Law Firm ○○○○

[Defendant-Appellant]

대표자 이사 ◇◇◇의 직무대행자 ◆◆◆

Attorney ○-○, et al.

Law Firm (Limited) ○○○○

○○, ○○ and ○○

2. The defendant's remaining appeal is dismissed.

3. The total costs of the lawsuit shall be three minutes and one of them shall be borne by the plaintiff, and the remainder by the defendant.

The defendant 10 million won and the lawsuit of this case as to the plaintiff 100 million won and the plaintiff in the first instance case

From the date of service of a duplicate to the date of pronouncement of the first instance judgment, 5% per annum and from the next day to the date of full payment.

It shall pay 20% interest per annum in 20% interest rate.

2. Purport of appeal

Of the judgment of the court of first instance, KRW 20,687,658 against the Plaintiff and the instant complaint against the Defendant

From the date of service of a duplicate to the date of pronouncement of the first instance judgment, 5% per annum and from the next day to the date of full payment.

cancellation of the part against the defendant ordering payment in excess of the amount by 20% per annum;

The plaintiff's claim corresponding to the above revocation portion is dismissed (the defendant is on his/her preparatory brief on October 10, 201).

In addition, the appeal has been reduced.

A. On January 30, 2009, the first instance co-defendant of the first instance co-defendant of the mutual aid agreement between △△ and the Defendant is the period of mutual aid between the Defendant and the Defendant from January 30, 2009 to January 1, 2010.

29. Until the end, when a mutual-aid policyholder, who is a real estate broker, intentionally or negligently, causes property damage to a transaction party due to its intention or negligence, the Defendant entered into the instant mutual-aid agreement with the content that the Defendant compensates the transaction party for property damage within the limit of KRW 100 million by subscription amount. The mutual-aid agreement issued by the Defendant to △△△△ shall be entered into by ascertaining that the mutual-aid contract was understood by the mutual-aid contractor, and issued this certificate in its certificate.

B. The Defendant, with the approval of the Minister of Land, Transport and Maritime Affairs, proposed and revised the provision of mutual aid and the provision of mutual aid.

Article 3 subparag. 5 of the Mutual Aid Agreement, which was amended on June 11, 2008, provides that "the amount of mutual aid shall be the total compensation limit during the pertinent mutual aid period, which shall be the maximum amount to be paid by the Association as compensation to the parties to the mutual aid contract at the time of an accident, but which shall be amended on June 11, 2008 and enforced on January 1, 2009." The term "the amount of mutual aid" refers to the amount of mutual aid between the Association and the mutual aid parties to the mutual aid contract during the pertinent mutual aid period, as the total compensation limit during the pertinent mutual aid period, which shall be paid by the Association with respect to an intermediary accident that occurs during the mutual aid period. The term "the mutual aid provision in this case provides that "the total compensation limit during the pertinent mutual aid period shall be the sum of the amount agreed between the Association and the parties to mutual aid, regardless of the number of clients' damages or the number of damage suffered by each client or the amount of damage suffered by the Association)."

Article 2(1) of the Terms and Conditions of Mutual Aid, which was amended on June 11, 2008, shall be limited to the amount covered by the defendant, "the amount covered by the defendant shall be limited to the subscription amount." However, it was revised on June 11, 2008, which was applicable to the Mutual Aid Agreement, and enforced on January 1, 2009, and entered into force on January 1, 2009, shall be limited to the subscription amount stated in the Mutual Aid Certificate. The amount of the instant Mutual Aid Terms and Conditions of Mutual Aid, which was amended on November 18, 2009, shall be limited to the subscription amount stated in the Mutual Aid Certificate. The amount of the instant Mutual Aid Terms and Conditions of Mutual Aid, which was revised on November 18, 2009, is that "the total amount of the subscription amount of mutual Aid agreements that each client who suffered damage without relation to the number of clients who suffered damage due to any brokerage accident that occurred during the period of Mutual Aid Agreement, shall not exceed the subscription amount stated in the

Article 2(2) of the Mutual Aid Terms and Conditions of this case provides that "the scope of damage the Defendant compensates shall be the amount equivalent to the percentage of fault of the account holder among the amount that a member who has subscribed to mutual aid agreements causes property damage to a transaction partner in performing real estate brokerage."

According to the provision of this case and the terms and conditions of mutual aid, a person who suffers property loss due to a brokerage accident may directly claim the defendant to pay the mutual aid amount (Article 26 of the Enforcement Decree of the Act on Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions, Article 19(1) of the Mutual Aid Terms and Conditions, Article 11(1) of the Mutual Aid Terms and Conditions). Upon receipt of the claim, the defendant shall review the authenticity of the documents requested and pay the amount equivalent to the rate of fault of the subscriber within the limit of the amount of the mutual aid amount after deliberation by the Compensation Deliberation Committee (Article 19(2) of the Mutual Aid Terms and Conditions, Article 11(2) of the Mutual Aid Terms and Conditions, and Article 19(9) of the Mutual Aid Terms and Conditions).

