2017Da243723 Compensation for damages

Plaintiff

Attorney Choi Han-hoon, Counsel for the defendant-appellant

Defendant

Seoul Central District Court Decision 2016Na69347 Decided June 7, 2017

July 29, 2021

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

The grounds of appeal are examined.

1. Issues;

The issue is whether the provisions of the Licensed Real Estate Agents Act on the restriction of remuneration under the Licensed Real Estate Agents Act apply to arranging the acquisition of real estate subject to public auction.

2. Provisions and legal principles on restrictions on brokerage and brokerage commission

Article 2 subparag. 1 of the Licensed Real Estate Agent Act provides, “The act of arranging the transaction, exchange, lease, and other acquisition, loss, or modification of rights between the parties to the transaction regarding the object of brokerage as provided for in Article 3.” Such brokerage includes not only the case where the broker is requested by both parties to the transaction, but also the case where the trade, etc. of the object of brokerage is mediated at one party’s request (see Supreme Court Decision 94Da47261, Sept. 295).

The main text of Article 32(1) of the Licensed Real Estate Agents Act provides that “a practicing licensed real estate agent shall receive the fixed remuneration concerning brokerage business from the clients.” Article 32(4) of the same Act and Article 20(1) and (4) of the Enforcement Rule of the same Act stipulate the limit of remuneration which a licensed real estate agent may receive from the clients in connection with the brokerage business by each object of brokerage. The above provisions concerning the restriction of real estate brokerage fees (hereinafter referred to as “the restriction on remuneration”) constitute so-called mandatory regulations that restrict judicial effect on the portion exceeding the prescribed limit among the brokerage fees agreement. Therefore, the real estate brokerage fees agreement in excess of the limits prescribed by relevant Acts and subordinate statutes, such as the Licensed Real Estate Agents Act, is null and void to the extent that it exceeds the prescribed limit (see Supreme Court en banc Decision 2005Da32159, Dec. 20, 207).

Even where a contract for the object of brokerage is not completed, a licensed real estate agent may agree to pay remuneration corresponding to the act of brokerage even if the contract for the object of brokerage is not completed. In such cases, if the parties concerned have not determined a specific standard for calculating the amount of remuneration under the agreement, it shall be determined in consideration of the details of request for brokerage, the process and difficulty of handling brokerage cases, the period and degree of effort for brokerage, the client's specific benefits obtained by brokerage, the value of the object of brokerage, and other various circumstances revealed in pleadings, and if a specific amount of remuneration has been determined in the agreement, only the remuneration may be claimed within the extent deemed reasonable in consideration of the principle of good faith, the principle of equity, etc. In such cases, if the contract is completed, it shall not exceed

3. Whether the provisions concerning restrictions on remuneration apply to good offices for public auction;

A. According to the provisions related to the public auction of the National Tax Collection Act, the head of the competent tax office shall put the attached real estate, etc. up for a public auction as prescribed by Presidential Decree (Article 66(1)), and if deemed necessary, he/she may obtain a guarantee for public auction from a person who intends to participate in the public auction (Article 71(1)). An applicant for the purchase of the property for public auction shall submit the bid price, etc. to the public official executing the public auction before the opening of the opening of the public auction by stating the bid price, etc. on the tender (Article 82(1)). The head of the competent tax office shall determine a request for the purchase as the purchaser and notify the purchaser of the purchase price on the date of the decision of sale within seven days from the date of the decision of sale (Article 84(3) and (4)). In addition, the head of the competent tax office shall again urge the purchaser to pay the price by the specified deadline if the purchaser fails to pay the price by the specified deadline (Articles 85 and 86(2). 1).

B. In full view of the above provisions and legal principles, it is reasonable to view that the provision on remuneration restriction also applies to the arrangement of acquisition of real estate subject to public sale. The reasons are as follows.

