[1] The criteria for determining whether an act of brokerage constitutes a "act of brokerage" under Article 30 (1) of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act, and whether the "act of brokerage" includes not only the case where both parties of a transaction request brokerage, but also the case where a transaction such as trading is mediated and mediated at one party's request (affirmative)

[2] In a case where Gap representative director of a real estate brokerage company which has joined the mutual aid project of the Korean Licensed Real Estate Agent Association was entrusted with the business of managing buildings and concluding a monthly lease contract from Eul, who is the owner of multi-household housing, and did not have any authority to conclude the lease contract, but caused damage to Byung et al. by acquiring the lease deposit by acquiring the lease deposit, the case holding that Gap's act in the above deduction accident constitutes brokerage by social norms

[3] The case holding that the representative director of a real estate brokerage company which has joined the mutual aid project of the Korea Licensed Real Estate Agent Association did not notify the above Association of the fact that it acquired money under the pretext of deposit money by entering into a lease contract with tenants without authority at the time of renewal of the mutual aid contract shall not be deemed to be a "Fraud"

[4] The case holding that where the Korea Licensed Real Estate Agent Association's mutual aid agreement which provides for "in a case where it causes damage to the Association by inducing mutual aid accidents" as one of the grounds for termination of a mutual aid agreement, where it intentionally induces mutual aid accidents and causes damage to the Association, the Association may terminate a mutual aid agreement on the grounds thereof, but the effect of termination shall not be deemed retroactively

[5] The case holding that the meaning of the provision that "the amount to be compensated by the Association shall be limited to the subscription amount" in the mutual aid terms and conditions applied at the time of concluding a mutual aid agreement with the Korean Licensed Real Estate Agent Association, which is applied by the representative director of the real estate brokerage company which caused damage to lessees by acquiring the deposit for the deposit for the lease of the deposit for multi-household housing without authority, shall not be deemed to be the "limit on compensation per case of a mutual aid accident" which is caused by the act of real estate brokerage, and it shall not be deemed to be the "limit on total compensation for all mutual aid accidents

[6] The case holding that the lessee's right to claim mutual aid money which the representative director of the real estate brokerage company which has joined the mutual aid association of the Korean Licensed Real Estate Agent Association suffers from the loss of acquiring the deposit money through the intermediation of the obligatory lease contract for multi-household housing without authority shall commence extinctive prescription from the time when the owner of multi-household housing

[1] Article 30 (1) of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act provides that "if a broker causes property damage to a transaction party by intention or negligence in performing a brokerage act, the broker shall be liable for such damage." In light of the purport of the above provision aimed at the protection of the transaction party, the issue of whether the broker constitutes a brokerage act here shall not be determined by the broker's subjective intent to arrange and mediate the transaction for the transaction party, but shall be determined by whether the broker's act is objectively deemed to be an act for the brokerage and mediation of the transaction in light of social norms, from the objective perspective of the broker's act. On the other hand, the brokerage act includes not only the case where the broker has requested a brokerage by both parties to the transaction, but also the case where the broker mediates and mediates the transaction, exchange, lease, or other acquisition or modification of the right at the request of one party to the transaction.

[2] The case holding that in case where Gap's representative director Gap of a real estate brokerage company which was a member of the Korea Licensed Real Estate Agent Association affiliated with the mutual aid business of the Korea Licensed Real Estate Agent Association was entrusted with the business of managing buildings and concluding a monthly lease contract from Eul who is the owner of multi-household housing, and did not have any authority to conclude the lease contract, and caused damage to Byung et al. by deceiving Eul's representative Eul as a tenant Byung and by deceiving the deposit money for the lease,

[3] The case holding that the representative director of a real estate brokerage company which has joined the mutual aid project of the Korea Licensed Real Estate Agent Association did not notify the above Association of the fact that it acquired money under the pretext of deposit money by entering into a lease contract with tenants without authority at the time of renewal of the mutual aid contract shall not be deemed as a "Fraud" where the mutual aid agreement becomes null and void

[4] The case holding that the provision of mutual aid shall not be permitted to be in violation of the above law and to retroactively exempt the Association from liability for terminating a mutual aid agreement on the ground that the provisions of the Korean Licensed Real Estate Agent Association stipulate that "if a broker intentionally or negligently causes damage to the property of a transaction party in the course of acting as a broker, he/she shall be liable to compensate for such damage," while Article 30 (1) of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act provides that "if a broker intentionally or negligently causes damage to the transaction party in the course of acting as a broker, he/she shall be liable to compensate for such damage."

