In a case where Defendant B, an intermediary assistant of the licensed real estate agent’s office operated by Defendant A, using the name of Defendant A and the trade name of the licensed real estate agent’s office, engaging in the business of mediating studio rental contract to Byung, etc., and Defendant A was prosecuted for violating the Licensed Real Estate Agents Act on the ground that Defendant B had her act of brokerage as above using his name or the trade name of the real estate agent’s office, the

Defendant A’s brokerage assistant assistant in the licensed real estate agent’s office operated by Defendant A, using the name of Defendant A and the trade name of the licensed real estate agent’s office, thereby mediating studio rental contract to Byung, etc.; Defendant A was prosecuted for violating the Licensed Real Estate Agent Act on the ground that Defendant B had her act as a broker using the principal’s name or the trade name of the real estate agent’s office.

Defendant B, after introducing studio to the tenant Byung, was paid monthly rent of one year from Byung, and signed and sealed as an intermediary at the time of the preparation of the contract; Byung did not have any signature and seal on the contract; even if Defendant A signed and sealed on the contract, he was in the form of his own licensed real estate agent’s business by affixing his seal on the contract, and was merely in fact an unqualified real estate agent’s business through affixing his seal impression on the transaction he signed and sealed by the qualified real estate agent Eul, and if Defendant B had an unqualified agent conduct the licensed real estate agent’s business under his own name, the case held that the Real Estate Agent Act prohibited the Licensed Real Estate Agent Act for the reason that the broker assistant was involved in the entire process of introducing real estate and the entire process of concluding the contract and receiving a certain ratio of brokerage commission (80% in this case) on the account of the real estate agent’s consent to fostering the real estate agent’s real estate transaction without any specific reasons to believe that the principal agent’s consent to the sale contract was not sufficient and reasonable.

Articles 1, 19, and 49(1)7 of the Licensed Real Estate Agents Act

Defendant 1 and one other

Defendant

Park Ho-ho et al.

Law Firm Song administration, Attorneys Lee Ho-woo et al.

Daegu District Court Decision 2018Gohap586 decided October 25, 2018

All appeals by the Defendants are dismissed.

1. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles

Defendant 1 does not act as a broker for real estate lease contracts, but only as a broker assistant, Defendant 2 served as a final intermediary. Moreover, Defendant 1 was in the licensed real estate agent office operated by Defendant 2, and Defendant 2 was actually in charge of management and supervision. Therefore, the lower court erred by misapprehending the legal doctrine or misunderstanding the legal doctrine on the grounds that the Defendants did not commit any criminal facts as stated in the facts charged.

B. Unreasonable sentencing

The punishment sentenced by the court below (one million won per fine) is too unreasonable.

2. Determination

A. Judgment on misconception of facts or misapprehension of legal principles

1) Relevant legal principles

A) Article 2 Subparag. 1 of the Licensed Real Estate Agents Act provides that “Good offices” shall mean brokerage business between parties to a transaction regarding the object of brokerage as provided in Article 3, including purchase and sale, exchange, lease, and other acquisition, loss, and transfer of rights. Article 2 Subparag. 6 of the same Act provides that “The broker assistant is not a licensed real estate agent but a person who is affiliated with a practicing licensed real estate agent and assists in simple business related to the brokerage business of a practicing licensed real estate agent, such as field guidance and general affairs, etc.” Meanwhile, Article 38(2)3 of the former Real Estate Brokerage Act (wholly amended by Act No. 7638, Jul. 29, 2005) provides only a penal provision for “a person who transfers or lends a brokerage registration certificate or a certificate of licensed real estate agent to another person, or who takes over or borrows a real estate from another person by transfer or lending the registration certificate of a real estate agent or who takes over or leases the registration certificate of a brokerage office from another person under Article 49(1)7 of the same Act.”

Then, “loan of brokerage office registration certificate” prohibited by Article 49(1)7 of the Licensed Real Estate Agents Act refers to lending a certificate of qualification itself with knowledge that another person knowingly intends to conduct the business of a licensed real estate agent as a licensed real estate agent by using his/her registration certificate, and “act of having a licensed real estate agent conduct brokerage business using his/her name or trade name” refers to an act of having another person conduct brokerage business by actively or passively, even if another person does not perform his/her business as a licensed real estate agent, even though he/she does not directly engage in the business of a licensed real estate agent.

B) In light of the purport of the above law aimed at the protection of a transaction party, the issue of whether a broker is a broker’s subjective intent to arrange or mediate a transaction for a transaction party shall not be determined by the broker’s genuine intent. Whether a broker’s act is objectively considered as an act to arrange or mediate a transaction in light of social norms (see Supreme Court Decision 2010Da101776, Sept. 27, 2012).

On the other hand, whether an unqualified person performs the business of a licensed real estate agent or not shall be determined according to whether a unqualified person actually performs his/her business by using the name of the licensed real estate agent without examining whether the licensed real estate agent is in the form of carrying on the business of the licensed real estate agent. As to the transactions of which a unqualified person is sexually dead, only the form of carrying on the business of the licensed real estate agent directly (the licensed real estate agent) by sealing his/her seal impression on the contract, and in substance, if the unqualified person allows the licensed real estate agent to carry on the business of the licensed real estate agent under his/her name, it constitutes the act of lending the licensed real estate agent's license prohibited by the above law (see, e.g., Supreme Court Decision 200

In addition, this legal doctrine is likewise applicable to “the act of having another person render brokerage services using his/her name or trade name.” Thus, if a practicing licensed real estate agent merely participated in the preparation of a formal contract by allowing another person to engage in substantive brokerage services, such as arranging the transaction, exchange, lease, and other acquisition, loss, and transfer of rights between the parties to the transaction, it is against Article 19(1) of the Licensed Real Estate Agent Act

2) Determination

A) Examining the above legal principles in light of the following circumstances acknowledged by the evidence duly adopted and examined by the court below, Defendant 1 is deemed to have mediated the studio rental contract of this case using Defendant 2’s name and the trade name of the real estate agent’s office, and Defendant 2 shall be deemed to have had Defendant 1 mediated the studio rental contract of this case using the name of the principal or the trade name of the real estate agent’s office.

