(영문) 전주지방법원 2018.5.2.선고 2017구합2049 판결

B. On April 15, 2014, the Plaintiff: (a) arranged a sales contract with a seller B; (b) drafted a real estate sales contract with a buyer C; and (c) drafted a real estate sales contract with a buyer (hereinafter referred to as “the first sales contract”).

C. Unlike the terms and conditions of the original contract, B and C set up the instant real estate No. 166 among the instant real estate, but as the object of the sale of B and C, the Plaintiff again set up a real estate sales contract (hereinafter “the second sales contract”) between B and C, which is the object of the sale, but is the object of the instant real estate, and reversed the first sales contract that was in custody.

D. Around April 21, 2017, B’s agent D submitted a petition demanding disposition against the Defendant on the grounds that the Plaintiff did not deliver a confirmation note of the object of brokerage and a certificate of liability for damages, and that the broker assistant acted as a broker and renders a contract.

E. On May 11, 2017, the Defendant gave a prior notice to the Plaintiff that ① did not keep the first, second, sales contract in violation of Article 26(1) of the Licensed Real Estate Agent Act (hereinafter “Act”), and thus suspended business operations for six months (three months of business suspension per case of contract), and ② did not issue a certificate of liability guarantee in violation of Article 30(5) of the Act, and thus, constitutes an administrative fine of KRW 300,000,000,000,000 based on Articles 39(1)8 and 51(3)5 of the Act.

F. On May 31, 2017, the Defendant issued a disposition of KRW 300,00,000 to the Plaintiff on the following grounds: (i) the first sales contract was not kept; (ii) the fact that the certificate of liability for damages was not issued; (iii) Article 39(1)8 of the Act; (iv) Article 25 Subparag. 9 of the Enforcement Rule of the Act; (v) Article 51(3)5 of the Act; and Article 38 Subparag. 2(b)6 of the Enforcement Decree of the Act; (v) business suspension three months (from June 15, 2017 to September 14, 2017); and (v) an administrative fine of KRW 300,000,000.

G. The Plaintiff dissatisfied with the foregoing disposition and filed an administrative appeal with the Jeollabuk-do Administrative Appeals Commission on June 5, 2017, and on August 31, 2017, the Jeollabuk-do Administrative Appeals Commission changed the order to suspend its business issued against the claimant on May 31, 2017 by the reduction of 1/2 of the order to suspend its business. “The order to suspend its business issued against the claimant on May 31, 2017 shall be changed by the reduction of 1/2 of the order to suspend its business.”

H. On September 4, 2017, the Defendant issued a disposition on May 5, 201 for the suspension of business (hereinafter referred to as “instant disposition”) on the ground that the Plaintiff did not keep the first sales contract in custody with respect to the Plaintiff, on the ground that it violated the first sales contract.

[Ground of Recognition] In without dispute, Gap evidence Nos. 1 through 5, Eul evidence Nos. 1, 3 and 4 (branch number)

the purpose of the whole pleading, including the number; hereinafter the same shall apply).

2. Summary of the parties' arguments;

A. The plaintiff's assertion

After preparing the first sales contract, the Plaintiff, as the subject matter of the contract is changed between the parties, destroyed the first sales contract at the place where both the seller, the buyer, and the real estate agent are gathered.

Article 26(1) of the Act provides for the obligation to preserve a copy of the contract document at the time of the completion of brokerage. In the event of the change of the real estate sale contract, such as the second sale contract of this case, the first sale contract of this case was not completed, and Article 26(2) of the Act prohibits the preparation of two or more different contract documents at the time of the preparation of the contract document. Thus, the first sale contract of this case is not acknowledged.

Therefore, the instant disposition is unlawful on the ground that the primary sales contract that does not have the duty to preserve was not kept.

B. The defendant's assertion

Article 26 (1) of the Act does not provide that the contract rescinded, invalidated, or revoked is an exception to the duty of preservation, and it is also the same purport of the Ministry of Land, Infrastructure and Transport inquiry. As such, a licensed real estate agent is obligated to preserve a copy of the contract regardless of whether the contract is rescinded, invalidated, or withdrawn.

