The criteria for determining whether an act constitutes “mediation” under Article 19(1) of the former Real Estate Brokerage Act, and in cases where a broker arranging a lease contract is anticipated to act as a broker in the course of performing the contractual obligation of a transaction party by participating in the fulfillment of contractual obligation even after the conclusion of the contract, whether such broker’s act is included in the scope of the above “mediation” (affirmative)

In light of the purport of the legal provisions aimed at protecting transaction parties, whether a broker constitutes brokerage under Article 19(1) of the former Real Estate Brokerage Act (amended by Act No. 7638, Jul. 29, 2005; Act No. 7638 of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions) shall not be determined based on the subjective intent of the broker who has the intention of mediating and mediating transaction for the transaction party, but rather, on the basis of whether the broker’s act objectively deemed as an act for mediating and mediating transaction in light of social norms. Therefore, when a broker arranges a lease contract after concluding the contract, it is anticipated that the contractual obligation will be performed smoothly by participating in the realization of the contractual obligation of the transaction party, such as payment of the deposit, delivery of the object, acquisition of a fixed date, etc., the act of such broker shall be objectively deemed as an act for mediating and mediating transaction, and shall be included in the category of brokerage act.

Article 2 subparagraph 1 of Article 2 of the former Real Estate Brokerage Act (amended by Act No. 7638 of July 29, 2005 and the Act on Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions) (see Article 2 subparagraph 1 of the current Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions) and Article 19 (1) (see Article 30 (1) of the current Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act)

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Han-sung, Attorneys Park Jae-young and 1 other, Counsel for plaintiff-appellant)

Plaintiff (Law Firm Osis, Attorneys Cho Young-soo et al., Counsel for the plaintiff-appellant)

National Real Estate Brokerage Association (Law Firm Rois, Attorneys Yang Jong-sung et al., Counsel for the defendant-appellant)

Incheon District Court Decision 2004Na12530 Decided August 18, 2005

The judgment below is reversed, and the case is remanded to the Incheon District Court Panel Division.

We examine the grounds of appeal.

Article 2 subparagraph 1 of the former Real Estate Brokerage Act (amended by Act No. 7638, Jul. 29, 2005; hereinafter "the Act") provides that "a broker means the mediation of sale and purchase, exchange, lease, and other acts concerning acquisition, loss, or modification of rights between the parties to a transaction with respect to the object of brokerage under Article 3." Article 19 (1) of the Act provides that "where a broker causes property damage to a party to a transaction by intention or negligence in performing a broker's act, the broker shall be liable for such damage if the broker causes property damage to the party to the transaction by intention or negligence in performing the broker's act." In light of the purport of the legal provision aimed at protecting the parties to the transaction, the issue of whether an act constitutes brokerage shall not be determined based on the subjective intent of the broker who intends to mediate or mediate the transaction for the party to the transaction, but shall be determined based on whether the broker's act objectively in terms of the act of brokerage and thus, by objectively considering whether the broker's act constitutes a fixed date of contract.

According to the reasoning of the judgment below, the plaintiff paid 6.5 billion won to the non-party 2 at the time of the conclusion of the lease agreement with the non-party 1, the non-party 2, the non-party 5, and the non-party 2, the non-party 1, the non-party 4, the non-party 5, and the non-party 2, the non-party 1, the non-party 2, the non-party 5, the non-party 2, the non-party 4, the non-party 2, the non-party 5, the non-party 1, the non-party 2, the non-party 4, the non-party 5, the non-party 2, the non-party 5, the non-party 2, the non-party 4, the non-party 2, the non-party 5, the non-party 2, the non-party 2, the non-party 1, the non-party 2, the non-party 2, the non-party 1, the non-party 2, the non-party 2, the title 2, the title.

However, as acknowledged by the court below, if the plaintiff and the non-party 2 did not complete the ownership transfer registration under the name of the non-party 2 on or before the date of the first intermediate payment, and the non-party 2 agreed to cancel the lease contract and pay twice the down payment to the plaintiff by the time the balance is paid, if the non-party 2 did not enter into the lease contract after the conclusion of the lease contract in this case, the obligation to pay the intermediate payment, the obligation to pay the remainder, and the obligation to pay the lessor's ownership transfer registration of the leased object, and the obligation to prevent defects in the register by the time of the payment of the remainder, may vary if the above obligation is not proper, so the involvement of the broker could have been expected not only to terminate the lease contract in this case at the same time as the conclusion of the lease contract in this case, but also to continue to pay the balance by the time of the payment of the remainder. However, the non-party 1, the broker, without any specific intention or negligence, prepared the contract in this case and did not confirm the damage to the plaintiff.

Nevertheless, the court below concluded that the contract of this case between the plaintiff and the non-party 2 was terminated due to the mediation of the non-party 1, and that the preparation of the remaining special agreement of this case was merely an independent damage security agreement of the non-party 1, and otherwise it is difficult to recognize that the non-party 1 caused property damage to the plaintiff who is the party to the transaction by intention or negligence in mediating the non-party 1. Thus, the court below erred in the misapprehension of legal principles as to the mediation or incomplete deliberation, which affected the conclusion of the judgment, and the grounds for appeal pointing this out

Therefore, the lower judgment is reversed, and 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 Yang Sung-tae (Presiding Justice)