The starting point of reckoning the extinctive prescription of the claim for mutual aid under the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act (=when the claimant for mutual aid knew or could have known the occurrence of the accident)

Article 42 of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act; Article 166 of the Civil Act

Supreme Court Decision 2007Da58339 Decided December 13, 2007, Supreme Court Decision 2010Da69209 Decided November 11, 2010

Plaintiff (Attorney Park Young-sik, Counsel for the plaintiff-appellant)

Korean Licensed Real Estate Agents Association (Law Firm Barun, Attorneys Park Jae-sik et al., Counsel for the plaintiff-appellant

Seoul Central District Court Decision 2010Na50334 Decided June 3, 2011

The part of the judgment below against the defendant is reversed, and that part of the case is remanded to the Panel Division of the Seoul Central District Court.

The grounds of appeal are examined.

1. Article 42 of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act provides that a broker shall be liable for damages to the parties to a transaction due to his/her illegal act or default. Thus, the extinctive prescription of the right to claim a mutual-aid shall run from the time when the claimant to the mutual-aid knew or could have known the occurrence of the mutual-aid accident (see Supreme Court Decisions 2007Da58339, Dec. 13, 2007; 2010Da69209, Nov. 11, 2010).

2. According to the judgment of the court of first instance and the evidence duly admitted by the court below, ① under Article 10(2) of the trust agreement entered into between EPP P&N UN EFz (hereinafter “KBP”) and KB real estate trust company (hereinafter “KB real estate trust”), a new lease contract should be entered into after concluding a trust agreement on the condition of prior consent of KB trust. The above trust agreement is attached to the apartment register and published on the apartment register. ② The Plaintiff and EBP E&N E&D E&D E&D entered into the instant lease agreement on December 8, 2006, and the instant apartment agreement was entrusted with KBF trust and the E&N E&N E&D E&N transferred the remainder of the lease agreement to the Plaintiff within 14 days after obtaining consent of the KBP trust, and the Plaintiff’s lease agreement on the instant real estate was not known to the Plaintiff.

Examining these facts in light of the legal principles as seen earlier, it is reasonable to view that the Plaintiff was aware of the occurrence of a mutual aid accident around April 2007, when the K non-real estate trust notifies the Plaintiff that it is impossible to recognize the right of lease, and that there was an accident of mutual aid around April 2007, when the K non-real estate trust notified the Plaintiff that it is not possible to recognize the right of lease, and that the Plaintiff already knew or could have known the occurrence of a mutual aid accident upon receiving the aforementioned notification around April 2007. Accordingly, the extinctive prescription

According to the records, the lawsuit of this case was filed on February 12, 2010 after the expiration of the statute of limitations from April 2007 to April 2007.

3. Nevertheless, the lower court’s rejection of the Defendant’s defense, on March 16, 2010, at the time when the judgment against the lawsuit seeking confirmation of existence of the right of lease filed by the Plaintiff against the K non-real estate trust became final and conclusive, deeming the statute of limitations as the starting point for the calculation of the statute of limitations is erroneous by misapprehending the legal doctrine on the starting point of the statute of limitations for the claim for mutual-aid.

4. Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Il-young (Presiding Justice)