(c) Occurrence of a mutual aid accident;

□□□은 서울 강남구 ■■■ △△△ 사무소를 운영하는 부동산중개업자이고, ▲▲ ▲, ▽▽▽은 □□□의 중개보조원이다 .

원고는 2009. 8. 21. 위 △△△ 사무소에서 ▲▲▲으로부터 서울 강남구 ▼▼▼를 임차할 것을 권유받고 우선 가계약금 명목으로 ▲▲▲에게 3, 000, 000원을 지급하였으며 , 위 아파트에 대한 임대차계약서를 작성할 때 그 소유자를 확인하고 위 가계약금 3, 000, 000원을 임대차계약의 계약금으로 하기로 하였다 .

▲▲▲ ⑦⑦⑦은 2009. 8. 25. 원고에게 자신들이 ▣▣▣으로부터 위 아파트의 임대차계약체결권한 등을 위임받아 관리하고 있다고 하였으며, 그 자리에 함께 있던 ▣▣ ▣의 아버지라고 하는 사람은 원고에게 위 아파트를 △△△ 사무소에서 관리하고 있다고 하면서 ▽▽▽에게 여권수첩을 건네주어 복사해 오도록 한 후 원고에게 ▣▣▣의 여권사본을 보여 주었다. 위와 같은 ▲▲▲, ⑦⑦⑦의 말을 믿은 원고는 그 자리에서 ④, V▽▽과 " 임대인 ▣▣▣ ( 대리인 □□□ ), 임차인 원고, 임차보증금 180, 000, 000원, 차임 월 400, 000원, 임대차기간 2009. 9. 5. 부터 2010. 9. 4. 까지 " 인 임대차계약서를 작성하였다 .

원고는 위 임대차계약 체결 후 ▲▲▲에게 2009. 8. 25. 15, 000, 000원, 2009. 9. 4 . 62, 000, 000원, 2009. 9. 5. 100, 000, 000원 합계 177, 000, 000원을 송금하였다 .

그러나 위 아파트의 소유자인 ▣▣▣은 ▲▲▲, ⑦⑦⑦ 등 △△△ 사무소에 임대차계약체결권한 등을 위임한 적이 없었고, ▣▣▣의 아버지는 이미 3년 전에 사망하였으며, ▣▣▣의 아버지라고 하는 사람이 ▽▽▽에게 건네준 여권수첩 역시 OOO의 여권이 아니었고, ▣▣▣의 여권사본은 위 아파트의 전 임차인 ①00과의 임대차계약체 결 과정에서 ▽▽▽이 OOO의 어머니 000으로부터 ▣▣▣의 여권을 교부받아 복사해 놓은 것을 다시 복사한 것이었다 .

[Evidence] Evidence No. 1-1, 3, 4, A 2 through 6, Gap evidence No. 8-2, 3, 5 through 9, 11 through 15, Eul evidence No. 5-1, 2, and Eul No. 10, the fact inquiry results of the court of first instance on Gangnam-gu, the purport of the whole pleadings

2. Determination

(a) Obligation to pay mutual aid money;

Article 15(2) of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act provides that "the act of a broker assistant's business shall be deemed the act of the broker who employs him/her." Article 30(1) provides that "a broker shall be liable to compensate for any damage to property of a transaction party when the broker inflicts property damage on him/her intentionally or by negligence in performing the act of brokerage." In light of the purport of the above provision aimed at protecting the transaction party, the issue of whether an act of brokerage is a broker shall be determined not by the broker's subjective intention, but by the broker's intention, whether the broker has the intention to mediate or mediate the transaction on behalf of the transaction party.

The act of an intermediary is determined by whether it is objectively viewed as an act to mediate or mediate a transaction in terms of social norms. On the other hand, the act of intermediary includes not only the case where a broker receives a request for intermediary from both parties to a transaction, but also the case where a broker mediates or mediates the act concerning the sale, exchange, lease or other acquisition or modification of the object of intermediary at the request of either party to a transaction (see Supreme Court Decision 94Da47261 delivered on September 29, 195, etc.).

