2018Da296076 Action of demurrer

A

Law Firm LLC et al., Counsel for defendant-appellant

Attorney Kim Jong-tae, Park Jong-ho, Lee Jong-hee, Lee Jong-hee

B

Attorney Soh-young, Counsel for the defendant-appellant

Suwon District Court Decision 2018Na56916 Decided October 25, 2018

July 10, 2019

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

The grounds of appeal are examined.

1. In light of the purport of the legal provisions aimed at protecting a transaction partner, whether a broker constitutes a brokerage act prescribed by the Licensed Real Estate Agents Act shall not be determined based on the subjective intent of the broker, not on the basis of whether the broker has an intention to mediate and mediate the transaction for the transaction partner, but on the basis of whether the broker’s act is objectively deemed as an act for mediating and mediating the transaction in light of social norms (see, e.g., Supreme Court Decisions 2008Da2276, Jun. 12, 2008; 2015Da23260, Aug. 19, 2015).

2. The lower court determined that, in full view of the following: (a) the sales contract, etc. prepared several times for the purpose of interesting in the price before the sales contract of this case and the sales contract of this case, contains the location and name of the Defendant’s public office; (b) the Defendant signed and sealed the sales contract of this case in the brokerage column; (c) the Defendant attended the place where the remainder payment was made on June 25, 2015; and (d) prepared and delivered a statement for confirmation and explanation of the object of brokerage; and (c) the Plaintiff, a seller, at the latest, did not raise any objection as to the fact that the Defendant, not F, participated in the preparation of the sales contract and the signature and seal of the Defendant in the brokerage column of the sales contract of this case; and (d) the Plaintiff, a seller, was aware of the fact that there was a signature and seal of the Defendant in the brokerage column of the sales contract of this case; and (e) the Defendant’s act of participating in the brokerage of this case; and (e) the agreement between the Plaintiff and the Defendant.

3. However, it is difficult to accept the above determination by the court below for the following reasons.

A. According to the reasoning of the lower judgment and the record, the Plaintiff and the buyer requested F to act as a broker for the conclusion of the instant sales contract, and F had the Plaintiff and the buyer enter into a sales contract on June 1, 2015 on several occasions. Until that time, the Plaintiff and the buyer did not fully state that the Defendant was only the Defendant, or that F was involved in the instant sales contract as a licensed real estate agent, and the Defendant did not participate at the time of the conclusion of the instant sales contract; (ii) even at the time of the conclusion of the instant sales contract, the Defendant did not participate; (iii) although the name of the Defendant was written in the broker column of the sales contract but the name of the Defendant was not written, the Plaintiff and the buyer signed and sealed the instant sales contract; (iv) the Defendant arbitrarily signed and sealed the name of the broker column of the brokerage office; and (iii) on June 25, 2015, the Plaintiff entered the statement in consultation with F on June 25, 2015, which was the remainder payment date, and determined within the Plaintiff’s first object of the sales contract.

B. Examining the above circumstances in light of the legal principles as seen earlier, even if the Defendant analyzed the legal relationship of real estate, which is the subject matter of sale, with the data such as a certified copy of the register, and informed F of the content thereof to be reflected in the contract, it does not mean that the Defendant merely assisted F to substantially act as a broker, and it does not mean that the Plaintiff and the purchaser engaged in an act of brokerage between the Plaintiff and the purchaser. After completing the contract by entering into a sales contract and signing and sealing the contract, the Defendant entered his name in the column of the broker of the sales contract at the latest, and the delivery of confirmation of the subject matter of brokerage and explanatory note was merely an act of creation of appearance arising from lending the trade name of the brokerage office that the latter operates so that the latter can perform brokerage business at the remaining payment date, and did not affect the conclusion of the sales contract in this case. Accordingly, it is unfair to arrange and mediate the conclusion of the sales contract between the Plaintiff and the buyer, and the Defendant did not deem that the Defendant entered into an agreement with F as a broker and a broker.

Nevertheless, the lower court, without sufficiently examining the developments leading up to the conclusion of the instant sales contract, the details of the sales contract and the statement of confirmation and explanation of the object of brokerage, and determined that the Defendant actually performed brokerage and concluded an agreement with the Plaintiff on the grounds as above. In so determining, the lower court erred by misapprehending the legal doctrine on the meaning of brokerage and failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on

4. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is transferred 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 Dong-won

Justices Kim Jong-il

Justices Park Il-san

Justices Kim In-bok, Counsel for the defendant