[1] Criteria for determining whether a real estate agent's business and report of real estate transactions constitutes "act of brokerage" under Article 30 (1) of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act

[2] Where Gap who operates a brokerage office upon borrowing a licensed real estate agent qualification certificate and a registration certificate of the brokerage office Gap directly entered into a lease contract with Eul who visited the said brokerage office, the case holding that such act does not constitute "act of brokerage"

[1] Article 2 subparag. 1 of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act provides that "a broker means mediating the transaction, exchange, lease, and other acts of gain, loss, and transfer of rights between the parties to a transaction regarding the object of brokerage as provided in Article 3." Article 30(1) of the same Act provides that "a broker shall be liable for damages to a transaction party if he/she causes damage to his/her property due to intention or negligence in performing a broker's act." Whether an act constitutes a broker's act in this context shall be determined based on whether the act of the broker is objectively deemed to be an act of arranging and arranging transaction by social norms.

[2] In a case where Gap, while operating an office with a licensed real estate agent qualification certificate and a registration certificate of a brokerage office leased, concluded a lease agreement as a direct transaction party by pretending that Eul himself/herself owns officetels, the case holding that even if the name of the brokerage office is written in the brokerage column of the lease agreement and the confirmation and explanatory note of the object of brokerage prepared in the name of a licensed real estate agent was issued, the above act of Gap cannot be deemed as an act of mediating and arranging the lease between parties to a transaction in light of social norms, from the objective perspective.

[1] Articles 2 subparag. 1 and 30(1) of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act / [2] Articles 2 subparag. 1 and 30(1) of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act

[1] Supreme Court Decision 2005Da32197 Decided October 7, 2005 (Gong2005Ha, 1772) Supreme Court Decision 2008Da2276 Decided June 12, 2008

Plaintiff

Korean Licensed Real Estate Agent Association (Attorney Kim Jong-hwan, Counsel for defendant-appellant)

Seoul Central District Court Decision 2010Na29453 Decided November 4, 2010

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

We examine the grounds of appeal.

Article 2 subparag. 1 of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act provides that "a broker means mediating the transaction, exchange, lease, and other acts concerning the acquisition, loss, and transfer of rights between the parties to a transaction with respect to the object of brokerage as provided for in Article 3." Article 30(1) of the same Act provides that "a broker shall be liable to compensate for damage to property of a party to a transaction if he/she intentionally or negligently causes damage to the party to the transaction." Whether an act constitutes an act of brokerage in this context shall be determined based on whether the act of the broker objectively and objectively deemed as an act of brokerage in light of social norms (see, e.g., Supreme Court Decisions 2005Da32197, Oct. 7, 2005; 2008Da2276, Jun. 12, 2008).

According to the reasoning of the judgment below and the reasoning of the judgment of the court of first instance as partially admitted by the court below, the co-defendant 1 of the court of first instance pretended that the plaintiff visiting the above brokerage office in order to rent an officetel on April 11, 2008, owned the above office office 1522, and operated the brokerage office office by borrowing a licensed real estate agent qualification certificate and the registration certificate of the brokerage office from Co-defendant 2 of the court of first instance, a licensed real estate agent; the co-defendant 1 of the court of first instance owned an officetel 1522 of Jongno-gu, Jongno-gu, Seoul and sold it to the non-party on December 12, 2006 and completed the registration transfer registration of ownership; however, the court below held that the plaintiff's act of leasing the office at KRW 30 million and KRW 30,000,000,000,000,0000,000,0000,000) was included in the first instance court's first instance judgment, which held against the non-party.

However, according to the legal principles as seen earlier, since Co-Defendant 1 of the first instance trial directly leased the above officetel 1522 to the Plaintiff, even if the name of the brokerage office is stated in the brokerage column of the lease contract, and the confirmation and explanatory note of the object of brokerage prepared in the name of the licensed real estate agent was issued, it cannot be deemed that the above act by Co-Defendant 1 of the first instance trial objectively viewed it as an act of mediating and mediating the lease between the parties to the transaction by social norms

Nevertheless, the court below held that the defendant is liable to pay mutual-aid money for the damages suffered by the plaintiff, who is the party to the transaction by the joint defendant 1 of the court of first instance, on the premise that the above act by the joint defendant 1 of the court of first instance constitutes an act of brokerage. In so doing, the court below erred by misapprehending the legal principles

The ground of appeal pointing this out is with merit.

Therefore, without further proceeding to decide on the remaining grounds of appeal, 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 Yang Chang-soo (Presiding Justice)