[1] The meaning of "loan of a licensed real estate agent's qualification certificate" prohibited by Article 38 (2) 3 of the former Real Estate Brokerage Act and the standard for determining whether an unqualified person performs the business of a licensed real estate agent

[2] The case holding that a licensed real estate agent's act of lending a licensed real estate agent's license prohibited by the former Real Estate Brokerage Act is an act of lending a licensed real estate agent's license under the former Real Estate Agent's Name, although the licensed real estate agent directly performs several brokerage services

[3] Whether the name representing the representative of a brokerage office constitutes “title similar to that of a licensed real estate agent” prohibited by Article 28 of the former Real Estate Brokerage Act (affirmative)

[4] The case holding that an unqualified person's use of the name "real estate representative" in his/her name constitutes a use of a name similar to that of a licensed real estate agent prohibited under Article 28 of the former Real Estate Brokerage Act

[1] "Lending of a licensed real estate agent's license" prohibited under Article 38 (2) 3 of the former Real Estate Brokerage Act (amended by Act No. 7638 of Jul. 29, 2005) refers to lending of a licensed real estate agent's license itself by being aware that other persons intend to engage in the business of a licensed real estate agent while carrying out the business of a licensed real estate agent by using the certificate of qualification. Thus, even in cases where a licensed real estate agent engages in the business of a licensed real estate agent who completed the registration of establishment in the name of the licensed real estate agent or invests funds in the business of a licensed real estate agent and distributes profits therefrom, if the licensed real estate agent himself/herself does not require an unqualified real estate agent to perform the business of a licensed real estate agent, it cannot be said that the licensed real estate agent has lent a certificate of registration or certificate of qualification, and whether a licensed real estate agent conducts the business of a licensed real estate agent should be determined by using the name of the licensed real estate agent without considering whether the licensed real estate agent actually carries out the business of a licensed real estate agent.

[2] The case holding that a licensed real estate agent's act of lending a licensed real estate agent's license is prohibited by the former Real Estate Brokerage Act (amended by Act No. 7638 of July 29, 2005) on the grounds that a real estate agent's business of selling his/her personal name is limited to the form of carrying out the licensed real estate agent's business in his/her own name by affixing his/her seal impression on the contract prepared by an unqualified person through buying his/her personal seal on the contract prepared by an unqualified person, even though the licensed real estate agent directly performs several brokerages on his/her own

[3] According to the relevant provisions of the former Real Estate Brokerage Act (amended by the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act, Act No. 7638 of Jul. 29, 2005) and the Enforcement Decree of the same Act (amended by the Enforcement Decree of the Act on Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions, Presidential Decree No. 19248 of Dec. 30, 2005), registration of establishment of a brokerage office is provided only for licensed real estate agents or juristic persons. Thus, the name which represents the representative of the brokerage office is likely to mislead the general public as licensed real estate agents, and constitutes “title similar to the licensed real estate agents” prohibited by Article 28 of the same Act.

[4] The case holding that an unqualified person's use of the name "real estate representative" in his/her name constitutes a use of a name similar to that of a licensed real estate agent

[1] Article 38 (2) 3 of the former Enforcement Decree of the Real Estate Brokerage Act (amended by Act No. 7638 of Jul. 29, 2005) (see Articles 7, 19, 49 (1) 1 and 7 of the current Licensed Real Estate Agents Act) / [2] Article 38 (2) 3 of the former Real Estate Agents Act (amended by Presidential Decree No. 7638 of Jul. 29, 2005 and the Report of Real Estate Transactions Act before the Report of Real Estate Transactions) (see Article 7, 19, 49 (1) 1 and 7 of the current Enforcement Decree of the Real Estate Agents Act) / [3] Article 8 (2) 2 of the former Enforcement Decree of the Real Estate Agents Act (see Article 9 of the Real Estate Agents Act and Article 8 of the current Enforcement Decree of the Real Estate Agents Act before the Report of Real Estate Transactions)

[1] Supreme Court Decision 99Do1519 delivered on January 18, 200 (Gong2000Sang, 526)

Defendant 1 and one other

Defendants

Chuncheon District Court Decision 2006No407 Delivered on December 8, 2006

All appeals are dismissed.

1. "Lending of a licensed real estate agent's license" prohibited under Article 38 (2) 3 of the former Real Estate Brokerage Act (amended by Act No. 7638 of Jul. 29, 2005, the Act on Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions; hereinafter "Real Estate Brokerage Act") means that a licensed real estate agent itself lends his/her license to another person even though he/she knows that a licensed real estate agent intends to conduct the business of a licensed real estate agent by using his/her certificate of qualification and conducts the business of a licensed real estate agent. Thus, even in cases where a licensed real estate agent takes part in the business of a licensed real estate agent who completed the registration of establishment in the name of the licensed real estate agent or invests in funds and distributes profits therefrom, if the licensed real estate agent does not require a disqualified real estate agent to conduct the business of a licensed real estate agent, it cannot be said that the licensed real estate agent itself lends his/her certificate of registration or certificate of qualification, and whether a non-qualified real estate agent performs the business of a licensed real estate agent should be determined by 10.

The court below determined that Defendant 1, a licensed real estate agent, registered the establishment of a brokerage office in the name of Defendant 2 who is a licensed real estate agent; Defendant 2 agreed to have each real estate agent; Defendant 2 also mediated two contracts at the above office; Defendant 1 himself/herself as well as the preparation of a contract; provided that Defendant 2, a licensed real estate agent, affixed his/her seal impression on the part of the broker of the contract and took the form of carrying out his/her own business; provided, Defendant 2, a licensed real estate agent, even though he/she directly carried out several recommendations, Defendant 1 was in the form of carrying out the licensed real estate agent's business by affixing his/her seal impression on the contract prepared by Defendant 1 to engage in the business under his/her own name; and in substance, Defendant 1 had a licensed real estate agent's business under his/her name, which constitutes the prohibition of lending a real estate agent's license.

In light of the above legal principles and records, the above fact-finding and judgment of the court below are just and acceptable, and there is no error in the misapprehension of legal principles as to the misconception of facts or the lending of a certificate of qualification of licensed real estate agent due to a violation of the rules of evidence as alleged in

2. According to the relevant provisions of the former Real Estate Brokerage Act and the Enforcement Decree of the same Act, since the registration of establishment of a brokerage office can only be made by licensed real estate agents or juristic persons, the name which represents the representative of the brokerage office is likely to mislead the general public as licensed real estate agents who use the name, and thus constitutes “title similar to that of licensed real estate agents” prohibited by Article 28 of the former Real Estate Brokerage Act.

The court below held that Defendant 1’s use of the name “real estate news (the trade name of this case brokerage office) representative” in his name constitutes the use of the name similar to that of a licensed real estate agent. This decision of the court below is justified in accordance with the above legal principles, and it is not erroneous in the misapprehension of legal principles as to similar names, as otherwise alleged in the grounds of appeal.

3. Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)