Plaintiff

Korea Land Corporation (Law Firm One, Attorney Kim Tae-tae, Counsel for defendant-appellant)

February 28, 2007

The plaintiff's claim is dismissed.

Litigation costs shall be borne by the plaintiff.

The defendant's disposition of failure to pass the 15th additional licensed real estate agent qualification examination against the plaintiff on July 5, 2005 is revoked.

1. Details of the disposition;

A. On May 2, 2005, the Defendant entrusted the business of implementing the qualifying examination for licensed real estate agents with the Minister of Construction and Transportation, conducted the qualifying examination for additional licensed real estate agents on May 15, 2005 (hereinafter “the examination of this case”). The examination of this case is divided into the first examination and the second examination and implemented on the same day. The subjects of the second examination are three subjects, such as the Real Estate Brokerage Act, the Acts and subordinate statutes and the intermediary practice (hereinafter “Real Estate Brokerage Act, etc.”), the Acts and subordinate statutes concerning the publication of real estate, and the Real Estate related Acts and subordinate statutes concerning the publication of real estate (hereinafter “Real Estate Publication Act, etc.”), and the regulations related to real estate brokerage among the real estate law (hereinafter “Real Estate Publication Act, etc.”), and 40 points per 100 points per subject, and the passing criteria are 2.5 points per subject, and at least 40 points per subject, and at least an average of 60 points in all subjects.

B. The Plaintiff applied for the second examination among the instant examinations, and scores of 55 points in the Real Estate Brokerage Act, etc., 45 points in the Real Estate Registration Act, etc., and 72.5 points in the Real Estate Registration Act, thereby obtaining an average point of 57.5 points.

C. On July 5, 2005, the Defendant rendered a disposition of failure to pass the 15th additional licensed real estate agent qualification examination (hereinafter “instant failure disposition”) against the Plaintiff on the ground that the Plaintiff’s average examination score on the second examination falls short of 60 points, which is the passing standard score.

D. Meanwhile, at the second examination of this case, the plaintiff selected a answer different from the answer selected by the defendant on the five issues listed in subparagraph 2-c. of the second examination of this case, and the defendant given the plaintiff a mark as to each of the above issues. In order for the plaintiff to be above the average point of 60 points, which is the successful examination of the second examination of this case, at least three of them must be adjusted.

E. The instant examination was conducted on the premise that one of the five answers presented at each issue is the most appropriate answer.

[Ground of recognition] Facts without dispute, purport of whole pleading

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's principal

Among the secondary examination issues of this case, each of the following is the case where the plaintiff's answer of the plaintiff's choice is recognized as multiple answers in addition to the answer selected by the defendant, or there is no answer. Accordingly, if the plaintiff's score is recognized, the plaintiff's second examination score exceeds the standard for passing the examination. Thus, the failure disposition of this case is unlawful.

B. Criteria for determining legality of setting questions

(1) In general, in the preparation of an examination as an administrative act, the preparing member has discretion in a sense that it is possible to freely determine what kind of matter is within the scope of the statutory provisions, what language and answer questions can be formed by using a language or text form. On the other hand, the discretionary power has limitations that should be exercised properly in the contents and composition of the preparation so that the ability of the examinees can be assessed in accordance with the purpose of the examination, and when the exercise of its discretionary power exceeds its limits, the preparing act will be illegal.

However, in the case of preparing questions in the specialized field of examination, it is necessary to maintain the degree of difficulty in a certain level due to the purpose or nature of the examination. Furthermore, in the case of multiple-choice examinations such as the qualifying examination for licensed real estate agents, only the core contents by partially unclear expressions or by putting a complicated academic system into types and transplantations can be recognized as one of the preparation technology. Since it is inevitable to use multiple-choice words in the process of forming the literature and answer port in such specialized field of examination, it cannot be said that the discretionary authority has been abused or deprived without exception any error in preparing questions arising from the process of using general language, which is not a professional language.

(2) In addition, if the applicant has a answer that is bound to observe the problem as a whole and to make a correct answer, due to the nature of the multiple-choice test, he can see the whole questions as being written, and if there is a answer that can only be seen as being written as being written as being written as being written as being not a correct answer, he can interpret that the answer is written as being written as being not a correct answer, and treat the answer as being given as being written as being not only one answer, but only one answer is presented as being written as a whole, and the answer in each question is only one answer, taking into account the fact that there is only one answer, and that there is only one answer, and it can be seen as being written as being written as being written as being written as being written as being written as being not a correct answer, and there is no reason to see that there is no reason to see that there is any other question or answer as being written as being written as being written as being written as being written as being not a correct answer, and there is no reason to see that there is no other answer or answer.

