[1] Standard of determining whether an act constitutes brokerage under Article 30(1) of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act, and in cases where a broker arranging a lease contract is anticipated to act as a broker to have the contractual obligation smoothly performed by participating in the realization of the contractual obligation of the transaction party after the conclusion of the contract, whether such broker’s act is included in the scope of “mediation” (affirmative)

[2] In a case where Eul, a licensed real estate agent Eul, who purchased an apartment house, entered into a special agreement with Eul to mediate the lease agreement between Eul and Byung to establish the right of lease on the same day, but Byung completed the move-in report and the acquisition of the fixed date in lieu of the registration of lease on the recommendation of Eul, and Byung completed the move-in report and the acquisition of the fixed date in lieu of the registration of lease on the same day, Eul completed the registration of ownership transfer in its name at the same time as the registration of ownership transfer was completed, and Byung received only a part of the lease deposit in the course of voluntary auction proceeding, the case holding that Eul is liable to compensate for damages

[1] Whether a certain act constitutes a brokerage act under Article 30(1) of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act shall not be determined on the basis of the subjective intent of the broker that the broker has an intention to mediate and mediate a transaction on behalf of the transaction party, not on the basis of the broker’s intention, but on the basis of whether the broker’s act is objectively recognized as an act for mediating and arranging a transaction by social norms. Therefore, if the broker arranging a lease contract is anticipated to act in good faith by engaging in the realization of the contractual obligation of the transaction party, such as payment of a security deposit, delivery of an object, acquisition of a fixed date, etc. after the conclusion of the contract, the act of the broker shall be objectively deemed as an act for mediating and arranging the transaction, and shall be included in the scope of the brokerage act.

[2] The case holding that in the case where Eul, a licensed real estate agent Eul, requested Eul to act as a broker for the lease contract between Byung and Byung, and agreed to establish the right of lease at the same time as the transfer of ownership, Byung paid the remainder, Byung completed the move-in report and the acquisition of the fixed date in lieu of the registration of lease on Eul's own name after completing the registration of ownership transfer under Eul's name, Byung received the loan, and Byung received only a part of the lease deposit in the voluntary auction procedure for the above apartment, the case held that Eul, a broker Eul, upon Byung's request, was planned to secure the balance payment of Byung after the conclusion of the lease contract and the preservation of Byung's claim for the return of the lease deposit, and such act is included in the brokerage contract between Eul and Byung, and Eul's act was included in the brokerage contract in accordance with Eul's name, and Eul's act was not included in the registration of lease deposit and the transfer of the right of lease on Eul's own name before the initial payment date, and Eul did not make the registration of the right of lease deposit and the remainder.

[1] Articles 2 subparag. 1 and 30(1) of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act / [2] Articles 2 subparag. 1 and 30(1) of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act

[1] Supreme Court Decision 2005Da55008 decided Feb. 8, 2007 (Gong2007Sang, 427)

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

Defendant (Attorney Park Jae-sik, Counsel for the defendant-appellant)

Daegu District Court Decision 2011Na23673 Decided October 18, 2012

The part of the lower judgment against the Defendant ordering payment of KRW 35,545,071 from August 30, 2012 to October 18, 2012 as to damages for delay against the Defendant in excess of the amount calculated at the rate of 5% per annum and 20% per annum from the next day to the day of full payment, is reversed, and the first instance judgment is revoked, and the Plaintiff’s claim corresponding thereto is dismissed. The Defendant’s remaining appeal is dismissed. One-half of the total litigation costs arising between the Plaintiff and the Defendant is assessed against the Plaintiff, and the remainder is assessed against the Defendant.

The grounds of appeal are examined.

1. As to the misapprehension of legal principles as to the scope of duty of care of real estate brokers, and the assertion of mistake of facts

A. Article 2 subparag. 1 of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act (hereinafter “Licensed Real Estate Agents Act”) provides that “The brokerage refers to the brokerage between the parties to a transaction regarding the object of brokerage as provided in Article 3 and the acquisition, loss, and other rights.” Article 30(1) provides that “When a broker causes property damage to a party to a transaction by intention or negligence in performing brokerage, the broker shall be liable to compensate for such damage.” In light of the purport of the legal provisions aimed at protecting the parties to a transaction, the issue of whether an act in this context constitutes brokerage shall not be determined on the basis of the broker’s subjective intent, rather than on the basis of whether the broker has an intention to mediate or mediate a transaction on behalf of the party to a transaction, by objectively viewing the broker’s act as an act and thereby, it shall be determined according to whether the broker’s act is deemed to be an act for mediating or mediating transaction in terms of social norms, and thus, the act of the broker is objectively included in the scope of 200 won (see Supreme Court Decision 20008Da507.

