The Intervenor succeeding to the Plaintiff (Attorney Jeon Soo-soo et al., Counsel for the intervenor succeeding to the Plaintiff)

Defendant (Attorney Full Il-il, Counsel for defendant-appellant)

May 31, 2012

Seoul Central District Court Decision 2010Gahap36624 Decided November 15, 201

1. Of the judgment of the court of first instance, the part against the defendant in excess of the amount ordered to be paid below shall be revoked, and the plaintiff succeeding intervenor's claim against the defendant as to the revoked part

The defendant shall pay 58,160,643 won to the co-defendant 3 of the first instance trial and each of the intervenors succeeding to the plaintiff, and 5% interest per annum from April 29, 2010 to July 5, 2012, and 20% interest per annum from the next day to the date of full payment.

2. The defendant's remaining appeal is dismissed.

3. 50% of the total costs of the lawsuit between the plaintiff succeeding intervenor and the defendant shall be borne by the plaintiff succeeding intervenor, and the remainder by the defendant respectively.

1. Purport of claim

The defendant shall pay 17,769,220 won to the intervenor succeeding to the plaintiff jointly and severally with the non-party 3 of the first instance trial and 20% interest per annum from the delivery date of a copy of the complaint of this case to the day of full payment.

2. Purport of appeal

The part against the defendant in the judgment of the court of first instance shall be revoked, and the claim against the defendant by the plaintiff successor as to the revoked part shall be dismissed.

1. Facts of recognition;

A. Real estate lease agreement between Nonparty 1 and Nonparty 2

1) On August 11, 2009, Nonparty 1, the Plaintiff of the first instance trial (hereinafter “Nonindicted 1”), purchased the instant apartment from ○○○dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong (hereinafter “instant apartment”).

2) On September 7, 2009, the Plaintiff’s successor intervenor who represented Nonparty 1 entered into a real estate lease agreement (hereinafter “instant lease agreement”) with Nonparty 2 on a deposit amount of KRW 220,00,000 with respect to the instant apartment as of October 31, 2009, the contract period from October 31, 2009 to October 30, 201, and agreed that KRW 22,00,000 for the down payment of KRW 198,00,000 on the day, and the remainder amount of KRW 198,00,000 shall be paid on October 31, 2009, and the loan of this case shall be paid in full as the deposit money received.

3) Meanwhile, Nonparty 1, the lessor of the instant lease agreement, was the real estate agent operating △△△ real estate, and Nonparty 3, the co-defendant 3 of the first instance court, was working as the real estate intermediary for the Defendant.

B. The receipt and use of agency by Nonparty 3

1) Since Nonparty 1 and the Plaintiff’s succeeding intervenor are unable to receive the remainder directly from Nonparty 2 on the day of the lease agreement, there is a common-friendly relationship. However, Nonparty 3, who arranged for the sale of the instant apartment, prepared a power of delegation to Nonparty 3 to delegate all the authority to receive the remainder other than the down payment out of the deposit for the lease on the instant apartment, and accordingly, Nonparty 3 decided to repay the instant loan with the said money on behalf of Nonparty 1.

2) On October 30, 2009, Nonparty 3 received the remainder of lease deposit KRW 198,000 from Nonparty 2 on behalf of Nonparty 1, and on the same day, Nonparty 1 received KRW 5,406,000 from Nonparty 1.

3) However, Nonparty 3 did not repay the instant loan as the remainder of the lease deposit received from Nonparty 2 as the foregoing, but used the remainder as to the (name 2 omitted) ▽▽▽▽▽▽△△△○○○ Dong 200, Seoul Special Metropolitan City purchased by himself as the remainder of the lease deposit.

C. Partial repayment and assignment of claims by Nonparty 3

1) Nonparty 3 paid KRW 97,222,343 out of the remainder of the lease deposit to Nonparty 1 between February 9, 2010 and February 9, 2010.

2) Meanwhile, Nonparty 1 spent a sum of KRW 15,026,332 as interest on the instant loan on the wind that Nonparty 3 did not repay the instant loan with the remainder of the lease deposit, from October 8, 2009 to January 31, 2011.

