[1] Whether the act of mediating the transfer of the tangible or intangible property value of a building for business purposes constitutes an act of brokerage governed by the former Real Estate Brokerage Act (negative)

[2] The case holding that the defendant is not guilty of the facts charged for the receipt exceeding the statutory limits of the brokerage commission on the grounds that the commission received in return for the brokerage of the contract for the transfer and acquisition of the "contribute premium" accompanied by the sale of the right of lease of a commercial building does not fall

[1] Article 2 of the former Real Estate Brokerage Act (amended by Act No. 7638, Jul. 29, 2005; hereinafter "the Act on Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions") provides that "the brokerage" means the brokerage of sale and purchase, exchange, lease, and other acts related to the acquisition, loss, or modification of rights between the parties to the transaction with respect to the object of brokerage under Article 3, and Article 3 of the same Act and Article 2 of the Enforcement Decree of the same Act provides that "the object of brokerage" shall be "land, buildings, other fixtures on land, standing trees under the Act on Mortgage on Mining Foundation, Standing Timber, Mining Foundation Mortgage Act, mining foundation under the Factory Mortgage Act, and factory foundation under the Factory Mortgage Act. In full view of each of the above provisions, since intangible or intangible value of property, such as business points, cannot be deemed as a object of brokerage under the above Acts and subordinate statutes, it shall not be deemed that such act of brokerage is subject to regulation of property value. Therefore, it does not apply to such act of brokerage.

[2] The case holding that a broker assistant is not guilty of the facts charged for the receipt exceeding the statutory limits of brokerage commission on the ground that the commission received in return for mediating a contract for the transfer and acquisition of the premium, which is accompanied by the sale and purchase of the right to lease of a commercial building, does not fall under the brokerage commission under the former Real Estate Brokerage Act (amended by Act No. 7638 of July 29, 2005)

[1] Article 2 subparagraph 1 of the former Real Estate Brokerage Act (amended by Act No. 7638, Jul. 29, 2005; see Article 2 subparagraph 1 of the current Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act); Article 3 (see Article 3 of the current Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act); Article 2 of the former Enforcement Decree of the Real Estate Brokerage Act (amended by Presidential Decree No. 19248, Dec. 30, 2005; see Article 2 of the Enforcement Decree of the current Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act; see Article 30 of the current Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act (see Article 2 of the current Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions) / [2] Article 7638 of the former Real Estate Brokerage Act (amended by Act No. 7638, Jul. 29, 2005; see Article 131 of the current Real Estate Agents and Report of Real Estate Transactions Act)

Defendant

Defendant

Beneficiary and Beneficiary

Attorney Kang Chang-gu et al.

Busan District Court Decision 2005Gohap4159 Decided January 11, 2006

The judgment of the court below is reversed.

The defendant shall be innocent.

1. Summary of the facts charged in this case and the judgment of the court below

A. Summary of the facts charged

Although the Defendant was not allowed to receive money or goods in excess of the amount of commission stipulated by the law as a broker assistant of the office of licensed real estate agent located in Busan-gu (detailed address omitted), on September 19, 2003 at the above office, upon the request of Nonindicted Party 1 for the sale of the right of lease of the Busan-dong (detailed address omitted) coffee shop (hereinafter “instant coffee shop”) in Busan-dong (hereinafter “instant coffee shop”). Nonindicted Party 2 received the lease deposit amounting to KRW 70,000,000, monthly rent amounting to KRW 2,850,000, monthly rent amounting to KRW 125,000,000, monthly rent amounting to KRW 125,000,000 from Nonindicted Party 11 and received the lease deposit amount exceeding KRW 18,000,000,000 from that time.

B. The judgment of the court below

Under the premise that the coffee shop of this case constitutes "building" as provided by the former Real Estate Brokerage Act (amended by Act No. 7638 of July 29, 2005, the Act on Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions; hereinafter referred to as the "former Real Estate Brokerage Act"), and that both the premium, facility and fixtures on the coffee shop of this case constitute "rights" as provided by the former Real Estate Brokerage Act, inasmuch as the defendant mediates a contract to transfer the right as a lessee of the coffee shop of this case operated by Nonindicted Party 1 to Nonindicted Party 2, the court below found the defendant guilty of the charges of this case that the defendant received brokerage fees in excess of the commission as provided by the former Real Estate Brokerage Act (3,292,500 won).

