(영문) 서울동부지방법원 2014.8.21.선고 2013가단41425 판결

1. The defendant shall pay to the plaintiff 5,100,00 won with 6% interest per annum from May 26, 2013 to August 21, 2014, and 20% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims are dismissed.

3. Of the litigation costs, 70% is borne by the Plaintiff, and the remainder 30% is borne by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

Purport of claim

The defendant's imposition of KRW 17,00,000 against the plaintiff and the judgment of this case from May 26, 2013 to the plaintiff of this case

shall pay 6% per annum and 20% per annum from the following day to the date of full payment.

(d).

Reasons

1. Basic facts

The following facts are not disputed between the parties, or each statement in Gap evidence 1-4, evidence 5-1, 2, Eul evidence 2, 3, 5, and 6, witness evidence, and witness testimony of Lee ○○○, with the overall purport of the pleadings.

A. On May 25, 2013, the Plaintiff: (a) as a real estate broker conducting real estate business under the trade name of ○○○ Licensed Real Estate Agent Office; (b) as a mutual general restaurant (hereinafter referred to as “○○○○○○ Capital”)’s facilities, business rights, etc. in the name of ○○○○○○ Store on the first floor (hereinafter referred to as “instant store”); and (c) as a broker (hereinafter referred to as “instant transfer contract”); and (d) concluded a contract for the transfer and acquisition of rights (hereinafter referred to as “the instant transfer and acquisition contract”); and (c) concluded a contract for the transfer and acquisition of rights (hereinafter referred to as “instant brokerage”).

B. The main contents of the transfer contract of this case are as follows. (1) The transferor shall deliver to the transferee the said real estate by the day before the commencement of the lease contract, and the transferor shall remove all the matters impeding the exercise of the right of lease, and shall deliver all the facilities and goodwill so that the transferee may operate the business immediately upon the receipt of the balance. (2) The transferee shall compensate for the amount of the down payment, and the transferee may waive the down payment and cancel this contract until the intermediate payment is paid. (3) The transferor shall make utmost efforts to conclude the lease contract with the owner and the transferee on the basis of the terms and conditions of the lease contract to the maximum extent possible before the remainder payment is made, and the down payment and the intermediate payment received by the transferor shall not be liable for nonperformance between the parties to the contract. (4) The transferor shall also pay the contract of this case and the transferee fees to the parties to the contract without any intention or negligence between the transfer and acquisition of the contract of this case and the transferor and the transferee, and the transferee shall also pay the fees to the parties to the contract of this case.

5) Matters of the special agreement

○ This contract is a valid contract for which a lease contract is entered into with a lessor.

○ All matters of authorization and permission shall be identified by the principal.

○ Where a contract has been terminated due to a lessor, the down payment shall be immediately refunded (an excessive monthly rent, increase in deposit, etc.).

C. The ○○○ paid KRW 4 million to the Defendant on the day of the contract as the down payment of the transfer contract of this case.

D. On the other hand, on May 3, 2013, prior to the conclusion of the instant transfer/acquisition agreement, ○○○○○’s creditors, the lessee of the instant case, seized and collected the claim for the return of the highest amount of lease deposit (Seoul Eastern District Court 2013TT7***). The said decision reached the Plaintiff-○, the owner of the instant store, and the lessor, the lessor.

The door ○ expressed to all the Defendant that he would not consent to the transfer of the right of lease of the store in this case, and on June 3, 2013, the Defendant returned the down payment of KRW 4 million to ○○○.

2. Whether the duty to pay service fees of this case arises

A. On the other hand, according to the above facts, ○○○ and the Defendant agreed with the lessor on the validity of the instant transfer and acquisition agreement that the instant transfer and acquisition agreement was concluded with the lessor, and thus, the instant transfer and acquisition agreement became effective on the premise that the lessor and the ○○○ entered into the lease agreement, but it is reasonable to deem that the instant transfer and acquisition agreement was effective on the premise that the lessor and the ○○○○ entered into the lease agreement, but it is a so-called rescission agreement that loses its validity if the ○○○ cannot conclude the lease agreement, by clearly expressing his intent that the lessor would not consent to the transfer and acquisition of the right of lease. Therefore, the instant transfer and acquisition agreement became null and void upon the fulfillment of the terms

However, according to the agreement on the payment of service fees of this case, even when the transfer contract of this case is terminated, the defendant and Lee ○○ agreed to pay the service fees to the plaintiff, unless the plaintiff's intention or negligence was committed by the individual. This shall be deemed equally applicable to the case where the transfer contract of this case is invalidated or cancelled without the plaintiff's intention or negligence. Since the transfer contract of this case and the service fees payment agreement of this case are separate contracts, the defendant is liable to pay the service fees of this case to the plaintiff, barring special circumstances

B. On this point, the defendant asserts that the transfer contract of this case was cancelled due to the circumstances of the lessor, not the defendant who is the party to the contract or the lessor who is not the party to the contract, but the lessor was well aware that the lessor did not consent to the transfer of the lessee status, and that it was unreasonable for the lessor to perform the transfer contract of this case to the effect that it did not cause the obligation to pay service fees to the

