[1] Criteria for determining whether an act of brokerage under Article 19(1) of the Real Estate Brokerage Act constitutes "act of brokerage"

[2] The case holding that in light of the relationship between the buyer and the broker and the reasons for the payment of the money, the act of the broker acquired money as a balance from the buyer and acquired money as a intermediary under the Real Estate Brokerage Act does not constitute an act of brokerage under the Real Estate Brokerage Act and that the Korean Real Estate Brokerage Association

[1] When a broker inflicts property damage on a party to a transaction by intention or negligence while acting as a broker (Article 19(1) of the Real Estate Brokerage Act). The main contents of the broker's act are to arrange the parties' contracts concerning the acquisition and loss of rights to the object of brokerage and the modification thereof and to prepare a contract document related thereto. The issue of whether an act of brokerage is an act of brokerage shall be determined based on whether it can be recognized as an act of brokerage and mediation in light of social norms objectively and objectively from the agreement of the parties to the brokerage contract.

[2] The case holding that, in light of the relationship between the buyer and the broker and the reasons for the payment of the money, the broker's act of acquiring money as a balance from the buyer and defraudation or embezzlement does not constitute an act of brokerage under the Real Estate Brokerage Act, and thus, the liability for damages of the Korean Real Estate Brokerage Association

[1] Article 19(1) of the Real Estate Brokerage Act / [2] Articles 19(1) and 35-2 of the Real Estate Brokerage Act

[1] Supreme Court Decision 94Da47261 delivered on September 29, 1995 (Gong1995Ha, 3600) Supreme Court Decision 98Do1914 delivered on July 23, 199 (Gong1999Ha, 1822) Supreme Court Decision 2000Da48098 delivered on December 22, 2000 (Gong2001Sang, 351 delivered on November 12, 2004)

Plaintiff (Attorney Lee In-hee et al., Counsel for plaintiff-appellant)

The National Real Estate Brokerage Association and one other

October 13, 2004

1. Defendant 1 shall pay to the Plaintiff 30 million won with 5% interest per annum from May 28, 2004 to November 17, 2004, and 20% interest per annum from the next day to the day of full payment.

2. The plaintiff's claim against the defendant Korea Real Estate Brokerage Association is dismissed.

3. Of the costs of lawsuit, the part arising between the Plaintiff and the Defendant Korea Real Estate Brokerage Association shall be borne by the Plaintiff, while the part arising between the Plaintiff and Defendant 1 shall be borne by the Defendant 1.

4. Paragraph 1 can be provisionally executed.

The defendants pay to each plaintiff 30 million won with 5% interest per annum from May 28, 2004 to November 17, 2004, and 20% interest per annum from the next day to the day of full payment.

1. Basic facts

A. Under Article 19(1) of the Real Estate Brokerage Act, Defendant Korea Real Estate Association (hereinafter referred to as the “Defendant Association”) is a juristic person established for the purpose of mutual aid projects, etc. of its members with nationwide licensed real estate agents as its members, which is a member of the Association, and operates a mutual aid project to guarantee the compensation of damages pursuant to Article 35-2 of the same Act in the event that a broker, who is a member, causes property damage to a transaction party by intention or negligence in the course of acting as a member, and Defendant 1 is a member of the said Association, who mediates

B. On March 15, 2004, the Plaintiff entered into a contract with Defendant 1 to purchase down payment of KRW 40 million, intermediate payment of KRW 30 million, remainder KRW 49.2 million, and KRW 19.2 million in total (hereinafter “the instant contract”).

C. After paying down payment and intermediate payment, the Plaintiff sent a balance to obtain ownership transfer from Defendant 1, upon receiving a request on May 28, 2004, and transferred 30 million won to the head of Tong on May 28, 2004.

D. Since then, the above sales contract was terminated as it was impossible to obtain land transaction permission, and the seller returned the intermediate payment and the balance that he received to the Plaintiff. However, Defendant 1 did not return the intermediate payment and the balance that he received from the Plaintiff as the remainder.

[Ground for Recognition: Unsatisfy Facts; Gap evidence 1 to 6; All purports of oral argument]

2. The assertion and judgment

A. The part of the claim against the defendant 1

According to the above facts, Defendant 1 is obligated to pay the Plaintiff damages with 30 million won as compensation for tort and 5% per annum under the Civil Act from May 28, 2004, which is the date of the judgment of this case, to November 17, 2004, and 20% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment, as sought by the Plaintiff.

B. Claim against the Defendant Association

(1) The parties' assertion

The Plaintiff asserted that Defendant 1, a member of the Mutual-Aid Association, suffered damages from the Plaintiff’s illegal act of real estate brokerage, and the Defendant Association is obligated to compensate the Plaintiff for damages of KRW 30 million in accordance with the mutual aid provision. The Defendant Association did not claim that the Plaintiff was not liable for damages due to real estate brokerage.

(2) Determination:

The defendant association, which is a mutual aid business operator related to real estate brokerage, is liable to compensate for damage to the property of a transaction party when the broker intentionally or negligently causes damage to the transaction party (Article 19(1) of the Real Estate Brokerage Act). The main contents of the act of brokerage are to mediate the parties' contracts concerning the acquisition or loss of rights to the object of brokerage and the change, and to prepare a contract document related thereto. The issue of whether it constitutes an act of brokerage is determined based on whether it can be objectively viewed as an act of brokerage and mediation by social norms, in view of the parties' agreement and objectively.

On the other hand, comprehensively taking account of the whole purport of arguments in the evidence Nos. 2, 3, 6, and 1, 2, and 2, as a whole, ① the Plaintiff and Defendant 1, the broker, and ② the balance payment date under the sales contract, even though he was on April 11, 2004, the Plaintiff transferred the balance to Defendant 1. ③ The Plaintiff transferred the balance to Defendant 1’s individual passbook at the request of Defendant 1, the broker, unlike the down payment and the intermediate payment, and ④ the down payment and the intermediate payment paid by the Plaintiff was returned from the seller after the cancellation of the sales contract with the seller. ⑤ The sales contract of this case is recognized as a contract that the Plaintiff purchased the land for construction project by Nonparty 1, the Plaintiff purchased the land for the construction project under Defendant 1’s proposal and sold it again to the non-party company.

In full view of these circumstances, the relationship between the plaintiff and the defendant 1, the contents of the brokerage contract of this case, and the process of payment of money, etc., the evidence submitted by the plaintiff alone cannot be deemed as an act of defraudation or embezzlement by the defendant 1 through remittance of KRW 30 million from the plaintiff as a balance under the Real Estate Brokerage Act, and there is no other evidence to prove that the plaintiff suffered damage in connection with the act of brokerage of

Therefore, the plaintiff's claim against the defendant association based on this premise is without merit to examine further.

3. Conclusion

Therefore, the plaintiff's claim against the defendant association is dismissed as it is without merit, and the plaintiff's claim against the defendant 1 is justified, and it is decided as per Disposition with the assent of all participating Justices.

Constitutional Court of Justice Cho Jae-sik