[5] The case holding that the meaning of "the amount to be compensated by the Association shall be limited to the amount to be covered by the Association" in the mutual aid agreement applied at the time when the representative director of the real estate brokerage company, who caused damage to the lessee by acquiring the deposit on a deposit basis by concluding a mutual aid agreement with the lessee even though he was entrusted with the management of the building and conclusion of the monthly lease contract with the owner of multi-household housing, shall not be deemed to be defined as "limit on compensation per case of a mutual aid accident" caused by the real estate brokerage act, and it shall not be deemed to be defined as "limit on total compensation for all mutual aid accidents occurred during the mutual aid period" in relation to one mutual aid business operator

[6] The case holding that since the representative director of a real estate brokerage company which has joined the mutual aid project of the Korea Licensed Real Estate Agent Association caused the accident of receiving the deposit of the deposit of the deposit of the deposit of the deposit of the deposit of the deposit of the deposit of the deposit of the deposit of the deposit of the deposit of the deposit of the deposit of the deposit of the deposit of the lease of the deposit of the deposit of the lease of the deposit of the deposit of the lease of the lease of the deposit of the lease of the lease of the lease of the lease of the lease of the lease of the lease of the lease of the lease of the lease of the lease of the

[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, 14(1)1, and 30(1) of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act / [3] Article 105 of the Civil Act, Article 5 of the Regulation of Standardized Contracts Act / [4] Articles 30(1) and 40(2) of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act, Articles 5 and 30(1) of the Civil Act / [5] Article 105 of the Civil Act, Article 5 of the Regulation of Standardized Contracts Act, Article 30(1) of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act / [6] Article 30(1) of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act, Articles 16(1), 750 and 76(1) of the Civil Act

[1] Supreme Court Decision 94Da47261 delivered on September 29, 1995 (Gong1995Ha, 3600) Supreme Court Decision 2005Da32197 Delivered on October 7, 2005 (Gong2005Ha, 1772) Supreme Court Decision 2005Da65562 Delivered on March 10, 2006 (Gong2006Sang, 613) / [5] Supreme Court Decision 2007Da3949 Delivered on April 10, 2008

Plaintiff 1 and five others (Attorney Jeon Soo-jin, Counsel for the plaintiff-appellant)

Korean Licensed Real Estate Agent Association (Attorney Kim Jong-hwan, Counsel for defendant-appellant)

Seoul Central District Court Decision 2009Kahap87176 Decided April 27, 2010

September 1, 2010

1. The defendant's appeal is all dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The defendant shall pay to the plaintiff 1 60 million won, 75 million won to the plaintiff 2, 73 million won to the plaintiff 3, 60 million won to the plaintiff 4, 45 million won to the plaintiff 5, 35 million won to the plaintiff 6, 35 million won to the plaintiff 6, and 5 percent interest per annum from February 1, 2008 to the day of complete payment.

2. Purport of appeal

The judgment of the first instance is revoked, and all the plaintiffs' claims are dismissed.

1. Basic facts

The following facts are not disputed between the parties, or may be acknowledged by taking into account the whole purport of the pleadings in each entry in Gap evidence of 1 to 4 and Eul evidence of 1 to 4 (including each number):

A. Nonparty 1 succeeded to all rights and duties relating to the mutual aid program of the Korean Real Estate Agents Association established under the former Real Estate Brokerage Act (amended by the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act, July 29, 2005) as the Defendant’s telegraph transfer in the course of operating the company as the representative director of the 'Mod Real Estate Brokerage Co., Ltd.' established for the purpose of real estate brokerage business, etc., and the Korea Real Estate Agents Association (hereinafter the Korea Real Estate Agents Association and the Defendant collectively referred to as the 'Defendant') established for the purpose of operating the company. The period of the mutual aid program shall be KRW 100 million from May 3, 2002 to May 2, 2003. Where a mutual aid holder, who is a real estate broker, caused property damage to the parties to a transaction by intention or negligence, the mutual aid agreement shall be concluded within the limit of the amount of the mutual aid agreement suffered by the Defendant to compensate for property damage to the parties to a transaction within one year after its renewal.