3) On July 15, 2010, Nonparty 1 transferred to the Intervenor succeeding to the Plaintiff all rights-related claims against Nonparty 3 and the Defendant, including claims 111,769,220, and damages for delay thereof, and notified Nonparty 3 and the Defendant of the transfer thereof.

【Ground of recognition】 Evidence Nos. 1 through 3, Evidence Nos. 6 and 7 (including paper numbers; hereinafter the same shall apply), Evidence Nos. 3, Evidence Nos. 2, Non-Party 2’s statement and the purport of the whole pleadings

2. The assertion and judgment

A. Summary of the parties' assertion

1) The Intervenor succeeding to the Plaintiff

Pursuant to Articles 15(2) and 30(1) of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act (hereinafter “Licensed Real Estate Agents Act”), the Defendant is liable to compensate for the damages suffered by Nonparty 1 due to Nonparty 3’s tort, who is a broker assistant, due to the act of Nonparty 3.

2) Defendant

On behalf of Nonparty 1, Nonparty 3 received the remainder of the lease deposit from Nonparty 2 on behalf of Nonparty 1, and useful action is based on the parents of the Plaintiff’s succeeding Intervenor, and is not an occupational act performed by the Defendant’s employee or intermediary assistant.

B. Determination

1) Occurrence of damages liability

A) Article 2 Subparag. 1 of the Licensed Real Estate Agents Act provides that "a broker means mediating the transaction of, exchange for, lease, and other rights between the parties to the transaction regarding the object of brokerage." Article 15(2) of the same Act provides that "the act of the broker assistant shall be deemed the act of the broker who employs the broker." Article 30(1) of the same Act provides that "a broker shall be liable to compensate for the damage of property to the party to the transaction by intention or negligence in performing the act of brokerage."

On the other hand, in light of the purport of the legal provisions aimed at protecting the parties to the transaction, the issue of which act constitutes a broker's occupational act shall not be determined by the subjective intent of the broker who acts as a broker as a broker, not by the broker's intention, but by whether the broker's act is objectively recognized as an act for good offices and brokerage in light of social norms (see, e.g., Supreme Court Decision 2000Da48098, Dec. 22, 2000).

B) In this case, we examine whether Nonparty 3, the broker assistant of the defendant, obtained the repayment fee for the loan of this case and the balance of lease deposit from Nonparty 1 and Nonparty 2, and can be seen as an act of fraud or embezzlement under the Certified Brokerage Act and an act of business of Nonparty 3.

As seen above, Nonparty 3 arranged the sale of the apartment in this case and recommended Nonparty 1 to enter into the instant lease agreement, and Nonparty 2 paid KRW 198,00,00 to Nonparty 3 for the remainder of the lease deposit in this case, and Nonparty 1 paid KRW 5,406,00 to Nonparty 3 as the remainder of the lease deposit received from Nonparty 2 at the time of entering into the instant lease agreement was the refund fee for the repayment of the loan in this case. In light of the fact that Nonparty 3 was the title of the agreement at the time of entering into the instant lease agreement, Nonparty 3 merely arranged the conclusion of the contract in relation to the instant lease agreement, but instead arranged the type of brokerage business to arrange for the contract to perform the contractual obligations only by actively participating in the realization of the contractual obligations after entering into the contract. In such a case, it is reasonable to view that the role of the broker or intermediary assistant is terminated only by concluding the contract, and then the act of acting as an agent and intermediary for the transaction in this case is an objective social norms.

C) Therefore, the act of Nonparty 3, a brokerage assistant, received a sum of KRW 203,406,00 ( KRW 198,000 + 5,406,000) from Nonparty 2 and Nonparty 1 in the course of mediating the instant lease agreement and paying the remainder of the lease deposit, constitutes the act of Nonparty 3’s occupational performance. Nonparty 1 is liable to pay damages to the Plaintiff’s succeeding intervenor who acquired the claim from Nonparty 1 pursuant to Article 30(1) of the Licensed Real Estate Agent Act, on the ground that Nonparty 3 used the said money without using it for the repayment of the instant loan, even if it was paid, and Nonparty 3 used it without using it, thereby causing damages equivalent to the amount of proximate causal relation with Nonparty 3’s tort. Thus, the Defendant is obligated to pay damages.

