(영문) 서울중앙지방법원 2018.5.10. 선고 2017가단5110987 판결

1. The Defendants jointly pay to the Plaintiff 20,923,251 won and 5% interest per annum from June 17, 2017 to May 10, 2018, and 15% per annum from the following day to the date of full payment.

2. The plaintiff's remaining claims against the defendants are dismissed.

3. 7/10 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendants, respectively.

4. Paragraph 1 can be provisionally executed.

Purport of claim

The defendants jointly and severally pay to the plaintiff 69,744,170 won with 15% interest per annum from the day after the last copy of the complaint of this case is served to the day of full payment.

Reasons

1. Facts of recognition and related statutes;

A. Defendant C is a practicing licensed real estate agent located in Gangnam-gu, Seoul from around 102 to June 2016 at the E Licensed Real Estate Agent Office to be a licensed real estate agent affiliated with the real estate agent from around 2012 to May 2017, and Defendant C is a person who works as a licensed real estate agent affiliated with the real estate agent from around June 2016 to around 2017, and Defendant C is a person who is working as a licensed real estate agent with the above E Licensed Real Estate Agent Association (hereinafter “Defendant Association”) from around June 2016, and the Korea Licensed Real Estate Agent Association (hereinafter “Defendant Association”) operates a mutual aid project to guarantee the transaction party’s liability for damages to the real estate broker’s real estate brokerage as prescribed by the Licensed Real Estate Agent Act, and is a mutual aid agreement between Defendant B and the trading party to bear liability for damages incurred to the transaction party by intention or negligence within the limit of 100 million won.

B. The Plaintiff was homeless, and the Plaintiff entered into a contract with Defendant C, a practicing licensed real estate agent at the time of the purchase request for the Gangnam-gu Seoul F apartment 17 Dong 1503 (hereinafter “instant apartment”) to purchase KRW 457 million with Defendant C’s brokerage on May 14, 2014, and then came to own one house for one household by paying the remainder on August 27 of the same year and completing the registration of ownership transfer on the same day. At the time, Defendant C had been holding the instant apartment to sell it if the Plaintiff wishes to be exempted from capital gains tax after the lapse of two years.

C. On June 1, 2016, the Plaintiff requested Defendant C to sell the instant apartment, and on July 25, 2016, concluded a contract for sale with Defendant C (at the time, a practicing licensed real estate agent in the above E Licensed Real Estate Agent Office was a licensed real estate agent, and Defendant C was a licensed real estate agent) as the broker of Defendant C (at that time, the licensed real estate agent in the above E Licensed Real Estate Agent Office was affiliated with the licensed real estate agent), and completed the registration of ownership transfer to G on the same day after receiving the balance on the payment date of the remainder.

D. At the time of departure from G to a foreign country, the Plaintiff agreed to complete the balance payment and transfer registration as above, and the Plaintiff asked whether the period of the Plaintiff’s payment of capital gains tax should not be determined if the period of the payment exceeds two years, and Defendant C should ask the relevant tax accountant for detailed tax-related matters in response to his answer that the period of the payment of capital gains tax should not be determined if the period of the payment exceeds two years. However, the Plaintiff or Defendant C did not confirm with the relevant tax accountant, but did not determine the balance payment date and made the transfer registration.

E. The Plaintiff and Defendant C considered that no capital gains tax should be imposed on the ground that the holding period of the instant apartment was over two years. However, on May 22, 2017, the Plaintiff, upon receipt of a prior notice from the head of Samsung Tax Office to pay capital gains tax and local income tax on the instant apartment, became aware that the holding period of the instant apartment was less than two years and became subject to capital gains tax due to the Plaintiff’s failure to pay the said income tax, and paid KRW 63,460,780, and KRW 69,74,170 (=63,460,780 + 6,283,390, and individual local income tax on the 29th day of the same month, which was the last day of the payment period.

[Ground of recognition] Evidence Nos. 1 through 9, Evidence Nos. 1 and 1, Defendant C’s personal examination result, the purport of the whole pleadings

Relevant Acts and subordinate statutes

○ Article 89 of the Income Tax Act (Non-taxable Capital Gains)

(1) No capital gains tax (hereinafter referred to as "capital gains tax") shall be levied on the following income:

3. Income generated from transfer of any of the following houses (excluding expensive houses the value of which exceeds the standard prescribed by Presidential Decree) and land appurtenant thereto, the area of which is within the area calculated by multiplying the area of which a building is built by the multiple rates prescribed by Presidential Decree for each region (hereafter referred to as "land annexed to a house" in this Article):

(a) One house for one household prescribed by Presidential Decree;

Article 98 (Time of Transfer or Acquisition)

In calculating gains on transfer of assets, the time of acquisition and transfer shall be the date of liquidation of the price of relevant assets, except in cases prescribed by Presidential Decree, such as cases where the date of liquidation is unclear. In such cases, if the transferee has agreed to pay capital gains tax and additional tax on capital gains tax on the transfer of relevant assets, the relevant capital gains tax and additional tax on capital gains tax shall be excluded from the price of assets

○ Income Tax Act

§ 154. Scope of “One house for one household”