B. According to the reasoning of the judgment below and evidence duly admitted by the court below, the non-party 2 was 0,000,000 won for 19,6580,000 won for 20,000,000,000 won for 20,000,000,000,000 won for 20,000,000,000,000 won for 20,000,000,000,000 won for 10,000,000,000,000 won for 20,000,000,000 won for 20,000,000,000 won for 20,000,000 won for 20,000,000,000 won for 10,000,000 won for 20,00,000 won for 20,00.

C. We examine the above facts in light of the legal principles as seen earlier.

The defendant, who was requested by the plaintiff, was expected to engage in the payment of the plaintiff's balance and the establishment of a right to lease on a deposit basis even after the conclusion of the instant lease agreement, to promote smooth performance of the contract and to preserve the plaintiff's claim for the refund of the lease deposit. Such act is deemed to be included in the brokerage act according to the principal place of

However, since the non-party purchased the apartment of this case by paying only the down payment prior to the conclusion of the lease contract in this case, it was difficult to acquire the ownership of the apartment of this case, if it is not prepared separately by 70 million won, excluding the maximum debt amount of 120 million won, which is the sum of the deposit and the maximum debt amount of the right to lease on a deposit basis that the plaintiff would receive from the purchase price. In the process of concluding the lease contract, the defendant was aware of the fact that the sales contract was in the process of confirming the ownership transfer registration under the name of the non-party and decided to pay the balance of the lease deposit prior to the initial payment date before the expiration of the lease contract. Accordingly, the non-party's transfer registration of the non-party's ownership and the plaintiff's right to lease on a deposit basis were not made immediately after the transfer registration of ownership as stipulated in the lease contract in the special agreement to the certified judicial scrivener at the same time, and the plaintiff did not obtain the right to lease on a deposit and the non-party's right to lease on a deposit relatively less than 100 billion won.

In the same purport, the court below is just in holding that the defendant caused losses to the plaintiff due to the defendant's failure to perform his/her duty of care as required while mediating the lease agreement of this case, and there is no error in the misapprehension of legal principles as to the scope of the duty of care

2. As to the misapprehension of legal principles as to the calculation of damages for delay and mistake of facts

In principle, the initial date of damages for delay caused by a tort is the date of establishment of a tort, and when there is an interval of time between the point of time and the point of time of occurrence of the damage in a tort (see Supreme Court Decision 2010Da97426, Feb. 23, 2012). Here, “the point of time of occurrence of damage” should be deemed as the point of time when the damage, which exists only under conceptual and dynamic conditions, can be deemed as having been realized after the occurrence of the damage (see Supreme Court Decision 2010Da54566, Aug. 30, 2012).

In light of the above legal principles and the records, the Plaintiff entered into the instant lease agreement with the Nonparty and continued to reside in the instant apartment, and received KRW 40,758,214 out of the lease deposit as lessee on August 30, 2012, which was the date of the voluntary auction procedure for the instant apartment. The Plaintiff’s damage caused by the Defendant’s breach of the duty of care as the broker was realized only when the distribution schedule was finalized on the date of the above distribution. Therefore, it is reasonable to view that the Defendant’s delay damages on the date of commencement of the Defendant’s obligation to compensate for damages is also the date of distribution

Nevertheless, the lower court: (a) deemed that the Nonparty incurred the Plaintiff’s loss on January 22, 201 by completing the registration of creation of a mortgage over the maximum debt amount contrary to the special agreement stipulated in the instant lease agreement; and (b) accordingly, deemed that the date of commencement of the damages incurred by the Nonparty was the date following the delivery of a copy of the complaint in this case; (c) therefore, the lower court erred by misapprehending the legal doctrine on the time of occurrence of the damages liability and the date

3. As to the misapprehension of legal principles as to the calculation method of damages, and the assertion of mistake of facts

In light of the relevant legal principles and records, it is reasonable that the court below calculated the remainder remaining after deducting the amount distributed from the auction procedure of the apartment of this case from the lease deposit paid to the Nonparty as the amount of damages that the Defendant is liable to compensate for, and there is no error of law such as misunderstanding of legal principles as to the calculation method of damages

4. Conclusion

Therefore, the part of the judgment of the court below against the defendant ordering payment of KRW 35,545,071 of the damages for delay against the defendant from August 30, 2012 to October 18, 2012, which is the date of the decision of the court below, in excess of 5% per annum as stipulated by the Civil Act, and 20% per annum as stipulated by the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings, from the next day to the date of full payment. This part is sufficient to be directly decided by the court. Thus, the court of first instance is decided to render a self-market pursuant to Article 437 of the Civil Procedure Act. The plaintiff's claim corresponding to the above reversed part is dismissed, and the remaining appeal by the defendant is dismissed, and one-half of the total costs of litigation between the plaintiff and the defendant is assessed against the plaintiff, and the remainder is decided as per Disposition by the assent of all participating Justices.

Justices Park Poe-dae (Presiding Justice)