(영문) 대법원 2016.6.23.선고 2016다206505 판결

The costs of appeal between the Plaintiff and Defendant C are assessed against Defendant C, and the costs of appeal between the Plaintiff and the remaining Defendants are assessed against the Plaintiff.

Reasons

The grounds of appeal are examined.

1. Plaintiff’s ground of appeal

A. As to the grounds of appeal on Defendant B (hereinafter “Defendant B”)’s primary claim

According to the reasoning of the judgment below, the court below rejected the plaintiff's primary claim against the defendant B on the ground that the mediation of the exchange contract of this case for exchanging the real estate owned by the plaintiff and the real estate owned by H was conducted by the defendant B, and that the defendant D, E, and F introduced the real estate in Daejeon and performed the act of guiding the scene during the process of concluding the exchange contract of this case, it is reasonable to view that the act was incidental to the act of brokerage and assisting the defendant B to act as an act incidental to the act of brokerage. Thus, since the exchange contract of this case was formed by the defendant D, E, and F, it is not sufficient to recognize that the defendant B lent the name of the above defendants.

Examining the reasoning of the lower judgment in light of the relevant legal principles and the evidence admitted by the lower court, the lower court’s aforementioned determination is justifiable, and contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on

B. As to the grounds of appeal on Defendant D, E, and F’s primary claim and ancillary claim against Defendant B

According to the reasoning of the judgment below, the court below rejected all of the plaintiff's primary claims for damages arising from tort against the defendant D, E, and F, and the conjunctive claims seeking employer's liability against the defendant D, E, and F on the ground that the plaintiff cannot be deemed to have entered into the instant exchange contract by deception of the defendant D, E, and F.

Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence adopted by the lower court, the lower court’s aforementioned determination is justifiable, and contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence

C. As to the grounds of appeal on Defendant D, E, and F’s conjunctive claim

According to the reasoning of the judgment of the court below, the court below rejected the plaintiff's preliminary claim seeking the return of each of the shares against the defendant D, E, and F on behalf of the defendant C, on the ground that the instant service contract between the plaintiff and the defendant C (hereinafter "the defendant C") becomes null and void as a matter of course on the ground that the distribution agreement between the defendant C and the employees of the defendant C cannot be deemed null and void as a matter of course.

Examining the reasoning of the lower judgment in light of the relevant legal principles and the evidence admitted by the lower court, the lower court’s aforementioned determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine on the former Licensed Real Estate Agents’ Business Affairs and Report of Real Estate Transactions Act (amended by Act No. 11690, Mar. 23, 2013; hereinafter “former Licensed Real Estate Agent Act”).

2. As to Defendant C’s ground of appeal

A. Regarding ground of appeal No. 1

Defendant C alleged that the lower court ordered Defendant C to return KRW 220 million to the Plaintiff, which was value-added tax, and that the Plaintiff would not have received a refund at the competent tax office, and that it would not have to return it to the Plaintiff. However, such assertion was first made in the final appeal and is not a legitimate ground for appeal.

B. As to the grounds of appeal Nos. 2 and 3, an agreement on the payment of brokerage fees concluded by a non-licensed real estate agent while running real estate brokerage business without registering the establishment of a brokerage office is null and void in violation of the former Licensed Real Estate Agent Act (see Supreme Court Decision 2008Da75119, Dec. 23, 2010, etc.).

According to the reasoning of the judgment below, the court below determined that the service contract in this case was null and void in accordance with the Licensed Real Estate Agent Act on the ground that there is no evidence to acknowledge it, or it was merely incidental to the act of real estate brokerage or brokerage to arrange the exchange of the real estate in this case and Daejeon, since Defendant C provided services beyond the real estate brokerage pursuant to the brokerage contract in this case between the Plaintiff and the Defendant B.

Examining the reasoning of the lower judgment in light of the aforementioned legal principles and the evidence admitted by the lower court, the lower court’s aforementioned determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules,

The Supreme Court's decision cited in the ground of appeal by Defendant C differs from this case and thus is inappropriate to be invoked in this case.

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal between the Plaintiff and the Defendant C are assessed against Defendant C. The costs of appeal between the Plaintiff and the remaining Defendants are assessed against the Plaintiff. It is so decided as per Disposition by the assent of all participating Justices on the bench.