Plaintiff

Korean Licensed Real Estate Agent Association (Attorney Kim Jong-hwan et al., Counsel for the plaintiff-appellant)

Seoul Central District Court Decision 2008Gahap116398 Decided June 9, 2009

December 22, 2009

1. The defendant's appeal is dismissed.

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

Purport of claim

The defendant shall pay the co-defendants of the first instance trial and the plaintiff 48 million won with interest of 20% per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment.

Purport of appeal

In the judgment of the court of first instance, the part against the defendant shall be revoked, and the plaintiff's claim corresponding to the above revocation shall be dismissed.

1. Basic facts

The following facts are not disputed between the parties, or each statement in Gap evidence Nos. 1, 2, 3, 6, and 7-1, Eul evidence Nos. 1, 1, 2, and 3, and the whole purport of the pleadings can be acknowledged.

A. On April 1, 2008, the Plaintiff entered into a contract with the non-party housing construction company (hereinafter referred to as the "non-party company") which was an agent of the non-party housing construction (hereinafter referred to as the "non-party company") and the non-party company of the non-party housing construction (hereinafter referred to as the "non-party company"), which was newly constructed on the non-party 78 parcel of land (number omitted) in the name of the non-party, under the brokerage of the co-defendant of the first instance trial co-defendant, the non-party 1 in which the non-party 32 square-type housing association was terminated from the non-party company at the time of the establishment of the non-party association (the establishment was authorized on April 2002) to purchase the non-party 1 unit of the non-party 32 square-type household of the non-party company's housing unit at the time of the non-party association's establishment (hereinafter referred to as the "non-party 30 billion won unit sale contract").

B. On the same day, the co-defendants of the first instance trial prepared and offered to the Plaintiff a letter of undertaking (Evidence A 1) with the following contents.

(1) In the Plaintiff’s sales contract of this case, the co-defendant of the first instance court is fully responsible for the procedure to transfer the down payment, remainder and ownership.

(2) On the basis of May 20, 200, there may be an error for up to 10 days in the registration for transfer of ownership.

(3) The ownership transfer registration is made through the drawing of all the members' households, and the household units of the first and second floors are all completed, so only the third and upper floors are allocated to them.

(4) If the above matters are not implemented, the co-defendants of the first instance court are liable for the payment of the sales amount paid.

C. On April 11, 2008, the Plaintiff paid gold KRW 350 million to the non-party company, in full, paid the price under the instant sales contract.

D. However, as in the case of the Plaintiff, the non-party company entered into a sales contract in excess of the number of unsold apartment units in this case by granting the status of its members retroactively from the date of association establishment, and as a result, the apartment units in this case were all divided by Dong and unit numbers. However, the Plaintiff was unable to acquire the ownership of 32 square households among the apartment units in this case because it did not receive Dong and unit numbers.

E. Meanwhile, around August 26, 2007, the Defendant Association entered into a mutual aid agreement with the co-defendant of the first instance court on the condition that the co-defendant of the first instance court is liable for damages under the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act (hereinafter “Licensed Real Estate Agents Act”) by causing property damage to the transaction party in the course of mediating real estate between August 26, 2007 and August 25, 2008, the Defendant Association would compensate for the damage suffered by the transaction party within the maximum of five million won (hereinafter “instant mutual aid agreement”).

2. The parties' assertion

The Plaintiff asserts that, as the co-defendant of the first instance court incurred damages equivalent to KRW 48 million to the Plaintiff due to the act of brokerage, the Defendant Association is obligated to pay the above amount of KRW 48 million to the co-defendant of the first instance court and each of the above co-defendants of the first instance court as a mutual aid project operator who entered into the instant mutual aid agreement with the co-defendant of the first instance court.

As to this, the defendant association asserted that, first, the act of mediating the sales contract of this case by the joint defendants of the first instance court does not constitute brokerage of the object of brokerage as stipulated by the Licensed Real Estate Agent Act, which is the object of guarantee under the contract of this case, second, even if the plaintiff suffered damages in connection with the sales contract of this case, it did not constitute the joint defendants of the first instance court as a result of the above joint defendants' negligence not by the joint defendants of the first instance court but due to the fraudulent conduct completed on the executor's side, and third, even if the mediation act by the joint defendants of the first instance court constitutes an act of mediating the object of brokerage under the Licensed Real Estate Agent Act, and is liable for damages to the above joint defendants of the first instance court, the mutual aid money to be paid by the defendant association should be limited to the extent of five million won, which is the maximum amount of the mutual aid money under the contract of this case. Fourth, since the plaintiff did not confirm the existence of the termination household of the plaintiff among the apartment of this case before the conclusion of the sales contract of this case, it should be considered in the first instance association.

