[Defendant-Appellee] Guate L Co., Ltd. (Attorney Seo-sik et al., Counsel for defendant-appellee)

Dasan Co., Ltd. (Law Firm Cheongju, Attorney Lee Ho-ho, Counsel for defendant-appellant)

April 29, 2015

1. It is confirmed that the obligation of the Plaintiff (Counterclaim Defendant) against the Defendant (Counterclaim Plaintiff) based on the real estate consulting agreement dated May 27, 2014 between the Plaintiff (Counterclaim Defendant) and the Defendant (Counterclaim Plaintiff) does not exceed 20,000,000 won per annum from September 19, 2014 to October 7, 2015, and 20% per annum from the next day to the date of full payment.

2. The Plaintiff (Counterclaim Defendant) pays to the Defendant (Counterclaim Plaintiff) 20 million won with interest of 5% per annum from September 19, 2014 to October 7, 2015, and 20% per annum from the next day to the day of full payment.

3. The plaintiff (Counterclaim defendant)'s main claim and the remainder of the main claim and the remainder of the main claim by the defendant (Counterclaim plaintiff) are all dismissed.

4. The costs of litigation shall be borne, in total, by the Plaintiff (Counterclaim Defendant) and the remainder by the Defendant (Counterclaim Plaintiff), respectively.

5. Paragraph 2 can be provisionally executed.

In the principal lawsuit, the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) primarily pays to the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) 20,205,588 won with 20% interest per annum from the day following the day of delivery of a copy of the instant complaint to the day of complete payment.

Preliminaryly, it is confirmed that there is no obligation of the plaintiff against the defendant under the real estate consulting contract dated May 27, 2014 between the plaintiff and the defendant.

Counterclaim: The plaintiff shall pay to the defendant 60 million won with 5% interest per annum from September 19, 2014 to the service date of a duplicate of the counterclaim of this case, and 20% interest per annum from the next day to the day of complete payment.

A principal lawsuit and a counterclaim shall be deemed simultaneously.

1. Facts of recognition;

A. On May 27, 2014, the Plaintiff entered into a real estate consulting contract with the Defendant, who is engaged in real estate consulting business, etc. (hereinafter “instant consulting contract”) in order to receive a successful bid in the auction procedure for real estate auction proceedings with the Jung-gu District Court in the Goyang-gu District Court 2013 Taeyang-gu, Goyang-gu, Busan-gu, and 12 real estate (hereinafter “instant real estate”). The main contents are as follows.

[Purpose] Article 1 [Purpose] The plaintiff requests consultation on real estate, and the defendant shall examine all matters, such as the analysis of rights of goods requested, provide the plaintiff with the maximum services, and actively cooperate and provide advice on the real estate requested by the plaintiff.

Article 5 [Scope of Business] 1. The defendant shall provide consultation by referring to data on specifications of goods sold in the court, and the defendant shall not be liable for matters other than these data. 2. The defendant may present the price to be referred to the plaintiff, but the final price determination shall be based on the plaintiff's judgment and responsibility, and the defendant shall not be liable for the decision.

Article 7 (Method of Providing Consulting Fees and Payment) Consulting fees shall be KRW 100 million in consideration of the provision of services for the affairs under Article 1.

Article 8 (Delivery and Vindication) The delivery and surrender of an object under this Agreement shall cooperate with the defendant under the responsibility of the plaintiff, and all expenses, such as expenses for execution and directors related thereto, shall be borne by the plaintiff.

Article 11 [Special Provisions] Fees shall be paid KRW 0 million for the relevant day, KRW 0 million for the remainder payment date, and KRW 3 million for delivery.

B. The appraisal price (the first sale price) of the instant real estate was KRW 7,147,206,040, but was two times, and the minimum sale price on the third sale date held on May 29, 2014 was KRW 3,502,131,00. However, the Defendant presented to the Plaintiff a bid price of KRW 4.5 billion in consideration of the various circumstances, but the Plaintiff presented to the Plaintiff, but the Plaintiff was trying to submit a bid of KRW 4 billion in KRW 4.27 billion in consideration of the number of circumstances. In other words, the Defendant’s solicitation by the representative director of the Defendant was awarded the highest bid of KRW 4,00,00 in KRW 3,851,210,00 in the highest bid price at that time.