(3) However, in the above standards, when the questions can vary by his subjective interpretation or viewpoint, theories, specific teaching materials, etc. or when the questions are not clearly understood even in light of the physical strength and ability of the general examinee who applied for the examination concerned, the question per se becomes invalid. In addition, when interpreting them as the physical strength and ability of a general examinee, the questions are clearly determined differently from the questioner's intention and ability, or other answers are recognized as the correct answer, the error in the preparation or the selection of the question is unlawful since it deviates from and abused the scope and limit of discretionary power permitted in the course of the multiple-choice examination.

Furthermore, in order to determine whether discretionary power has been abused or abused in the course of setting questions, detailed and comprehensive review of all circumstances related to the point of view of the overall legal order, such as regulatory contents of the provisions related to setting questions and preparing answers, the nature of setting questions, motive for setting questions, the contents, expressions and composition of disputed questions and answers, and the degree of applicant’s understanding ability (see Supreme Court Decision 9Da33960, Apr. 10, 2001, etc.).

(c) review by issue;

(1) Type A, such as the Real Estate Brokerage Act, No. 7 (B-7)

(A) Issues and Defendant Selection’s Answer

본문내 포함된 표 중개업자 갑과 그가 고용한 중개보조원 을에 관한 설명으로 틀린 것은？ ① 을이 고의 또는 과실로 중개의뢰인에게 손해를 끼친 경우에 갑은 손해배상책임을 진다. ② 을이 업무상 행위로 중개의뢰인에게 손해를 끼친 경우에 갑이 무과실이면 손해배상책임은 당사자인 을에게 한정된다. ③ 을로 인하여 손해를 입은 중개의뢰인은 갑과 을에 대하여 연대 또는 선택적으로 손해배상을 청구할 수 있다. ④ 을의 과실로 갑이 중개의뢰인에게 손해배상을 한 경우에는 갑은 을에게 구상권을 행사할 수 있다. ⑤ 을이 중개수수료 과다 수수로 벌금형을 선고 받았을 경우 중개사무소 개설등록이 취소될 수 있다.

Defendant-Appointed Answer: 2

(B) The plaintiff's assertion

② Under the proviso of Article 756(1) of the Civil Act, where a broker who is an employer is an employee without fault, the answer is appropriate because the broker is not liable for damages for his/her occupational act. ③ The answer is distinct from the joint and several liability in that the cause of the quasi-joint and several liability varies depending on each obligor, and each obligor does not have any subjective relationship. As such, the answer is a correct answer in that the quasi-joint and several liability is distinguished from the joint and several liability. ⑤ The answer is imposed on the broker under the Real Estate Brokerage Act if the broker is sentenced to a fine by excessive number of brokerage commissions under the Real Estate Brokerage Act, the agent is punished by a fine, and the registration authority is based on the premise that the registration authority is “a revocation” as necessary for the registration of establishment of the brokerage office. Accordingly, the answer to this issue must be made five times or three times, and multiple answers.

(C) Relevant statutes

The Civil Code

Article 756 (Employer's Liability for Damages)

(1) A person who has had an employee engage in any work by using another person shall be liable for the damages inflicted upon a third person regarding the execution of his work: Provided, That this shall not apply in case where the employer has paid due attention to the appointment of an employee and his supervision of the work, or even if he has paid due attention

The actual contents of the previous Real Estate Brokerage Act (amended by Act No. 7638, Jul. 29, 2005; hereinafter the same shall apply)

Article 6 (Employees, etc. of Brokers)

(5) Business activities of a licensed real estate agent and a brokerage assistant employed by a broker shall be deemed the activities of the broker who employs him/her.

Article 7 (Grounds for Disqualification of Brokers, etc.) Any person falling under any of the following subparagraphs shall not become a broker, a licensed real estate agent or brokerage assistant belonging thereto, or an officer of a corporate broker (hereinafter referred to as a "corporate broker, etc."):

10. A person who has been sentenced to a fine for violating this Act, and for whom one year has not passed thereafter;

Article 15 (Prohibited Acts Brokers, etc.) No broker, etc. shall commit the following acts:

2. Receiving money and other valuables in excess of the fees or actual expenses under Article 20 (3), or receiving money and other valuables under any pretext, such as reward, donation and others;

Article 22 (Cancellation of Registration)

(1) If a broker falls under any of the following subparagraphs, the registration authority shall revoke the registration of establishment of the brokerage office concerned:

3. Where he/she falls under disqualifications prescribed in Article 7: Provided, That in cases where any of the officers of a corporate broker falls under disqualifications, if such officer is replaced within 2 months from the date on which such grounds occur, this shall not apply;

