Whether the introduction fee paid in excess of the limit of the Ordinance is valid

A contract on the introduction business fees in excess of the standards and limits prescribed by the Ordinance of Seoul Special Metropolitan City or Do under Article 4 of the Introduction Business Act shall be null and void.

Article 4, Article 5, subparagraph 3 of the Introduction Business Act

[Judgment of the court below]

Defendant 1 and three others

Daegu High Court Decision 75Na387 delivered on April 1, 1976

The part of the original judgment against the plaintiff among the plaintiff, defendant 2 and defendant 4 shall be reversed, and that part shall be remanded to the Daegu High Court.

The Plaintiff’s appeal against Defendant 1 and Defendant 3 is dismissed.

The costs of appeal between the plaintiff, defendant 1 and defendant 3 shall be borne by the plaintiff.

(1) We examine the Plaintiff’s grounds of appeal against Defendant 1 and Defendant 3 (Ground of appeal No. 4 by the Plaintiff’s attorney).

The court below rejected the plaintiff's claim against the defendant 2, who is the defendant 1's wife, and the defendant 4 is the defendant 3's wife, but the loan 5,000,000 won in the original judgment is the money of the defendant 1 and the defendant 3, and since the defendant 1 and the defendant 3 cannot be recognized as a party under the contract at the time of establishment of the original judgment with the plaintiff, the court below rejected the plaintiff's claim against the defendant. In light of the evidence of the court below, the court below's action is just and it cannot be determined that there is a violation of the rules of evidence in the process of establishment of facts, and there is no error of law by misunderstanding the limitation

Therefore, the Plaintiff’s appeal against Defendant 1 and Defendant 3 shall not be dismissed.

(2) We examine the Plaintiff’s grounds of appeal against Defendant 2 and Defendant 4.

(A) According to the reasoning of the judgment on the first and third grounds for appeal, the court below did not err in finding the above facts on June 9, 1970. The plaintiff agreed to borrow 5,00,000 won from defendant 2 and defendant 4 for the interest rate of 5.9% per annum, and 9.9% per annum for the same year. The court below decided that the above provisional registration was made under the above defendants' name as to the site (which appears to be 102 square meters according to the records) of Busan Jung-gu, Busan for the purpose of securing the above claim. If the plaintiff did not pay the principal and interest of the above loan by the due date, the court below did not agree to return the above provisional registration under the above 100,000 won for the above 10,000 won for the above 10,000 won for the above provisional registration in lieu of paying the above debt. The court below decided that the above provisional registration was made under the above 10,500,000 won for the above 10,01000 won for the above loan.

In addition, examining the original judgment along with the record, the plaintiff's 679,00 won deducted when receiving 1,821,000 won from the above defendants on Sep. 9, 1970 was 375,000 won as agreed upon from June 9, 1970 to September 9 of the same year as to 2,50,000 won received from the above defendants, and 170,000 won as to the above loan, and 170,000 won as to the above loan, which were paid to the non-party 2, and 60,000 won as to the settlement cost, 74,000 won as to the provisional registration procedure execution, and 70,000 won as to the above loan from the above defendants, the plaintiff argued that the above principal should be extended from 150,000 won to 81,000 won as to the above loan from the above defendants (the above legal date of pleading from 40,001).

Therefore, it cannot be said that the original judgment erred by misapprehending the Plaintiff’s assertion like the theory of lawsuit, or by misapprehending the legal principles as to the amount of claim in a monetary loan for consumption, and it cannot be said that the original judgment is unlawful in the reasoning of lawsuit. All arguments are without merit.

(B) Determination on the second ground;

The court below held that the promise to return substitute land between the plaintiff and the above defendants as to the above site exceeds the aggregate amount of principal and interest up to the due date of payment of the loan. Thus, the transfer registration of ownership on the above site made under the above defendants' name shall be deemed null and void pursuant to Articles 607 and 608 of the Civil Act. However, the transfer of ownership shall be deemed to have been maintained within the limited scope of transfer for the purpose of securing the above loan claim. Thus, upon the execution of the security right, the defendants should return to the plaintiff the remainder after deducting the principal and interest of the secured claim and the expenses for exercising the security right from the realized amount, as part of the cost of realizing the security right, Eul must be returned to the secured party, and as part of the cost of realizing the security right, Eul evidence 6, record verification conducted at the court of first instance, part of the result of the records verification conducted at the court of first instance, the first instance witness, non-party 3, non-party 4, and non-party 5's testimony as to the above site.

(1) As to the compensation for the removal of the foregoing and the personnel expenses of the management manager:

Examining the evidence at the time of the decision of the court below along with the records, we affirm the fact-finding with regard to the above compensation and the personnel expenses of the administrator of the court below, and it cannot be determined that there is an illegality in the process of fact-finding, and there is no error in the court below's incomplete deliberation or the lack of reason in the original judgment. Accordingly,

(2) As to the above trading introduction fee

Article 4 (2) of the Introduction Business Act prohibits the designation of the commission for the business in excess of the standard and limit prescribed by the Ordinance of Seoul Special Metropolitan City or Do, which was enacted pursuant to paragraph (1) of this Article, and prohibits the introduction business operator from demanding or receiving money or goods other than the fixed amount regardless of the name of the commission business operator under Article 5 subparagraph 3 of the same Act. Since these provisions belong to the so-called mandatory law, the part of the referral fee agreement in excess of the maximum amount under the above provision should be null and void. Thus, even if the above defendants paid the commission to the introduction business operator as the commission for the sale of the above site, the part of the amount exceeding the maximum amount under the above provision exceeds the maximum amount under the above provision (as the testimony of non-party 3 of the first instance trial witness, the above defendants are considered to have paid the witness who is the introduction business operator under the testimony of the non-party

Therefore, the court below should have deliberated and judged whether or not there are parts that could not be deducted from the expense for the execution of the security right in this case under the application of the above provisions among the amount of the introduction fee paid by the above defendants, but the judgment below which did not reach this point cannot be deemed to have committed an unlawful act in the incomplete hearing. The ground for appeal pointing this out has merit, which affected the part against the plaintiff among the original judgment between the plaintiff, defendant 2

(3) Therefore, the part against the plaintiff among the original judgment between the plaintiff, defendant 2, and defendant 4 is reversed, and this part is remanded to the Daegu High Court which is the original judgment. The plaintiff's appeal against the defendant 1 and defendant 3 is dismissed, and the costs of appeal among the plaintiff, defendant 1, and defendant 3 are assessed against the plaintiff and the costs of appeal are assessed against the plaintiff

Justices Kim Young-chul (Presiding Justice)