B. Meanwhile, even though Nonparty 2 was entrusted by Nonparty 2 with the management of the building, entering into a monthly lease contract, and receiving monthly rent with respect to the multi-household housing located in Seocho-gu Seoul Metropolitan City (number omitted), which is owned by Nonparty 2 (hereinafter “the instant loan”), Nonparty 1 deceiving Nonparty 2 as the lessor’s agent even though he was not authorized to enter into the lease contract (the claim lease contract that only pays the deposit without monthly rent).

(1) On April 15, 2006, with Plaintiff 1 entered into a two-year lease agreement with respect to the instant loan 201, including the deposit of KRW 60 million, and the deposit of KRW 2,000,000,000 from the date of the said agreement to April 29, 2006;

(2) On September 3, 2007, with Plaintiff 2 entered into a lease agreement with the former deposit of KRW 75 million with respect to the instant loan of KRW 202,00,000 and the former lease agreement of two years with respect to the said loan of KRW 75,000,000 in total from the date of the said agreement to September 15, 2007;

(3) On December 24, 2007, with Plaintiff 3 entered into a lease contract of 73 million won for the deposit of the deposit of the deposit of the deposit of the deposit of the deposit of the deposit of the second year for the deposit of the deposit of the deposit of the lease of the second year, and received KRW 73 million for the deposit of the deposit of the lease of the previous year;

(4) On April 3, 2004, with Plaintiff 4 entered into a lease agreement of 60 million won for the deposit of the deposit of the deposit of the deposit of the deposit of the second year for the deposit of the lease of the second year between Plaintiff 4 and Plaintiff 4, and received KRW 60 million for the deposit of the deposit of the lease of the second year;

(5) On June 18, 2007, with Plaintiff 5 entered into a two-year lease agreement with respect to the instant loan 501, including KRW 45 million, and two-year lease agreement with Plaintiff 5,000,000,000,000 from the date of the said agreement to July 1, 2007;

(6) On November 30, 2006, with Plaintiff 6 entered into a lease contract of 35 million won for the lease deposit of 502 and the lease contract of 2 years for the lease of 35 million won for the lease of 35 million won for the lease of 35 million won on the day, each of the above lease contracts was "each of the lease contracts of this case" and the above (i) through (vi) was "the lease contract of this case" and the above (ii) through (vi) were "the accident of this case").

C. From December 20, 2001 to January 5, 2008, the non-party 1 was entrusted with the conclusion of the monthly rent contract between the owners of the buildings in the Seocho-gu Seoul Metropolitan Government distribution Dong and each multi-household house located in the same area as the previous one, and the non-party 1 was sentenced to seven years in the Seoul Central District Court Decision 2008DaDa1290, 2008 Godan4168 (Joint) case on September 5, 2008, which was sentenced to seven years of imprisonment on September 5, 2008. The above judgment became final and conclusive around that time.

D. At the time of the conclusion of each lease agreement of this case, Nonparty 1 stated that “the amount of deduction 100 million won” and “the defendant concludes a mutual aid agreement in accordance with the terms and conditions of the mutual aid agreement as stated on the back and the terms and conditions of this certificate and issue this certificate in its certificate.” At that time, Article 2 of the terms and conditions of the defendant’s mutual aid agreement provides that “the amount to be compensated by the defendant shall be limited to the subscription amount.” However, it was revised to read that “the total subscription amount of the brokerage accident occurred during the period of the mutual aid agreement of the insured shall be limited to the subscription amount specified in the certificate of mutual aid.” In addition, at that time, Article 3 subparag. 5 of the Mutual Aid Agreement enacted by the defendant pursuant to Article 42(2) of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act was the total subscription amount to be paid by the defendant to the defendant 10 days after the amendment of the terms and conditions of the agreement between the defendant and the client.”

