Whether Article 6 (5) of the former Real Estate Brokerage Act can be seen as a exemption provision for the liability of a broker assistant for damages (negative)

Where a real estate brokerage assistant employed by a real estate broker inflicts property damage on a transaction party intentionally or by negligence, the brokerage assistant shall be liable for the damage suffered by the transaction party as a tort, and Article 6(5) of the former Real Estate Brokerage Act (amended by Act No. 7638 of July 29, 2005) provides that the broker shall be liable for the damage to the transaction party by prescribing that the act of the broker shall be deemed the act of the broker who employs him/her as the act of the broker who employs him/her. Therefore, where the broker assistant inflicts property damage on the transaction party intentionally or by negligence, the above provision does not provide that only the broker who employs the broker assistant shall be liable for the damage and that the broker shall not be liable for the damage to the broker assistant.

Article 6 (5) of the former Real Estate Brokerage Act (amended by Act No. 7638 of July 29, 2005, the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions) (see Article 15 (2) of the current Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act)

Public iron and two others (Attorney Park Ho-ho et al., Counsel for the plaintiff-appellant)

Defendant 1 and two others (Law Firm Barun, Attorneys Park Ho-ho et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2005Na34263 Delivered on April 18, 2006

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

1. When a brokerage assistant employed by a real estate broker inflicts property damage on a transaction party by intention or negligence, the brokerage assistant is naturally liable for the damage suffered by the transaction party as a tort, and Article 6 (5) of the former Real Estate Brokerage Act (Act No. 6236, Jan. 28, 200; hereinafter “Act”) provides that the broker shall be deemed as the act of the broker who employs the broker assistant, and the broker shall also be liable for the damage to the transaction party.

In contrast, the argument in the grounds of appeal that Article 6(5) of the Act provides that the broker who employs the broker shall be liable for damages and the broker shall not be liable for damages where the broker has caused damage to the transaction party intentionally or negligently by the broker assistant, shall not be accepted.

2. After compiling the adopted evidence, the court below found the facts as stated in its reasoning. Defendant 1 and 2, who were commissioned by the plaintiffs to act as a real estate broker or intermediary assistant for each of the instant real estate sales contracts, did not possess a registration right certificate for each of the instant real estate. Since the address recorded in the register of each of the instant real estate does not coincide with that of the Nonparty, the non-party demanded the non-party to present a resident registration copy and the non-party to verify whether the non-party had resided in the owner’s address stated in the above register of real estate, and confirmed the contents of the register of each of the instant real estate and examined whether the non-party was the true owner of each of the instant real estate. Thus, the court below erred by misapprehending the legal principles as to the non-party’s act of mediating the instant real estate, and by misapprehending the legal principles as to the non-party’s act of mediating the instant real estate, the court below did not err by misapprehending the legal principles as to the non-party’s duty of care as stated in the register of the non-party’s title.

3. In addition, after compiling the adopted evidence, the court below found facts as stated in its decision. In light of the following circumstances: not only recommended the plaintiffs to purchase each real estate of this case, but also requested the plaintiffs to act as a good manager, and the plaintiffs were accompanied by the plaintiffs at the place where the sales contract of this case was prepared and the remaining payment was made, and the plaintiffs were paid 4 million won, it is reasonable to view that the role of the defendant 3 was not merely notified to the plaintiffs of the information that the real estate of this case was changed to each of the real estate of this case, but also reached the extent of mediating or mediating the sales contract of this case. Thus, although the defendant 3, who was requested to act as a broker or a good manager, was obligated to deal with the brokerage business of this case pursuant to Article 681 of the Civil Code, he did not confirm whether the non-party is the real owner of each real estate of this case, and therefore, he did not err in the misapprehension of legal principles as to the facts that the plaintiffs were liable for damages due to the violation of the rules of evidence and the records.

4. Furthermore, after compiling the adopted evidence, the court below acknowledged the facts as stated in its holding, and judged that the damages suffered by the plaintiffs due to the defendants' illegal acts are the money actually contributed to the purchase of each of the real estate in this case by believing the non-party as the genuine owner of each of the real estate in this case, and the registration expenses, including the purchase price, brokerage commission, acquisition tax, and registration tax, constitute this case. In light of the records, the court below's fact-finding and judgment are just and acceptable, and there is no error in the misapprehension of legal principles as to the scope of damages in proximate

5. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)