① Nonindicted 1, the lessee of the studio rental agreement of this case, stated several times from the date of complaint to the prosecution, and consistently, Defendant 1 introduced the studio of this case from Defendant 1 to Defendant 1, Defendant 1 paid the studio and monthly rent for one year, Defendant 1 affixed the seal as an intermediary at the time of the preparation of the contract, and Defendant 2 stated that there was no difficulty in entering into the contract. Defendant 2 also recognized that Nonindicted 1 did not appear in the process of concluding the contract.

② Defendant 1, as a broker assistant, directly displayed the instant studio to Nonindicted Party 1 and received the instant studio and prepared a receipt thereof. However, Defendant 2, a licensed real estate agent, did not participate in the preparation of the contract, and Defendant 2, a licensed real estate agent, examined and prepared the contract. However, in light of the contents of the Kakakao Stockholm conversation sent and received by Nonindicted Party 1 and Nonindicted Party 2 and Defendant 1, a licensed real estate agent, at the time of the preparation of the contract, Defendant 1 appears to have been in the licensed real estate agent office at the time of the preparation of the contract.

③ Defendant 2 asserts that he prepared a real estate agent’s signature and seal box on the preceding day’s daily contract, but this does not coincide with Defendant 1’s statement as well as the complainants. Even if Defendant 2 signed and sealed the contract, as seen earlier, it is limited to the form in which he/she directly conducts the licensed real estate agent’s business by affixing his/her seal impression on the contract as to the transactions in which a disqualified person actually loses his/her personal seal on the contract, and in substance, he/she had an unqualified person perform the licensed real estate agent’s business under his/her name, it constitutes “where he/she allows another person to perform brokerage business using his/her name or trade name” prohibited by the Licensed Real Estate Agent Act.

B) The Defendants asserted that the Suwon District Court Decision 2015Guhap6647, etc., which was held in the trial, may not be deemed to have a brokerage assistant’s name or trade name, merely by having the brokerage assistant act on behalf of the broker to sign and seal the contract.

However, the above precedents do not formally determine whether to allow a brokerage assistant to provide brokerage assistance, but rather substantially determine whether to do so. It is unlawful to revoke the qualification of a licensed real estate agent by deeming that a licensed real estate agent introduced real estate agents prior to the conclusion of a contract, and did not sufficiently examine or confirm whether a licensed real estate agent participated in the process of assisting in the relationship of rights, facilities, etc., and explain the status of the rights, facilities, etc. before the conclusion of the contract, and without making sufficient examination or confirmation as to whether the brokerage assistant participated in the process of assisting in the trading conditions. It does not mean that all cases where a brokerage assistant prepares a contract on behalf

As seen earlier, since only Defendant 1 actually acted as a broker in the process of the studio rental agreement brokerage, there is no problem of determining differently from the conclusion of the above Suwon District Court Decision 2015Guhap6647.

C) In addition, the Defendants asserts that, in the case of a studio rental contract the contract price of which is less than the contract amount, it is unfair to view that the brokerage assistant is involved in the real estate introduction and contract process as a whole, and that a certain ratio of the brokerage commission (80% in this case) is paid monthly to the brokerage assistant, it is unlawful.

However, in light of the legislative intent of the Licensed Real Estate Agents Act that enhances the professionalism of real estate agents by strictly restricting the qualifications of real estate agents, foster the real estate brokerage business in a sound manner, and protect the parties involved in the transaction of real estate, there is no reason to view that there is no difference in studio rental agreements, apartment buildings, commercial

Furthermore, considering that Defendant 1 received a certain rate of brokerage commission without any basic pay and as long as Defendant 1 had engaged in real estate brokerage without any particular involvement or instruction from Defendant 2, it is reasonable to deem that Defendant 1 performed brokerage business on Defendant 1’s account even if he/she performed so-called real estate brokerage business.

Therefore, even if the real estate brokerage, such as this case, is only a practice of the industry, it cannot be said that there is no violation of the law.

3) Sub-determination

Therefore, we cannot accept this part of the Defendants’ assertion.

B. Determination on the assertion of unfair sentencing

In full view of the facts that the Defendants did not have any criminal power other than the fine prior to drinking driving, etc., the Defendants’ assertion that they were favorable to the Defendants, or that they did not reflect the fact that they did not have any criminal power, such as business practices up to the trial. In full view of the Defendants’ age, character and conduct, environment, motive and circumstances of each of the instant crimes, the means and consequence of each of the instant crimes, and other circumstances that are the conditions for sentencing as indicated in the instant pleadings, such as the circumstances after the commission of the crime, the lower court’s punishment is too

Therefore, we cannot accept this part of the Defendants’ assertion.

3. Conclusion

Therefore, the defendants' appeal is without merit, and all of them are dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judge final (Presiding Judge)