E. Meanwhile, while the plaintiffs were residing in each of the pertinent households of the lending of this case, they were sentenced to the judgment against them on June 24, 2009 upon receipt of the delivery of each of the pertinent households of the lending of this case by the Seoul Central District Court 2008Da108925, and the return of unjust enrichment for the amount equivalent to the rent after February 1, 2008, and the judgment against them became final and conclusive. The above amount of the rent exceeds the amount calculated by the ratio of 5% per annum for each lease deposit received by the plaintiffs.

2. Judgment on the plaintiff's claim

According to the above facts, Nonparty 1, a broker, was delegated only by Nonparty 2 with the authority to conclude a monthly rent lease contract. However, as if Nonparty 2 arranged each of the of the of the of the of the of the of the of the of the of the of the of the of the of the of the of the of the of this case and was authorized to receive the deposit money, Nonparty 1, the broker, as the broker of the of the of this case, had the plaintiffs enter into each of the of the of the of the of the of the of the of the of the of the of this case with the plaintiffs 1, 60 million won, 75 million won from the plaintiff 2, 30 million won, 63 million won from the plaintiff 3, 45 million won from the plaintiff 4, 50 million won, and 35 million won from the plaintiff 65 million won, and the defendant is obligated to compensate the plaintiff 2, 605 million won to the plaintiff 1, 300 million won, 60 million won, and 5 million won.

3. Judgment on the defendant's assertion

A. Determination as to the assertion that the act does not constitute brokerage

The defendant asserts that the non-party 1 was entrusted by the non-party 2 with the management of the loan of this case, the conclusion of the monthly lease contract, the receipt of monthly rent, etc., and that the non-party 1 concluded each lease contract of this case, which constitutes the "act of management of real estate, such as house lease management" under Article 14 (1) 1 of the Licensed Real Estate Agents Act, not the "act of brokerage" under Article 2 (1) 1 of the same Act, and thus, the plaintiffs' damages are not caused by the "act of brokerage" of the non-party 1, and therefore

Article 30(1) of the Licensed Real Estate Agent Act provides that "if a broker causes property damage to a transaction party by intention or negligence while acting as a broker, he/she shall be liable for such damage." In light of the purport of the above provision aimed at protecting the transaction party, whether a broker constitutes an act of brokerage in this context shall not be determined by the broker's subjective intent, but shall be determined by whether an act of broker is objectively deemed an act of brokerage and brokerage in light of social norms. Meanwhile, the brokerage act includes not only the case where the broker receives a request from both parties of the transaction, but also the case where the broker acts of brokerage, exchange or lease of the object of brokerage, or other acts of brokerage and brokerage of the object of brokerage at one party of the transaction, but also the case where the broker acts of brokerage and brokerage as well as acts of brokerage and brokerage of real estate as an act of brokerage and management of real estate by proxy are closely related to the acts of brokerage and management of real estate in accordance with social norms (see, e.g., Supreme Court Decision 94Da47261, Sept. 29, 199).

B. Determination on the assertion that a mutual aid agreement is null and void

The defendant asserts that, on December 20, 2001, the non-party 1 was null and void under Article 17 of the Terms and Conditions of Mutual Aid which provides that the defendant continued to enter into the instant mutual Aid agreement with the non-party 1 because the defendant did not notify the non-party 1 of the fact that he intentionally acquired the money as a security deposit from the lessee and did not notify the defendant thereof, and that the instant mutual Aid agreement was null and void in accordance with Article 17 of the Terms and Conditions of Mutual Aid that "

The fact that Article 17 of the Mutual Aid Terms and Conditions provides that "I are null and void if there has been any act which seriously affecting the morale or formation of a contract by a mutual aid subscriber or his agent in connection with the mutual aid contract," does not conflict between the parties, and that at the time of renewal of the mutual aid contract from May 3, 2003 to one year from May 3, 2003, I did not notify the defendant of the fact that he obtained money from tenants in the name of security deposit money and has committed an act falling under the accident.

