Plaintiff 1 and one other (Law Firm Jin-jin, Attorneys Choi Young-dong, Counsel for the plaintiff-appellant)

Defendant 1 and two others (Law Firm Tae-il et al., Counsel for the defendant-appellant)

June 23, 2011

Seoul Central District Court Decision 2010Gahap24935 Decided November 5, 2010

1. Of the judgment of the court of first instance, the part against the defendant Korean Licensed Real Estate Agent Association in excess of the amount ordered to be paid under the order shall be revoked, and the plaintiffs' claims corresponding to the revoked part shall be dismissed.

Defendant Korean Licensed Real Estate Association shall pay to Plaintiff 1 5,00,000 won for each of Defendant 1 (Co-defendant 1 of the original judgment of the Supreme Court), 50,000 won for each of them, 50,000 won for Plaintiff 2, and 50,000 won for each of them, 5% per annum from June 1, 201 to August 25, 201, and 20% per annum from the next day to the date of full payment.

2. Each appeal by Defendant 1 and 2 (Defendant 1 of the Supreme Court’s judgment) and all remaining appeals by Defendant Korea Licensed Real Estate Agent Association are dismissed.

3. The costs of appeal between the plaintiffs 1 and 1 and 2 are ten minutes of the total costs of appeal between the plaintiffs 1 and 2, and between the plaintiffs and the defendant Korean Licensed Real Estate Agent Association, and the remaining costs are borne by the plaintiffs, and by the defendant Korean Licensed Real Estate Agent Association, respectively.

1. The defendant 1 and 2 shall pay to the plaintiff 1 the amount of KRW 158,00,000 per annum, and the defendant Korean Licensed Real Estate Agent Association (hereinafter "the defendant Association") shall pay to the defendant 1 and each of the above amounts of KRW 50,00,000 per annum from July 23, 2005 to the date of final delivery of the application for modification of the purport of the claim of this case, and the amount calculated by each of 20% per annum from the next day to the date of complete payment.

2. The co-defendant 3 of the first instance court shall pay 218,00,000 won to the plaintiff 2, and the defendant Association shall pay 50,000,000 won to the co-defendant 3 of the first instance court and each of the above amounts, and 50,000 won from October 22, 2005 to the date of final delivery of the application for amendment of the claim of this case, and 20% per annum from the next day to the date of full payment.

1. Purport of appeal by Defendant 1: Revocation of the part against Defendant 1 who ordered payment to Plaintiff 1 in excess of KRW 31,60,000 against Defendant 1 among the judgment of the court of first instance, and the claim by Plaintiff 1 corresponding to the above revoked part is dismissed.

2. The purport of appeal by the defendant 2 and the Korean Licensed Real Estate Agent Association: The part against the above Defendants in the judgment of the first instance shall be revoked, and all of the plaintiffs' claims corresponding to the above revocation shall be dismissed.

1. Quotation of judgment of the first instance;

The reasoning for this Court’s explanation concerning this case is as follows: “The Defendants and each of them” in Section 3, Section 8 of the first instance court’s judgment is dismissed as “Defendant 1 and each of them”; “The Defendants and each of them” are deleted from Section 9 to Section 4, Section 5; and accordingly, the part against the Defendants in the entries in Section 11 of the first instance court’s judgment is identical to the grounds for the first instance judgment, and thus, they are cited as it is in accordance with the main sentence of Article 420 of the Civil Procedure Act, since the part against the Defendants in the entries in Section 11 of the first instance court’s judgment is identical to the grounds for the second instance judgment.

2. Additional matters to be determined;

A. Claims by Defendant 1 and determination

(1) Defendant 1: (a) performed duties as a broker or did not receive brokerage commission regarding the instant first sale contract; (b) the place where the instant first sale contract was concluded is not a brokerage office of Defendant 1; (c) the Plaintiff 1 paid the down payment and remainder directly to the new type; and (d) the co-defendant 3 of the first instance court, who arranged the instant second sale contract for Plaintiff 2, signed and sealed the instant first sale contract as a broker, while Defendant 1 did not affix the seal as a broker to the instant first sale contract; and (c) considering the fact that Defendant 1 was merely in an assistant position in charge of mere delivery, publicity, and guidance regarding the instant first sale contract, and preparation of the contract, etc., Defendant 1 asserted that it is reasonable to recognize Defendant 1’s liability for damages more than Defendant 1’s negligence on the ground that Plaintiff 2’s negligence was considerably reduced than Defendant 1’s negligence on the confirmation and violation of the duty to explain by the co-defendant 3 in the first sale contract.

