[1] Whether a “mediation business” under Article 38(1)7 of the Licensed Real Estate Agents Act includes cases where a transaction party’s request is made at the request of both parties to the transaction except where the transaction is conducted at the request of both parties (affirmative), and the standard for determining which act constitutes “performance of brokerage business”

[2] In a case where the preceding and subsequent dispositions independently cause a separate legal effect, whether the validity of the preceding dispositions can be asserted on the ground of the defect in the preceding dispositions if it is not possible to dispute the validity of the preceding dispositions (negative in principle), and the case where the validity of the subsequent dispositions can be asserted on the ground of the defect in the preceding dispositions exceptionally

[1] Article 38(1)7 of the Licensed Real Estate Agents Act provides that “where a broker performs brokerage business during the period of suspension of business,” the registration of establishment of a brokerage office is subject to revocation. Here, brokerage business refers to the brokerage business as to the object of brokerage, such as sale, exchange, lease, and other acquisition, loss, or modification of rights between the parties to the transaction (Article 2 subparag. 1 of the Licensed Real Estate Agents Act). Such business refers not only to the case where a transaction is conducted at the request of both parties to the transaction, but also to the case where a transaction is conducted at the request of either party to the transaction. On the other hand, whether an act constitutes “the conduct of brokerage business” should be determined based on whether the broker’

[2] In a case where two or more dispositions are made continuously or by phase, if there is a defect in the preceding dispositions when the legal effect of the preceding dispositions and the subsequent dispositions are completed, such defect shall be succeeded to the subsequent dispositions. In such a case, even if the preceding dispositions are not in dispute and their validity cannot be asserted, the validity of the subsequent dispositions may be asserted on the ground of the defect in the preceding dispositions. However, in a case where the preceding dispositions and the subsequent dispositions independently cause a separate legal effect, if it is impossible to dispute the validity due to the defect in the preceding dispositions unless there are special circumstances, the validity of the subsequent dispositions cannot be asserted on the ground of the defect in the preceding dispositions, unless there are special circumstances, unless the defect in the preceding dispositions and the defect in the preceding dispositions are grave and obvious. However, even in this case, if the result is not predicted to the parties, the binding force of the subsequent dispositions cannot be acknowledged in light of the ideology of the Constitution guaranteeing the right to trial of the people.

[1] Article 2 subparag. 1 and Article 38(1)7 of the Licensed Real Estate Agents Act / [2] Article 27(1) of the Constitution of the Republic of Korea, Article 1 of the Administrative Litigation Act / [general administrative disposition] and Article 19 of the Administrative Litigation Act

[1] Supreme Court Decision 94Da47261 delivered on September 29, 1995 (Gong1995Ha, 3600) / [2] Supreme Court Decision 93Nu8542 delivered on January 25, 1994 (Gong194Sang, 849)

Plaintiff

Gunpo-Mayor

Seoul High Court Decision 2016Nu67426 decided March 24, 2017

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

A. Article 38(1)7 of the Licensed Real Estate Agents Act provides that “where a broker performs brokerage business during the period of suspension of business,” “where a broker performs brokerage business during the period of suspension of business,” the brokerage business refers to the brokerage business as to the object of brokerage, such as sale, exchange, lease between the parties to the transaction, and other acquisition, loss, or modification of rights (Article 2 subparag. 1 of the Licensed Real Estate Agents Act). Such business refers not only to the case where the transaction is conducted at the request of both parties to the transaction, but also to the case where the transaction is conducted at the request of one of the parties to the transaction. On the other hand, whether an act constitutes “the conduct of brokerage business” should be determined based on whether the broker’s act objectively deemed as an act for brokerage and intermediation of transaction by social norms (see, e.g., Supreme Court Decision 94Da

B. The lower court determined that the Plaintiff’s act of advertising real estate on the Internet portal site upon a request to sell and sell real estate during the period of suspension of business constitutes “the act of acting as a broker during the period of suspension of business.” In so determining, the lower court did not err by misapprehending the legal doctrine on the interpretation and application of “mediation business” under Article 38 subparag. 7 of the Licensed Real Estate Agents Act, contrary to what is alleged in the grounds of appeal

2. Regarding ground of appeal No. 2

A. In a case where two or more dispositions are continuously or gradually made, if there is a defect in the preceding dispositions when the legal effect of the preceding dispositions and the subsequent dispositions are completed, such defect shall be succeeded to the subsequent dispositions. In such a case, even if the preceding dispositions are not in dispute and their validity cannot be asserted, the validity of the subsequent dispositions may be asserted on the ground of the defect in the preceding dispositions. However, in a case where the preceding dispositions and the subsequent dispositions independently bring about a separate legal effect, the validity of the preceding dispositions may not be asserted on the ground of the defect in the preceding dispositions unless there are special circumstances, unless there are special circumstances, unless the defect in the preceding dispositions and the defect in the preceding dispositions are grave and obvious, and thus it would result in a disadvantage to the person affected by the preceding dispositions, and if that result is not predicted to the parties, the binding force of the subsequent dispositions cannot be acknowledged in light of the ideology of the Constitution guaranteeing the citizens' right to trial (see, e.g., Supreme Court Decision 201Nu2584, Apr. 25, 1994).

B. The lower court determined as follows, although the disposition of business suspension, which is the preceding disposition, is unlawful, it did not succeed to the instant disposition, which is the subsequent disposition.

(1) The Defendant, in violation of Article 25(3) and (4) of the Licensed Real Estate Agents Act, issued a disposition of business suspension, which is a prior disposition, on the ground that the Plaintiff did not sign and seal the confirmation and explanatory note of the object of brokerage, but the grounds for such disposition are not recognized. However, it cannot be deemed that the absence of such disposition grounds is grave and obvious.

(2) In the instant case, it is difficult to view that the instant disposition of business suspension, which is a prior disposition, causes the Plaintiff to suffer disadvantage due to the non-existence or binding force of the disposition of business suspension to go beyond the permissible limit of admission, and that the outcome is not foreseeable. Accordingly, the binding force of the instant disposition of business suspension,

C. On the other hand, the disposition of this case, which is the preceding disposition of this case, is a disposition that prevents brokerage business during a certain period of time, and the registration of establishment of a brokerage office is revoked on the ground of separate grounds that it rendered brokerage business during the period of suspension of business pursuant to the above disposition of this case. Although the disposition of this case is premised on the disposition of suspension of business, both dispositions are independent administrative dispositions different from their contents and effects, and do not constitute a case where one legal effect is completed by combining each other. Therefore, unless the preceding disposition is null and void as a matter of course, the validity of the disposition of this case, which is a subsequent disposition, cannot be asserted on the ground of its defect. In addition, in light of the circumstances such as the fact that the plaintiff was aware that it was prohibited from acting as a broker during the period of suspension of business, and the fact that the plaintiff did not have any special difficulty in filing an administrative appeal or administrative litigation seeking the revocation of the disposition of suspension of business within the objection period, it cannot be deemed that the non-legal power or binding force of the disposition of this case was harsh

D. In the same purport, the lower court was justifiable to have determined that the defect of business suspension did not succeed to the instant disposition, and did not err by misapprehending the legal doctrine on the succession to the defect, as otherwise alleged in the grounds of appeal.

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)