However, as to whether the above act of Nonparty 1 constitutes fraudulent act that invalidates a mutual aid agreement as stipulated in Article 17 of the mutual aid agreement, Article 1 of the mutual aid agreement provides that the mutual aid agreement shall be paid even to the parties to the transaction due to the "suspect" of the mutual aid agreement. Thus, it cannot be said that there was an intentional act that the mutual aid holder intentionally caused the accident of mutual aid in relation to the fraud or the establishment of the contract by the mutual aid holder in relation to the mutual aid agreement. ② Even if Nonparty 1 was aware of fraud, it is merely an accident under the mutual aid agreement which is merely an accident under the initial mutual aid agreement, and it cannot be deemed the same as the accident under the renewed mutual aid agreement. Ultimately, Nonparty 1 deceiving the Defendant as a licensed real estate agent after the conclusion of the mutual aid agreement, rather than deceiving the client about the conclusion of the renewed mutual aid agreement, it seems that there is no substantial influence on Nonparty 1's fraud or establishment of the mutual aid agreement in this case, and thus, it cannot be viewed that the defendant's refusal of mutual aid agreement would normally be an accident and its purpose.

C. Judgment on the ground that the termination of a mutual aid contract is retroactive

The defendant asserts that the above act of the non-party 1 constitutes the ground for refusal to conclude a mutual aid agreement and the ground for termination of a mutual aid agreement under Article 8 (3) 1 of the Mutual Aid Regulations (in case of causing damage to the Association by inducing a mutual aid accident), and that the contract of this case retroactively becomes null and void due to the termination by the defendant.

The fact that Article 8 (3) 1 of the Mutual Aid Agreement provides that "in the case of causing damage to the Association by inducing an intentional accident" as one of the grounds for the termination of a mutual aid agreement is one of the grounds for the termination of a mutual aid agreement is not disputed between the parties, and the fact that the defendant expressed his/her intention to terminate the contract of each mutual aid agreement of this case is clear in the record.

However, as seen earlier, Article 30(1) of the Licensed Real Estate Agent Act provides that "a broker shall be liable to compensate for damage to the property of a transaction party due to intentional or negligent conduct in acting as a broker, if the broker intentionally or negligently causes damage to the property of the transaction party." Thus, if the broker intentionally induced a mutual-aid accident and the defendant terminates the mutual-aid contract and is retroactively liable as it is in violation of the Licensed Real Estate Agent Act, and as such, if the broker intentionally induces the mutual-aid accident and causes damage to the Association, the defendant may terminate the mutual-aid contract on the ground thereof, but the effect of termination shall not be retroactively applied. Thus, the defendant's assertion on the different premise is without merit.

D. Determination as to the claim on the limit of the amount of compensation liability

In order to guarantee the broker's liability for damages, the legal principles of general insurance cannot be applied in light of the fact that it is impossible for the broker to intentionally cause damages to the broker, and it is not possible for the broker to calculate the amount of the mutual-aid. According to Article 30 (3) of the Licensed Real Estate Agents Act, Articles 24 (1) and 25 (1) of the Enforcement Decree of the Licensed Real Estate Agents Act, the guarantee insurance, mutual-aid, and deposit are selective, exchange system guaranteeing the same amount of damages, and the amount of the guarantee insurance or mutual-aid deposit is naturally the same as the amount of the broker's liability for damages. According to the above mutual-aid certificate, the broker's liability for damages arising from the broker's intentional damage to the broker. According to the above mutual-aid contract, the broker's 10 million won was concluded with the broker's 10 million won and the defendant's liability for damages can not be paid by the broker's own intention or negligence to the broker's maximum amount of damages.

On the surface of the mutual aid certificate issued by the defendant, the term "amount of 100 million won" and the term of the mutual aid agreement stated as "the defendant concludes a mutual aid agreement and issues this certificate in accordance with the terms and conditions of the mutual aid agreement stated in the back and the contents stated in this certificate." As above, Article 2 (1) of the defendant's mutual aid agreement applied at the time of the conclusion of the mutual aid agreement in this case provides that "the amount to be compensated by the defendant shall be limited to the subscription amount." In light of the evidence No. 2, Article 4 of the Rules on Mutual Aid Business at the time of the defendant's entry into the agreement provides that "the subscription amount shall be limited to the subscription amount." Articles 30 (3) and 38 (2) 8 of the Licensed Real Estate Agents Act provide that the defendant shall take measures such as mutual aid to guarantee liability for damages before commencement of business, and the defendant's establishment registration may be revoked in the case of commencement of business without implementing the above measures to guarantee liability for damages." The defendant's interpretation of the insurance agreement No. 2068.

