Plaintiff

Defendant

April 20, 2005

Jeju District Court Decision 2004Kadan17688 Decided December 29, 2004

1. The defendant's appeal is dismissed.

2. The defendant shall bear the costs of appeal.

1. Purport of claim

The defendant shall pay to the plaintiff 26,972,00 won with 20% interest per annum from the day following the delivery of the written amendment of the claim of this case to the day of full payment.

2. Purport of appeal

The judgment of the court below is revoked. The plaintiff's claim is dismissed.

1. Basic facts

The following facts may be acknowledged by taking into account the following facts as a whole: there is no dispute between the parties, or as to the entry of evidence A1 to 3, A6, and 7 (including each number), the partial entry of evidence B to 2, and the testimony of non-party 1 of non-party 1 (excluding the parts not trusted in the front and rear).

A. On January 14, 2003, the Plaintiff owned a 932,000,000 won of the above real estate to Nonparty 2 and other third parties (the next to to the instant sales contract), and the Defendant, a real estate broker, arranged the instant sales contract by introducing Nonparty 1, the Plaintiff’s ductal son.

B. Meanwhile, prior to the execution of the instant sales contract, the Plaintiff intended to sell and sell the above real estate to a third party via the brokerage office called (title omitted) licensed real estate agent, and paid 20 million won via relay fees at the time. However, on the instant land, the said third party did not withdraw the intention of purchase and did not enter into a sales contract on the ground that construction permission on the instant land cannot be granted. The Defendant was aware of such circumstances at the time of the instant sales contract.

C. After the conclusion of the instant sales contract, Nonparty 3 and Nonparty 1, the Plaintiff’s death father, were proposed to the Defendant to transfer each land indicated in the separate sheet (the land of this case from the next one) at a brokerage commission, and the Plaintiff also accepted it, and completed the registration of ownership transfer on April 8, 2003, and the Defendant completed the registration of ownership transfer on the land of this case on April 11, 2003. The registration of ownership transfer claim was completed on April 11, 2003, which is three days after the issuance of the instant sales contract.

D. The market price at the time of April 8, 2003 of the instant land is KRW 34,840,000 in total, and the instant land was acquired by consultation with the Jeju on May 31, 2004. The compensation for its expropriation is KRW 35,360,000 in total.

2. Relevant statutes;

A. Article 20(1) of the Real Estate Brokerage Act provides that a broker shall collect a fixed fee from a client with respect to brokerage business. Article 20(2) of the same Act provides that the broker may receive actual expenses incurred in verifying the relationship of rights, etc. of the object of brokerage under Article 17(1). Paragraph (3) of the same Article provides that necessary matters concerning the fee and the limit of actual expenses under paragraphs (1) and (2) shall be prescribed by the Ordinance of the Special Metropolitan City, Metropolitan City, or Do within the scope prescribed by the Ordinance of the Ministry of Construction and Transportation.

B. Meanwhile, according to the Jeju-do Ordinance on Standards for and Limit of Real Estate Brokerage Commission and Actual Expenses (hereinafter “the instant Ordinance”), in the case of an object of brokerage except general housing, real estate brokerage commission is stipulated within the limit of 0.2% to 0.9% of the sales price, and under a mutual contract between the client and the broker.

3. The parties' assertion and judgment

A. Judgment on the plaintiff's assertion

(1) Summary of the Plaintiff’s assertion

The plaintiff provided the defendant with the land of this case with the commission for real estate brokerage in the sales contract of this case, and the land of this case was accepted at the proposal thereafter, and the compensation amount was 35,360,000 won. The plaintiff asserts that it exceeds 8,388,000 won (=932,00,000 won x 0.9), which is the maximum amount of the commission for brokerage in the sales contract of this case under the Real Estate Brokerage Act, and that the mediation commission agreement for the excess amount of KRW 26,972,00 (=35,360,000 - 8,388,000) is null and void. Thus, the defendant asserts that it is obligated to refund KRW 26,972,00 to the plaintiff.