위 인정 사실에 의하면, 위 임대차계약 체결 당시 ▲▲▲, ▽▽▽의 주관적인 의사는 임대보증금을 편취하고자 하는 것이었으나, 객관적으로는 ▲▲▲, ⑦⑦⑦이 중개인이자 임대인인 ▣▣▣의 대리인으로서 원고로부터 위 아파트 임대차계약에 따른 임대보증금 명목으로 지급받았다고 봄이 상당하므로, ▲▲▲, ▽▽▽이 OO▣ 명의로 원고와 임대차계약을 체결하고 임대보증금을 지급받은 행위는 사회통념상 거래의 알선, 중개를 위한 행위에 해당한다 .

따라서 □□□은 공인중개사의 업무 및 부동산 거래신고에 관한 법률 제30조 제1항 에 따라 ▲▲▲, ▽▽▽의 중개행위로 원고에게 발생한 180, 000, 000원의 재산상 손해를 배상할 의무가 있다. 다만 원고는 ▲▲▲, ▽▽▽과 사이에 위 아파트에 대한 임대차계약서를 작성하는 과정에서 위 아파트의 소유자인 ▣▣▣을 만난 적이 없음에도 불구하고 ▲▲▲, ▽▽▽에게 위 아파트의 임대에 관한 위임장의 제시를 요구하거나 소유자인 ▣▣▣에게 연락해 보는 등의 방법으로 ▲▲▲, ⑦⑦⑦이 위 아파트의 임대권한을 위임받았는지 여부에 대하여 확인하지 아니한 점, 위 아파트의 임대보증금 180, 000, 000원을 소유자인 ▣▣▣에게 교부하지 아니하고 ▲▲▲에게 교부한 점 등 원고에게도 ▲▲▲, ▽▽▽과 위 아파트 임대차계약서를 작성하고 ▲▲▲에게 180, 000, 000원을 교부하는 과정에서 잘못이 있고, 원고의 이러한 잘못 또한 이 사건 손해발생의 한 원인이 되었다고 할 것이므로, □□□이 배상할 손해액을 산정함에 있어서 이를 참작하기로 하되 이 사건의 경위 등 제반 사정을 종합하면 □□□의 손해배상채무를 70 % 인 126, 000, 000원 ( 180, 000, 000원×0. 7 ) 으로 제한함이 상당하다 .

Thus, the defendant is obligated to directly compensate the plaintiff for the damage liability to the plaintiff of Yeongsung pursuant to the contract of this case.

B. The meaning of the total compensation limit

Therefore, the Plaintiff claims for the amount of KRW 100 million within the limit of the amount equivalent to the ratio of negligence on the terms and conditions in the relationship between the Defendant and each of the terms and conditions, and damages for delay in the purport of the claim against the Plaintiff. As such, the total compensation limit of the intermediary accidents arising during the period of the mutual aid provisions and the terms and conditions of mutual aid shall be limited to the amount of the mutual aid agreement stated in the mutual aid agreement.

The meaning of the above provision is interpreted as "the maximum amount of compensation per accident" rather than "the maximum amount of compensation per accident". The Supreme Court Decision 2007Da39949 Decided April 10, 2008 ruled that the defendant's provision that the amount of compensation for the defendant's damage should be limited to the amount of the insured's subscription to the mutual aid agreement. It is interpreted as "the maximum amount of compensation per accident caused by the defendant's real estate brokerage," and it cannot be viewed as "the maximum amount of compensation for all accidents caused during the mutual aid period" as "the maximum amount of compensation for all accidents caused during the mutual aid period" with respect to the purchaser. "However, it is related to the mutual aid agreement before the application of the above provision of the mutual aid agreement and the mutual aid agreement in this case before the mutual aid agreement in this case cannot maintain the above interpretation.

Article 30(3) of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act provides that "a broker shall subscribe to guarantee insurance or enter into mutual aid associations or deposit funds as prescribed by Presidential Decree to guarantee liability for damages to a transaction party before commencing his/her business." Article 24(1)2 of the Enforcement Decree of the same Act provides that "a broker who is not a juristic person shall subscribe to guarantee insurance or enter into mutual aid associations or deposit funds of an amount of 100 million won or more pursuant to Article 30(3) of the Act." The legislative intent of the above provision is to provide that a broker shall be guaranteed damages for the amount of 100 million won or more if he/she performs its business intentionally or negligently, and it is difficult for the broker to unilaterally determine the scope of liability for mutual aid funds and its terms and conditions for mutual aid funds to be null and void in violation of the above Acts and subordinate statutes, which are mandatory provisions, and thus, it is difficult for the trader to unilaterally determine the scope of liability for mutual aid funds and its terms and conditions to be null and void.

In addition to the instant case, the Defendant asserts that, inasmuch as the brokerage accident occurred during the period of the instant mutual aid agreement is included in a total of six cases as stated in the details of the instant mutual aid agreement, the Defendant’s assertion that the amount of the mutual aid agreement to be paid to the Plaintiff is limited to KRW 20,687,658 based on the ratio of the Plaintiff’s claim amount to the total claim amount to the Plaintiff, including the Plaintiff. (10 million won x the claim amount x 100 million x the claim amount 483,380,000 won).

