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Defendants are not guilty.
Reasons
1. A person who intends to engage in brokerage business of the facts charged requires the head of the registration authority having jurisdiction over an area where he/she intends to establish a brokerage office under the conditions as prescribed by Ordinance of the Ministry of Land, Transport and Maritime Affairs to register the establishment of the brokerage office. However, the Defendants received a request from D for sale of shares No. 205-1/10 of the second floor of the Gangseo-gun E-Blue House No. 205, Gangwon-gu, Seoul Metropolitan Government, at around 09:0 on July 9, 2012 without registering the establishment of the brokerage office from the head of the Gu, and received KRW 300,000,000 from D and F, respectively, as a brokerage commission, around July 18, 2012:
Accordingly, the Defendants conspired with the head of the competent administrative office to operate brokerage business without registering the establishment of a brokerage office.
2. Determination
A. The gist of the facts charged is that “the Defendant was engaged in the business of mediating the sale of condominium shares without the registration of establishment of a brokerage office under the Licensed Real Estate Agents Act.”
The prosecutor seeks the application of Articles 48 subparag. 1 and 9 of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act (hereinafter “Licensed Real Estate Agents Act”) on the premise that the act of brokerage by the Defendants constitutes an act of brokerage as prescribed by the Licensed Real Estate Agents Act (hereinafter “Licensed Real Estate Agents Act”). As to this, the Defendants are fully aware of the fact that they acted as a broker as stated in the above facts charged. However, the above act of brokerage does not constitute an act of brokerage under the Licensed Real Estate Agents Act.
B. In light of the following circumstances, the Defendants’ instant intermediary act is not a condominium share, i.e., real estate trading brokerage, but a registration condominium membership, i.e., registration condominium membership, and brokerage of purchase and sale of membership, which is subject to the Licensed Real Estate Agents Act.