(2) If a broker falls under any of the following subparagraphs, the registration authority may revoke his/her registration:

3. Where he commits the prohibited acts under each subparagraph of Article 15;

Article 38 (Penal Provisions)

(2) Any person falling under any of the following subparagraphs shall be punished by imprisonment for not more than one year or by a fine not exceeding ten million won:

5. A person who violates the provisions of Article 10, Article 11 (1), subparagraphs 1 through 3 and 7 of Article 15, and Article 16-2;

Article 40 (Joint Penal Provisions) If an executive officer or employee of a broker who is a broker, or a licensed real estate agent or brokerage assistant employed by the broker commits an offense falling under Article 38 in connection with the brokerage business, not only shall such offender be punished, but also the broker shall be punished by a fine prescribed in the same Article.

(D) Determination

(5) If a real estate broker’s business act is deemed an excessive act of a brokerage office that employs the broker, then it is difficult to view the above provision as an excessive act of a brokerage office without fault. However, in light of the purport of the above provision, the liability to compensate for damages arising from his/her business act is a kind of employer’s liability as provided in the Civil Act. In light of the above provision, if the broker’s registration of establishment cannot be seen as an excessive brokerage office, it is difficult to determine that the broker’s business act constitutes an excessive brokerage office based on the above provision regarding the registration of establishment under Article 6(5) of the former Real Estate Brokerage Act, and thus, it is difficult to determine that the broker’s business act constitutes an excessive brokerage office based on the above provision regarding the registration of establishment of real estate brokerage office, and thus, if it is difficult to determine that the broker’s business act constitutes an excessive brokerage office, then the broker may not be deemed to have been subject to a fine for damages arising from his/her business act, in full or in part, as alleged by the Plaintiff.

(2) Type A, such as the Real Estate Brokerage Act, No. 13 (B-type 11)

(A) Issues and Defendant Selection’s Answer

본문내 포함된 표 중개계약에 관한 설명으로 틀린 것은？ ① 중개계약은 중개대상물의 매매·교환·임대차 기타 권리의 득실·변경을 하도록 하는 중개의뢰인과 중개업자간의 계약이다. ② 중개계약은 구두로 할 수 있으나 전속중개계약 체결시 법정서식을 사용하여야 한다. ③ 중개업자와 중개의뢰인 숫자에 따라 공동중개계약과 단독중개계약으로 구분할 수 있다. ④ 중개수수료를 정하는 방법에 따라 일반중개계약, 전속중개계약, 독점중개계약으로 구분할 수 있다. ⑤ 부동산중개업법에서는 순가중개계약을 명문으로 금지하고 있지는 않으나, 법정 중개수수료를 초과할 경우 위법이 된다.

Defendant Appellee: 4

(B) The plaintiff's assertion

② In the answer, “the time of concluding the exclusive brokerage contract” is an expression specifying only the exclusive brokerage contract, and the above answer was established on the premise that the exclusive brokerage contract should be used only at the time of concluding the exclusive brokerage contract. However, the former Real Estate Brokerage Act provides not only the exclusive brokerage contract but also the general brokerage contract. The standard of classification between the joint brokerage contract and the exclusive brokerage contract is only the number of the brokers, but also the number of the clients is not the standard of classification of each contract. Thus, the question should be the correct answer as to the issue. The real estate brokerage business is engaged in the business of brokerage after receiving a certain fee, and the scope of the right to receive the fee varies depending on the type of the brokerage contract, such as the degree of granting the brokerage right, that is, the general, exclusive, and exclusive stores, so the answer can not be a correct fingerprint.

(C) Relevant statutes

The actual contents of the former Real Estate Brokerage Act

The client may, where it is deemed necessary to clarify the contents of the request for brokerage, ask the broker to prepare the brokerage contract stating the matters falling under each of the following subparagraphs:

1. Location and size of the object of brokerage;

2. Estimated transaction price;

3. Brokerage commission set pursuant to Article 20 in respect of estimated transaction prices;

4. Other matters to be observed by the broker and the client.

Article 16-4 (Exclusive Brokerage Contract)

(1) In case of asking brokerage of an object of brokerage, the client may enter into a contract that only a specific broker renders brokerage of relevant object (hereinafter referred to as the "exclusive brokerage contract") by determining a specific broker.

