[부동산중개업법위반][공2006.11.1.(261),1861]
Whether an act of promising or demanding fees for a real estate transaction without registering the establishment of a brokerage office is subject to the punishment of the former Real Estate Brokerage Act (negative)
In the event that the parties to a transaction of the object of brokerage promises to receive fees without actually receiving fees from the parties to the transaction of the object of brokerage or demands fees from the parties to the transaction, the act of promising or demanding fees from the parties to the transaction of real estate transaction without filing a registration of establishment of a brokerage office under the principle of no punishment without law shall not be punished as a violation of the former Real Estate Brokerage Act, since it cannot be deemed to fall under the "business" under Article 2 subparagraph 2 of the former Real Estate Agents Act (amended by the Act on Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions, Act No. 7638 of July 29, 2005).
Article 2 subparagraph 2 of Article 2 of the former Real Estate Brokerage Act (amended by Act No. 7638 of July 29, 2005 and the Act on Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions) (see Article 2 subparagraph 3 of the current Licensed Real Estate Agents and Report of Real Estate Transactions Act), Article 4 (1) (see Article 9 (1) of the current Licensed Real Estate Agents and Report of Real Estate Transactions Act) and Article 38 (1) 1 (see Article 48 subparagraph 1 of the current Licensed Real Estate Agents and Report of Real Estate Transactions Act).
Defendant
Defendant
Jeonju District Court Decision 2006No386 Decided June 30, 2006
The judgment of the court below is reversed, and the case is remanded to the Jeonju District Court Panel Division.
Before determining the grounds of appeal, we examine it ex officio.
According to Article 4 (1) of the former Real Estate Brokerage Act (amended by Act No. 7638 of Jul. 29, 2005, the Act on Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions; hereinafter the same shall apply), a person who intends to run a brokerage business shall make a registration of establishment of a brokerage office with the head of the Si/Gun/Gu having jurisdiction over the area in which the person intends to establish the brokerage office. The act of running a brokerage business without making a registration of establishment of such brokerage office shall be punished pursuant to Article 38 (1) 1 of the same Act. However, Article 2 subparagraph 2 of the same Act provides that "a brokerage business" means a business of operating a brokerage business at another person's request and receiving a certain fee." Thus, if the person promises to receive a fee or demands a transaction party to pay a fee without receiving a commission from the trading parties of the goods subject to brokerage, it cannot be deemed that the act of violation of Article 38 (1) 1 of the former Real Estate Brokerage Act is not subject to punishment under Article 38 (1) of the Criminal Punishment Act.
According to the reasoning of the judgment below, the court below found the defendant guilty by applying Articles 38 (1) 1 and 4 (1) of the former Real Estate Brokerage Act, after comprehensively taking account of the evidence in its reasoning that the defendant requested the competent authority to sell real estate without registering the establishment of a brokerage office and arranging the sale of real estate, and then applying the above provisions to the seller and the purchaser. The judgment below is erroneous in the misapprehension of the law which affected the conclusion of the judgment.
Therefore, without further proceeding to decide on the grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on
Justices Kim Hwang-sik (Presiding Justice)