(영문) 인천지방법원 2020.1.31. 선고 2019나55999 판결

The defendant shall pay to the plaintiff 5,00,000 won with 15% interest per annum from the day immediately following the day of the decision of this case to the day of full payment.

2. Purport of appeal

The same shall apply to the order.

Reasons

1. Basic facts

A. The Plaintiff is a licensed real estate agent operating the D Licensed Real Estate Agent Office located in Bupyeong-si, Busan.

B. Nonparty E and F sought a new construction project by purchasing eight parcels of land, such as Seocheon-si G, and the Defendant, who owned land and its ground (hereinafter referred to as “the instant real estate by combining them”), purchased and sold the instant real estate as the Plaintiff’s intermediary on July 20, 2018 and between E and F, for the purpose of the Plaintiff’s brokerage, KRW 470 million and the down payment amounting to KRW 393 million on August 16, 2018 (hereinafter referred to as “the instant sales contract”).

C. The Plaintiff signed and sealed the sales contract of this case as a broker of the sales contract of this case, and entered the contract amount of brokerage remuneration agreement in the column of "matters concerning brokerage remuneration, etc." as KRW 2,068,00 (including value-added tax).

D. On July 18, 2018, the Plaintiff received KRW 5 million from the Defendant.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 6, and 15, the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

The Plaintiff did not simply act as a broker for the instant sales contract, but provided consulting so that the Defendant may earn profits by selling and selling the instant real estate and save transfer income tax as follows. The Defendant agreed to pay KRW 10 million in return for the Plaintiff’s consulting or special acceptance. Of them, the Defendant did not pay KRW 5 million in the remainder.

1) The instant real estate was a de facto old house located inside and outside of the alley and without an independent septic tank, and thus, it was difficult to purchase and sell the instant real estate. However, the Plaintiff actively proposed to purchase the instant real estate to E, etc., which was seeking to newly build a loan only on five adjacent parcels except the instant real estate, and as a result, contributed to the sale of the instant real estate at a much higher price than its market price.

2) The remainder payment date agreed upon at the time of the initial sales contract was October 31, 2018. However, the Defendant requested F to advance the payment date in accordance with the non-taxation period of capital gains tax, and accordingly, the Plaintiff paid interest costs of KRW 5 billion to F and lent the remainder payment amount of KRW 400 million temporarily to F, and thereby, saved capital gains tax to be borne by the Defendant on September 17, 2018, as desired by the Defendant.

B. Defendant’s assertion

The defendant does not have any agreement with the plaintiff on real estate consulting. The plaintiff is merely a real estate agent who has engaged in a business as a matter of course for the formation of a sales contract, and the plaintiff's claim for consulting expenses of this case constitutes excessive fees exceeding the limit prescribed in the Real Estate Brokerage Act, and the defendant is not obliged

3. Determination

A. Relevant legal principles

" Brokerage business subject to the regulation of the Licensed Real Estate Agents Act" refers to a business of arranging the sale, exchange, lease, and other acquisition, loss, and transfer of rights between the parties to a transaction with respect to the objects of brokerage, including real estate, in return for a certain remuneration at another person's request (Article 2 subparagraphs 1 and 3 of the Licensed Real Estate Agents Act). Whether an act constitutes brokerage business shall not depend upon the actor's subjective intent, but shall be determined based on whether an act is objectively deemed an act for mediating and mediating transactions in light of social norms, and it shall not be deemed that a person who acts as a broker for real estate provides services, such as real estate consulting, as well as so-called real estate brokerage business subject to the regulation of the Licensed Real Estate Agents Act (see Supreme Court Decision 2009Da4572, Nov. 10, 201).

B. Determination of the instant case

Comprehensively taking account of the following facts and circumstances, Gap evidence Nos. 8 through 10, 15, 16, and Eul evidence No. 1’s each statement of evidence Nos. 3 through 5, and Eul evidence Nos. 9 through 14, it is insufficient to acknowledge that the agreement between the plaintiff and the defendant to pay 10 million won as the price for special acceptance of the real estate of this case is established, and there is no other evidence to acknowledge otherwise. In addition, there is no evidence to prove that the plaintiff provided separate consulting services exceeding the trading act in connection with the real estate of this case.