(2) Where a broker intends to enter into an exclusive brokerage contract, he/she shall use a contract (hereinafter referred to as "standard contract") prescribed by the Ordinance of the Ministry of Construction and Transportation and preserve it for the period prescribed by

The actual provisions of the former Enforcement Rule of the Real Estate Brokerage Act (before amendment by the Enforcement Rule of the Act on Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions, No. 487 of December 30, 2005)

Article 14-2 (Standard Forms for Brokerage Contracts) The standard forms for brokerage contracts under Article 16-3 of the Act shall be in accordance with attached Form 13.

Article 14-3 (Standard Forms for Exclusive Brokerage Contract)

(1) The standard form of the exclusive brokerage contract provided for in Article 16-4 (2) of the Act shall be in accordance with attached Form 13-2.

(D) Determination

(4) When the broker intends to enter into an exclusive brokerage contract, the standard contract is not always used, except for the case of the client's request. In Article 14-2 of the former Enforcement Rule of the Real Estate Brokerage Act, the standard form of brokerage contract is established so that the broker can enter into an exclusive brokerage contract at the request of the client. (2) It is difficult to see that "the time of entering into an exclusive brokerage contract" is an expression that only the exclusive brokerage contract is specified, and it is difficult to see that the provision of Article 14-2 of the above Enforcement Rule is a provision prohibiting the conclusion of the general brokerage contract by oral statement. (2) It is reasonable to see that the above provision conforms to the above Acts and subordinate statutes and subordinate statutes, and the general brokerage contract is not prepared in the form of a contract that the broker requests the same brokerage contract to a large number of clients, and the exclusive brokerage contract is not established in the form of a specific brokerage contract. (4) It is difficult to say that the broker's right to ask the client to enter into an exclusive brokerage contract is the form of contract.

(3) Type A, such as the Real Estate Brokerage Act, No. 19 (B-17)

(A) Issues and Defendant Selection’s Answer

본문내 포함된 표 부동산중개업법상 계약금 등의 반환채무이행의 보장에 관한 설명으로 틀린 것은？ ① 중개업자는 계약금 또는 중도금을 제3자 명의로 금융기관 등에 예치하도록 거래당사자에게 권고할 수 있다. ② 중개업자는 계약금 등을 중개사무소 수입·지출을 관리하는 중개업자 본인의 예금통장에 예치할 수 있다. ③ 중개업자는 예치된 계약금을 당사자의 동의 없이 인출하여서는 아니된다. ④ 중개업자의 손해배상책임을 보장하기 위하여 공제사업을 하는 자는 계약금의 예치기관이 될 수 있다. ⑤ 개업중인 변호사는 계약금 등의 예치명의자가 될 수 있다.

Defendant-Appointed Answer: 2

(B) The plaintiff's assertion

There is no provision on the obligation to deposit a separate passbook such as down payment under the former Real Estate Brokerage Act, the revenue of the brokerage office, and the obligation to open a separate passbook for expenditure management, and it is possible to deposit it in the name of the depositor in the another person's deposit passbook under the Depositor Protection Act.

(C) Relevant statutes

The actual contents of the former Real Estate Brokerage Act

Article 19-2 (Repayment Guarantee of Contract Deposit, etc.)

(1) A broker may, if deemed necessary to ensure transaction safety, recommend a transaction party to deposit a down payment or an intermediate payment (hereafter in this Article referred to as the “contract payment, etc.”) in the name of the broker or a third party, the mutual aid business as prescribed in Article 35-2, or the trust company, etc. as prescribed by the Trust Business Act, until the implementation of the transaction contract is completed

The actual provisions of the former Enforcement Decree of the Real Estate Brokerage Act (amended by the Enforcement Decree of the Act on Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions, Presidential Decree No. 19248, Dec. 30, 2005)

Article 28 (Deposit and Management of Contract Deposits, etc.) Where a party to a transaction deposits a down payment or intermediate payment concerning a contract in a financial institution, etc. under his/her name pursuant to Article 19-2 (1) of the Act, the broker shall ensure that it may be managed separately from his/her own deposit and the deposited down payment or intermediate payment shall not be withdrawn without the consent of the party to the transaction.

(D) Determination

Although the former Real Estate Brokerage Act does not explicitly stipulate that the down payment, etc. shall be deposited in a separate passbook. However, in ordinary cases, the transaction takes place frequently due to the revenue and expenditure of the above transaction, and the revenue of the brokerage office where the withdrawal is frequent, and the deposit money, etc. by the broker is deposited in the deposit passbook due to the characteristics of the deposit passbook, so it would substantially be difficult to manage them separately due to the mixture of the revenue, expenditure and the down payment, etc., which would go against the former Real Estate Brokerage Act and the former Real Estate Brokerage Act which provides the duty to separate and manage the down payment, etc., and this would be contrary to the fact that it is possible to deposit in the other person's deposit account in the name of the depositor, which is not different.