In light of the aforementioned evidence, ○○○○○○, a lessee of the instant store, expressed the lessor’s intent to transfer the right of lease to the Defendant who was working at the store when the lessor takes monetary obligations. Since the lessor consented thereto, the lessor concluded a business transfer contract with the Defendant on April 16, 2013 and had the lessor conclude the lease contract with the lessor. At the time, the lessor knew of the fact that the lessor was aware of the fact that the lessor would not consent to the transfer of the right of lease to a third party only on the month when the Defendant took over the right of lease. Accordingly, the Plaintiff and the Defendant knew of the fact that it would not be easy to conclude the lease contract with the lessor on the premise that the lessor would not have been aware of the fact that the lessor would not have any other obligation to transfer or acquire the right of lease to the said third party on the premise that the lease contract would have been invalidated by the Plaintiff’s intention to transfer or acquire the right of lease to the said third party on May 25, 2013.

C. In addition, under the premise that the service commission payment agreement of this case is a standardized contract to which the Act on the Regulation of Terms and Conditions applies (hereinafter referred to as "the Act on the Regulation of Terms and Conditions"), the defendant has the proviso that "no service fee shall be paid in the event that the right is terminated because the lease contract was not entered into in the standard contract and the right is cancelled," and the above proviso clause has been deleted. As such, the above proviso clause is an important matter of the transfer contract of this case, which is that of the transfer and acquisition contract of this case, the plaintiff failed to perform any duty of specification and explanation to the defendant in relation to the deletion of the above proviso clause. Thus, the plaintiff cannot be asserted as the content of the transfer and acquisition contract of this case. The service commission payment agreement of this case where the defendant still imposes the service fee on the plaintiff even though the transfer and acquisition contract of this case was cancelled, is unfair terms that disregards the legitimate

I asserts that it is called.

However, the terms and conditions subject to the Act on the Regulation of Terms and Conditions refer to the terms and conditions, regardless of their names, forms, or scope, which are subject to the Act on the Regulation of Terms and Conditions, and they refer to the contents of a contract prepared in advance by either of the parties to the contract to enter into a contract with a large number of other parties (see Supreme Court Decision 96Da38704 delivered on December 23, 1998, etc.). The instant fee payment agreement is not a content of a contract established in advance for a large number of parties, and therefore, it cannot be viewed as "term

In addition, as long as the defendant's above assertion based on the premise that the agreement on the payment of the fee of this case is a standardized contract cannot be recognized, it is without merit without examining the remaining points.

3. Acknowledgement of duty to pay fees;

A. Legal relations between a licensed real estate agent and a client shall be deemed to be a delegation relationship under the Civil Act (see Supreme Court Decision 91Da36239, Feb. 11, 1992). In cases where there is an agreement with the client as to the remuneration arising from the handling of the brokerage business of a licensed real estate agent, a licensed real estate agent who has completed the brokerage business may, in principle, claim the full amount of the agreed remuneration. However, a licensed real estate agent who has completed the brokerage business may claim the full amount of the agreed remuneration, taking into account the circumstances surrounding the brokerage business, the agreed remuneration amount, the content and process of the brokerage business, the degree of difficulty in business, the degree of effort, the real profits and other circumstances that the client actually acquired as a result of a contract concluded by the broker and other pleadings, and in exceptional cases where there are special circumstances to deem that the agreed remuneration unfairly excessive, it shall be deemed that only the reasonable amount of remuneration

15. The Seoul Central District Court Decision 2004Da59393, Sept. 28, 2001; Supreme Court Decision 2001Da42240, Sept. 28, 2001; Supreme Court Decision 2006Da36752, May 3, 2006; and etc.)

B. He returned to the instant case, the Plaintiff’s act of mediating the instant case has no substantial difference between the real estate brokerage act and the Plaintiff’s act of mediating the instant case. In light of the various circumstances revealed in the argument of the instant case, in light of the following: (a) KRW 17 million under the instant agreement is excessively large compared to KRW 1,530,000,000, which is the maximum limit of brokerage commission under Article 32(4) of the Licensed Real Estate Agents Act and Article 20(1) and (4) of the Enforcement Rule of the same Act; (b) the Defendant did not enter into a lease agreement of the assignee, despite the Plaintiff’s act of mediating the Plaintiff, so the transfer and acquisition of the instant case was invalidated; and (c) the Plaintiff appears to have entered into a contract without notifying the assignee of the fact that the lessor would not want to enter into a lease agreement with the transferee before and after the instant brokerage act; (d) in light of the various circumstances, the amount equivalent to KRW 51,700,000 under the instant agreement for payment of service charges would be unreasonable and paid to the Plaintiff.

4. Conclusion

If so, the defendant shall pay to the plaintiff KRW 5,100,000 and the next day of the payment date.

26. From August 21, 2014, the Plaintiff’s claim of this case was justified within the scope of the above recognition, and the remainder of the claim is dismissed on the ground that it is reasonable. The Plaintiff’s claim of this case is dismissed on the ground that it is reasonable to accept it within the scope of the above recognition, as it is reasonable.

Judges

Judges Kim Gung-sung

참조조문

참조판례

-대법원 1992. 2. 11. 선고 91다36239 판결

-대법원 1998. 12. 23. 선고 96다38704 판결

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