1) The instant sales contract was concluded with the knowledge that the Plaintiff, a real estate broker, was promoting the instant real estate construction project in the instant real estate unit, by recommending the Defendant to sell the instant real estate. As alleged by the Plaintiff, there is no evidence to acknowledge the allegation that the Plaintiff actively proposed the buyer to include the instant real estate excluded from the original construction site of lending, and made the instant sales contract in the buyer’s new site of lending. Furthermore, even if the Plaintiff’s assertion was partially acknowledged, the Defendant did not request the Plaintiff to perform such act in advance or promised to pay the price therefor.

2) Ordinary real estate consulting business refers to the use of real estate, the presentation of development plans, the management of real estate, and the provision of financial advice. This differs from that of the "real estate brokerage", which is the intermediary for real estate transactions. The defendant entered into the sales contract of this case on behalf of the plaintiff, and entered into an agreement for the payment of brokerage fees therefor, and did not have any explicit agreement for the provision of the real estate or for the provision of additional services.

3) The Plaintiff asserts that, by adjusting the payment date of the remainder on September 17, 2018, the Defendant’s non-taxation period of capital gains tax does not expire, and that for this purpose, the Plaintiff paid interest expenses to the buyer and provided money to the buyer for a short-term loan so that the buyer can raise any balance, etc. However, the payment or payment rate falls under the scope of ordinary brokerage business, and there is no evidence suggesting that there was a separate interest expense for the payment rate as alleged by the Plaintiff. Furthermore, even if there was such circumstance, the Plaintiff may not claim the payment by asserting that it would be a separate consulting act or non-payment, as long as it was paid by the Plaintiff without prior consultation with the Defendant.

4) The Plaintiff appears to have demanded the Defendant to pay KRW 10 million under the name of “the commission in consideration of the special premium,” and accordingly, the Defendant deposited KRW 5 million to the Plaintiff on July 18, 2018. However, as seen earlier, the Defendant only left the Plaintiff to arrange for the conclusion and performance of the instant sales contract, and did not request the Plaintiff to provide any separate consulting services exceeding the scope. Furthermore, the Defendant’s claim for an amount exceeding KRW 10 million to the Plaintiff on the date of the remainder payment date of the instant sales contract is deemed excessive. (a) On the other hand, the Defendant’s claim for an amount exceeding 5 times the normal fee cannot be deemed to be an ordinary circumstance.” In addition to the fact that the Defendant sent an text of “I cannot be deemed to have paid KRW 5 million as an intention to pay the payment for the separate consulting services in addition to the brokerage commission.”

5) Ultimately, the Plaintiff cannot be deemed to have provided consulting or services beyond the scope of ordinary brokerage practices. However, a practicing licensed real estate agent shall not receive money or goods in excess of the statutory brokerage commission or actual expenses under any pretext such as case, donation and others (Articles 33 and 32 of the Licensed Real Estate Agents Act, and Article 20(4)2 of the Enforcement Rule of the Licensed Real Estate Agents Act). The provisions on real estate brokerage commission fall under the so-called mandatory law that restricts judicial effects on the portion exceeding the prescribed limit among the brokerage commission agreement, and thus, an agreement on real estate brokerage commission exceeding the limit prescribed by the relevant Acts and subordinate statutes is null and void within the extent exceeding the prescribed limit (see, e.g., Supreme Court en banc Decision 2005Da32159, Dec. 20, 2007). Thus, insofar as the Plaintiff already received money or goods from the Defendant exceeding the amount exceeding 2,068,000 won, which was already agreed within the scope of the commission under the relevant provisions, there is no ground for further demanding the Defendant

4. Conclusion

Thus, the plaintiff's claim of this case shall be dismissed as it is without merit. The judgment of the court of first instance with different conclusions is unfair, and the plaintiff's claim is dismissed.