(2) Judgment on the Plaintiff’s assertion

(A) The purpose of the provisions related to the brokerage commission under the Real Estate Brokerage Act is to promote the convenience of people's lives by restricting the effects of private law on the portion exceeding the prescribed limit among the agreement of the real estate brokerage commission. Thus, it is subject to the so-called mandatory law, and the part of the agreement of the brokerage commission in excess of such limit shall be deemed null and void (Supreme Court Decision 2000Da5406, 54413 Decided September 4, 2002).

(B) As seen earlier, the maximum amount of the commission for the sales brokerage of this case under the Real Estate Brokerage Act and the Ordinance of this case is KRW 8,388,00 ( = 932,00,000 x 0.9). Since the market price of the land of this case as of April 8, 2003 when the Defendant mediated the sales of this case and transferred the ownership of the land of this case as of April 8, 2003, the market price of the land of this case was KRW 34,840,00,000 for the portion exceeding the above maximum amount (=34,840,000 - KRW 8,38,000), the commission for sales brokerage shall be deemed to be partly null and void.

(C) In regard to this, the Plaintiff asserted to the effect that the amount the Defendant received as the intermediary fee for the instant sales contract ought to be deemed as KRW 35,360,00,000, which is the above land expropriation price. However, it is reasonable to view the brokerage commission that the Defendant acquired as the market price of the instant land at the time of acquiring the instant land under the pretext of the brokerage commission.

(D) Therefore, the defendant is obligated to pay to the plaintiff 26,452,00 won which constitutes the above invalidation and damages for delay at each rate of 5% per annum as stipulated in the Civil Act and 20% per annum as stipulated in the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from September 2, 2004, which is the day following the day when the written amendment of the purport of the claim was served on the plaintiff, until December 29, 2004, for the existence and scope of the obligation to perform. Thus, the plaintiff's assertion is with merit within the scope of the above recognition.

B. Judgment on the defendant's assertion

(1) Summary of the defendant's assertion

After several days from the acquisition of the instant land by the real estate brokerage commission under the instant sales contract, the Defendant sold 5 million won to Nonparty 1, the Lee Dong-dong, the Plaintiff’s Lee Dong-dong, and thereafter, he received compensation. Ultimately, the Defendant asserted to the effect that the Plaintiff cannot respond to the Plaintiff’s request on the ground that the Defendant did not receive fees exceeding the maximum limit prescribed by the Act since it was merely 5 million won.

(2) Judgment on the defendant's assertion

(A) The defendant's evidence consistent with the defendant's argument that he sold the real estate of this case to the non-party 1 in KRW 5 million has been partially stated by the non-party 1 witness Eul and the non-party 1's witness at the trial court. However, as seen earlier, the defendant was aware that the plaintiff intended to pay 20 million won to the non-party 1 before the sale and purchase of this case, and it was transferred the real estate under the name of brokerage commission. On April 11, 2003, 30 million won after the plaintiff acquired the ownership of the land of this case from the non-party 1, and even at the defendant's argument, it is difficult to conclude that the defendant sold the above real estate to the non-party 1 in KRW 5 million, but it is hard to find that the non-party 1 had a serious difficulty in selling the real estate of KRW 34840,000 at the time of the sale of the real estate of this case, and there is no other evidence to prove that the defendant sold the real estate of this case to the non-party 2.

(B) Furthermore, even if the Defendant sold the instant real estate in KRW 5 million to Nonparty 1, this is merely a cause that occurred between the Defendant and Nonparty 1 after acquiring the instant land, and such circumstance alone is insufficient to readily conclude that the Defendant’s commission is not more than KRW 5 million. Thus, the Defendant’s above assertion is groundless.

4. Conclusion

Therefore, the plaintiff's claim of this case is accepted within the scope of the above recognition, and the remainder is dismissed as it is without merit. The court below is just in its conclusion, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment List omitted]

Judges Cho Han-hun (Presiding Judge)