Whether mediating the sale and purchase of apartment tickets constitutes "an act of mediating or mediating the sale and purchase of certificates, etc. related to the sale of real estate" under Article 15 subparagraph 4 of the Real Estate Brokerage Act (negative)

The strict interpretation of the law is required in the case of the administrative penalty law that regulates the violation in order to achieve the administrative purpose in particular, and punish the violation in order to realize the administrative purpose. As such, the interpretation that the existence of the certificate is entirely different from that of the certificate in the "certificate, etc." under Article 15 subparagraph 4 of the Real Estate Brokerage Act merely because the necessity of the regulation on the speculative restraint of real estate speculation cannot be accepted, and therefore, the act of mediating the sale of the winning right of apartment can not be deemed to constitute the "act of mediating or mediating the sale and purchase of the certificate, etc. related to the sale of real estate"

Article 15 of the Real Estate Brokerage Act

Defendant

Prosecutor

Seoul Criminal Court Decision 89No276 delivered on July 13, 1989

The appeal is dismissed.

As to the Prosecutor’s Grounds of Appeal:

In this case where the defendant, who runs the real estate brokerage business, violated Article 38 (1) and Article 15 subparagraph 4 of the Real Estate Brokerage Act by offering brokerage service for the purchase and sale of the apartment winning right, and prosecuted the charge, the court below found the defendant not guilty of the defendant not guilty of the sale and purchase of the certificates related to the sale of the real estate under Article 15 subparagraph 4 of the Real Estate Brokerage Act, which stipulated the prohibited acts of the broker permitted under the Real Estate Brokerage Act, because the building which is the object of brokerage under Article 3 of the Real Estate Brokerage Act cannot be deemed to mean only the existing building, but also includes the building to be constructed in the future.

The act of mediating the sale and purchase of the winning rights of apartment in this case cannot be deemed as an act of mediating or arranging the sale and purchase of the certificates related to the sale of real estate under Article 15 subparag. 4 of the Real Estate Brokerage Act. The purport of Article 15 of the above Act is to enhance the public confidence of real estate brokers as a whole and to establish a fair real estate transaction order. Specifically, the purpose of subparagraphs 4 and 6 of the above Article is to restrain the speculation of real estate. From this point of view, the sale and purchase regulation of the certificates (such as a house subscription deposit certificate, a national housing subscription certificate, a deposit subscription certificate, and a redevelopment area to residents in the redevelopment area) as mentioned above does not differ in terms of the necessity of the regulation. However, in the case of the administrative punishment law regulating the sale and purchase of the certificates in this case, it is necessary to strictly interpret the law in order to achieve a certain administrative purpose, and to punish the violation in order to realize the administrative purpose, and considering the necessity of the regulation, it cannot be construed that the certificates of Article 15 subparag. 4 of the above Act exist.

The court below's conclusion is justified to the effect that this case's brokerage act constitutes a prohibited act under Article 15 subparagraph 4 of the Real Estate Brokerage Act, because it is an act related to the object of brokerage under the Real Estate Brokerage Act and included in the scope of brokerage business permitted, and thus, it must return to the conclusion that the reasoning of the judgment below is justified.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Young-young (Presiding Justice)