lot provisional drawings; and (c) the number of parking lots of the annexed parking lots of the instant building through the second

However, as seen earlier, the instant installation standards amended after the first building permit stipulate the standards for the attached parking lot as one unit of 100 square meters per facility area for medical facilities (a hospital) and one unit of 200 square meters per facility area for medical facilities (a convalescent hospital). Therefore, the revision of the instant installation standards and the change of the purpose of the use of the instant building into a medical facility (a convalescent hospital) is attributable to the change of the purpose of the instant building from a medical facility (a hospital) to a medical facility (a hospital) to a medical facility (a hospital (a convalescent hospital). Furthermore, the design drawings prepared for the second building permit are also subject to the assignment of an attached parking lot to a location and arrangement of all different from the parking lot drawings prepared by the Plaintiff. Ultimately, since the Plaintiff did not resolve the parking lot problems related to the change of the purpose of use of the instant building, the Plaintiff cannot be deemed to have provided consulting services to the Defendant or F.

However, prior to the date of conclusion of the instant sales contract, the Plaintiff only necessary seven annexed parking lots to change the purpose of use to the medical facilities (convalescent hospital) of the instant building, which could help the conclusion of the instant sales contract by explaining that the Plaintiff may be installed on the instant land.

However, it is reasonable to view that this constitutes a basic matter concerning the object of brokerage under Article 21 (1) 1 and 4 of the Enforcement Decree of the Licensed Real Estate Agents Act or an explanation about the restriction on the use of public law as an act for brokerage and mediation in terms of social norms, and it is difficult to regard it as a consulting service act.

4) As to the defendant's assertion that the person receiving consulting services is F and the defendant is not the defendant

The defendant asserts that only the plaintiff provided consultation, etc. to F, who is the purchaser of the real estate of this case, and that the defendant did not provide consulting services to the defendant.

However, as seen earlier, the instant consulting contract was based on the premise of the instant contract, and the instant contract was an important matter of the contract whether to change the purpose of use into a convalescent. Furthermore, given that the Defendant intended to sell the instant real estate to F, even if having received advice thereon from the Plaintiff, it would have been in the position to again deliver the instant real estate to F, and even if having received advice from the Plaintiff, the Plaintiff would have received necessary advice from the Plaintiff, and as a whole, the testimony, etc. of the witness F of the first instance trial to the effect that “D, who belongs to the Defendant, was to receive necessary consulting, and was not paid any separate consulting cost.” Even if the Plaintiff did not directly provide the Defendant with the instant consulting contract, it cannot be deemed that the Plaintiff did not provide any service under the instant consulting contract.

5) Sub-decisions

Among the above service acts asserted by the plaintiff, the act of providing F, etc. with advice on change of purpose of use constitutes a consulting service act exceeding the scope of brokerage act (No. 5), and the remaining act is not considered to have been provided to the defendant or F, or is considered to be included in brokerage.

As such, the Plaintiff performed consulting services, such as providing advice to F at least pursuant to the instant consulting contract, and the instant sales contract that the F purchased the instant real estate from the Defendant was concluded. Therefore, the Defendant is obligated to pay the Plaintiff the agreed amount as remuneration, barring any special circumstance.

C. As to the Defendant’s assertion on invalidity of the instant consulting agreement

1) On the premise that the instant consulting contract is an ordinary real estate brokerage contract, the Defendant asserts to the effect that the agreement on the payment of brokerage fees that the Plaintiff, who is not qualified as a licensed real estate agent, mediates the real estate sales contract without registering the establishment of a brokerage office, is null and void in violation of mandatory law

However, as seen earlier, the consulting contract of this case cannot be seen as an ordinary real estate brokerage contract only as alleged by the defendant, and thus, the defendant's assertion on this part is rejected on a different premise.

2) Furthermore, the Defendant asserts to the effect that the agreement amount stipulated in the instant consulting agreement is unfairly excessive and invalid, contrary to the principle of good faith and the principle of equity, when compared to KRW 23,445,00 (i.e., KRW 2,605,00,000, X0.9%) calculated at 0.9% which is the maximum brokerage commission (i.e., KRW 2,605,000). However, it is difficult to view that the agreement amount under the instant consulting agreement is excessive compared to the maximum brokerage commission amount, solely on the ground that the agreement amount under the instant consulting agreement is excessive compared to the maximum brokerage commission amount, is in violation of the principle of good faith and the principle of equity

D. As to the defendant's assertion of reduction of the agreed amount stipulated in the consulting agreement of this case

1) The assertion that the part of the brokerage commission should be deducted from the agreed amount

The defendant asserts to the effect that the brokerage commission for illegal real estate brokerage should be deducted from the contract amount stipulated in the instant consulting contract.

However, as seen earlier, the consulting contract in this case is deemed to be mixed with the elements of "real estate brokerage contract" and "real estate consulting contract". In light of the contents of the consulting contract in this case, the provision of services through the part of the real estate consulting contract in this case is premised on the brokerage of sale and purchase through the part of the real estate brokerage contract. Thus, the agreement amount stipulated in the consulting contract in this case is indivisible in terms of the nature of the consideration for the real estate consulting service and the consideration for the act of real estate brokerage. Therefore, the part concerning the act of real estate brokerage among the above agreed amount cannot be separated, so this part of the defendant's assertion is rejected.