(1) "Requirements prescribed by Presidential Decree" in Article 89 (1) 3 (a) of the Act means that one household has one house in the Republic of Korea as of the date of transfer and the period of possession of the relevant house is at least two years (three years in cases of a house owned by a resident falling under paragraph (8) 2) [in cases of a house located in an area subject to adjustment under Article 63-2 (1) 1 of the Housing Act (hereafter referred to as "area subject to adjustment" in this Article), at the time of acquisition, the period of possession of the relevant house shall be at least two years (three years in cases of a house owned by a resident falling under paragraph (8) 2) and the period of residence shall be at least two years during such period of possession]: Provided, That where one household has one house in the Republic of Korea as of the date of transfer and falls under any of subparagraphs 1 through 3, the period of possession and the period of possession shall not be restricted,

2. Determination as to the cause of the claim

(a) Occurrence of liability for damages;

(1) Article 25(1) of the Licensed Real Estate Agents Act provides that a practicing licensed real estate agent shall verify the location and relationship of the object of brokerage, legal relationship, transaction or restriction on use under Acts and subordinate statutes, and other matters prescribed by the Presidential Decree, and explain the relevant documents faithfully and correctly and present them. Article 21(1)9 of the Enforcement Decree of the same Act provides that a practicing licensed real estate agent is obligated to explain the kinds and rates of taxes to be borne by the practicing licensed real estate agent following the acquisition of his/her right to the object of brokerage pursuant to Article 25 of the same Act, and Article 21(3) of the Enforcement Decree of the Licensed Real Estate Agents Act and Article 16 of the Enforcement Rule of the same Act provides that a practicing real estate agent shall explain the type and rates of taxes to be borne by the practicing licensed real estate agent at the time of acquisition (residential building), acquisition tax, special rural development tax, local education tax, and capital gains tax is not subject to such obligation, barring special circumstances.

However, given that the legal relationship between a real estate broker and a client is the same as that under the Civil Act, a real estate broker has a duty to perform brokerage services requested with the care of a good manager according to the principal place of a brokerage request (see, e.g., Supreme Court Decisions 2007Da44156, Nov. 15, 2007). Even if a real estate broker does not bear a duty to explain to the client upon investigation and confirmation, he/she shall not provide false information about important matters in determining whether to conclude a contract by the client. If he/she delivers false information to the client as if it were true and the client trust and enters into a contract with the other party, such act by a real estate broker violates the duty of a broker to faithfully act with the care of a good manager (see, e.g., Supreme Court Decisions 98Da3067, May 14, 199; 206Da48386, Sept. 25, 2008).

(2) In light of the above legal principles, the issue of whether the capital gains tax is imposed on the person entrusting the sale of a house is an important factor in determining whether to sell the house and the sale price. In addition, Defendant C was well aware that the Plaintiff had sold the apartment of this case since the Plaintiff was subject to non-taxation of capital gains tax for the two-year period of possession, and was requested by the Plaintiff to confirm the apartment of this case. Furthermore, the Plaintiff was requested by the Plaintiff prior to the determination of the payment date for the remaining payment date, and it was necessary to accurately confirm the apartment of this case to the tax accountant, etc. with professional knowledge, or to confirm it by himself and notify the Plaintiff of the remaining payment date within two years of the outstanding payment date based on erroneous tax knowledge, and thus, Defendant C violated the contractual obligation to act as good manager and to act as a broker, and Defendant C is jointly liable to compensate the Plaintiff for damages arising from mutual aid agreements concluded between the Plaintiff and the Plaintiff as a mutual aid business entity under Article 15(2) and Article 30(1) of the Licensed Real Estate Agent Act.

B. Limitation on liability

However, according to the aforementioned evidence, the main duty and liability to verify the imposition and holding period of capital gains tax shall be limited to 30% of the total amount of the Defendants’ liability in light of all the overall circumstances, including the following circumstances acknowledged by the aforementioned evidence: (a) the Plaintiff is the owner of the apartment of this case; (b) the Plaintiff explicitly delegated the confirmation of imposition of capital gains tax to Defendant C; or (c) there was no separate agreement on the said remuneration; and (d) the Plaintiff did not request a separate advice from a tax specialist despite Defendant C’

C. Scope of liability for damages

According to the above facts, if the plaintiff sold the apartment of this case for a period of two years or more (the remaining payment should be delayed only for the extent of 20 days) the plaintiff is a single house holder of one household, and the transfer margin from the sale of the apartment of this case is a non-taxable transfer income pursuant to Article 89(1)3 (a) of the Income Tax Act and Article 154 of the Enforcement Decree of the Income Tax Act, and thus, the plaintiff's loss is 69,74,170 won equivalent to the above amount of tax paid.

D. Sub-determination

Therefore, the Defendants jointly have a duty to jointly pay to the Plaintiff 20,923,251 won (-69,744,170 won x 30%) and damages for delay calculated at each rate of 15% per annum under the Civil Act from June 17, 2017 following the date of the final delivery of the copy of the complaint of this case to the Plaintiff, which is deemed reasonable to dispute as to the existence and scope of the Defendants’ obligations.

3. Conclusion

Therefore, the plaintiff's claim is justified within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.