2) Limitation on liability for damages

On the other hand, according to the facts found above, when the real estate brokerage office requests the real estate brokerage to the real estate brokerage office and grants the brokerage assistant the right to receive the lease deposit to receive the lease deposit from the lessee, it was negligent in neglecting the right to receive the above money under the direction and supervision of the broker, and such negligence was caused by the occurrence and expansion of the damage suffered by the non-party 1 due to the above illegal act by the non-party 3. Therefore, it is reasonable to view that the ratio of negligence exceeds 50%.

3) Scope of liability for damages

A) Furthermore, as to the scope of liability for damages, there is no dispute between the parties on the grounds that the total amount of damage of Nonparty 1, who has a proximate causal relation with Nonparty 3’s tort, is 213,543,628. Thus, the amount of damage corresponding to the ratio of negligence of Nonparty 1 is 106,771,814 won (213,543,628 won x 0.5) (the amount of damage which is equivalent to the ratio of negligence of Nonparty 1 is 106,771,814 won (213,543,628 won x 0.5). (See Supreme Court Decision 2006Da16758, Oct. 25, 2007, the limitation of liability pursuant to the above comparative negligence is only applicable to the Defendant, but does not apply to Nonparty 3 who committed an intentional tort by Nonparty 1’s negligence).

B) Meanwhile, the fact that Nonparty 3 paid KRW 97,222,343 to Nonparty 1 is a matter of how to see the effect of extinguishing the obligation due to the repayment.

In a case where a joint tortfeasor is jointly and severally liable for damages to other persons, if the amount of damages is identical, the portion equivalent to the full amount of the other tortfeasor’s liability due to absolute effect if the tortfeasor partly pays the amount of damages. However, in a case where the scope of damages to be compensated varies depending on the degree of fault of the tortfeasor’s victim, the scope of the liability extinguished depending on who paid the amount of damages has been discharged. In other words, in a case where a person liable for a small amount of damages partly pays damages after the establishment of tort, the part equivalent to the full amount of the liability of the person liable for a large amount of damages is extinguished, as well as in a case where a person liable for a large amount of damages partly pays the amount of damages, the obligation of the person liable for a small amount of damages is not extinguished, but is equivalent to the portion corresponding to the ratio of negligence of the person liable for the small amount of damages, and this shall also be the same even in a case where he partly pays the amount of damages to an employee (see, e.g., Supreme Court Decision 94Da16060, Jul. 14, 19995).

In light of the above legal principles, when the broker's liability under Articles 15 (2) and 30 (1) of the Licensed Real Estate Agents Act is also equivalent to the employer's liability under the Civil Act, it is reasonable to view that the essence of the broker's liability is equivalent to that of the employer's liability. Thus, the effect of the extinction of the liability arising from the repayment of a part of the amount of damages in this case by the non-party 3, who is liable to compensate for a large amount of damages in this case, is equal to the part corresponding to the ratio of negligence among the Defendant's damage liability. Accordingly, the Defendant's damages to be compensated for the Plaintiff's Intervenor are 58,160,643 won (106,71,714 - 48,614 - 48,611,171 won (97,222,34

C. Sub-committee

Therefore, the defendant is obligated to pay to the non-party 3 and the intervenor succeeding to the plaintiff 58,160,643 won above and 20% interest per annum under the Civil Act until July 5, 2012, which is the date of delivery of a copy of the complaint of this case, as the plaintiff succeeding intervenor's claim from April 29, 2010, which is the date of delivery of a copy of the complaint of this case, to the non-party 3 and the plaintiff succeeding to the plaintiff.

3. Conclusion

Therefore, the plaintiff succeeding intervenor's claim against the defendant is justified within the scope of the above recognition, and the remainder is dismissed as it is without merit. Among the judgment of the court of first instance, the part against the plaintiff succeeding intervenor and the defendant is unfair.

Therefore, the part of the defendant's appeal against the defendant ordering payment in excess of the above money shall be revoked, and the plaintiff's claim against the defendant as to the revoked part shall be dismissed, and the defendant's remaining appeal shall be dismissed as it is without merit. It is so decided as per Disposition.

Judges Central Government of the Republic of Korea (Presiding Judge)