(2) Article 2 subparag. 1 of the former Real Estate Brokerage Act (wholly amended by Act No. 7638, Jul. 29, 2005; hereinafter “former Act”) which applies to the brokerage of the instant case provides that “the broker means mediating the sale, exchange, lease, and other acts of acquisition or modification of rights between the parties to the instant transaction regarding the object under Article 3” as the broker’s act, and the determination of whether the broker’s act constitutes brokerage should be made based on whether the broker’s act is objectively deemed to be an act for brokerage and brokerage of the instant transaction, and whether the broker’s statement No. 1-4, No. 2, and No. 15’s statement and the whole purport of oral argument are as follows: Defendant 1’s new apartment sales contract’s new sales contract’s signature and seal impression No. 2 cannot be seen to have been executed by Nonparty 1’s new assistant, including Defendant 1’s new sales contract’s signature and seal No. 2, and Defendant 1’s new sales contract’s title and seal No. 2’s new apartment.

B. Defendant 2’s assertion and determination

(1) Defendant 2 asserts that, even if the plaintiff 1 provided information at the time of confirming the object of sale and did not independently participate in the act of brokerage, etc., he is merely a simple clerical assistant not responsible for the result of the act of brokerage, or even if the negligence by the defendant 2 is recognized, the amount of damages should be reduced considerably.

Article 6(5) of the former Act provides that the act of a real estate agent or brokerage assistant employed by the real estate broker shall be regarded as an act of the broker who employs the broker. It cannot be understood that only the broker bears the liability for damages caused to the party involved in the tort if the brokerage assistant employed by the real estate broker intentionally or negligently causes property damage (see Supreme Court Decision 2006Da2945, Sept. 14, 2006). The brokerage assistant bears the responsibility for damages caused to the party involved in the tort as an intermediary. It shall be viewed that the broker bears the duty of care to identify the extent of damages caused to the party involved in the tort, including the defect of real estate for the purpose of good faith, the authenticity of the right holder, legitimacy of the contract, and so forth. It shall be viewed that the broker bears the duty of care of each of the parties involved in the act of sales contract as an intermediary assistant, even if there is no direct consignment between the broker and the broker. It shall be viewed that the broker assistant bears the duty of care of each of the parties involved in the contract.

(2) Next, Defendant 2, separately from the instant lawsuit, filed a lawsuit against Nonparty 1 and one other, the Plaintiff 1 brought a lawsuit seeking compensation for damages against the representative of the New Apartment Reconstruction Association, and the appellate court, determined in the instant case 2010Na57901, and received compensation for damages arising from the same cause as the instant case, and thus, the amount of this portion should be deducted from the amount of compensation for damages. The Plaintiff 1 had been using and gaining profit from the object of sale for about six years until May 201 through the instant first sale contract, and continued to use and gain profit from the instant real estate until the time of ordering the sale thereof. Accordingly, the Plaintiff’s unjust enrichment equivalent to the rent that the Plaintiff 1 earned therefrom should be offset.

According to the evidence evidence No. 15, the appellate court of the 2010Na57901 case, which is the appellate court of the damages claim case filed by the new apartment buyers including the plaintiff No. 1 against the reconstruction association president, it is acknowledged that the decision of recommending settlement with the contents that the plaintiffs withdraw all appeals has become final and conclusive. Meanwhile, in calculating the amount of damages, in order to allow the offsetting for profit and loss, it is necessary to have a proximate causal relation between the victim's new benefit and the act which is the cause of the liability for damages. Even if the plaintiff No. 1 resided in the object of parcelling-out without title, as alleged by the defendant No. 2, even if the plaintiff No. 1 obtained the profit equivalent to the rent by the plaintiff No. 1 residing in the object of parcelling-out without title, it cannot be deemed as the benefit accrued from the defendant's tort, and thus, it cannot be deemed as the object of offsetting for profit and loss (see Supreme Court Decisions 2006Da19603, Nov. 30, 2007>

