Plaintiff (Attorney Han Chang-chul et al., Counsel for plaintiff-appellant)

The head of Seocho-gu Seoul Metropolitan Government

July 15, 2008

Seoul Administrative Court Decision 2007Guhap32655 Decided March 12, 2008

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The Defendant’s disposition of 45 days of business suspension (from August 13, 2007 to September 26, 2007) against the Plaintiff was revoked.

2. Purport of appeal

The same shall apply to the order.

1. Quotation of judgment of the first instance;

The reasoning of the judgment of this court is as follows: “The signature and seal was affixed” in the fourth 4-5th of the judgment of the court of first instance; “Article 25(1)3 and Article 25(3)” in the same part to “Article 25(1), (3), and (5) 3th of the fifth 3th th th th th th th th th th th th th th th th th th th th th th th th th th th th th.; and “related Acts and subordinate statutes” are the same as the entry of the judgment of the court of first th th th th th th th th th. th th th th th th

2. Parts to be dried;

(2) Determination as to the Plaintiff’s assertion in paragraph (1) and (2)

Article 26 (2) and Article 25 (4) of the Licensed Real Estate Agents Act provides that brokers shall sign and affix their seals to the above Article 25 (1) 2, and Article 39 (1) (the former part) and 9 of the Act provide that if brokers fail to sign and seal the contract document, the registration authorities may order the suspension of their business for a fixed period of not more than 6 months. In such cases, the above Article 39 (1) 9 provides that "in the case of failure to sign and seal the contract document, the signature and seal shall be affixed to the aforesaid Article 4 (2) and 9 (2), if the broker fails to sign and seal the contract document, the seals and seals shall be affixed to the aforesaid Article 9 (2)." Article 16 (1) of the Licensed Real Estate Agents Act provides that if the broker fails to sign and seal the contract document, the broker shall use the seals and seals as above for the purpose of not signing and sealing the contract document, and Article 9 (2) of the Act provides that the broker shall use the seals and seals as mentioned in the former part of Article 9 (39).

As seen earlier, the Plaintiff did not affix a seal to the contract document on the premise of the above interpretation. This constitutes “where the contract is not signed or sealed on the transaction contract” under Article 39(1)9 of the Licensed Real Estate Agents Act, which constitutes a cause for business suspension under Article 39(1)9 of the Licensed Real Estate Agents Act, and thus, the Plaintiff’s assertion of this issue is without merit.

(3) Determination on the assertion of deviation or abuse of discretionary power

On October 18, 2006, the day following the contract date of the plaintiff, stated the amount of brokerage commission and the details of the calculation thereof, prepared a confirmation and explanatory note of the object of brokerage with his signature and seal affixed thereon, and delivered them to the lessee who is the client, and supplemented the seal of the contract document held by the lessee. However, each entry of Gap evidence 2-2, Gap 3, and 4 in accordance therewith is found as follows: (i) as a result of the guidance and inspection on the ○ Real Estate Brokerage Office on June 11, 2007 from the Seoul Special Metropolitan City land management division, it was discovered that each of the offenses of this case was discovered and notified to the defendant; (ii) the defendant was erroneous in prior notice of administrative disposition to the plaintiff on July 22, 2007; (iii) it is difficult for the plaintiff to transmit by facsimile the certificate (a copy of the real estate lease contract) of No. 4 to the defendant, and the tenant's signature and seal affixed thereon, and there is no evidence to the purport that the document and computation of the contract document of the plaintiff's.

In addition, considering the following facts: (a) the violation amount of brokerage commission and its calculation details cannot be deemed to be less than the degree of the violation; and (b) the attached Table 2 of the Enforcement Rule of the Licensed Real Estate Agents Act stipulates the business suspension criteria for each violation as to each of the above violations as three months of business suspension; (c) the defendant does not increase the business suspension period for three months, taking into account the motive, consequence, frequency, etc. of the violation, and rather reduced it into account the fact that the plaintiff directly acted as intermediary at the time of the preparation of the transaction contract (the court of first instance cited the grounds for taking into account the fact that the non-party's signature and seal was affixed to the confirmation and explanatory note of the object of brokerage prepared at the time of the brokerage contract in this case; (d) the court of first instance states that the non-party's signature and seal was affixed to the confirmation statement and explanatory note of the object of brokerage as well as the non-party's name and seal to the contract in this case; and (e) there is no need to sign the contract in this case after the signature and seal.

Therefore, the plaintiff's assertion of deviation and abuse of discretionary power is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed due to the lack of reason, and the judgment of the court of first instance with different conclusions is unfair, and the plaintiff's claim is dismissed and it is so decided as per Disposition.

Judges Jeong Ji-hee (Presiding Judge)