2010 Gohap60252 Damage

1. Matern○○;

2. Han ○○.

[Judgment of the court below]

Attorney Choi Han-soo, Counsel for the plaintiff-appellant

1. ○○;

2. Stambed ○.

3. The Korea Licensed Real Estate Agent Association;

Dobong-dong Seoul Special Metropolitan City 930 - 42

The representative director, the deputyr of the representative director, the representative director;

[Defendant-Appellant] Plaintiff 1 et al.

[Defendant-Appellee]

March 16, 2012

April 13, 2012

1. The plaintiffs

A. Defendant Lee ○-○ and Park ○-○ are 171, 362, 570 won respectively, and their related thereto from September 6, 2008 to September 4, 2012.

13. Payment of 5% interest per annum and 20% interest per annum from the following day to the date of full payment:

B. The Defendant Korean Licensed Real Estate Agent Association shall pay 93,245,00 won out of the amount of Defendant Lee○○, Park○○, and each of the above amounts, and 5% interest per annum from September 6, 2008 to April 13, 2012, and 20% interest per annum from the next day to the date of full payment.

2. The plaintiffs' remaining claims against the defendants are dismissed.

3. Of the litigation costs, 1/2 of the portion arising between the plaintiffs and the defendant Lee ○○ and Park ○, the remainder shall be borne by the plaintiffs, and the defendant Lee ○○ and Park ○○, respectively, and 1/10 of the portion arising between the plaintiffs and the defendant Korean Licensed Real Estate Association shall be borne by the plaintiffs, and the remainder by the defendant Korean Licensed Real Estate Agent Association.

4. Paragraph 1 can be provisionally executed.

Defendant Lee ○-○, Park ○-○, each of the plaintiffs 342, 725, 140 won, and Defendant Korean Licensed Real Estate Agent Association

High Court Decision 100,000,000 won out of each of the above money and each of them from September 6, 2008

Until the delivery date of a copy of the complaint, 5% per annum, and 20% per annum from the next day to the day of complete payment.

(1) pay any money under subsection (1).

(The plaintiffs' preliminary claims are reduced by only the amount of the primary claim, and this is a lawsuit.

No separate statement shall be made because it can not be said to be the preliminary claim

1. Basic facts

A. Conclusion of a sales contract

On September 5, 2008, the plaintiffs purchased a house listed in the attached Table 1 (hereinafter referred to as " 4*** ') from E-public △△△△△△△ (owner on the register), and Park △△△△ on September 6, 2008 (the date of conclusion of the contract is stated on September 5, 2008) as the broker of E-○○ and Park ○○○○○, and the broker of his brokerage assistant, from E-○, the plaintiffs purchased the house listed in the attached Table 2 (hereinafter referred to as "5** * * 5", and * 5* * * 'each house of this case' in the aggregate) from E-○ and Park ○○.

B. The plaintiffs completed the registration of ownership transfer and the provisional registration of the right to claim ownership transfer on October 22, 2008 with respect to 4** The plaintiffs completed the registration of ownership transfer on October 22, 2008, as to 1/2 shares, by reason of the above sales contract. The plaintiffs 5** * on September 5, 2008 with respect to 5* * on October 222, 2008 with respect to 1/2 shares, the registration of the right to claim ownership transfer has been completed (the plaintiffs were not completed the registration of ownership transfer as they would resell 5**).

C. On November 21, 2008, Songpa-gu sent to the plaintiffs 4* * because the area of each house of this case and 4*** 1) 4* * 53 square meters of the area approved for use is 53 square meters of the area permitted for use, 55.38 meters of the area expanded without permission, 5* * 14 square meters of the area approved for use, and 94 square meters of the area illegally extended without permission. 2) On November 21, 2008, Songpa-gu sent the first guide to correct the violation of the Building Act (unauthorized extension). The above guide was served to the plaintiffs around that time.

3) On November 21, 2008, Songpa-gu: 5* on November 21, 2008, for this reason, 5* on the Building Act violated the Building Act (unauthorized extension) and sent the second guide demanding the correction of the violation 4* * on March 23, 2009 and 5* on the aggregate building ledger on January 12, 2009.