을라 7, 8, 9호증, 을라 15호증의 1, 2, 을라 16호증의 1, 2의 각 기재에 의하면, 별지 공제사고내역의 피해자란 기재 각 피해자들이 □□□의 중개행위로 인하여 손해를 입었다고 주장하면서 피고에 대하여 별지 공제사고내역의 청구금액란 기재 각 금액의 공제금지급청구 소송을 제기한 사실, 별지 공제사고내역 순번 4번의 경우 강제조정결정이 확정되어 피고가 2011. 6. 30. ▶▶▶에게 강제조정결정 금액인 17, 249, 000원 ( 공제금액 1억 원 청구금액 83, 380, 000원 / 청구금액 합계 483, 380, 000원 = 17, 249, 369원의 일부이다 ) 을 공제금으로 지급한 사실, 별지 공제사고내역 순번 5, 6번의 경우 화해권고결정이 확정되어 피고가 2011. 11. 30. ▷▷▷, ◀◀◀에게 각 화해권고결정 금액인 8, 275, 063원 ( 공제금액 1억 원×청구금액 40, 000, 000원 / 청구금액 합계 483, 380, 000원 ) 을 공제금으로 지급한 사실 ( 피고는 8, 725, 063원을 지급하였으나 공제금으로 지급한 것은 화해권고결정상의 금액인 8, 275, 063원으로 본다 ) 을 인정할 수 있다 .

As such, if the sum of claims by the victims who suffered property damage due to a mutual aid accident during the period of mutual aid exceeds the amount of mutual aid coverage, it may be sufficiently considered that the amount of mutual aid coverage should be paid in proportion to the amount of damages recognized by the defendant. However, there is no provision on the rights or obligations to distribute the amount of mutual aid coverage according to the ratio of damages recognized by the defendant. Thus, if the defendant has extinguished the liability of mutual aid due to the payment to one victim, etc. of mutual aid coverage, it shall be deemed that the liability of mutual aid for other victims shall be extinguished within the scope. Furthermore, on the ground that it is difficult to calculate the amount of each victim's share, the defendant shall indicate the victims as the victim and make the full amount of the mutual aid coverage to be paid as a deposit under Article 487 of the Civil Act or in proportion to the judgment confirming the right to claim payment of deposit funds, thereby deviating from the risk of double

Recognition by each victim in a lawsuit claiming the payment of mutual aid money against the defendant respectively;

Even in a case where the aggregate amount of mutual aid money exceeds the amount of mutual aid coverage, the court is bound to order the payment of all mutual aid money recognized by each victim in proportion to the amount of mutual aid coverage recognized by each victim. In such a case, the defendant may be exempted from all of the mutual aid obligations of each victim by depositing the total amount of mutual aid coverage to the victims as the deposit amount, or by depositing the amount divided in proportion to the amount of mutual aid coverage recognized by each victim according to the ratio of the amount of mutual aid coverage recognized by each victim. Even if ordering the payment of mutual aid money acknowledged within the limit of each victim’s mutual aid coverage amount, the claim may be avoided by objection against the execution exceeding the amount of mutual aid coverage. Thus, it does not occur to be executed in excess of the amount of mutual aid coverage.

따라서 피고는 원고에게 부진정연대의 관계에 있는 □□□과 각자 공제가입금액 1억 원 중 ▶▶▶, ▷▷▷, ◀◀◀에 대한 변제로 소멸한 금액을 공제한 나머지 66, 200, 874원 ( 1억 원 - 17, 249, 000원 ~ 8, 275, 063원 ~ 8, 275, 063원 ) 및 이에 대하여 이 사건 소장부본 송달을 통해 공제금 지급청구를 받은 날로부터 60일이 경과한 2011. 3. 5. 부터 피고가 그 이행의무의 존부나 범위에 관하여 항쟁함이 상당하다고 인정되는 당심 판결 선고일까지 민법 소정의 연 5 % 의, 그 다음날부터 다 갚는 날까지 소송촉진 등에 관한 특례법 소정의 연 20 % 의 각 비율에 의한 지연손해금을 지급할 의무가 있다 .

3. Conclusion

Therefore, the plaintiff's claim shall be accepted within the scope of the above recognition and the remaining claims shall be dismissed as without merit. Among the judgment of the court of first instance which has partially different conclusions, the part against the defendant ordering payment exceeding the above recognition amount shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed. The defendant's remaining appeal shall be dismissed as it is so decided as per Disposition

Judges Lee Jong-chul

Judges Lee Dong-chul