2012No450 Violation of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act

1. A;

2. B

Defendants

Kim Jae-Nam (Public prosecution) and knife (public trial)

Attorney Park Young-young (the national election for the defendant)

Ulsan District Court Decision 201DaMa1792 Decided July 18, 2012

February 22, 2013

All appeals by the Defendants are dismissed.

1. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles

(1) Article 1-A(2) of the judgment of the court below (the defendants) of the first-class (A) and Paragraph (2) of the judgment of the court below are involved in the process of concluding the above sales contract as a broker assistant at the time of the brokerage of the sales contract for the G apartment located in Ulsan-gun, Ulsan-gun, and there was no fact that the intermediary client D referred to as a licensed real estate agent or did not have any name or any name, and Defendant B, a licensed real estate agent, signed and sealed the above sales contract. At the time of the brokerage of the above sales contract, Defendant B was requested by Defendant A to approve the sales contract for the above real estate and signed and sealed it directly in the sales contract, and the court below found Defendant B guilty of this part of the facts charged. The judgment of the court below erred by

(2) Section 1-B (Defendant A) of the decision of the court below

The defendant did not receive brokerage request or brokerage commission from D with respect to the above F apartment, but the defendant concluded a sales contract as to the above real estate as G's agent for the purpose of donation to the second children of the defendant. Thus, the broker, etc. does not engage in direct transaction with the client, and the above real estate does not constitute direct transaction with the client, since H, an agent, etc. working in the same office, has not received brokerage request, and it does not constitute direct transaction with the client, among Article 33 subparagraph 6 of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act as provided by Article 33 subparagraph 6 of the Act on Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions, and interpreting the above real estate including a broker, etc. who does not receive brokerage request with the client does not constitute direct transaction with the client, and it is found guilty of this part of the facts charged. The judgment of the court below is erroneous by misapprehending the facts or by misapprehending the legal principles, which affected the judgment.

B. Unreasonable sentencing (defendants)

In light of the overall circumstances of this case, the sentence imposed by the court below on the defendants (the defendant A: the fine of KRW 3 million, the fine of KRW 1 million, etc.) is too unreasonable.

2. Determination

A. Article 19 of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act (hereinafter “Licensed Real Estate Agents Act”) prohibits a broker from engaging in brokerage business using his/her name to another person. Here, the phrase “a broker allowing another person to engage in brokerage business using his/her name” means, in appearance, that another person is practically disqualified in performing the business of the broker even if the broker takes the same type as that of the direct business (see, e.g., Supreme Court Decision 2006Do934, Mar. 29, 2007).

According to the evidence duly admitted and examined by the court below and the court below, since Defendant B operated the E Licensed Real Estate Agent Office from around 1991 as a licensed real estate agent, around February 18, 2009, and completed the brokerage assistant registration report to the Ulsan-gun Office of Ulsan Metropolitan City, Ulsan-gun, without the direct presence of Defendant B; and Defendant B prepared a sales contract concerning C apartment located in Ulsan-gun, Ulsan-gun, Ulsan-gun, and signed the name of Defendant B and sealed the seals of Defendant B. In light of the above recognized facts and the following circumstances acknowledged by the evidence, i.e., ① Defendant B was a brokerage assistant at the E certified real estate agent office at the time of preparation of the above sales contract and the E certified real estate agent’s signature and seal, and Defendant B was not a real estate agent’s title at the time of execution of the contract without the signature and seal of Defendant B’s real estate agent at the time of execution of the contract, i.e., Defendant B’s statement and evidence in the above part below’s name and evidence.

B. Article 12 (2) of the Licensed Real Estate Agent Act provides that "a broker, etc." shall not engage in direct transactions with a client or acts of acting as a broker for both a client and a party to a transaction with a broker under Article 33 subparagraph 6 of the Licensed Real Estate Agent Act, as to the assertion of mistake of facts or misapprehension of legal principles as to the point of No. 1-B of the judgment of the court below, and Article 12 (2) of the Licensed Real Estate Agent Act provides that "a broker, etc. shall not engage in direct transactions with a client or acting as a broker for both parties." Article 33 subparagraph 6 of the Licensed Real Estate Agent Act provides that "a broker, etc. shall not engage in direct transactions with a client." Article 33 subparagraph 6 of the same Act intends to protect a client by using information, etc. which the broker, etc. came to know of in transaction with the client to the extent that it does not harm the client's interest. In order to apply the above provision to the broker, etc., the "direct transaction" prohibited under the above provision refers to 10.

According to the above legal principles and evidence duly admitted and examined by the court below, (1) D, around March 8, 201, through H, an assistant broker, to sell the above F apartment at KRW 75 million, and H, to conduct on-site guidance and general affairs of the above real estate (3,74,76 pages, evidence No. 15, 96). (2) The defendant, who was an assistant broker, purchased the above real estate at KRW 30,00,000, 70,000, 15,000, 30,000,000,000 won and 1,000,000,000 won and 1,000,000 won and 1,000,000 won and 3,00,00 won and 1,000,00 won and 3,00,000 won and 1,00,00 won and 1,07,00,00 won.

C. The assertion of unfair sentencing

In light of the legislative intent of the Licensed Real Estate Agents Act, in full view of the Defendants’ age, character and behavior, environment, motive and background of the crime, circumstances after the crime, etc., the court below’s sentence against the Defendants is too unreasonable, and there is no reason to deem this part of the Defendants’ assertion as well as there is no reason to believe that the Defendants’ punishment against the Defendants is too unreasonable, in light of the following: (a) the Defendants denied all the crimes even during the trial; (b) the Defendants did not violate their wrongness; (c) the Defendants’ criminal liability cannot be deemed to be light in light of the legislative intent of the Licensed Real Estate Agents Act, which was intended to establish a fair and transparent real estate transaction order; and (d) other all the sentencing conditions, including the Defendants’ age, character and behavior

3. Conclusion

Therefore, since the defendants' appeal is without merit, it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges of the presiding judge, Kim Dong-ho

Judges Gin Sung-sung

Judges are likely to affix a name or seal as judges and professional disease;

The presiding judge