(영문) 서울행정법원 2015.3.20.선고 2014구합19490 판결

A. The plaintiff is operating the "C Licensed Real Estate Agent Office" in Gwanak-gu in Seoul Special Metropolitan City after completing the registration of real estate brokerage business.

B. On September 15, 2014, the Defendant issued a prior notice to the Plaintiff on the grounds that he/she is punished by the suspension of business by applying Article 25(1) and Article 39(1)5 of the former Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act (amended by Act No. 11690, Mar. 23, 2013; hereinafter the same) and Article 25(1) [Attachment 2] [Attachment 6] of the former Enforcement Rule of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act.

On May 24, 2012, the Plaintiff omitted the description of confirmation of object of brokerage when mediating a lease agreement between the lessor, E and the lessee, with respect to the Seoul Special Metropolitan City, Gwanak-gu D and 105 (hereinafter referred to as "the building of this case").

Since then, the Defendant, on October 22, 2014, mitigated 1/2 from 3 months to 45 days (from October 27, 2014 to December 10, 2014) by taking into account that the Plaintiff had no record of having received the previous administrative disposition (hereinafter “instant disposition”).

[Ground of recognition] Unsatisfy, Gap evidence Nos. 4, 5, 11, and 12 (including numbers), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff presented the building ledger to F, but did not enter V marks in the building ledger among the explanatory materials for verifying the object of brokerage, verifying the object of brokerage, and explaining the explanatory materials. The Plaintiff demanded the lessor to provide the contents of the lease agreement of another lessee within the building of this case, but the lessor did not present the above contents, but instead actively entices the lessor into a small number of households. Rather, the Defendant did not distinguish the Plaintiff’s violation of Article 25(1) of the former Licensed Real Estate Agents’ Business Affairs and Report of Real Estate Transactions Act after classifying whether the Plaintiff violated Article 25(2) of the former Licensed Real Estate Agents’ Business Affairs and Report of Real Estate Transactions Act. The Plaintiff did not indicate that the lessor did not present the details of the lease agreement of another lessee within the building of this case and did not enter the specifications in the confirmation and explanation of the object of brokerage. The Plaintiff’s disposition was unlawful by changing Article 25(2) of the former Licensed Real Estate Agents’s Business Affairs and Report of Real Estate Transactions Act to the excessive act of violating Article 25(1)2) of the former Licensed Real Estate Agents Act.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

1) On May 24, 2012, the Plaintiff arranged a lease contract between the lessor E and the lessee F with respect to the instant object of brokerage, which constitutes 30,000,000. The building ledger was not indicated in the confirmation and explanation materials of the object of brokerage, which the Plaintiff delivered to F, and the actual relation with the rights or the list of the rights of the object that was not publicly announced.

2) The instant building was voluntarily decided to commence auction on June 24, 2013, and F was to receive only KRW 25,000,000 out of the lease deposit in the distribution procedure.

3) The Plaintiff brought a lawsuit seeking damages of KRW 5,00,000 (Seoul Central District Court 2014da6403579) on the ground that the Plaintiff caused damages due to negligence in failing to verify and explain the instant object of brokerage (Seoul Central District Court 2014da6403579), and the adjustment that the Plaintiff shall pay KRW 80,000 to F was constituted on November 13, 2014.

4) Meanwhile, even though the Plaintiff filed a complaint on the ground that he/she had brokered the instant building with knowledge that the auction procedure of the instant building would proceed, but was not prosecuted on July 25, 2014 due to lack of evidence.

[Reasons for Recognition] Class A, Nos. 1, 3, and 5

D. Determination

Article 25(1) of the former Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act provides that a broker shall, upon receiving a request for brokerage, verify the state, location, relationship of rights, etc. of the relevant object of brokerage and explain it faithfully and accurately to the brokerage client and present the supporting materials. Article 39(1)5 of the same Act provides that the registration authority may order the suspension of business in case of a violation of Article 25(1). Article 21(2) of the former Enforcement Decree of the Act on Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions (amended by Presidential Decree No. 23918, Jun. 29, 2012) provides that if the client fails to comply with the request of the broker for the materials concerning the state of object of brokerage, the lessee shall explain the fact to the lessee and enter the confirmation and explanation of object of brokerage.

As seen above, the Plaintiff, as a broker, failed to put a V mark on the building ledger among the confirmation and explanatory materials of the object of brokerage, and explanatory materials. If E, the lessee, did not present the details of the lease agreement of another lessee within the building of this case, the lessor failed to comply with the request of the broker for the material of confirming the object of brokerage, explanation, or matters concerning the right of the object that is not disclosed. Although it is not written, the Plaintiff asserts that he/she violates Article 25(2) of the former Licensed Real Estate Agents’ Business Affairs and Report of Real Estate Transactions Act, but Article 25(1) of the former Licensed Real Estate Agents’ Business Affairs and Report of Real Estate Transactions Act provides that the broker should verify and explain the object of brokerage, and Article 25(2) of the same Act provides that the former Licensed Real Estate Agents’ Business Affairs and Report of Real Estate Transactions shall not be deemed to have been properly implemented within the scope of the administrative fine imposed on the leased broker’s first time, and the Defendant is not obliged to verify and explain the subject matter of brokerage pursuant to Article 25(1) of the former Enforcement Rule.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.