[1] Requirements for applying Article 15 subparagraph 5 of the Real Estate Brokerage Act to the prohibition of direct transaction by the broker and the client, and the meaning of "direct transaction"

[2] The case holding that it is difficult to view that the broker cannot be deemed as having received a request for brokerage of the land owner in light of the terms of the agreement entered into between the broker and the landowner, and it is also difficult to view that the broker was the direct counter-party to the act of acquisition, loss and alteration

[1] Article 15 subparag. 5 of the Real Estate Brokerage Act prohibits a broker from engaging in direct transactions with the client. In order to apply this provision to the broker, the broker must first be presumed to have received a request from the client, and the "direct transactions" prohibited under the above provision refers to cases where the broker becomes the direct partner of the transaction, such as sale, exchange, lease, etc. of the right requested by the client.

[2] The case holding that in case where the broker forms the land at his own expense between the landowner and divides it into the housing site, and then sells part of the land to another person with the purchase price voluntarily determined by the broker, but the owner of the land pays a fixed amount regardless of the number of the purchase price and makes an agreement to vest the profits and losses therefrom in the broker, it shall not be deemed that the broker received a request for brokerage of the land from the landowner, and it shall not be deemed that the broker directly becomes the party to the act of acquisition, loss and alteration of the right to the land.

[1] Article 15 subparagraph 5 of the Real Estate Brokerage Act / [2] Article 15 subparagraph 5 of the Real Estate Brokerage Act

Defendant

Prosecutor

Supreme Court Decision 2004Do5271 Delivered on November 12, 2004

Jeju District Court Decision 2004No464 delivered on June 2, 2005

The appeal is dismissed.

1. Summary of the facts charged in this case

The Defendant, as a licensed real estate agent, is a real estate agent who runs the real estate brokerage business under the trade name of “(trade name omitted) licensed real estate agent.” Even if the real estate broker is not engaged in direct transaction with the client, on March 8, 2003, the real estate broker made a direct transaction with the client by entering into an agreement with the broker to the effect that, at the office of the (trade name omitted) real estate agent located in Jeju-si, Jeju-si, 2318, a part of 3,560 square meters, which is part of 5,150 square meters, from the non-indicted in Jeju-si, Jeju-si, 2318, which is owned by the non-indicted, the Defendant would sell at his own expense, a part of the above orchard, which is the object of brokerage, shall be divided into the housing site, and then the profits and losses therefrom shall be reverted to the Defendant, regardless of the amount of the purchase price.”

2. The judgment of the court below

According to the evidence employed by the court below, if the defendant was found to be limited to the non-indicted 5's position on March 8, 2003, the non-indicted 5,150 square meters (hereinafter "the land of this case") and the non-indicted 1's owner, the non-indicted 5,150 square meters (1,077.09 square meters) of the land of this case, the non-indicted 1's non-indicted 3,589.35 square meters (48 square meters) shall be assigned to the defendant at will to the non-indicted 30 million won to the non-indicted 5's non-indicted 5's office or the non-indicted 5's office and the non-indicted 5's office name, the non-indicted 5's office name and the non-indicted 1's office name and the non-indicted 5's office name and the non-indicted 3's office name and sale of the above real estate after consultation with the non-indicted 1's office.

3. Judgment of the Supreme Court

Article 15 Item 5 of the Real Estate Brokerage Act prohibits a broker from engaging in direct transactions with the client. In order to apply this provision to the broker, the broker should first be premised on the fact that the broker has received the request from the client.

However, according to the facts acknowledged by the court below, the agreement of this case was concluded by the defendant to form and divide the land of this case which is an orchard into a housing site at his own expense and sell part of the land of this case to others with the purchase price determined voluntarily by the defendant, but the non-indicted who is the owner of the land of this case shall pay 300 million won, regardless of the number of the purchase price, and thereby, the profits and losses therefrom shall belong to the defendant. It is reasonable to view that the agreement has a combined nature of delegation and contract, not a mere brokerage request agreement, and this is already

Therefore, insofar as the defendant cannot be deemed to have received brokerage request from the non-indicted on the land of this case, and the non-indicted cannot be deemed to have the status of the client in relation to the defendant, the above prohibition provision is not applicable.

Furthermore, the direct transaction prohibited under the above provision shall be interpreted as a direct counterpart to the act of acquisition, loss, or modification of the right, such as sale, exchange, lease, etc., requested by the broker. Thus, even if the defendant was authorized to divide the land of this case and sell part of it into a housing site in accordance with the agreement of this case, it shall be deemed that he exercises his authority on behalf of the client and the non-indicted who is the contractor, and it shall not be deemed that the defendant directly acquired the land of this case, and there is no evidence suggesting that the defendant was to purchase or acquire the land of this case. Thus, it is difficult to see that the defendant was a direct counter-party to the act of acquisition, loss, or modification of the right to the land of this case upon the conclusion of the agreement of this case.

The court below's finding that the defendant was requested by the non-indicted to mediate the land of this case is against the purport of remanding the judgment of remanding the case. However, it is just in the conclusion that the defendant was acquitted on the grounds that he did not have a direct transaction with the non-indicted, and there is no error in the misapprehension of facts against the rules of evidence or in the misapprehension of legal principles as to the scope of direct transactions subject to the prohibition of the

4. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-dam (Presiding Justice)