Standard for determining whether it constitutes “similar name” prohibited from use under Articles 8 and 18(2) of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act

Articles 8 (see current Article 8 of the Licensed Real Estate Agents Act), 18 (2) (see current Article 18 (2)), 49 (1) 2 and 6 (see current Article 49 (1) 2 and 6 of the Licensed Real Estate Agents Act) of the former Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act (Amended by Act No. 12374, Jan. 28, 2014);

Defendant

Prosecutor

Incheon District Court Decision 2014No1365 decided September 3, 2014

The judgment below is reversed, and the case is remanded to Incheon District Court Panel Division.

The grounds of appeal are examined.

According to Article 8 of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act (amended by the Licensed Real Estate Agents Act, Act No. 12374, Jan. 28, 2014; hereinafter “former Licensed Real Estate Agents Act”), any person, other than licensed real estate agents, is not using a licensed real estate agent or any name similar thereto. According to Article 18(2) of the former Licensed Real Estate Agents Act, any person, other than licensed real estate agents, shall not use the name “licensed real estate agent’s office”, “real estate brokerage”, or any other similar name. Whether a person falls under such similar name is likely to mislead the general public as a licensed real estate agent or a practicing licensed real estate agent.

The lower court, on January 10, 2014, found the Defendant not guilty of the charges of this case, on the ground that the Defendant, from around January 10, 2014, used the name stating “△△△△△△△ Real Estate” and “Real Estate Cafe” at the Defendant’s office located in the Jeju Jeju Jeju Jeju Jeju Jeju Jeju Island, and installed the outdoor advertisements indicating “△△△△△△△△△△△△△” and “Real Estate Cafe,” on the grounds as stated in its reasoning, it is difficult to view that the entry or indication of the name tag as above is difficult

However, according to the evidence duly admitted, in the signboard installed by the Defendant, the following facts are indicated as follows: “△△△△△△△△△△△△△△△△△△△△△”, and in small letters, the sign board signboards installed on the road are indicated as “real estate Cafe”, “real estate Cafe”, and “real estate and real estate goods direct transaction space” in small letters; the front side of the name box used by the Defendant includes the name of “the representative of △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△” under the title of “sale/lease”, and the latter side of the signboard is indicated as “sale/lease” under the title of “sale/lease”.

In addition to these facts, in light of the legal principles as seen earlier, the expression “real estate” is commonly used as the phrase “real estate brokerage” or “real estate brokerage office” in daily life, even in addition to being used for its prior meaning, and in particular, in the form of “○○ Real Estate” and “Real Estate○○,” etc. while engaging in real estate brokerage as a business, the fact that the principal part of the trade name is indicated in the form of “○○ Real Estate” and “Real Estate○,” and the registration of establishment of a brokerage office can only be made by a licensed real estate agent or a corporation pursuant to the former Licensed Real Estate Agents Act, etc., the Defendant installed an outdoor advertisement indicated “△△△ Real Estate” and indicated “△△△△ Real Estate” as indicated in the facts charged, and used a name stating “△△△△ Real Estate” and it is likely for ordinary persons to mislead the Defendant to either act as a licensed real estate agent or real estate agent or as a licensed real estate agent. Thus, it shall be deemed that the name similar to

Nevertheless, since the court below acquitted the charged facts of this case, it erred by misapprehending the legal principles on names similar to licensed real estate agents prohibited from using under the former Licensed Real Estate Agents Act, which affected the conclusion of the judgment. The ground of appeal pointing this out has merit.

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)