C. Claims and determination by the Defendant Association

(1) The non-existence of mediation action

The defendant Association asserts that the object of the sale contract at the stage before the conclusion of the sale contract can not be included in a building among the object of brokerage under Article 3 subparagraph 2 of the Real Estate Brokerage Act. Thus, even before the completion of the sale contract, the apartment house to be constructed in the future constitutes a building where the unit is specified and traded after the completion of the sale contract. It does not mean that the object of the sale contract at the time of the sale contract at the time of the first apartment is a new apartment 13th 101, but it is an apartment building to be constructed in the future. However, since the unit is already specified and the unit is already constructed, it is included in a building among object of brokerage under Article 3 subparagraph 2 of the former Act since the sale contract at the time of the conclusion of the sale contract at the time of the sale contract at the time of the conclusion of the sale contract at the time of the sale contract at the time of the defendant Association (Supreme Court Decision 2004Do62 delivered on May 27, 2005).

(2) Claim for the expiration of extinctive prescription

The defendant Association asserted that the new apartment reconstruction association's right to purchase was unable to acquire ownership of the object of the purchase on July 2006 because the new apartment reconstruction association did not recognize the right to purchase the plaintiffs' right to purchase, and that the prescription of the lawsuit was completed since the lawsuit was filed in this case after two years have passed from that time. Thus, since the mutual aid project operated by the defendant Association under the laws and regulations related to real estate brokerage provides a guarantee insurance to the parties to the transaction for the liability to be borne by the broker due to the broker's illegal or non-performance of obligation, if it is impossible to confirm the occurrence of the accident due to the reason that it is not objectively unclear whether the accident occurred or not, the extinctive prescription of the right to claim the mutual aid amount should be interpreted to run from the time when the right to claim the mutual aid amount knew or could have known of the occurrence of the accident (see Supreme Court Decision 2010Da69209, Nov. 11, 2010).

(3) Claim for damages for delay against mutual aid money

The defendant Association received a claim for the payment of mutual aid from the plaintiffs only after receiving the copy of the complaint of this case. Since it is impossible to pay mutual aid money because the amount of mutual aid money is not determined during the litigation process, the claim for damages for delay resulting from the payment of mutual aid money should not be accepted in the event of seeking mutual aid money through the lawsuit. Since the amount of mutual aid money between the defendant 1 and the first instance trial co-defendant 3 is KRW 50,000,000, the amount of compensation by the defendant Association should not exceed

In light of the above system, the defendant association's liability for the payment of mutual aid money is a guarantee insurance to guarantee the parties to the transaction for tort or non-performance of obligation. Thus, if a mutual aid policyholder, who is a real estate broker, intentionally or negligently, causes property damage to the parties to the transaction, the client may directly claim the payment of the mutual aid money to the defendant association in the same position as the insured of the so-called non-life insurance contract under the mutual aid agreement between the broker and the defendant association (see Supreme Court Decisions 94Da47261 delivered on September 29, 1995, Supreme Court Decisions 201Da39602 delivered on February 8, 200, etc.). Since the broker is liable for the payment of the mutual aid money from the date of the request for the payment of the above amount of damages to the defendant association, the broker can claim the payment of the amount of the mutual aid money from the date of the request for the payment of the amount of delay after the date of the request for the payment of the mutual aid money is limited to the amount of damages.

D. Sub-committee

Therefore, from July 23, 200, the day following the day when the plaintiff 1 paid the purchase price of KRW 79,00,000 to the plaintiff 1, the defendants 1 and 2 are liable to dispute about the existence and scope of the above Defendants' obligations until Nov. 5, 2010, and damages for delay calculated at the rate of 5% per annum as stipulated in the Civil Act and 20% per annum as stipulated in the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the day of full payment. The defendant Association is liable to pay to the plaintiff 1, each of the co-defendant 1, 2, and 50,000,000 per annum from the next day after the day when the complaint of this case was delivered to the defendant Association with a copy of the complaint of this case as to each of the above amounts of KRW 60,000,000,000 per annum from July 1, 2010 to June 25, 2010.

3. Conclusion

Therefore, the judgment of the court of first instance against the defendant 1 and 2 is justifiable, and each of the above defendants' appeals is dismissed as it is without merit. The plaintiffs' claims against the defendant Association are justified within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. Since the part against the defendant Association ordering payment in excess of the above recognition amount among the judgment of the court of first instance which partially different conclusions is unfair, the plaintiffs' claims corresponding to the cancellation portion are revoked, and the remaining appeals against the defendant Association are dismissed as it is so decided as per Disposition. It is so decided as per Disposition.

Judge Lee Jong-hun (Presiding Judge)