[1] In a case where a broker mediating a lease contract on part of a multi-family house causes property damage to a lessee by intention or negligence, whether the broker is liable to compensate for damage pursuant to Article 30 of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act (affirmative)

[2] In a case where Gap, while mediating a lease contract between Eul and Byung for a part of multi-family house, failed to verify and explain to Byung the matters concerning the lease deposit, etc. of other tenant, but Byung received or was not refunded a lease deposit in junior higher than other small lessee, the case holding that the Korean Licensed Real Estate Agent Association, which entered into a mutual aid contract with Gap and Eul, was liable for damages of the Korean Licensed Real Estate Agent Association, in the auction procedure commenced thereafter

[1] In mediating a lease contract for part of a multi-family house, the broker shall provide the lessee with the data on the relationship of rights of the multi-family house necessary to determine whether the lessee can receive the refund of the deposit properly after the lease contract is terminated. Thus, it shall not be limited to confirming and explaining the relationship of rights of the object of brokerage indicated on the real estate register. The lessee shall not request the lessee to provide the data on the lease deposit, lease time and termination date, etc. except for the portion of personal information among the lease agreements of other lessees already living in the multi-family house and live in the lessee, and shall explain and present the data to the lessee. The lessee shall provide the document by stating the details in the column of "the right of the object of brokerage which is not verified or publicly notified" on the object of brokerage in accordance with Article 16 of the Enforcement Rule of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act. If the lessee fails to comply with the other tenant's lease deposit, lease time and termination date, etc., the broker is liable to enter the details in the description of the object of brokerage.

[2] The case holding that in case where Gap, a broker under the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act (hereinafter "Licensed Real Estate Agents Act"), as part of multi-family house Eul and Byung of the lessee Eul and Byung of the lessee Byung of the lease contract, notified Byung of the maximum debt amount of the right to collateral security stated in the real estate register, and stated the special terms of the lease contract, but did not confirm and explain the lease deposit amount of other lessee residing in the multi-family house, the time and termination period of the lease contract, etc., and did not present evidentiary materials, and did not state the "the right matters of the object which are not publicly notified" in the letter of confirmation and explanatory note of the object of the lease, other small lessee, etc. of the multi-family house in the auction procedure commenced in relation to the above multi-family house, but did not receive the claim to return the lease deposit, and did not receive the refund deposit even if they did not receive it, Gap and the Korean Licensed Real Estate Agent Association concluded with Gap pursuant to Article 30 of the Licensed Real Estate Agents Act.

[1] Article 25(1) and (2) of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act (Amended by Act No. 10580, Apr. 12, 201); Article 30 of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act; Article 21 of the Enforcement Decree of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act; Article 16 of the Enforcement Rule of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act / [2] Article 25(1) and (2) of the former Licensed Real Estate Agents and Report of Real Estate Transactions Act (Amended by Act No. 10580, Apr. 12, 201); Article 30 of the Licensed Real Estate Agents and Report of Real Estate Transactions Act; Article 21 of the Enforcement Decree of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act; Article 16 of the Enforcement Rule of the Real Estate Agents and Report of Real Estate Transactions Act

Plaintiff (Attorney Park Jong-young, Counsel for the plaintiff-appellant)

Defendant 1 and one other (Law Firm LLC, Attorneys Lee Jong-soo et al., Counsel for the defendant-appellant)

Seoul Central District Court Decision 2011Na13219 Decided July 1, 2011

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

According to Article 25(1) and (2) of the former Licensed Real Estate Agents’ Business Affairs and Report of Real Estate Transactions Act (amended by Act No. 10580, Apr. 12, 201; hereinafter “Licensed Real Estate Agents Act”), Article 21 of the Enforcement Decree of the same Act, and Article 16 of the Enforcement Rule of the same Act, a broker shall verify rights, such as ownership, chonsegwon, mortgage, superficies, and leases of an object of brokerage before the brokerage is completed and explain such fact to the client, lessee, etc. of the object of brokerage before the brokerage is completed, and shall present evidentiary materials to confirm and explain such fact. To prepare a contract document after the brokerage is completed, he/she may request the client, lessee, etc. of the object of brokerage to submit materials concerning the state of the object of brokerage. To explain the fact that the client, lessor, etc. fails to comply with a request for materials concerning the state of the object of brokerage, the broker’s duty to explain the details and description of the object of brokerage to the client, etc. in the form of the object of brokerage.

Therefore, in mediating a lease contract for a part of a multi-family house, the broker shall provide the lessee with the data on the relationship of the right of the multi-family house necessary to determine whether the lessee is able to receive the refund of the deposit properly after the lease contract is terminated. Thus, it shall not be limited to confirming and explaining the relationship of the right of the object of brokerage indicated on the real estate register. The lessee shall request the lessee to provide the data on the deposit for lease, the time of lease and the termination date, etc., except for the portion regarding personal information among the lease agreements of other lessees already resided in the multi-family house and live in the lessee, and explain and present the data to the lessee. The lessee shall be obliged to provide the document stating the details in the column of "the matters of the right of the object of brokerage which is not verified or publicly notified" on the object of brokerage under the Enforcement Rule of the Licensed Real Estate Agents Act. If the lessee refuses to comply with the request for data on the date and termination date, etc. of the lease deposit of other tenants, the details thereof shall be stated in the confirmation and explanatory note of the object of brokerage.

According to the reasoning of the lower judgment and the evidence duly admitted by the lower court, the instant multi-family house is in the form of possession of the Nonparty, which can be occupied by 13 households. Under the circumstances where the instant multi-family house was established with a sum of 232 million won with respect to the maximum debt amount, the Plaintiff entered into the instant lease contract with the Nonparty on January 6, 2009 to determine lease deposit amount of KRW 70 million with respect to 301 of the instant multi-family house. Defendant 1, as a broker under the Licensed Real Estate Agents Act, notified the Plaintiff of the maximum debt amount regarding the instant multi-family house registered in the real estate register at the time of mediating the instant lease agreement, and entered the special terms on the lease agreement, but did not explain to the Plaintiff regarding the amount of lease deposit of another lessee residing in the instant multi-family house, time of lease agreement, termination period, etc., and did not obtain any confirmation or public announcement of the contractual relationship between the Plaintiff and the Nonparty, but did not obtain any distribution of the instant multi-family house from the Plaintiff.

Although the reasoning of the lower judgment is somewhat inappropriate, the lower court’s conclusion that recognized the Defendants’ above liability for damages against the Plaintiff is acceptable. In so doing, contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal principles as to the scope of the duty of confirmation and explanation as to the title relationship

2. As to the grounds of appeal Nos. 2 and 4

The allegation in this part of the grounds of appeal is ultimately an error by the selection of evidence or fact-finding which belongs to the exclusive jurisdiction of the lower court, and thus cannot be a legitimate ground of appeal.

3. As to the third ground for appeal

According to the reasoning of the judgment below and the records, the cause of damages for which the plaintiff was unable to receive the refund of the lease deposit of this case is revealed not only that the non-party failed to perform the agreement to cancel the right to collateral security at the time of the lease contract of this case, but also that the circumstances where the lessee's claim for the return of the lease deposit of this case residing in the multi-family house of this case is in a preferential position than that of the plaintiff's claim for the return of the lease deposit of this case at the auction of this case. The judgment of the court below that the plaintiff suffered the above damages due to the negligence as stated in the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)