[1] The meaning of "cases where no signature or seal is affixed" under Article 39 (1) 9 of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act in a contract document

[2] The case holding that a licensed real estate agent's failure to affix a seal on the real estate transaction contract constitutes "where he fails to affix a signature or seal to the transaction contract" as a reason for business suspension under Article 39 (1) 9 of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act

[1] Articles 26(2) and 25(4) of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act shall be construed as a signature and seal that all of the signatures and seals must be signed and sealed. In addition, Article 39(1)9 of the same Act provides for a case where the obligation to sign and seal a contract document stipulated in Articles 26(2) and 25(4) of the same Act is violated as a ground for business suspension. As such, “where a signature and seal is not affixed” as stipulated in Article 39(1)9 of the same Act includes not only the case where a signature and seal is not affixed, but also any one of the cases where a signature and seal is not affixed.

[2] The case holding that the failure of a licensed real estate agent to affix a seal on a real estate transaction document constitutes "where a transaction contract is not signed or sealed" under Article 39 (1) 9 of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act as a reason for business suspension

[1] Article 39 (1) 9 of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act / [2] Article 39 (1) 9 of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act

Plaintiff

The head of Seocho-gu Seoul Metropolitan Government

Seoul High Court Decision 2008Nu9005 decided August 26, 2008

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

We examine the grounds of appeal.

1. As to the violation of the rules of evidence and the incomplete hearing

In addition, in light of the records, the court below is just in holding that the entry of No. 2-2, No. 3, and No. 4, which correspond to the plaintiff's assertion, is difficult to believe by the evidence adopted by the court below, and there is no violation of the rules of evidence or incomplete deliberation.

2. As to the assertion of misapprehension of legal principle

In full view of the circumstances stated in its reasoning, the lower court: (a) construed “signing and sealing” under Articles 26(2) and 25(4) of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act (hereinafter “Licensed Real Estate Agents Act”) as the meaning of signatures and seals that all signatures and seals should be signed and sealed; and (b) determined as the ground for business suspension where Article 39(1)9 of the same Act violates the duty to sign and seal a contract document under Articles 26(2) and 25(4) of the same Act; and (c) thus, the term “cases where a signature and seal is not affixed” under Article 39(1)9 of the same Act as well as where a signature and seal is not affixed, the lower court rejected the Plaintiff’s assertion that the Plaintiff’s failure to affix a seal on the instant contract document constitutes the ground for business suspension under Article 39(1)9 of the Licensed Real Estate Agents Act. In addition, on the premise of the aforementioned interpretation, the lower court rejected the Plaintiff’s assertion that the Plaintiff’s “this constitutes the Plaintiff’s business suspension contract.”

In light of the records, the above judgment of the court below is just and acceptable, and there is no error in the misapprehension of legal principles as to the interpretation of "signing and sealing" under the above provisions of the Licensed Real Estate Agent Act.

3. As to the assertion of deviation and abuse of discretionary power

The lower court determined that the instant disposition cannot be deemed as deviating from or abusing discretionary power, on the ground that the instant disposition was rendered in light of the following: (a) the violation of the Licensed Real Estate Agents Act depends on three categories; (b) the amount of brokerage commission and the details of the calculation are not written in the confirmation and explanatory note of the object of brokerage; and (c) the degree of such violation cannot be deemed to be less than that of the violation; and (d) the attached Table 2 of the Enforcement Rule of the Licensed Real Estate Agents Act stipulates the business suspension standard for each of the above violations as three months; (b) the Defendant did not increase the business suspension period for three months, taking into account the motive, consequence, frequency, etc. of the violation, and rather mitigated it against it and took the instant disposition.

In light of the records, such determination is just and acceptable. The judgment below did not err in the misapprehension of legal principles as to deviation and abuse of discretionary power, or in violation of the Enforcement Rule of the Licensed Real Estate Agent Act or the Licensed Real Estate Agent Act.

4. Conclusion

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 Hong-hoon (Presiding Justice)