2019Na24317 Brokerage Commission

A

B

Seoul Eastern District Court Decision 2018Gaso29325 Decided April 10, 2019

December 6, 2019

January 31, 2020

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's claim corresponding to the revoked

The defendant shall pay to the plaintiff 4,950,000 won with the interest rate of 5% per annum from April 10, 2019 to January 31, 2020, and 15% per annum from the next day to the day of full payment.

2. The defendant's remaining appeal is dismissed.

3. Of the total litigation costs, 2/5 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

1. Purport of claim

The defendant shall pay to the plaintiff 8,910,000 won with 15% interest per annum from the next day of the delivery of the complaint of this case to the day of full payment.

2. Purport of appeal

The part of the judgment of the first instance against the defendant shall be revoked, and the plaintiff's claim corresponding to the revocation shall be dismissed.

1. Basic facts

A. The plaintiff is a licensed real estate agent who runs real estate brokerage business under the trade name of "C Licensed Real Estate Agent Office" and is a general taxable business entity.

B. On February 8, 2018, the Defendant concluded a contract to purchase D and Seongdong-gu Seoul Metropolitan Government E apartmentF for KRW 900,000 (hereinafter “instant sales contract”) with the Plaintiff’s brokerage.

C. The statement for confirmation of the object of brokerage attached to the sales contract of this case is written as follows: "8,910,000 won for brokerage remuneration (including additional tax of KRW 810,000)"; and the statement for calculation of brokerage remuneration is written as "900,000,000 x 0.9.9%."

[Ground of recognition] A without dispute, entry of evidence No. 1, purport of the whole pleadings

2. The plaintiff's assertion

The defendant shall pay 8,910,000 won to the plaintiff according to the sales contract of this case.

3. Determination

A. According to the above facts, barring any special circumstance, the defendant is obligated to pay a brokerage commission for the sales contract of this case to the plaintiff, and the sales contract of this case contains a brokerage commission of KRW 8,910,00,00. However, according to the voice of the evidence No. 24, it can be acknowledged that the plaintiff automatically printed out the brokerage commission for the sales contract of this case to the defendant, and that the plaintiff and the defendant subsequently agreed on the brokerage commission for the sales contract of this case.

B. The Defendant asserts that the amount of remuneration agreed with the Plaintiff is KRW 4,950,00,000, and that the brokerage commission should be reduced from the above amount because the Plaintiff avoided its responsibility as a real estate broker. According to the evidence No. 5, the Plaintiff’s assertion that the Plaintiff would accept the Defendant’s demand condition on May 5, 2018, and that the Plaintiff sent written notes to withdraw the instant lawsuit if the Plaintiff deposited KRW 4,950,000 to the Defendant by May 8, 2018. However, since there were no circumstances that the Defendant paid the said amount by May 8, 2018 or received the said proposal, it is difficult to view that the Plaintiff and the Defendant agreed to the brokerage commission at KRW 4,950,000, since it is difficult to deem that the Defendant agreed to the brokerage commission at KRW 4,950

C. However, insofar as it cannot be deemed that there was an express agreement between the Plaintiff and the Defendant on the brokerage commission of the instant sales contract, it is reasonable to determine the brokerage commission to be paid by the Defendant to the Plaintiff by 4,950,000 won (sale payment 90,000,000 + 0.5% + value-added tax 450,000) in consideration of the subject matter of brokerage, the circumstances and difficulty of brokerage, the progress and difficulty of the sales contract concluded by the broker, the specific interests that the client would obtain, and the general practices, etc. within the statutory brokerage commission (0.9% of transaction amount).

D. Therefore, the Defendant is obligated to pay to the Plaintiff delay damages calculated by the ratio of 5% per annum under the Civil Act from April 10, 2019 to January 31, 2020, which is the date when the Defendant’s dispute over the existence and scope of the obligation to pay to the Plaintiff, to the Plaintiff, 4,950,000 won and the following day after the delivery of the complaint of this case (in relation to the claim for delay damages, the interest rate for delay shall be calculated as of April 10, 2019, as of January 31, 2020, and 15% 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 (in this case, only the Defendant appealed with respect to the claim for delay damages, and

4. Conclusion

Thus, the plaintiff's claim shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as it is without merit. Since the judgment of the court of first instance is partially unfair, the part against the defendant who ordered payment exceeding the above recognition amount among the judgment of the court of first instance shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed, and

Judges of the presiding judge shall be appointed as judges;

Judge Yoon Man-in

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