[1] Whether a broker who is liable for damages to a victim due to an intentional act by an intermediary assistant is allowed to assert comparative negligence (affirmative with qualification)

[2] In a case where a licensed real estate agent broker, who was entrusted with all the affairs related to the management of the building, such as the conclusion of a lease agreement and the receipt of deposit, failed to pay a security deposit to the owner of the building and filed a claim for damages against a licensed real estate agent and a licensed real estate agent association, the case holding that the court below erred in the misapprehension of legal principles as to comparative negligence or limitation of liability for damages, even though the owner of the building neglected the act of embezzlement, although it appears that such act

[1] Although it is not permissible for a person who intentionally committed a tort by taking advantage of the victim's negligence to claim a reduction of his/her liability on the ground of the victim's negligence, it is contrary to the principle of good faith to allow a person who has such a ground for tort to claim a comparative negligence. As such, even if a brokerage assistant intentionally committed a tort against the victim, which is a party to a trade, due to occupational act, if the brokerage assistant employed only the brokerage assistant, and if he/she was negligent in the victim who is liable to the broker who did not take part in such tort, the court shall take into account the liability for damages

[2] In a case where a licensed real estate agent broker, who is entrusted with all the affairs of management of the building, such as the conclusion of a lease contract and the receipt of deposit, filed a claim for damages against a licensed real estate agent and a licensed real estate agent association without paying a security deposit to the owner of the building, the case holding that the judgment below, which did not consider the above circumstances, was erroneous in the misapprehension of legal principles as to comparative negligence or limitation of liability for damages, on the grounds that, inasmuch as the broker assistant did not confirm the contents of the contract at all as he did not pay a long-term monthly rent without confirming the contents of the contract to the lessee even though he did not properly deposit the contract, such circumstance did not affect the occurrence and expansion of damage, and it did not appear that the licensed real estate agent or the association intentionally committed a tort by using the care of the building owner, on the grounds that it did not have taken into account the existence and scope of liability for damages.

[1] Articles 396 and 763 of the Civil Act, Article 30 of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act / [2] Articles 396 and 763 of the Civil Act, Article 30 of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act

[1] Supreme Court Decision 2008Da22276 Decided June 12, 2008

Plaintiff 1 and two others

Korean Licensed Real Estate Agent Association (Law Firm LLC, Attorneys Lee Jong-soo et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2010Na77318 decided January 27, 2011

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. According to the reasoning of the judgment of the court of first instance cited by the judgment below, the court below acknowledged the facts as stated in its reasoning after compiling the adopted evidence, and determined that the non-party 1, a licensed real estate agent of the non-party 2, is the employer of the non-party 2 who supported his/her brokerage business, and is liable to compensate the plaintiffs intentionally for the damages incurred by the mediation between March 2003 and April 2008, and the defendant Korean Licensed Real Estate Agent Association (hereinafter referred to as the "Defendant Association") is jointly and severally liable with the non-party 1 as a mutual aid business operator for the liability of compensation for the damages caused by the mediation of

In light of the records, we affirm the judgment of the court below as just and there is no error of exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules or failing to exhaust all necessary deliberations, as alleged in the grounds of appeal.

2. Although it is not permissible for a person who intentionally committed a tort by taking advantage of the victim's negligence to claim to reduce his/her liability on the ground of the victim's negligence, it is contrary to the principle of good faith to allow a person who has such reason to claim for offsetting negligence. Thus, even in cases where a broker assistant intentionally committed a tort against the victim, who is a party to a transaction, due to occupational act, if the broker assistant was employed, and if the victim was negligent in employing the broker assistant, and who is responsible for the broker who did not take part in the tort, the court shall take such factors into account in determining liability for damages and its amount in accordance with the principle of offsetting negligence (see Supreme Court Decision 2008Da2276, Jun. 12, 2008).

According to the records, even if Nonparty 2’s embezzlement was committed over several years and did not pay monthly rent for a long time, the Plaintiffs were believed to believe only the horses of Nonparty 2 and continued to work for Nonparty 2 without confirming the terms of the lease agreement at all, and neglected Nonparty 2’s embezzlement. Such circumstance was affected by Nonparty 1 and the Defendant Association’s negligence in the occurrence and expansion of the damages of this case. Thus, in light of the above legal principles, the lower court should have taken this into account ex officio as long as it is acknowledged by the Plaintiffs’ above error.

Nevertheless, the court below erred by misapprehending the legal principles as to comparative negligence and limitation of liability for damages, which are not taken into account in examining and determining the existence and scope of the liability for damages of this case, thereby affecting the conclusion of the judgment.

3. Therefore, the judgment of the court below is reversed and the case is remanded to the court below for a new trial and determination without examining the remaining grounds of appeal as to the payment limit of mutual aid funds by the defendant Association. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)