Whether a real estate broker violates the Real Estate Brokerage Act in cases where the real estate broker receives money for a fee or a fee in excess of the prescribed fee (affirmative)

Article 15 subparagraph 2 of the Real Estate Brokerage Act provides that a broker, etc. shall not receive money or goods in excess of the fees or actual expenses under Article 20 (3) or receive money or goods under any other pretext, such as a case, donation, etc. so even if a broker receives money under the pretext of money such as a reward or premium after mediating a transaction of real estate, it constitutes a violation of the above provision when the amount exceeds the prescribed fees.

Article 15 (2) and Article 20 (3) of the Real Estate Brokerage Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

Defendant

Defendant and Prosecutor

Daejeon District Court Decision 98No46 delivered on August 21, 1998

The judgment of the court below is reversed, and the case is remanded to Daejeon District Court Panel Division. The defendant's appeal is dismissed.

We examine the grounds of appeal.

1. As to the Defendant’s ground of appeal

Of the facts charged in this case, the court below found that the court below maintained the facts finding of the first instance court and found the defendant guilty on the ground that, after comparing the adopted evidences with the records, the defendant's act of buying and selling the forest land of 15 - 15 forest land (hereinafter the forest land of this case) in the Seo-gu, Daejeon-gu, Daejeon-dong, Daejeon-dong, which was requested by non-indicted 1 to sell at his own Dong, the non-indicted 1, the court below acknowledged the fact that the Gun trees of this case belonging to the 2 forest land of this case located below the forest of this case belong to the forest of this case and recognized the fact that the Gun of this case belongs to the forest of this case, and it did not err by misconceptioning the facts against the rules of evidence, such as the theory of lawsuit, and there is no ground for appeal.

2. As to the Prosecutor’s Grounds of Appeal

Article 15 subparag. 2 of the Real Estate Brokerage Act provides that a broker, etc. shall not receive money or goods in excess of the fees or actual expenses under Article 20(3) or receive money or goods under any other pretext, such as a case, donation, etc. so even if a broker receives money under the pretext of money such as a reward or premium, etc. after mediating a transaction of real estate, if such amount exceeds the prescribed fees, such act constitutes a violation of the above provision (see Supreme Court Decision 90Do1054, Nov. 13, 1990).

Of the facts charged of this case, the court below found that the defendant was guilty of the violation of the Real Estate Brokerage Act, which acquitted under the latter part of Article 325 of the Criminal Procedure Act, since the defendant received money from the above non-indicted 1, the seller's non-indicted 1 and the purchaser's awareness of the purchase price of KRW 65 million and the defendant received KRW 2 million from the above non-indicted 1 in excess of the limit of 300,000 won as stipulated by the ordinances of Daejeon Metropolitan City Daejeon Metropolitan City, and the defendant was guilty of the charges of this case as the reasons for appeal that he was entrusted with the sale of the forest of this case from the above non-indicted 1 and arranged the sale of the forest of this case under any pretext of brokerage commission from the above non-indicted 1, but the above non-indicted 1 received money KRW 2 million from the above non-indicted 1 and was not guilty of the above fact that the defendant received money from the above non-indicted 1 for the reason that the above non-indicted 1 was not guilty.

However, even if the defendant received 1 million won from the above non-indicted 1 under the pretext of mediating the sale and purchase of the forest of this case in accordance with the defendant's vindication, it is the same as that the amount exceeds 300,000 won under the Real Estate Brokerage Act. Thus, it constitutes an act prohibited under Article 15 subparagraph 2 of the above Act. Further, even if the defendant received 1 million won from the above non-indicted 1, it is not a receipt from the above non-indicted 1, but even if it was received from the above present, it constitutes a part of 2 million won which was received from the above non-indicted 1, and even if the defendant was indicted as having received from the above non-indicted 1, it constitutes a part of the above non-indicted 1, even if it is recognized as having received from the above non-indicted 1, it is not identical to basic facts, and it is not likely that the defendant's exercise of his right to defense. Thus, the court below erred in the misapprehension of legal principles as to the above non-indicted 1, even if the defendant received 2 million won from the above indictment.

3. Thus, the part of the judgment of the court below that violated the Real Estate Brokerage Act cannot be maintained as it is, and since the part of the conviction of fraud that should be sentenced to one punishment cannot be reversed together as it is in concurrent crimes with the above crime and the above crime under the former part of Article 37 of the Criminal Act, the judgment of the court below shall be reversed in its entirety and the case shall be remanded to the court below. The defendant's appeal shall be dismissed

Justices Lee Jae-soo (Presiding Justice)