2020Na10541 Compensation

A

Place of service

Attorney Song-chul et al., Counsel for the defendant-appellant

1. B

2. The Korea Licensed Real Estate Agent Association;

Seoul Special Metropolitan City Southern-ro 1722(Yongcheon-dong and Korean Licensed Real Estate Agent Association)

Representatives C

Law Firm Shin, Attorney Shin Jae-ra

[Defendant-Appellant] Jinininina, Jinininina,

Attorney Cho Jae-chul et al.

Ulsan District Court Decision 2019Da109062 Decided January 17, 2020

on March 16, 2021

on April 6, 2021

1. Of the judgment of the court of first instance, the part against the Defendants in excess of the following order for payment shall be revoked, and each of the claims against the Defendants pertaining to the revoked part shall be dismissed.

The Defendants jointly pay to the Plaintiff 21,882,00 won with 5% interest per annum from July 7, 2019 to April 6, 2021, and 12% interest per annum from the next day to the day of full payment.

2. All remaining appeals by the Defendants are dismissed.

3. One-third of the total litigation costs shall be borne by the Plaintiff, and the remainder by the Defendants, respectively.

1. Purport of claim

The Defendants jointly pay to the Plaintiff 33 million won with 12% interest per annum from the day following the day of the final service of the copy of the instant complaint to the day of complete payment.

2. Purport of appeal

The part against the Defendants in the judgment of the first instance is revoked, and all of the Plaintiff’s claims against the Defendants corresponding to the revocation part are dismissed.

1. Basic facts

A. Defendant B is a practicing licensed real estate agent who operates a licensed real estate agent’s office in Yangsan City D (hereinafter “E Licensed Real Estate Agent Office”), and F (Co-defendants in the first instance trial) is employed by Defendant B and worked as a broker assistant at the above office; Defendant Korea Certified Broker Association (hereinafter “Defendant Association”) entered into a mutual aid agreement with Defendant B for the mutual aid between Defendant B and KRW 100 million and the deduction period from April 15, 2018 to April 14, 2019.

B. On April 17, 2018, the Plaintiff visited the instant office to F and consulted with F. On April 2018, the Plaintiff entered into a lease agreement (hereinafter “the instant lease agreement”) under the name of J, a parent-child of the Plaintiff, setting the lease deposit amount of KRW 33 million, monthly management fee of KRW 50,000,000, monthly management fee of KRW 50,000,000, and the term of lease from April 20, 2018 to April 19, 2020.

C. The Plaintiff: (a) concluded a lease agreement with its trust and good faith as to the lease of the instant building; (b) concluded a lease agreement with its trust and good faith as to KRW 33 million; and (c) KRW 1.5 million and brokerage fees as monthly management expenses; (c) remitted the remainder of KRW 32 million and monthly management expenses to the F account; and (d) trusted the F’s speech that “the transfer of the remainder of KRW 32 million and monthly management expenses to the K K’s account,” even before the execution of the instant lease agreement, to KRW 1,00,000 (contract deposit) on April 17, 2018; and (d) transferred the remainder of KRW 30,000 and KRW 40,000 from the date of the initial lease to the F account; and (e) transferred the remainder of KRW 401,200,0000 to the 94,0000,000,000 won from the date of the lease to the 1.4.2.5,201.

D. In addition, with respect to the preparation of the above loan agreement, F arbitrarily sealed G and Defendant B’s seal on the instant lease agreement, and forged one copy of the instant lease agreement and delivered it to J, and J signed on the lessee of the instant lease agreement in the state where G and Defendant B did not exist. F was sentenced to conviction in Busan District Court Branch Branch of Busan District Court (2020Da315, fraud, forgery of private documents, and uttering of private documents) due to such document forgery and fraud as provided in the above (c).

E. At around April 19, 2019, the Plaintiff received a communication from G to F who leased the instant building, stating that she would not have a telephone connected to F, and that F would be subject to a woman’s studio for three months prior to 1 year, she would receive a monthly rent of KRW 4 million and that she would have paid a monthly rent of KRW 3 million, and that at that time, he/she knew of the fact that he/she was deceiving F.

F. On May 2, 2019, the Plaintiff received 17.4 million won from G, deducting the unpaid amount of KRW 3 million from G, KRW 1.2 million for three months, and KRW 60,000,000,000 from the unpaid amount of KRW 3 million from G, as the account under J’s name.