Meanwhile, although the first sales contract and the second sales contract are written on the same date, they are actually written at a certain interval of months, it is reasonable to deem that the brokerage was completed at the time of the formation of the first sales contract. The purpose of Article 26(2) of the Act is to prevent the omission of taxes by preparing the transaction amount differently from the actual transaction amount, and thus, it is irrelevant to the duty of safekeeping.

Therefore, since the Plaintiff is obligated to preserve the first sales contract, the instant disposition is legitimate.

3. Relevant statutes;

As shown in the attached Form.

4. Determination

A. Facts of recognition

1) Both the first and second sales contracts are written on April 15, 2014 by the contract date. Paragraph 1, 2, and 4 of the special terms of the first sales contract are '1. The remaining date is the period during which the said lawsuit is concluded and the registration for ownership transfer is completed after being ruled. 2. If the land price No. 166 out of the three parcels becomes final, the ownership shall be transferred and the remaining 165 is determined, and the land price No. 164 shall be transferred to the owner if the judgment becomes final and conclusive. 4. 165, 164, the land price of the second sales contract shall be determined and transferred to the owner, but the ownership transfer date shall be determined. The remaining date of the second sales contract shall be 6 months from the contract date, and the remaining date of the special terms and conditions of the second sales contract shall be 'the ownership transfer period' shall be 'the ownership transfer period, etc. of the previous lawsuit.'

2) The Plaintiff: (a) concluded the first sale contract with the respondent at the time of door-to-door visit in 2013 and paid the balance upon the completion of the lawsuit; (b) concluded the first sale contract at the end of 2013 through the attorney-at-law; (c) however, (d) confirmed the remainder of 166 and 165 days after the completion of the lawsuit first, and the seller and the buyer changed the contract because the actual transaction price was not reported and registered within 60 days from the date of conclusion of the contract. The Plaintiff terminated the contract only for the buyer at the time, and filed a report with the seller without cancelling the contract; and (d) concluded the first sale contract and the second sale contract between the first sale contract and the second sale contract are deemed to have a difference of 4 months.

3) As to the performance of the secondary sales contract, D’s agent for the seller of the instant real estate: (a) filed a criminal complaint against the Plaintiff and the buyer; and (b) received to the Defendant a written petition requesting the Plaintiff to address the administrative address.

[Grounds for Recognition] Uncontentious Facts, Gap evidence 7, Eul evidence 1 and 7, and the purport of the whole pleadings

B. Determination

Article 26 (1) of the former Licensed Real Estate Agents Act (wholly amended by Act No. 15597, Apr. 17, 2018; hereinafter the same shall apply) provides that "If brokerage is completed with respect to the object of brokerage, a practicing licensed real estate agent shall prepare a contract document as prescribed by Presidential Decree and deliver it to the parties to the transaction, and keep a copy thereof for a period prescribed by Presidential Decree," and Article 2 subparagraph 1 of the Act provides that "mediation means mediating acts concerning the sale, exchange, lease and other rights between parties to the transaction regarding the object of brokerage as prescribed in Article 3."

Therefore, "When mediation is completed" under Article 26 (1) of the Act means that mediation is completed between the parties to the transaction, so if it is determined as the important content of the contract and it is no longer necessary to supplement or change the contents of the contract between us, it shall be interpreted that mediation is completed.

In full view of the following circumstances acknowledged by adding the purport of the entire argument to the above facts of recognition, it can be deemed that the time when the first sales contract was prepared and the mediation was completed with respect to the object of intermediation, and thus, the Plaintiff is obligated to preserve a copy of the first sales contract.

① Both the first and second sales contracts enter into force after the completion of the instant lawsuit related to the instant real estate, and the Plaintiff did not receive a brokerage commission in connection with both contracts. Thus, the first and second sales contracts cannot be said to be in a state where the important contents of the contract are not determined.