C. Since then, the Plaintiff received a loan from the new bank as collateral and paid the successful bid price, and completed the registration of ownership transfer concerning the instant real estate.

D. The Plaintiff paid KRW 22 million (including value-added tax) to the Defendant on May 29, 2014 (successful Bidding Date) and KRW 20 million on September 5, 2014 (including value-added tax) with the fees under the instant consulting agreement.

[Ground of recognition] Facts without dispute, Gap 1-5's entries, the purport of the whole pleadings

2. Determination as to the principal lawsuit and the counterclaim

A. The plaintiff's assertion

(1) Main argument

Since it is unlawful to provide auction services, such as analysis of rights to auction items, investigation into the current status or public records, presentation of adequate purchase price, provision of information, bidding representation, etc., and to conduct such acts by persons other than the attorneys-at-law, certified judicial scrivener, and licensed real estate agents registered as representatives for purchase, the agreement that the unqualified defendant concludes an auction agency contract and receives money in the name of the commission is null and void in breach of good morals and other social order. Therefore, the fees that the defendant received under the consulting contract of this case null and void shall be refunded as unjust enrichment. However, where a certified judicial scrivener consulted about property acquisition in an auction case in accordance with the "Certified Judicial Scriveners Remuneration Table" as a consideration for the actual duties performed by the defendant, the plaintiff is obligated to return the remuneration amount of KRW 23,794,412 [the remuneration amount of KRW 7,147,206,200, KRW 957,206, KRW 2006, KRW 20400, KRW 204, KRW 2045200.

Even if the instant consulting contract is not null and void, it is prohibited by the Act to receive the fees for auction agency in excess of the remuneration prescribed in the said Certified Judicial Scriveners’s Remuneration List. Therefore, the Defendant is obligated to return the Plaintiff as unjust enrichment and return KRW 20,205,58, which was received in excess of 23,794,412, the amount of remuneration under the said Certifie

(2) Preliminary assertion

Even if the instant consulting contract is valid, and the agreement to pay KRW 100 million as a fee is also valid, the Defendant presented the bid price at a high price without any basis, and the Plaintiff directly resolved the lien issue and made efforts to obtain the loan by himself/herself. This is to confirm that the Defendant’s performance of obligation under the instant consulting contract is sufficient for the Plaintiff to pay the amount corresponding to the Defendant’s performance of obligation, and thus, the Plaintiff’s obligation to pay the fee to the Defendant is no longer nonexistent.

B. Defendant’s assertion

Since the consulting contract of this case concluded with the Plaintiff is a real estate consulting contract, not an auction agency contract, which is not a real estate contract, and thus is not required to perform its duties, it is valid. In fact, the Defendant analyzed the public books on the real estate of this case so that the Plaintiff can purchase the real estate of this case in the auction procedure, obtained information on the market price so that the Plaintiff can purchase the real estate of this case, and provided a reasonable purchase price. After the successful bid, the Defendant performed all its obligations, such as providing sufficient advice, information, resolution methods, etc., such as presenting the amount to be loaned in the financial right after the successful bid, and thus, the Plaintiff is obliged to pay the Defendant the balance of KRW 60 million calculated by deducting the amount of KRW 40 million which was already paid

C. Determination

(1) Determination as to the validity of the instant consulting contract

On the other hand, this case’s consulting contract was concluded with the defendant to seek advice on various issues related to the bid of this case’s real estate at the third sale date for the purpose of acquiring the real estate in the auction procedure. The purpose of the contract is to request the plaintiff to provide the consulting service on the real estate of this case, the defendant directly examines all matters such as the analysis of rights of the goods requested by the plaintiff, and to provide the plaintiff with the maximum cooperation and advice on the real estate of this case. The scope of the defendant’s business is to provide the consulting with reference to the detailed statement of the sold goods kept in the court. The plaintiff may present the price to be referred, but the final price determination is to be based on the plaintiff’s judgment and responsibility. According to the above evidence, the plaintiff presented the bid price to refer to the contents of the service provided by the defendant to the plaintiff under the consulting contract of this case’s real estate of this case, and information related to the loan is to the extent or consultation with the claimant on the date of sale, and there is no reason to recognize that the plaintiff’s bid price is not in violation of good morals or social order.