3. Judgment by issue

A. Whether an object of brokerage under the Licensed Real Estate Agents Act is an act of brokerage

As to whether the act of mediating the sale contract of this case between the plaintiff and the non-party company constitutes brokerage of the object of brokerage under the Licensed Real Estate Agents Act, the term "mediation" under the Licensed Real Estate Agents Act means mediation of the act between the parties to the transaction regarding the object of brokerage (Article 2 subparagraph 1 of the same Act), and the term "object of brokerage" includes ① land, ② land, buildings and other fixtures on land, and other property rights and things prescribed by the Presidential Decree (Article 3 of the same Act). Since buildings belonging to the above object of brokerage include not only the existing building but also the specific building that can be constructed in the future, it constitutes brokerage of the building even before the specific apartment is selected by the buyer or the sales contract is completed, and even before the specific apartment is completed, if the number of apartment units scheduled to be constructed becomes final by the method of next lot lot, etc., the act of mediating the sale contract of this case as a broker of the non-party company's member of the first instance court is also about the sale and purchase of apartment units, etc. of this case.

B. Whether the co-defendants of the first instance court were liable

Article 33 subparag. 7 of the Licensed Real Estate Agents Act prohibits real estate speculation by mediating the sale of real estate, the change of rights, such as resale, to which a licensed real estate agent is restricted. Article 32 of the Housing Act and Article 38 of the Enforcement Decree of the same Act limit the membership of a regional housing association to a person who satisfies certain requirements. Article 39 of the Housing Act prohibits the transfer or acquisition of the status of an association member or the act of arranging such transfer or acquisition of the status of an association member under Article 32 of the same Act. In addition, Article 25(1) of the Licensed Real Estate Agents Act provides a broker with a duty to verify the status of the relevant brokerage object, location and legal relationship, and transaction or restriction on use pursuant to the relevant Acts and subordinate statutes before the brokerage is completed, and to explain to the Plaintiff whether the Plaintiff would be held liable for damages to the Plaintiff as a real agent for the sale of apartment lots out of the apartment lots in this case, and thus, it should not be confirmed that the Plaintiff would not have been deprived of the membership’s right to purchase of the existing apartment lots in this case.

C. Scope of Defendant Association’s duty to pay mutual aid money

(1) Limit of mutual aid payment

As seen earlier, the co-defendants of the first instance court and the Defendant Association agreed to the maximum amount of the mutual aid money of the Defendant Association KRW 5 million through the mutual aid agreement of this case. As such, the Defendant Association’s payment of the mutual aid money to the Plaintiff under the mutual aid agreement of this case to the Plaintiff is limited within the above maximum amount. Thus, this part of the Defendant Association’s assertion is with merit.

(2) Fruits offsetting

According to the facts acknowledged above, the plaintiff is a party to the sales contract of this case, and considering that the sales price of this case, which is very exceptional and paid, is less than market price, the plaintiff's own sales contract is not double sales in excess of the number of members of the non-party company and the non-party association prior to the conclusion of the sales contract or the payment of the sales price at the latest, and it is not a double sales in excess of the number of members of the non-party company and the non-party company's new purchase in excess of the number of members of the association before the non-party company entered into the sales contract, and even though the non-party company's purchase of the apartment of this case can be made on the day of Dong and Hoh lot, the plaintiff's damage occurred or expanded by neglecting to do so. The plaintiff's above negligence should be limited to 50%

(3) Whether the co-defendant of the first instance trial is liable

Since there is no evidence to acknowledge that the co-defendant of the first instance trial paid part of the Plaintiff’s damages caused by the brokerage of the instant sales contract to the Plaintiff, this part of the allegation is without merit.

D. Sub-determination

Therefore, in accordance with the mutual aid agreement of this case, the defendant association is obligated to pay damages for delay calculated at the rate of 50 million won per annum under the Civil Act from December 9, 2008, which is deemed reasonable for the defendant association to dispute about the existence and scope of its payment obligation, from the date when the copy of the complaint of this case was served on the defendant association, until June 9, 2009, and 5% per annum under the Civil Act and 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the following day to the date when the copy of the complaint of this case is fully paid.

4. Conclusion

Therefore, the plaintiff's claim of this case against the defendant association is justified, and the judgment of the court of first instance is just, and the appeal against the defendant association is dismissed as it is without merit. It is so decided as per Disposition.

Judges Yan Jin-hun (Presiding Judge)