(4) A-type 29 (B-type 31) such as the Real Estate Brokerage Act, etc.

(A) Issues and Defendant Selection’s Answer

본문내 포함된 표 부동산 중개활동에 있어서의 ‘AIDA(주의·관심·욕망·행동)원리’와 클로우징(Closing)에 대한 설명 중 틀린 것은？ ① ‘AIDA 원리’란 마케팅에서 발달한 용어로 사람이 어떤 물건을 구입하기까지의 심리적 발전단계를 표시한 것이다. ② 주의단계(Attention)는 중개업자가 중개대상물 매각광고 등을 통하여 중개대상물의 구매자를 유인하는 단계이다. ③ 욕망단계(Desire)는 고객의 흥미를 유발시키는 단계로 고객의 흥미가 부족한 부분을 집중적으로 공략하여 구입욕망을 높여야 한다. ④ 클로우징이란 부동산 매매계약서에 서명·날인시키는 행위를 말한다. ⑤ 계약금·보증금·입주일 등에 관하여 부분적으로 결정을 유도하고 거래를 성사시키는 방법을 부분선결법 또는 세부선결법이라 한다.

Defendant-Appointed Answer: 3

(B) The plaintiff's assertion

(3) The answer is not only a content contrary to the Brokerage Act in light of the purpose of the Brokerage Act, the object of brokerage, the duty to explain, etc. as a result of the broker's intensive explanation of only the part in which the broker feel interest, but also a content contrary to the Brokerage Act in light of the purpose of the Brokerage Act, the confirmation of the object of brokerage, the duty to explain, etc., and the A.A.A. brokerage practice theory lacks validity. (4) The phrase "any signature and seal" of the answer is in violation of the former Real Estate Brokerage Act by ordering and ordering the signature and seal of the client against his/her expressed client's will.

(C) Determination

A.A. In real estate brokerage, A.I.D. doctrine is a theory that expresses the psychological development stage of a person up to the purchase of a certain object by classifying it into the stage of caution, interest, view, and behavior, focusing on the characteristics of the object in question so that customers may feel interested, while the interest stage in the above stage comes to focus on the characteristics and advantages of the object in question, and explain the characteristic and advantages of the object in detail through sufficient explanation and in order to resolve the customer's apprehension and induce the purchase desire. As such, the answer clause is presented as an explanation of the interest stage, and it falls under a clearly satisfy fingerprints (it seems that it is not necessary for the customer to intensively explain only the part that they feel interest in the interest stage even according to the above theory). In light of the content of answer clause, expression, composition and understanding ability of the applicant, etc., it is difficult to see that the Plaintiff's prior reply or reply to the above paragraph is contrary to the intention of the client, and it is difficult to see that the Plaintiff's signature or seal is forced.

(5) No. A-type 114 (B-type 112) of the Real Estate Act

(A) Issues and Defendant Selection’s Answer

본문내 포함된 표 건축법 및 그에 의한 명령이나 처분에 위반한 경우 허가권자가 취할 수 있는 조치에 해당하지 않는 것은？ ① 허가나 승인의 취소 ② 공사중지명령 또는 건축물철거명령 ③ 건축물의 사용중지·사용제한 ④ 건축물의 용도변경 명령 ⑤ 벌금의 부과

Defendant-Appointed Answer: 5

(B) The plaintiff's assertion

According to the Building Act and subordinate statutes, the authority to issue a fine shall take measures to impose a fine on a person who violates the order, and the authority to issue a fine is specified as the imposing authority of the fine for negligence. Accordingly, the imposition of a fine in accordance with the violation of Acts and subordinate statutes is made as the measure of the authority to issue a fine.

(C) Determination

A fine under criminal-related Acts and subordinate statutes is different from a fine for negligence imposed by the competent permitting authority, which is imposed by the court's decision on the prosecution of a public prosecutor and by the final decision thereof, and is not bound by the competent permitting authority's disposition. Therefore, the plaintiff's assertion on this part is without merit.

D. Sub-determination

Although the examination of this case was presented Nos. 7 (B-7) of the subjects, such as the Real Estate Brokerage Act, among the second examination, it is the same as prior to the absence of correct answer. However, in the case of the plaintiff, even if the above issue is dealt with as a correct answer, the average score of the second examination is raised from 57.5 to 58.3 points (=57.5 x 3 + 2.5) ± 3}, and it still remains that the average score, which is the passing standard, does not reach 60 points.

3. Conclusion

If so, the plaintiff's claim is without merit, and it is dismissed. It is so decided as per Disposition.

Judges Jami-gu (Presiding Judge)