In a case where a person without qualification as a licensed real estate agent acts as a broker for a transaction, but not for business, whether the agreement on the payment of brokerage commission is null and void (negative), and the scope of remuneration to be claimed when the agreement on brokerage commission is unreasonably excessive.

If a person who is not qualified as a licensed real estate agent does not engage in brokerage business, such as acting as a broker once on an opportunity to conduct a transaction between others, it shall not be deemed null and void because the agreement on the payment of brokerage commission is in violation of the mandatory law. However, if there are circumstances to deem that the agreement on brokerage commission is unreasonably excessive and thus contravenes the principle of good faith and trust or the principle of equity under the Civil Act, only the reduced amount of remuneration may be claimed to the extent deemed reasonable.

Articles 1 (see current Article 1 of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act) and 2 subparag. 2 (see current Article 2 subparag. 3 of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act) of the former Real Estate Brokerage Act (wholly amended by Act No. 7638, Jul. 29, 2005)

Supreme Court Decision 2006Do342 Decided April 14, 2006, Supreme Court Decision 2007Do5246 Decided September 6, 2007, Supreme Court Decision 2008Da75119 Decided December 23, 2010 (Gong2011Sang, 207)

Plaintiff

Defendant

Seoul Central District Court Decision 2010Na3413 Decided October 1, 2010

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. The legislative purpose of the former Real Estate Brokerage Act (wholly amended by Act No. 7638, Jul. 29, 2005; hereinafter “Real Estate Brokerage Act”) 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 people’s property rights by enhancing public confidence of real estate brokers and establishing a fair order in real estate transactions (Article 1). In light of the legislative purpose of the Real Estate Brokerage Act, in light of the legislative purpose of the said Real Estate Brokerage Act, the agreement on the payment of brokerage fees that a person without a licensed real estate agent acts as a real estate agent and entered into with a trader without registering the establishment of a brokerage office is null and void as it violates the mandatory law (see Supreme Court Decision 2008Da75119, Dec. 23, 2010).

Meanwhile, Article 2 Subparag. 2 of the Real Estate Brokerage Act provides that "a brokerage business" refers to a business of acting as a broker at the request of another person and receiving a certain commission. Here, "the brokerage business" refers to a business of acting as a broker, and whether the brokerage business is engaged in such business shall be determined in accordance with ordinary social norms in light of various circumstances, such as the purpose, size, frequency, period, mode, etc. of the brokerage act. Thus, even though the brokerage business was conducted repeatedly and continuously, even though it was a single act, if the brokerage business was conducted as a broker with an intention to continue repeatedly, it shall be deemed that the brokerage business was conducted as a business if it was performed as a broker and received a commission for a transaction between other persons at an incidental opportunity, it shall not be deemed that the brokerage business was conducted as a business (see Supreme Court Decisions 2006Do342, Apr. 14, 2006; 207Do5246, Sept. 6, 2007, etc.).

Therefore, if a person who is not qualified as a licensed real estate agent does not engage in brokerage business, such as acting as a broker on one-time basis on an opportunity to conduct a transaction between others, it shall not be deemed null and void because the agreement on payment of brokerage commission is in violation of the mandatory law. However, if there are circumstances to deem that the agreement on brokerage commission unfairly excessive and thus contravenes the principles of good faith and equity under the Civil Act, only the reduced amount of remuneration may be claimed within the reasonable scope.

2. According to the reasoning of the judgment below and the evidence duly adopted and examined by the court below, the plaintiff tried to purchase each of the real estate of this case from the non-party on December 3, 2002 but refused, and requested the non-party-friendly defendant to help the defendant to make a job offering. The defendant, who is not qualified as a licensed real estate agent, sent each of the real estate of this case to the plaintiff on December 4, 2002 without registering the establishment of a brokerage office on December 4, 2002 and signed and sealed it as a observer in the sales contract. On the same day, the plaintiff and the non-party were present at the place where the sales contract of this case was entered into, and signed and sealed as a observer. The defendant agreed to pay the non-party an intermediate amount when the plaintiff paid the part payment and the balance under the above sales contract to the non-party. Accordingly, the defendant agreed to receive the money as a commission for the introduction and mediation of the sales contract from the plaintiff. The defendant received the above 5 million won in cash payment of promissory notes from the plaintiff on the balance payment date.

Examining these facts in light of the legal principles as seen earlier, although the Defendant is acting as a broker for the instant sales contract, this is a kind of real estate brokerage between friendship and friendship upon the request of the head of the Gu, and thus, it cannot be deemed as engaging in the business of brokerage. In such a case, the commission payment agreement between the original and the Defendant cannot be deemed to violate the mandatory law.

The judgment of the court below that the defendant's act does not constitute an act of brokerage is erroneous, but the conclusion of the court below that rejected the plaintiff's assertion that the fee payment agreement was null and void as a violation of the mandatory law is justifiable. Therefore, it cannot be said that there was an error of law by misapprehending the legal principles on the Real Estate Brokerage Act, as alleged in the ground of appeal. The grounds of appeal

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 on the bench.

Justices Lee Sang-hoon (Presiding Justice)