E. Determination on the invalidation of a mutual aid agreement based on physical liability

The defendant asserts that Article 26 (2) of the Enforcement Decree of the Licensed Real Estate Agent Act provides that "a broker shall, if he/she has compensated for damage with surety insurance, mutual aid money, or deposit money, subscribe to a guarantee insurance or mutual aid within 15 days, or make up for the shortage of deposit money." Thus, the defendant is liable for the liability to pay compensation only within the limit of the deposit deposited by the broker, and the defendant has already paid the aggregate of 100 million won to the non-party 3, 4, 5, 6, 7, and 8 who is the victim of a separate mutual aid accident as above. As such, the non-party 1, the broker, has the duty to either subscribe to a mutual aid or compensate for the deposit within 15 days pursuant to the above provision, and the non-party 1 has no obligation to pay the mutual aid money under the mutual aid agreement of this case as the result of the non-party 1's failure to

As seen above, the defendant is liable for the payment of mutual aid to the extent of the amount of compensation for each accident occurred during the period of mutual aid, and the provisions of Article 26 (2) of the Enforcement Decree of the Licensed Real Estate Agents Act are only deemed to be prepared for a new accident that occurs after the mutual aid was paid. Thus, the previous mutual aid contract cannot be deemed retroactively null and void on the ground that the broker has not fulfilled the above obligation. Therefore, the defendant still bears the liability for the payment of mutual aid regardless of the above Enforcement Decree, since the defendant is still liable for the mutual aid accident that has already occurred during the period of mutual aid regardless of the above provision of the Enforcement Decree, the defendant's above assertion is without merit.

F. Determination on the claim for the completion of extinctive prescription

The Defendant asserts that the extinctive prescription period of the Plaintiffs’ claim for mutual aid money under the instant mutual aid agreement is expired from the date when the Plaintiffs can exercise their claim for mutual aid money, namely, from the date when the Plaintiffs acquired each amount of deposit money by deception by Nonparty 1, and that the Plaintiffs 1, 4, 5, and 6 filed the instant lawsuit on July 30, 2009, which was two years after the date on which the said fraud was made. Thus, the above Plaintiffs’ claim for mutual aid money expired due to the expiration of the extinctive prescription.

The two-year extinctive prescription against the plaintiffs' claim for mutual aid money of this case shall commence from the time when a mutual aid accident occurred pursuant to Article 166 (1) of the Civil Act, barring any special circumstance. However, in the damage claim arising from a tort at an interval of time between the harmful act and the actual damage, the date when the plaintiffs became aware of the tort, which is the starting point of the extinctive prescription, is insufficient to the extent that there was awareness of the damage that the damage was temporarily hidden in a conceptual and dynamic state, and it is more realistic that such damage was thereafter realized, and it is reasonable to interpret that the victim was aware of the fact that the harmful act can be claimed as a tort (see Supreme Court Decision 2007Da58339, Dec. 13, 2007).

However, according to the above basic facts, Nonparty 1 caused the brokerage accident by deceiving the amount equivalent to the deposit money for the lease while mediating each lease contract between the plaintiffs with respect to the loan of this case. However, at that time, the plaintiffs suffered damages due to the plaintiffs' failure to receive the deposit for the lease of this case was only a potential situation. Since the plaintiffs suffered damages due to the plaintiff's request for the delivery of a building from Nonparty 2, who is the owner of the building, around March 2008, the right to claim the mutual-aid money of this case from March 2008, the extinctive prescription period should run from the above point of view, and since the plaintiffs filed the lawsuit of this case on July 30, 2009, which is within two years from the plaintiffs, the defendant's objection to the other premise is without merit.