(1) Although a public auction has the characteristic of compulsory exchange of an object, in essence, it merely differs from the object to arrange the acquisition of real estate subject to the public auction in its substantive content and effect, and there is no difference between arranging the sale and purchase under Article 2(1) of the Licensed Real Estate Agents Act. Therefore, there is no reason to exclude provisions on the protection of transaction parties applicable to the sale and purchase, including the provision on restriction on remuneration for the public auction (see Supreme Court Decision 2005Da40853, Apr. 12, 2007).

(2) Article 32(1) of the Licensed Real Estate Agent Act provides that the object of the request for brokerage remuneration shall be not a brokerage, but a brokerage business, and the provision on restriction of remuneration, located in subordinate regulations under the legal system, can be seen as a provision based on the premise of a brokerage business. The above Supreme Court Decision 2005Da40853 has interpreted that the concept of a brokerage business under the Licensed Real Estate Agent Act is distinguished from that of a broker, and whether it constitutes a brokerage business under the Licensed Real Estate Agent Act should be determined depending on whether the act of a licensed real estate agent is objectively considered as an act of brokerage and good offices in light of the purpose of the legal provisions aimed at the protection of a transaction party. This legal principle also applies to the interpretation of a "mediation business" stipulated in the provisions related to brokerage remuneration.

(3) Article 14 of the Licensed Real Estate Agents Act provides that "a practicing licensed real estate agent may engage in the analysis of rights, mediation of acquisition, and request for purchase of real estate subject to public auction under the National Tax Collection Act and other Acts and subordinate statutes (Paragraph (2))." Article 17 (1) of the Regulations on the Registration, etc. of Licensed Real Estate Agents' Agents' Agents' Agents' Agents' Agents' Agents' Agents' Agents' Agents' Agents' Agents' Agents' Agents' Agents' Agents's Agents's Agents' Agents's Agents's Agents' Agents's Agents's Agents's Agents's Agents's Attorneys' Agents's Agents's Agents's Agents's Representatives's Rights to Real Estate subject to public auction and their payment are not provided in the legal limits. If a licensed real estate agent's agent's agent's request for purchase is made from the referral of acquisition to request for purchase, it would result in unfair conclusion that he can receive remuneration without restriction if it is made in the mediation of acquisition more than

4. Determination on the instant case

A. According to the reasoning of the lower judgment and the record, the following facts are revealed.

The Plaintiff agreed to receive good offices for acquisition of the land subject to public auction from the Defendant, a licensed real estate agent, to pay a fixed amount of remuneration. Accordingly, the Plaintiff participated in the bidding for the land subject to public auction as agreed to be acquired by the Defendant and decided to sell a part of the land, but the Plaintiff was not able to participate in the public auction procedure after the Plaintiff

The plaintiff argues that the defendant, a licensed real estate agent, should comprehensively return the part of the defendant's excessive remuneration for brokerage business, including the defendant's assertion that he/she received remuneration in excess of the remuneration limit prescribed by the restriction on remuneration.

B. Examining these circumstances in light of the aforementioned legal principles, the lower court should have deliberated and determined whether the intermediary remuneration paid by the Plaintiff was exceeded on the basis of the limit of intermediary remuneration under the aforementioned legal doctrine, after examining the details of the specific agreement on the arrangement for the acquisition of real estate for public sale between the Plaintiff and the Defendant on the payment of remuneration, the amount of remuneration actually paid by the Plaintiff to the Defendant for each land subject to public sale, and whether the public sale procedure

However, the lower court rejected the Plaintiff’s claim solely on the ground that the business of arranging the acquisition of real estate subject to public auction does not constitute brokerage under Article 2 subparag. 1 of the Licensed Real Estate Agents Act, and thus, the provision on restriction of remuneration is not applicable. The lower court erred by misapprehending the meaning of brokerage business under the Licensed Real Estate Agents Act, scope of application of restriction on remuneration, legal nature of public auction, etc.,

5. Conclusion

The Plaintiff’s appeal is with merit and 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 Noh Jeong-hee

Justices Kim Jae-hyung

Justices Ansan-chul

Justices Lee Dong-gu