(영문) 대구지방법원 2013.8.30.선고 2012나21773 판결

1. The part against the defendant in the judgment of the court of first instance shall be revoked. 2. The plaintiff's claim concerning the above revocation shall be dismissed. 3. The total costs of the lawsuit shall be borne by

Purport of claim and appeal

1. Purport of claim

The defendant shall pay to the plaintiff 2,250,000 won with 5% interest per annum from December 30, 201 to the service date of the original copy of the application for the payment order of this case, and 20% interest per annum from the next day to the day of complete payment.

2. Purport of appeal

It is as set out in paragraphs 1 and 2 of this Decree.

Reasons

1. The parties' assertion

A. The plaintiff's assertion

On December 22, 2011, the Plaintiff, a licensed real estate agent, arranged a lease agreement between the Defendant and Park Jong-dong (hereinafter referred to as “instant lease agreement”) with the content that “the Defendant shall lease the building with a deposit of KRW 50,000,000, rent of KRW 200,000,000, and that “a lease shall be made to Park Jong-young” (hereinafter referred to as “instant lease agreement”). Accordingly, the Defendant is obliged to pay the Plaintiff the amount of money claimed as a brokerage fee.

B. Defendant’s assertion

Although the Defendant requested the “real estate representative profit” to intermediate the lease of the instant real estate, the Plaintiff did not request the brokerage of the instant lease agreement to the Plaintiff. Even if the Plaintiff had mediated the instant lease agreement, the said ○le promised not to receive a brokerage commission from the Defendant, and thus, the Plaintiff’s claim of this case is unreasonable.

2. Determination

A. According to Articles 22, 25, 26, and 32 of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act, if a broker concludes a brokerage contract with the client and performs brokerage business, the broker is entitled to receive a prescribed brokerage commission concerning the broker if the broker performs legitimate brokerage business, such as making a contract document stating the details of transaction, such as transaction amount, etc., to the client. According to Article 2 of the same Act, the broker is provided as mediating acts concerning the sale, exchange, lease, and other gain and loss of rights between the parties to the transaction regarding the object of brokerage. In light of such provisions, the real estate broker may, in principle, claim a brokerage commission to the client only when the contract is completed by the formation of the contract, such as the preparation of the contract document between the parties to the brokerage and the preparation of such contract, and even if the broker has made an endeavor by the broker, the broker may not claim a reasonable brokerage commission in proportion to his/her endeavor unless the contract has been concluded by himself/herself by reason of mutual agreement with the client or the other party to the contract.

B. In light of the above legal principles, the following facts are as follows: (a) in this case, Gap evidence Nos. 1, 2, Eul evidence Nos. 2, and Eul evidence Nos. 2, and Eul evidence Nos. 2 and 3; (b) in part of the testimony of Lee Jong-gu witness Lee and the witness of the court of first instance, the defendant requested Lee ○-ok working for the real estate located in Daegu Suwon-gu 2, to mediate for the lease of the real estate of this case; (c) Park Jong-young was introduced the real estate by the broker who introduces himself/herself as the head of the office of the real estate; (d) profits of the defendant and Park Jong-gu, Daegu-gu, as the real estate agent located in the office of the U.S., the contract for the lease of this case and the confirmation statement of the object of the lease contract; (e) the broker's name, address, registration number and the plaintiff's name, the representative licensed real estate agent's name, and (e) the statement of the loan contract of this case 200.

C. However, in light of the following circumstances as to whether the Plaintiff’s brokerage entered into the instant lease agreement with respect to the instant real estate, or whether leap is a broker assistant of the office of the U.S. Licensed Real Estate Agent, in view of the Plaintiff’s statement No. 1 and the testimony of Park Il-young’s witness Park Jong-young, it is insufficient to recognize that the Plaintiff entered into the instant lease agreement, including the preparation of the lease agreement, or made a critical contribution to the establishment of the instant lease agreement on the sole basis of the statement of No. 4 as well as the testimony of Lee Jong-ok’s witness of the first instance trial. There is no evidence to acknowledge otherwise.

① The witness of the first instance trial testified that ○○○○ was an employee of ○○ Real Estate and ○○ Real Estate was transferred to the U.S. Licensed Real Estate Agent Office operated by the Plaintiff on the wind that ○○ Real Estate was insolvent, but ○○○ was the Defendant. However, the name that ○○○○ was indicated as the representative of ○ Real Estate, and pursuant to Article 15 of the Act on the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions, when the employment relationship is terminated, a report should be made to the registration authority. In light of the fact that there is no objective evidence to deem that the Plaintiff reported ○○○ Real Estate Agent Office as an assistant to the ○○ Licensed Real Estate Agent Office, the above testimony

② Not only the Defendant, the Lessee, but also the Lessee, stated that the Plaintiff was not present during the process of concluding the instant lease agreement, and that the Plaintiff himself was not present in the form of preparing a lease agreement or a confirmation and explanatory note of the object of brokerage in relation to the instant lease agreement.

③ Park Il-young testified to the effect that he remitted 2 million won to an account designated by the profit as a brokerage commission. In this regard, even though it is necessary to prove that he/she received the said money by submitting a passbook used by the office of the U.S. Licensed Real Estate Agent, there is no proof as to it.

D. Therefore, the Plaintiff’s assertion on the premise that the instant lease contract was concluded by the Plaintiff’s act of brokerage is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit, and the judgment of the court of first instance with different conclusions is unfair, and the plaintiff's claim shall be dismissed. It is so decided as per Disposition.