Whether an agreement on real estate brokerage commission that exceeds the limit prescribed by the relevant statutes, such as the former Real Estate Brokerage Act and the Enforcement Rules of the same Act is null and void (affirmative)

The legislative purpose of the former Real Estate Brokerage Act (amended by Act No. 7638, Jul. 29, 2005) is to guide and foster real estate brokerage business in a sound manner and properly regulate real estate brokerage business, thereby contributing to the protection of property rights of citizens by enhancing public confidence of real estate brokers and establishing a fair order in real estate transactions (Article 1). Thus, the validity of an agreement on brokerage commission to receive exceeding the limits prescribed by relevant Acts and subordinate statutes, such as the same Act and the Enforcement Rule of the same Act, which prohibit fees from being paid shall be interpreted in accordance with such legislative purpose. In addition, the act of a broker from receiving fees in excess of the limits prescribed by relevant Acts and subordinate statutes, such as the former Real Estate Brokerage Act, and the former Real Estate Brokerage Act, as well as the act of holding profits equivalent to the brokerage commission gained from the act of violating the prohibition provisions is likely to undermine the fairness of real estate transaction order by promoting speculative and legal transactions, and thus, it is also necessary to regulate the real estate transaction price of real estate subject to the former Real Estate Brokerage Act and to punish the economic interests of each citizen.

Article 15 subparagraph 2 of Article 15 of the former Real Estate Brokerage Act (amended by Act No. 7638 of Jul. 29, 2005, see Article 33 subparagraph 3 of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions), Article 20 (1) (see Article 32 (1) of the current Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act), and Article 20 (3) (see Article 32 (3) of the current Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act), Article 23-2 (1) of the former Enforcement Rule of the Real Estate Brokerage Act (amended by the Enforcement Rule of the Act on Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions, No. 487 of Dec. 30, 2005, see Article 20 (1) of the current Enforcement Rule of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions), Article 105 of the Civil Act

Supreme Court Decision 200Da54406, 54413 Decided September 4, 2002 (Gong2002Ha, 2308)

Plaintiff

Defendant

Jeju District Court Decision 2005Na305 decided May 11, 2005

The appeal is dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

1. Article 2 subparag. 1, Articles 3 and 20(1) and (3) of the former Real Estate Brokerage Act (amended by Act No. 7638 of Jul. 29, 2005; hereinafter “Real Estate Brokerage Act”) and Article 23-2(1) of the Enforcement Rule of the same Act provide that a broker who engages in the business of arranging transactions of land, buildings, etc. after receiving a certain fee and is entitled to a commission from both clients for the brokerage business, and the limit of brokerage commission which one party is entitled to receive shall be prescribed by ordinances of the Special Metropolitan City, Metropolitan City, or Do within the limit of 0.2% and 0.9% according to the transaction amount in the case of sale and exchange. Article 15 subparag. 2 of the Real Estate Brokerage Act prohibits a broker from receiving money or goods in addition to the limit of commission, or from receiving money or goods under any pretext, and Article 23-2(2)3 of the Enforcement Rule of the same Act provides that a broker shall not be subject to a fine under Article 28 subparag. 38(2) of the same Act.

The purpose of the Real Estate Brokerage Act is to contribute to the protection of people's property rights by guiding and fostering real estate brokerage business in a sound manner and properly regulating real estate brokerage business (Article 1). Thus, it shall be interpreted in accordance with the legislative purpose of the Real Estate Brokerage Act and other relevant Acts and subordinate statutes (hereinafter "Acts and subordinate statutes related to the Real Estate Brokerage Act") or regulations such as the Enforcement Rule of the same Act that prohibit fees from being paid in excess of the limit. In addition, it shall be interpreted that a broker from receiving fees in excess of the limit prescribed in the Acts and subordinate statutes related to the Real Estate Brokerage Act as well as the act of receiving fees in excess of the limit prescribed in the above-mentioned prohibition regulations is likely to impair the fairness of real estate transaction order by promoting speculative and legal transactions, and the use of the real estate brokerage office is highly regulated by the Acts and subordinate statutes related to the Real Estate Brokerage Act, and thus, it is necessary to impose administrative sanctions on the so-called real estate brokerage commission in excess of the legal purpose of the Act and regulations related to the real estate brokerage commission.

Therefore, the agreement on real estate brokerage commission in excess of the limit stipulated in the laws and regulations related to the Real Estate Brokerage Act shall be null and void within the extent exceeding the limit (see Supreme Court Decision 2000Da54406, 54413, Sept. 4, 2002, etc.).

On the other hand, Supreme Court Decision 2000Da70972 Decided March 23, 2001, which held that the above prohibition provision is merely a regulation provision and is not an effective provision, and thus, it does not deny the judicial effect of the fee agreement exceeding the limit, is amended to the extent inconsistent with the opinion of this Court.

2. Examining the reasoning of the judgment below in light of the above legal principles and records, the court below acknowledged the facts of the judgment based on the comprehensive examination of the adopted evidence, and based on the premise that the agreement between the plaintiff and the defendant on real estate brokerage commission between the plaintiff and the defendant is null and void within the scope exceeding the limit of brokerage commission under the Acts and subordinate statutes related to the Real Estate Brokerage Act and the Ordinance on the Standards and Limit of Actual Expenses for Jeju-do Real Estate Brokerage Commission, the disposition ordering the defendant to return the excess portion to the defendant is justifiable, and there is no violation of the rules of evidence

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Chief Justice Lee Yong-chul (Presiding Justice)