(2) Judgment on the plaintiff's primary main claim (the plaintiff's claim for restitution of unjust enrichment)

As seen earlier, the consulting contract of this case shall be deemed valid, and as long as the defendant did not perform his duties as a certified judicial scrivener, it does not necessarily mean that the provisions of the Certified Judicial Scriveners’s fee table should be followed in determining remuneration under the consulting contract of this case, and there is no ground to deem that the agreement to pay fees in excess of the amount prescribed in the Certified Judicial Scriveners’s fee table is null and void. Thus, even if the consulting contract of this case is valid, the plaintiff’s assertion that the fees in excess of the amount prescribed in the Certified Judicial Scriveners’s fee table should be returned in unjust enrichment on the premise that the consulting contract of this case is null and void, the part in excess of the amount

(3) The plaintiff's main claim (the claim for confirmation of existence of the obligation) and the defendant's counterclaim (the claim for payment of fees)

As seen earlier, the defendant's service under the consulting contract of this case presents the bid price to be referred to the plaintiff after examining all the matters, such as the analysis of the right to the real estate of this case, and receives the loan of this case after receiving the successful bid price, and pays the price for the loan of this case, and provides advice and suggestions to resolve various issues to be handled in the process of delivery thereafter. In full view of the entries and the purport of the whole pleadings in Eul 1-1, 1-2, 3-1, and 3-2, the defendant presented bid price to the plaintiff. After the successful bid, the defendant provided advice about the amount of loan and financial institution, etc. to the plaintiff in the course of loan after the successful bid, and it is recognized that the defendant's service under the consulting contract of this case exceeds the right of retention, and it is further recognized that the defendant's service under the consulting contract of this case was conducted through the auction procedure of this case, and therefore, the defendant did not perform the duty under the consulting contract of this case, and the part of the fees already paid by the plaintiff is null and void (40 million won.

However, the legal relationship between the Plaintiff and the Defendant under the instant consulting contract is similar to the delegation relationship under the Civil Act, and in principle, a mandatory may claim the full amount of remuneration when agreed on the amount of remuneration under the delegation contract. However, considering the circumstances surrounding delegation, the process and difficulty of delegation, the degree of effort made by the delegating, specific benefits that the delegating person gains in the course of performing his/her duties, and other circumstances revealed in the pleadings, only the amount of remuneration within the reasonable scope recognized as exceptional (see Supreme Court Decision 2011Da107900, Apr. 12, 2012, etc.). In light of such legal principles, in the instant case, in consideration of the following circumstances, the bid price offered by the Plaintiff can be recognized by adding the aforementioned facts recognized as above and the evidence and the purport of the entire arguments, namely, the amount of remuneration offered by the Defendant to the Plaintiff can be determined as 60% of the total amount of remuneration under the instant contract, considering the following circumstances: (a) the degree of exemption from the Plaintiff’s service and the degree of exemption from the service offered to the Plaintiff.

Therefore, the Plaintiff is obligated to pay to the Defendant the remainder of fees of KRW 20 million [the remainder of fees of KRW 60 million - KRW 40 million - KRW 40 million (the amount excluding value-added tax among the fees already paid by the Plaintiff)] and to claim confirmation of the absence of the agreement as long as the Plaintiff asserted the payment of the remainder after September 19, 2014 that it is reasonable for the Plaintiff to dispute the existence and the scope of the obligation to perform from September 19, 2014 to October 7, 2015, the date of this judgment, which is stipulated in the Civil Act, and the rate of 5% per annum as stipulated in the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, from the next day to the day of full payment, until the day of full payment. The Plaintiff’s obligation to the Defendant does not exceed the above amount, and as long as the Defendant claimed for the payment of the remainder of the agreed fees of KRW 60,000,

3. Conclusion

Therefore, among the plaintiff's main claim of this case, the conjunctive claim of this case and the defendant's counterclaim of this case are accepted within the scope of each recognition, and the plaintiff's main claim of this case and the remainder of the plaintiff's main claim of this case are dismissed as it is without merit. It is so decided as per Disposition.

Judges fixed-scale