2018 Ghana 114467 damages (ar)

A

Law Firm LLC, Counsel for the defendant-appellant

Attorney Kim Jong-seok, Justice Kim Jong-mar, Justice Seo-mar, Justice Seo-gyeong, Counsel for the plaintiff-appellant and the plaintiff-appellant

1. B

2. C Association;

Attorney Shin Young-chul, Counsel for the plaintiff-appellant

Attorney Doh-ho, Kim Jong-soo

May 15, 2019

June 12, 2019

1. The Defendants jointly pay to the Plaintiff the amount of KRW 41,00,000 as well as the amount at the rate of KRW 15% per annum from May 10, 2019 to the date of full payment, while Defendant C Association shall pay to the Plaintiff an amount at the rate of KRW 15% per annum from May 9, 2019 to the date of full payment.

2. The costs of lawsuit shall be borne by the defendants.

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Facts of recognition;

A. D is the owner of the real estate indicated in the attached Form (hereinafter referred to as the “officetel in this case”), Defendant B is a licensed real estate agent, and Defendant C Association (hereinafter referred to as the “Defendant Association”) concluded a mutual aid agreement with the content that compensates the parties to a transaction for the damage when Defendant B incurred property damage due to intention or negligence in the course of real estate brokerage (from November 8, 2015 to November 7, 2016, the deduction amount of KRW 100,000).

B. In fact, Defendant B, even though he was not authorized by D to conclude a lease agreement on the instant officetel and to receive guarantee money, did not act as if he was the agent entrusted with D, and by deceiving the Plaintiff on December 9, 2015, Defendant B entered into a lease agreement with respect to the Plaintiff and the instant officetel from December 17, 2015 to December 17, 2017, and acquired a deposit amount of KRW 60,000,000 from the Plaintiff. The Plaintiff filed a lawsuit against D and the Defendants seeking damages of KRW 60,000,000 for joint tort.

D. During the instant lawsuit, a decision in lieu of conciliation became final and conclusive between the Plaintiff and D to the effect that “the Plaintiff shall deliver the instant officetel to D at the same time with the payment of KRW 19,00,000 from D, and D shall pay KRW 19,00,000 to the Plaintiff simultaneously with the delivery of the instant officetel from the Plaintiff.”

【Fact-founded facts, Gap 1, 3 through 6, 8, Eul 1-1 and 2, and the purport of the whole pleadings

2. Determination

A. Determination on the cause of the claim

According to the above facts of recognition, defendant B is a tort, and the defendant Association is a mutual aid business operator of defendant B.

As a result, barring any special circumstance, the Plaintiff is jointly obligated to compensate the Plaintiff for KRW 41,00,000,000, which is claimed by Defendant B, out of KRW 60,000,00, which was acquired by Defendant B.

B. Determination on the assertion of the Defendant Association

(1) The defendant association asserts that the damage suffered by the plaintiff is not caused by the personal tort of the defendant B, and it does not constitute the damage covered by the defendant association, since the damage was not caused by the real estate intermediary act.

Whether a certain act constitutes brokerage under the Licensed Real Estate Agents Act, in light of the purport of the above Act, which aims to protect a transaction party, a broker shall not be determined by the subjective intent of the broker, which is to mediate or mediate a transaction for a transaction party. The act of the broker shall be objectively deemed to be an act for mediating or mediating a transaction by social norms (see, e.g., Supreme Court Decision 2005Da55008, Feb. 8, 2007). In this case, the defendant B received 60,000 won from the plaintiff in the course of mediating the conclusion of the lease agreement on the instant officetels between the plaintiff and D, regardless of its subjective intent, from which the above act of the defendant B is objectively deemed to be an act for mediating or mediating a real estate lease in light of social norms.

Therefore, Defendant Association’s assertion is without merit.

(2) Exemption from liability under section 7(5) of the Terms and Conditions

The defendant association asserts that the damages suffered by the plaintiff constituted "damage not compensated" pursuant to Article 7 (5) of the Terms and Conditions of Mutual Aid and Article 3 (4) of the Licensed Real Estate Agent Act.

According to the statement Eul evidence No. 1, Article 7 (5) of the Credit Terms and Conditions of the defendant's Association provides that "damages caused by the act of brokerage, etc. which is prohibited by the act of practicing licensed real estate agent under Article 33 of the Act" shall not be compensated for. Article 33 (4) of the Licensed Real Estate Agent Act provides that "the act of causing the judgement of the client by false words or other means concerning important matters relating to the transaction of the object of brokerage" shall be prohibited by the act of licensed real estate agent.

However, in this case, it is difficult to view that the deception by Defendant B constitutes an act of causing the judgment of the client by deception or by other means of deception or other means on the "material fact in transaction, such as the relationship of rights, etc. of the object of brokerage", as it merely deceiving the client by deceiving the client without intent or ability to mediate the conclusion of genuine rental contract in the course of real estate lease brokerage.

Therefore, Defendant Association’s assertion is without merit.

[3] Article 30 of the Licensed Real Estate Agent Act provides that a licensed real estate agent shall be liable for damages to a transaction party due to a broker's illegal act or default on a contract (see, e.g., Supreme Court Decision 2011Da77870, Feb. 23, 2012). Article 30 of the Licensed Real Estate Agent Act provides that "where a practicing licensed real estate agent causes property damage to a transaction party due to intentional or negligent conduct in acting as a broker, the practicing licensed real estate agent shall be liable for damages. Before commencement of his/her business, the practicing licensed real estate agent shall subscribe to, or deposit to, a guarantee insurance or a mutual aid under Article 42 as prescribed by the Presidential Decree, and the transaction parties shall normally engage in real estate transactions in accordance with the brokerage of the broker's mutual aid contract. In light of the purpose and nature of the mutual aid project, the purport of Article 30 of the Licensed Real Estate Agent Act, trust in mutual aid contracts between the transaction parties and the need to ensure stability in real estate transactions pursuant thereto, it is reasonable to interpret Article 70 of the indemnity clause.

(3) The defendant association asserts that the defendant association bears the liability to compensate only within the limit of 100,000,000 won of the deduction amount. However, it is obvious that the plaintiff's claim amount of 41,00,000 won against the defendant association is within the limit of the deduction amount. Thus, the defendant association's argument is without merit.

The Defendants jointly seek from the Plaintiff KRW 41,000,000 and as claimed by the Plaintiff.

From May 10, 2019, Defendant B, the following day following the delivery date of the application for modification of the purport of the claim and the cause of the claim, is obligated to pay damages for delay at the rate of 15% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from May 9, 2019 to the date of full payment (the Defendant Association is liable for delay from the date 60 days have elapsed from the date of filing the claim for the mutual aid money due to the delivery of the duplicate of the complaint in this case). It is apparent that May 9, 2019 was the date after 60 days have elapsed from the delivery date of the duplicate of the complaint in this case to the Defendant Association ( September 4, 2018).

3. Conclusion

All of the plaintiff's claims are justified, and all of them are accepted.

Judges Cho Jong-soo