2) The assertion that the agreed amount should be reduced.

The defendant asserts to the effect that the contract amount stipulated in the instant consulting agreement should be too excessive and considerably reduced.

A) Relevant legal principles

The legal relationship between a real estate broker and a client is the same as a delegation relationship under the Civil Act (see, e.g., Supreme Court Decision 92Da55350, May 11, 1993). The instant consulting agreement provides advice and resolution methods regarding the efficient use of the real estate of this case, and finally mediates the sale and purchase of the real estate of this case, and the legal relationship between the Plaintiff and the Defendant is similar to delegation under the Civil Act. However, in cases where the amount of remuneration is agreed upon under a delegation agreement, in principle, the mandatory can, in principle, claim the entire agreed amount of remuneration. However, in light of the developments leading up to delegation, the process and difficulty of delegation, the degree of effort made by the delegating, the specific benefit that the delegating gains from the performance of his/her duties, and all other circumstances revealed in oral arguments, the aforementioned legal doctrine on the reduced amount of remuneration is equally applicable to cases where there are special circumstances to deem the agreed amount unfairly excessive and contrary to the good faith principle or the principle of equity (see, e.g., Supreme Court Decision 2015Da3560).

B) Reduction of remuneration as stipulated in the instant consulting agreement

Considering the following circumstances recognized by the overall purport of the evidence and arguments as seen earlier and all the circumstances revealed in the instant pleadings in light of the aforementioned legal principles, there seems to be special circumstances to deem that the remuneration stipulated in the instant consulting agreement unfairly excessive is contrary to the principle of trust and good faith and the principle of equity. The Defendant’s allegation in this part is with merit.

① The Defendant appears to have found the purchaser to use the instant building as a hospital to sell the instant building, which was interrupted by the construction to change the purpose of the hospital without loss. Accordingly, the Defendant concluded the instant consulting contract with the Plaintiff, which mainly provided real estate consulting services on the hospital building.

② Prior to the conclusion of the instant consulting contract, the Plaintiff was aware that F was trying to purchase a hospital building while engaging in consulting business on another hospital building. Ultimately, the instant consulting contract was concluded by F more than two weeks after the conclusion of the instant consulting contract.

③ The instant building had already been permitted to change the purpose of use and make a large-scale repair to a single-lane medical facility, and the Plaintiff’s provision of consulting services was mainly related to the change of the use of the building to a medical facility according to F’s will among the matters regarding the first building permission.

④ However, it seems that the change of the purpose of the primary construction permission, such as the instant case, to medical facilities, seems to have been made without any big difficulty by entrusting the general architect office with the change of the purpose of the primary construction permission. In particular, the problem of an attached parking lot, when the change of the purpose of the use to medical facilities, is resolved due to the change of the purpose of the relevant laws and regulations and the change of the purpose to medical facilities, and the Plaintiff

⑤ Consulting service provided by the Plaintiff is an act of providing F with advice for the change of the purpose of use of the instant building. The Plaintiff performed the duty under the instant consulting contract, and there is little cost to pay F except for the transportation cost spent, etc., and the costs for the secondary building permit were fully borne by F.

④ Although real estate consulting services provided by the Plaintiff were part necessary for the Defendant’s interest, which is the conclusion and maintenance of the instant sales contract, it was eventually helpful to F’s intermediate care center opening. Furthermore, F’s consulting services rendered by the Plaintiff after the completion of the registration of ownership transfer and the secondary construction permit was issued are deemed irrelevant to the instant consulting contract.

C) Sub-decision

Therefore, the agreement amount of KRW 130,250,00 as stipulated in the instant consulting agreement (i.e., KRW 2,605,00,000 for the instant real estate purchase price of KRW 5%) or 52,100,000 for it (=130,250,000 x 0.4) should be reduced.

Ultimately, the Defendant is obligated to pay to the Plaintiff KRW 27,10,000,00 calculated by deducting KRW 25,00,000,000, out of the agreed amount 52,100,000, which was reduced to the Plaintiff (= KRW 52,10,000 - KRW 25,000 - 25,000 on the day following the delivery date of a copy of the complaint of this case) and to pay damages for delay calculated at each rate of 5% per annum as stipulated in the Civil Act from October 29, 2014 until May 30, 2017, which is the date of the decision of this case where it is reasonable for the Defendant to dispute the existence or scope of the obligation to pay to the Plaintiff.

4. Conclusion

The plaintiff's claim of this case shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as there is no ground. Since the part against the defendant who ordered payment in excess of the above recognition scope among the judgment of the court of first instance which partly differed from this conclusion is unfair, the defendant's appeal is partially accepted and revoked, the plaintiff's claim corresponding to the revoked part is dismissed, and the defendant'

Judges Kim Jong-tae

Judges senior promotion