[1] Whether the act of mediating real estate transactions without registering the establishment of a brokerage office and promising or demanding remuneration therefor is subject to the punishment of the "Act on Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions" (negative)

[2] In a case where the defendant who did not register the establishment of a brokerage office only mediated real estate transactions without receiving any actual remuneration, the case holding that the judgment below which recognized the defendant as violating Article 48 subparagraph 1 and Article 9 (1) of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act is erroneous in the misapprehension of legal principles

[1] According to Article 9(1) of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act (hereinafter “Act”), a person who intends to engage in brokerage business shall register the establishment of a brokerage office with the head of a Si/Gun/Gu having jurisdiction over an area in which he/she intends to establish a brokerage office. The act of running brokerage business without registering the establishment of such brokerage office shall be subject to punishment pursuant to Article 48 subparag. 1 of the Act. However, Article 2 subparag. 3 of the Act provides that the act of running brokerage business without registering the establishment of such brokerage office shall be subject to punishment pursuant to Article 48 subparag. 1 of the Act. However, since Article 2 subparag. 3 of the Act provides that the act of running brokerage business upon another person’s request shall engage in brokerage business after receiving a certain amount of remuneration at the latter person’s request, if he/she promises or demands the parties to the transaction of the object of brokerage to receive remuneration without actually receiving any remuneration, it shall not be subject to punishment pursuant to Article 48 subparag. 1 of the Act.

[2] In a case where a defendant who did not register the establishment of a brokerage office with the competent administrative agency only mediated real estate transactions at the buyer's request without receiving any actual remuneration, the case holding that the judgment below which recognized the defendant as violating Article 48 subparagraph 1 and Article 9 (1) of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act is erroneous in the misapprehension of legal principles

[1] Articles 2 subparag. 3, 9(1), and 48 subparag. 1 of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act / [2] Articles 2 subparag. 3, 9(1), and 48 subparag. 1 of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act

[1] Supreme Court Decision 2006Do4842 Decided September 22, 2006 (Gong2006Ha, 1861)

Defendant

Defendant

Changwon District Court Decision 2010No1737 decided November 25, 2010

The judgment of the court below is reversed, and the case is remanded to the Changwon District Court Panel Division.

The grounds of appeal are examined.

1. As to the violation of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act

According to Article 9(1) of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act, a person who intends to run a brokerage business shall register the establishment of a brokerage office with the head of a Si/Gun/Gu having jurisdiction over an area where the business is to establish a brokerage office, and the act of running a brokerage business without registering the establishment of such brokerage office is subject to punishment pursuant to Article 48 subparag. 1 of the same Act. However, Article 2 subparag. 3 of the same Act provides that the term "trust business" refers to the act of running a brokerage business at another person's request for a certain amount of remuneration and receiving a certain amount of remuneration. Thus, if the business entity promises to receive remuneration or requests remuneration from the parties to the transaction of the object of brokerage without actually receiving remuneration from the parties to the transaction of the object of brokerage, it is not subject to punishment pursuant to Article 48 subparag. 1 of the same Act. Moreover, there is no separate provision punishing the above act of violation of Article 48 subparag. 1 of the same Act, or there is no provision punishing the act of violation of Article 206(20).

According to the reasoning of the judgment below, the court below found the defendant guilty by applying Articles 48 subparag. 1 and 9(1) of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act while compiling the adopted evidence and recognizing the fact that the defendant only mediated real estate transactions without having registered the opening of the office of the broker and without having received any remuneration at the buyer’s request. However, in light of the above legal principles, the court below erred by misapprehending the legal principles on the violation of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act, which affected the conclusion of the judgment. Thus, the ground of appeal on this part is with merit.

2. As to the violation of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc.

"Acts which do not violate social norms" under Article 20 of the Criminal Act refers to acts which can be accepted in light of the overall spirit of legal order or the social ethics or social norms surrounding it. Whether certain acts constitute legitimate acts that do not violate social norms and thus, it should be determined individually by rationally and reasonably considering specific circumstances. Thus, in order to recognize such legitimate acts, the following requirements should be met: (i) legitimacy of the motive or purpose of the act; (ii) reasonableness of the means or method of the act; (iii) balance between the protected interests and the infringed interests; (iv) urgency; and (v) supplementary nature that there is no other means or method than the act (see, e.g., Supreme Court Decisions 2003Do300, Sept. 26, 2003; 2008Do6999, Oct. 23, 2008); and (ii) the act of infringement as prescribed under Article 21 of the Criminal Act should be established by taking into account the specific types of legal interests infringed by the act of infringement 29, degree and degree 29, etc.

In light of the above legal principles and records, it cannot be deemed that the defendant's repeated arrival of text messages, including words causing uneasiness, reaches the victims as stated in the judgment of the court below, and the purpose of the act is not justified, and the means of the act is also exceeded a considerable extent. Thus, the defendant's above act is legitimate as self-defense or legitimate act, and the ground of appeal on this part of the ground of appeal that

3. As to the assault and each bodily injury

In a case where it is reasonable to view that an act by a perpetrator was committed by an attacker with the intent of attacking one another rather than with a view to defending the victim’s unfair attack, and that the act was committed by protesting against it, and at the same time, the act is a defensive act and has the nature of the act of attack (see, e.g., Supreme Court Decisions 200Do228, Mar. 28, 2000; 2003Do4934, Jun. 25, 2004).

In light of the above legal principles and records, it is reasonable to view that the defendant's act of assault or bodily injury to the victims as stated in the judgment of the court below was an active attack beyond the victims' passive defense against an unfair attack, and the means of such an act was exceeded a considerable extent. Thus, the defendant's above act was self-defense or a legitimate act, and thus, the ground of appeal on this part that there is no illegality cannot be accepted.

4. Conclusion

Therefore, among the judgment of the court below, the part of violation of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act should be reversed. Since the court below rendered a single sentence in relation to concurrent crimes under the former part of Article 37 of the Criminal Act with the remaining portions found guilty, the judgment of the court below is reversed without examining the grounds of appeal on unfair sentencing of the defendant, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by

Justices Ahn Dai-hee (Presiding Justice)