In a sales contract, whether the duty of disclosure is recognized as a seller under the principle of good faith, and the violation constitutes a "net" which is a constituent element of fraud, and whether the seller has the duty of disclosure as to the reason for not impeding the buyer's realization of right because it cannot affect any legal relationship arising from sale (negative)

Article 347 of the Criminal Act

Supreme Court Decision 91Do2698 Decided December 24, 1991 (Gong1992, 727) Supreme Court Decision 2010Do5124 Decided January 27, 201, Supreme Court Decision 2011Do2989 Decided April 13, 2012

Defendant

Defendant

Busan District Court Decision 2013No3985 Decided June 19, 2014

The judgment of the court below is reversed, and the case is remanded to Busan District Court Panel Division.

The grounds of appeal are examined.

1. The summary of the facts charged in the instant case is that the Defendant, a real estate broker, received a demand from Nonindicted 1, a transferor of the reading room, to receive KRW 30 million as premium, even though he/she received a demand from Nonindicted 1, a transferor of the reading room to receive KRW 30 million as premium, and Nonindicted 1, a transferee, demanded KRW 40 million to receive KRW 40 million. The Defendant, a real estate broker, obtained KRW 40 million from the victim and obtained KRW 30 million as delivery to Nonindicted 1.

2. The court below stated that ① the victim is consistently with the investigative agency from 1 to 200,000 won when the defendant's employee and non-indicted 2 stated that the defendant's original premium is about 50,000,000 won, and the amount of the premium is demanded by Non-indicted 1, the principal offender, and that the above amount would be paid to non-indicted 1, and ② the defendant's employee non-indicted 2 stated that the premium is arbitrarily determined by the principal offender's money and thus it cannot be objectively determined because it could not be determined. According to the above statement, it appears that the victim would have been bound to believe the defendant's horse among the reasonable amount of the premium, ③ according to the defendant's response on August 28, 2012, the defendant would have been aware of the fact that the defendant had been guilty of the difference between the premium and the principal offender's duty of brokerage commission and the amount of the fee already paid to the defendant for the purpose of 100,000 won.

3. However, the lower court’s determination is difficult to accept for the following reasons.

A. In a sales contract, the seller has a duty to inform the buyer in advance of such circumstances in light of the principle of trust and good faith in cases where the seller would not conclude the sales contract if he/she would have been notified of such circumstances, or would not pay the purchase price, even though he/she would not have any influence on legal relations arising from the sale and purchase, and thus, the seller is not obliged to notify the buyer of such circumstances even if he/she would not interfere with the realization of the buyer's rights (see, e.g., Supreme Court Decisions 2003Do1232, Apr. 27, 2004; 2010Do5124, Jan. 27, 2011).

B. According to the records, while the defendant was requested by the victim to find a reading room, he was able to transfer the reading room to the non-indicted 1 who operated the reading room with the intention to transfer the reading room, except for the fee, and if the non-indicted 1 received the premium amount of KRW 30 million,00,000,000,000,000,000 won is more than 30,000,000,000 won is good for the defendant to pay the brokerage fee. The defendant introduced that the above reading room was 50,000,000 won to the victim, and provided that 1,000,000 won was reduced to 4,00,000 won with the permission of the non-indicted 1, the victim determined to transfer the above reading room to the non-indicted 1,000,000 won and 2,01,000,000 won,000 won, which was concluded between the victim and the non-indicted 301,0,0,00,00,000.

In light of the above legal principles and the above facts, if the transferor wants to receive the last premium of KRW 30 million or the transferor has set a higher premium of KRW 30 million, the difference shall be attributed to the defendant as a brokerage commission, etc., and it is not deemed that the parties to the contract for transfer and acquisition of the reading room have to be notified to the other party in the principle of trust and good faith. In such a case, it is difficult to see that the defendant should be notified to the transferee of the above matters in accordance with the principle of trust and good faith. In addition, since the transferee should be determined in accordance with each party's own judgment, the victim should also conclude the contract for transfer and acquisition of the premium of KRW 40 million in accordance with his own judgment. Moreover, even if the defendant's original victim had a higher premium of KRW 50 million but the amount of the premium of KRW 10 million in the process of the transfer and acquisition of the reading room was limited to KRW 40 million,000,000,000.

Therefore, it is difficult to view that the defendant's act constitutes fraud against the victim.

Nevertheless, the court below erred by misapprehending the legal principles on deception in fraud and thereby adversely affecting the conclusion of the judgment, which found the defendant to have acquired 10 million won from the victim by deceiving the victim.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok (Presiding Justice)