5) Due to such unauthorized Extension 4** 12,50 won in 209, 12,349, 740 won in 2010, and 13,429, and 650 won in 2011, the enforcement fine was imposed on 5* 5* 4,108, 440 won in 209, and 3,914,090 won in 201.

D. The plaintiffs' suit against △△△△ and △△△△△

The plaintiffs filed a lawsuit seeking restitution and compensation for damages (Seoul Eastern District Court Decision 2009Gahap929), on the grounds that "The former owner sold each of the houses of this case to the plaintiffs without notifying the fact that the former owner had been under investigation even though he had been under investigation by the police." The plaintiffs were jointly and severally paid 536,265,00 won to the plaintiffs, and 4*** The plaintiff acquired the procedure for registration cancellation of ownership transfer registration in the name of the plaintiffs as to subparagraph 4).

(e) Conclusion of mutual aid agreements.

The defendant Korean Licensed Real Estate Agent Association (hereinafter referred to as the "Defendant Association") concluded a mutual aid agreement from June 28, 2008 to June 27, 2009, which is a mutual aid project operator to guarantee the broker's liability for damages, with the amount of deduction of 50,00,000, and the period of deduction of 50,000.

【Uncontentious facts, Gap’s evidence Nos. 1, 2, 3, 4, 12, 20, Gap’s evidence Nos. 5, 8, and 13, 2, and Eul’s evidence Nos. 3-1, 2, and 4, the fact-finding results with respect to the head of Songpa-gu Office of this Court, the purport of the whole pleadings.

2. Occurrence of liability for damages;

A. A real estate broker is obligated to perform the brokerage business requested with the care of a good manager in accordance with the principal place of a request for brokerage under Article 681 of the Civil Act. A real estate broker's business affairs and reporting of real estate transactions (hereinafter "licensed Real Estate Agents Act") must confirm the transaction or use restrictions pursuant to the law before the brokerage is completed under Article 25 (1) 2 of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act, and explain faithfully and accurately to the brokerage client. In doing the brokerage business under Article 30 (1) of the Licensed Real Estate Agents Act, a real estate broker is liable to compensate the transaction party for the damage caused by intention or negligence.

B. Regarding the instant case, it was constructed in a size exceeding twice the approved area. 5*** * as seen earlier. According to the result of Defendant Park Gam-○’s personal newspaper, it can be recognized that Defendant Park ○ who introduced each of the instant housing to the Plaintiffs had been engaged in the real estate brokerage business for two or more years. In light of the above facts, it seems that Defendant Park ○○ was able to know that the unauthorized Extension of each of the instant housing units was considerably broad ( even if he knew about about several meters in detail) in light of the above facts, it appears that Defendant Park ○-○ was able to know that the unauthorized Extension of each of the instant housing units was considerably wide.

A person opening such fact has a duty of care to accurately inform the buyer of any disadvantage (i.e., removal order, possibility of imposing a non-performance penalty, etc.) that may be received by purchasing the unauthorized real estate, and in full view of the respective descriptions listed in subparagraphs 1 and 2 of subparagraphs B, and the results of Defendant Park ○○’s newspaper and the entire purport of oral argument, Defendant Park ○○ has an unauthorized portion of each house of this case without permission for the plaintiffs. There are cases of temporary training for a certain period of time."

C. Although the plaintiffs purchased each of the houses of this case with knowledge of the fact that the plaintiffs had illegally expanded their respective houses of this case, such circumstance can only be considered in comparative negligence, as seen below, and it does not exempt the broker from the duty of explanation.

Therefore, it is reasonable to deem that Defendant Park ○ has been negligent in failing to perform the duty of explanation necessary for acting as an intermediary, and Defendant Park ○○ is deemed as an act of brokerage of Defendant Lee ○○, an employer, pursuant to Article 15(2) of the Licensed Real Estate Agent Act, and thus, Defendant Lee ○ and Park ○ is liable for compensating the damages suffered by the plaintiffs due to the negligence of each of the above Defendants, and the Defendant Association is liable for compensating the above damages suffered by each of the above Defendants within the limit of the deductible amount under a mutual aid agreement.