G. Determination on the assertion of comparative negligence

Even if the Defendant is obligated to pay mutual aid money under the instant mutual aid agreement to the Plaintiffs, the Plaintiffs did not confirm whether Nonparty 1 was entrusted with the authority to conclude the instant mutual aid agreement by Nonparty 2 while entering into the instant mutual aid agreement, and did not confirm whether Nonparty 2 was entrusted with the authority to conclude the said mutual aid agreement, but did not confirm whether Nonparty 2 was paid the deposit to Nonparty 1’s account, not Nonparty 2’s account. Therefore, the Plaintiffs’ negligence should be considered when calculating the amount of

The defendant's assertion that a person who intentionally committed an illegal act by taking advantage of the victim's care is not allowed to reduce his responsibility on the ground of the victim's care (see Supreme Court Decision 2005Da32197, Oct. 7, 2005, etc.). The defendant's liability for the payment of mutual aid money in this case is based on the defendant's existence of the non-party 1's liability for the tort. According to the above basic facts, the non-party 1, the principal debtor, intentionally committed the fraud by taking advantage of the plaintiff's care. Thus, the defendant's defense of offsetting negligence is without merit.

H. Determination on the assertion on the deduction of profit and loss

The defendant asserts that the plaintiff should deduct the amount of monthly rent from the amount of damages because the plaintiff entered into the above lease contract and resided in the loan of this case while gaining the benefit of monthly rent during his residence.

In this case, the defendant's obligation to pay mutual aid money is ultimately based on the concurrent acquisition of the liability for damages arising from the non-party 1's illegal act. In calculating the amount of damages for the illegal act, the victim has to obtain new benefits due to the illegal act, which is the cause of the liability for damages, and there is a proximate causal relation between the profit and the illegal act (see Supreme Court Decision 2002Da33502, Oct. 11, 2002, etc.). As seen above, even if the plaintiffs resided in the loan of this case due to the non-party 1's illegal act, the profits earned by the plaintiffs from the possession of the loan of this case should be dealt with according to the validity of the above lease contract and the legal relationship between the plaintiff and the non-party 2, who is the owner of the loan of this case. Accordingly, the plaintiffs cannot be deemed to have obtained new benefits, and therefore, there is no room for the defendant to deduct the damages from the damages of this case.

4. Conclusion

Therefore, the judgment of the court of first instance is just in conclusion, and the defendant's appeal against the plaintiffs is dismissed as it is without merit, and it is so decided as per Disposition.

Judge Lee Young-young (Presiding Judge)

1) For reference, Article 3 subparag. 5 of the Defendant’s whole amendment after the mutual aid agreement of this case provides that “the amount of deduction refers to the agreed amount between the parties to the contract as the maximum amount to be paid by the Defendant in the event of an accident, and the agreed amount among the parties to the contract.” As a matter of interpreting the compensation limit as in this case, the above provision was amended to the effect that “the amount of deduction” means the total compensation limit for an intermediary accident that occurs during the period of the mutual aid, which is agreed between the Defendant and the mutual aid contract party, and obtained approval from the Ministry of Land, Transport and Maritime Affairs on June 12, 2008, and thereafter, “the total compensation limit that the Defendant compensates” under the above provision was added to the phrase “the total compensation limit that each intermediary who suffered damage regardless of the number of clients or the number of contract contracts or the amount of damage that each client may receive from the Defendant, as argued by the Ministry of Land, Transport and Maritime Affairs, by obtaining approval from the Defendant.”

2) If interpreted as alleged by the Defendant, it would lead to the unfair conclusion that the Defendant may refuse to pay the mutual aid money on the basis of the above provision after arbitrarily choosing one of the victims to receive the mutual aid money and paying the mutual aid money to the rest victims.

3) According to the above, the plaintiffs were sentenced to the judgment against the plaintiffs' claim for the return of unjust enrichment from the possession of the loan of this case for the period of February 1, 2008 (the plaintiff also sought the amount of 5% interest per annum from February 1, 2008 to 2008) as sought by the non-party 2, along with the delivery of the building from the non-party 2, who is the owner of the building. The above amount of unjust enrichment exceeds the amount of 5% per annum for the lease deposit acquired by the plaintiffs, and there was no benefit of the plaintiffs. The above amount of unjust enrichment exceeds the amount of 5% per annum for the lease deposit acquired by the plaintiffs, and it can be claimed again for the return of unjust enrichment against the plaintiffs from January 31, 208 after the plaintiffs moved into the loan of this case to the period of January 31, 2008. Even if the plaintiffs did not gain any benefit, it does not constitute a tort under the above legal relationship between the plaintiffs and the non-party 2.