[2] Whether a brokerage business operated by a non-licensed real estate agent is subject to protection of the crime of interference with business (negative)

[3] Where the Defendant, a licensed real estate agent, registered under his name but actually operated a brokerage office by the victim who is not a licensed real estate agent, but operated the brokerage office in the form of a leading operation, and the above business relationship is terminated due to the cause attributable to the victim and the Defendant discontinued the real estate brokerage business due to the termination of the business relationship, the case holding that the victim’s brokerage business constitutes an act prohibited by law and constitutes an act subject to criminal punishment, and thus,

1. The judgment of the court below

The court below acknowledged the fact that the defendant was registered under his own name but actually reported the closure of business with respect to the licensed real estate agent office of this case, which the victim was a partner, without the consent of the victim. The court below determined that the defendant interfered with the victim's business by force by arbitrarily reporting the closure of business by taking advantage of the status registered in his name and operated by the certified real estate agent office of this case, on the ground that the defendant's business of operating the certified real estate agent office cannot be deemed unlawful, and even if the victim was willing to operate the certified real estate agent office in a voluntary manner as alleged by the defendant, it cannot be viewed that the defendant's business of operating the certified real estate agent office of this case cannot be seen as a case where the victim'

2. Judgment of the court below

However, we cannot accept the above judgment of the court below for the following reasons.

A. The term “business” subject to protection under the Criminal Act for the crime of interference with business should be an occupation or a continuous business, which is worth protecting under the Criminal Act from an unlawful infringement of others’ business. Therefore, in a case where a certain business or activity itself has anti-sociality to the extent that it is considerably unacceptable in light of the degree of illegality, it cannot be deemed that it constitutes “business” subject to protection under the crime of interference with business (see Supreme Court Decision 2001Do2015, Nov. 30, 2001).

B. Article 4 of the former Real Estate Brokerage Act (wholly amended by Act No. 7638, Jul. 29, 2005; hereinafter the same shall apply); Article 5 of the Enforcement Decree of the Act provides that a licensed real estate agent or an executive officer may establish a brokerage office only by a licensed real estate agent or a juristic person among the licensed real estate agents or individuals; Article 38(1)1 of the Act provides that a person who runs the brokerage business without the registration of establishment of a brokerage office shall be punished by imprisonment for not more than three years or by a fine not exceeding twenty million won; Article 38(2)3 of the Act provides that a person who transfers or lends a brokerage registration certificate or certificate of qualification to another person, or a person who takes over or borrows such certificate from another person shall be punished by imprisonment for not more than one year or by a fine not exceeding ten million won. Thus, an act of a person, other than a licensed real estate agent, etc., which is prohibited by the Act, constitutes a criminal act that is subject to criminal punishment.

C. According to the records, although the victim requested the lending of a licensed real estate agent's license to the defendant who is not a licensed real estate agent, the victim refused such request, the defendant refuses to provide capital and eventually agreed to conduct the business by examining the final documents regarding the real estate contract while attending the instant brokerage office directly, and then completed the registration of establishment of the brokerage office in the name of the defendant, and the defendant made a report of closure of the business of the instant brokerage office in the name of the defendant, unlike the above agreement, at the request of the defendant not to confirm the real estate documents and the defendant's seal impression is also entrusted to him. Thus, the business relationship between the defendant and the victim with respect to the operation of the instant brokerage office can be deemed to have been terminated due to the cause attributable to the victim. Thus, insofar as the defendant who is a licensed real estate agent discontinues the real estate brokerage business of this case due to the completion of the business relationship, the victim brokerage business who is not a licensed real estate agent is prohibited by law and constitutes a criminal act subject to criminal punishment, and thus, constitutes a business subject to the crime of interference with business.

D. Nevertheless, even if the victim intended to operate an authorized brokerage office autonomously, solely on the ground that it is difficult to view such circumstance alone to constitute a case where the victim's arbitrary report on business closure by taking advantage of his/her status registered in his/her name and thereby interfered with the victim's business by force. The court below erred in the misapprehension of legal principles as to the business subject to protection of interference with business, and such illegality affected the conclusion of the judgment, and thus, the ground of appeal pointing this out has merit.

3. Therefore, without examining the remaining grounds of appeal, we reverse the judgment of the court below and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-dam (Presiding Justice)