3. Scope of liability for damages

(a) Loss;

The damages suffered by the plaintiffs due to the tort in this case by the defendant Lee ○-○ and Park ○-○ refers to the money that was paid by the above defendants by purchasing without accurately and sufficiently explaining the housing of this case (the sales contract provides 4** 4* 4* 431,50,00,000, 5** 233,00,000, while the purchase price actually paid by the plaintiffs is stated in 233,00,000). In full view of the whole purport of the arguments in each of the following evidences, the plaintiffs paid 567,625,140,000 won to the above defendants, but the plaintiffs seek 342,725,140,000 won as compensation for damages. Thus, the plaintiffs' claim is calculated based on the amount of damages calculated based on 342,725,140 won.

(b) Set-off of negligence;

If the plaintiffs explained that each of the instant housing units had been illegally extended at the time of the conclusion of a sales contract, it is recognized that the plaintiffs neglected the duty of care to verify the degree of unauthorized extension, and the degree of negligence is recognized as 50% since it is reasonable to view that the rate of negligence is 50%. Thus, it should be considered in determining the scope of compensation for damages.

C. Determination on the assertion of the Defendant Association

1) Defendant Association’s assertion

The defendant Association asserts that the defendant Association is not obligated to pay damages within the limit of 50,000,000 won, which is the amount of mutual aid agreement with the defendant Lee ○○○ under the mutual aid agreement. Thus, the defendant Association is not obligated to compensate for the portion exceeding 50,00,000 won.

2) Determination

The meaning of the "amount covered by the defendant association" in the terms and conditions of mutual aid and the rules on mutual aid business of the defendant association before the amendment is interpreted as setting the "limit on compensation for each case of a mutual aid accident". It cannot be viewed as setting the "limit on total amount of compensation for all accidents occurred during the period of mutual aid with respect to a single person's mutual aid holders" (see Supreme Court Decision 2007Da39949, Apr. 10, 2008). Further, even if the amended terms and conditions of mutual aid enter into force from January 1, 2009, it cannot be deemed that the amended terms and conditions of mutual aid naturally affect mutual aid contracts concluded in accordance with the previous terms and conditions of mutual aid.

As seen earlier, as Defendant Lee○○ entered into a mutual aid agreement with the Defendant Association on June 17, 2008, on the basis of the terms and conditions of mutual aid prior to the amendment, and concluded a mutual aid agreement on the basis of the terms and conditions of mutual aid prior to the amendment. Defendant Lee○○○○, as the limit on compensation for the Defendant Association’s act of brokerage is KRW 50,00,00 per accident, the Defendant Association is KRW 4*** 50,000, the above compensation limit is KRW 50,000 in relation to mutual aid brokerage ** KRW 43,245,00 in relation to mutual aid brokerage * KRW 56,490 in relation to the plaintiffs’ claim amount* KRW 85,00,00 in sales amount + KRW 10,000 in intermediate payment + KRW 10,000 in total payment + KRW 00,000 in total payment + KRW 05,00 in total amount of KRW 0,500.

D. Sub-committee

Therefore, Defendant Lee ○-○ and Park ○-○, each of the plaintiffs 171, 362, 570 won ( = 342, 725, 140 won, X50%), and the Defendant Association has the duty to pay 93,245,00 won ( = 50,000,000 + 43,245,00 won + 43,245,00 won) to the defendant Lee ○-○ and Park ○-○, each of whom was 171, 362, and 570 won, each of whom was 172, 725, 140 won, and 93,245, and 00 won, each of which was 5% from the day following the date of concluding a sales contract on subparagraph 4* The date of concluding a sales contract on April 13, 2012) to the day of full payment of damages for delay by the defendants from the day following each of this judgment.

4. Conclusion

Therefore, the plaintiffs' claims against the defendants are accepted within the scope of the above recognition, and the remaining claims are dismissed as they are without merit. It is so decided as per Disposition.

The judge of the presiding judge

Judges Nanaeor Award

Judges Yu Sung-sung

A person shall be appointed.