2. Summary of the grounds for appeal by the defendant and determination of party members

A. Summary of grounds for appeal

Although the defendant's 18,00,000 won received from non-indicted 1 arranged a contract for the transfer and acquisition of the premium for the instant coffee shop and received the honorarium under the pretext of the contract, it does not constitute a brokerage commission under the former Real Estate Brokerage Act, the court below erred by misapprehending the legal principles on the violation of the former Real Estate Brokerage Act, or by misapprehending the legal principles on the violation of the former Real Estate Brokerage Act, which convicted the defendant.

B. Determination of party members

(1) In light of the above provisions, Article 2 of the former Real Estate Brokerage Act provides that "the term "the brokerage" means mediating the transaction, exchange, lease, or other acts of acquisition, loss, or modification of other rights between the parties to the transaction with respect to the object of brokerage under Article 3." Article 3 of the same Act and Article 2 of the Enforcement Decree of the same Act provides that "land, buildings, other fixtures on land, standing trees under the Mining Foundation Mortgage Act, mining foundations under the Mining Foundation Mortgage Act, mining foundations under the former Factory Mortgage Act, and factory foundations under the Factory Mortgage Act." In full view of the above provisions, the transfer of intangible property values, such as business facilities, fixtures, etc. of a building for business, or the transfer of intangible property values, such as business advantages, etc. depending on the location of a store, cannot be deemed as a object of brokerage under the above Acts and subordinate statutes, the act of mediating the transfer of such tangible or intangible property values, which does not constitute an act of brokerage under the former Real Estate Brokerage Act, and therefore, the act of brokerage commission under the former Real Estate Brokerage Act, as well.

(2) Comprehensively taking account of Non-Indicted 3’s statement of Non-Indicted 1 of the witness of the trial of the court of first instance that the court below lawfully investigated and adopted, ① Non-Indicted 1, the victim of Non-Indicted 2, around November 2002, leased the above building from Non-Indicted 4, the owner of Non-Indicted 1, the Nam-gu, Busan, and operated the coffee shop without any premium. On September 2003, the defendant worked as a broker assistant around 00, i.e., the second floor of the coffee 150,000 won among Non-Indicted 1, the non-Indicted 20, the non-Indicted 10, the non-Indicted 2, the non-Indicted 30, the non-indicted 10, and the non-indicted 1, the non-indicted 00, the non-indicted 2, the non-indicted 00, the remainder of the rent of 0,000 won on September 29, 200.

(3) According to the above facts, the amount received by the defendant as non-indicted 1 (18,00,000) is not a consideration for mediating the defendant to transfer "lease" on the coffee shop of this case, but a consideration for mediating a contract for the transfer or acquisition of "real estate premium" on the coffee shop of this case. Thus, this does not constitute brokerage under the former Real Estate Brokerage Act, and therefore, the limit of brokerage commission under the former Real Estate Brokerage Act does not apply to such brokerage act. Although the amount received by the defendant as non-indicted 1 includes a commission for mediating the "lease" on the coffee shop of this case, even if it includes a commission for the defendant to transfer "lease" on the money received from the non-indicted 1, it cannot be determined that any of the above amounts exceeds the limit set by the former Real Estate Brokerage Act, and even if the defendant submitted by the prosecutor, all of the evidence presented by the prosecutor cannot be acknowledged.

(4) Thus, the court below erred by misunderstanding the facts charged of this case or by misunderstanding the legal principles on the violation of the former Real Estate Brokerage Act, which affected the conclusion of the judgment, and the defendant's assertion that is within the grounds of appeal is with merit.

3. Conclusion

A. Therefore, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and the following is ruled again after pleading.

B. The summary of the facts charged in this case against the defendant is as seen above, and this constitutes a case where there is no proof of criminal facts as stated in the grounds for reversal, and thus, the defendant is acquitted under the latter part of Article 325 of the Criminal Procedure Act

Judges Kim Jong-chul (Presiding Judge)