② There is a difference between the first sales contract and the second sales contract for about four months. It is reasonable to view that the second sales contract was concluded at the time of the first sales contract and the second sales contract was concluded after the termination of the first sales contract by agreement between the parties.

③ Article 26(1) of the Act imposes on a licensed real estate agent the obligation to preserve a copy of the contract document when the brokerage is completed, and does not include any exception to the duty to preserve the document depending on whether the contract document is null and void or cancelled. Therefore, even if there exists an agreement between the parties to the contract of this case to destroy the first contract document, it cannot be deemed that the Plaintiff has no obligation to preserve the first contract document destroyed by the Plaintiff.

④ If Article 26(1) of the Act imposes the duty to preserve the contract document on a licensed real estate agent, it may be deemed that the neutral and objective position of licensed real estate agents to preserve the documents related to the contract in preparation for the occurrence of dispute between the parties to the contract. In this case, even inasmuch as there is still dispute over the subject matter of sale at the time of the conclusion of the contract, the Plaintiff, who arranged the contract of this case, is required to preserve the contract document of this case more.

C. Sub-committee

Therefore, as long as the brokerage is completed at the time of the first sales contract, the Plaintiff is obligated to preserve the copy of the first sales contract pursuant to Article 26(1) of the Act, so the instant disposition made by the Defendant against the Plaintiff is lawful.

5. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges

Judges Kim Jong-il

Judges Kim Jin-forest

Judges Park Gyeong-ok

Note tin

1) Article 38 [Attachment 2] 2(b), 6] of the Enforcement Decree of the “Disposition Notice (No. 4)” and three months of business suspension, which is the ground for the disposition of a fine for negligence of KRW 300,000,000,000,000,000,000

Although Article 25 [Attachment 2] subparagraph 9 of the Enforcement Rule of "Article 25 [Attachment 2], which is the basis for the division, is written in a different change, it is clear that it is a clerical error, so it is recognized as a result.

Site of separate sheet

Relevant statutes

former Licensed Real Estate Agents Act (amended by Act No. 15597, Apr. 17, 2018)

Article 39 (Suspension of Business)

(1) Where a practicing licensed real estate agent falls under any of the following subparagraphs, the registration authority may order the practicing licensed real estate agent who is a juristic person to suspend his/her business for a fixed period not exceeding six months. In such cases, the registration authority may order the practicing licensed real estate agent who is a juristic person to suspend

8. Where he/she fails to prepare, deliver or keep a contract document in a proper manner, in violation of Article 26 (1);

Article 26 (Preparation, etc. of Contract Documents)

(1) When a practicing licensed real estate agent completes brokerage with respect to the object of brokerage, he/she shall prepare a contract document, deliver it to the parties to a transaction, and keep a copy thereof for a period prescribed by Presidential Decree.

(3) When a practicing licensed real estate agent prepares a contract document under paragraph (1), he/she shall not enter false transaction details, such as transaction amounts, or prepare two or more transaction contracts different from each other.

Enforcement Decree of the Licensed Real Estate Agent Act

Article 22 (Contract Document, etc.)

(1) A contract document referred to in Article 26 (1) of the Act shall include the following matters:

1. Personal information of the parties to trades;

2. Marking of the object;

3. Date of contract;

4. Matters concerning the payment, such as the transaction amount, contract amount, and payment date.

5. The date and time of delivery of the goods;

6. Details of the transfer of rights;

7. Terms and conditions or time limit of the contract, if any;

8. Date of confirmation and explanation of the object of brokerage;

9. Details of other agreements.

(2) "Period prescribed by Presidential Decree" in Article 26 (1) of the Act means five years.

/ Enforcement Rule of the Licensed Real Estate Agent Act

Article 25 (Standards for Suspension of Business)

(1) The criteria for business suspension under Article 39 (2) of the Act and Article 6 (7) of the Addenda of the Act (Act No. 7638) shall be as specified in attached Table 2.

[Attachment 2]

Standards for business suspension of practicing licensed real estate agent (related to Article 25)

A person shall be appointed.

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