G. The main contents of the mutual aid agreement entered into with Defendant B are as follows.

Article 6 (Compensation for Damages) Mutual Aid Association (referring to the Defendant Association) shall be liable to compensate for any damage arising from the act of brokerage, etc. prescribed by the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act (hereinafter referred to as the "Licensed Real Estate Agents Act"), which has caused property damage to a transaction party by intention or negligence, within the compensation limit provided for in Article 8, and which has been covered in accordance with the terms and conditions of the Mutual Aid Association.The Article 7 (Compensation for Non-Compensation) Association shall not compensate for any damage arising from the following reasons:

[Ground of recognition] A without dispute, Gap evidence Nos. 1 through 7 (including branch numbers in case of provisional number; hereinafter the same shall apply), Eul evidence Nos. 1 through 3, Eul evidence Nos. 1 to 3, Eul evidence No. 1, significant facts in this court, the purport of the whole pleadings

2. The parties' assertion and judgment

(a) Occurrence of liability for damages;

1) The parties' assertion

The Plaintiff asserts that the act of Defendant B, a broker assistant of Defendant B under the Licensed Real Estate Agent Act, can be seen as the act of Defendant B, which is a licensed real estate agent, Defendant B is liable to compensate for the damages suffered by the Plaintiff, and the Defendant Association is liable to compensate for the damages incurred by the Plaintiff jointly with Defendant B as a mutual aid business operator who entered

As to this, the Defendants asserted that F arbitrarily used the seals of Defendant B to enter into the instant lease agreement, Defendant B did not involve any kind of involvement in the instant lease agreement, and Defendant B did not receive any opening fee. The Defendants asserted to the effect that Defendant B did not have an obligation to compensate for damages since it cannot be deemed that there was an act of mediating the instant lease agreement.

2) Determination

The business conduct of a broker, a licensed real estate agent affiliated with a broker or a brokerage assistant who employs the broker shall be deemed as the conduct of a licensed real estate agent who employs the broker (Article 15(2) of the Licensed Real Estate Agent Act), and where a practicing licensed real estate agent acts as a broker and causes property damage to a transaction party by intention or negligence, he/she shall be liable to compensate for such damage (Article 30(1) of the Licensed Real Estate Agent Act). In light of the purport of the provisions of the law aimed at protecting the transaction party, whether a certain act constitutes brokerage under Article 30(1) of the Licensed Real Estate Agent Act shall not be determined based on the broker’s subjective intent that the broker has the intention to mediate or mediate the transaction for the transaction party, but shall not be determined based on whether the broker’s act objectively deemed as an act of arranging or mediating the transaction in light of social norms, and shall be determined based on whether the broker’s act is objectively deemed as an act of mediating or mediating the transaction in light of social norms (see, e.g., payment of deposit, delivery of objects, acquisition of fixed dates).

Examining the aforementioned facts in light of the aforementioned legal principles, the act of Defendant B, a practicing licensed real estate agent, pursuant to Article 15(2) of the Licensed Real Estate Agent Act, can be deemed as the act of Defendant B’s brokerage assistant pursuant to Article 15(2) of the Licensed Real Estate Agent Act. From an objective perspective, F engaged in the act of arranging and mediating transactions between the Plaintiff and G, such as the conclusion of the instant lease agreement, the deposit, and the payment of rent, etc., and intentionally incurred property damage to the Plaintiff, who is a party to the transaction. Therefore, Defendant B is liable to compensate the Plaintiff for damages, and the Defendant Association that entered into

B. Determination as to Defendant B’s assertion of deduction of KRW 3 million

Defendant B alleged to the effect that, as set forth in paragraph (1) above, G deducted the settlement amount of KRW 3 million from the deposit of KRW 3,00,000 for the instant building and remitted the remainder of KRW 1,740,000,000 to J account, Defendant B alleged to the effect that the scope of compensation for damages against the Plaintiff should be determined after deducting KRW 33,00,000 from the deposit of the instant lease agreement of this case to KRW 3,00,000,000,000,000,000,000,000.

C. Determination on the Defendant Association’s assertion of exemption from liability

1) Defendant Association’s assertion

A) Article 7(5) of the Mutual Aid Terms and Conditions of the Defendant Association provides that the Defendant Association shall not compensate for any damage incurred by the act of brokerage, etc., which is prohibited by the broker, so the Defendant Association shall be exempted from liability in accordance with the aforementioned provisions

B) At the time of the conclusion of the instant lease agreement, the Plaintiff was aware of the fact that the F’s act was not legitimate in its official authority if the Plaintiff had paid due attention. Therefore, the Plaintiff cannot be held liable for employer liability under Article 756 of the Civil Act due to gross negligence in breach of the duty of care required to the general public.

2) Determination

A) Determination on the assertion of immunity under the terms and conditions of mutual aid

In full view of the purport of the entire pleadings, the act of prohibiting a licensed real estate agent, which does not compensate for losses under Article 7 (5) of the Terms and Conditions of Mutual Aid by the defendant Association, includes "an act of causing the client to make the judgement by means of false words and behavior or by other means with respect to important matters regarding the transaction of the object of brokerage" under Article 33 (4) of the Licensed Real Estate Agents Act.

However, in this case, F’s deception is genuine in the course of real estate lease brokerage.

It is difficult to see that it is about the delegation authority for the lease of the object of brokerage simply by deceiving the client without the intention or ability to mediate the conclusion of the tea contract, and it is also about the delegation authority for the lease of the object of brokerage, and it is difficult to see that it constitutes an act of making the judgement of the client by deception or by other means of deception or other means of "material facts such

Furthermore, the Defendant Association’s mutual aid program is a guarantee insurance system that guarantees liability for damages to a transaction party due to a broker’s tort or nonperformance (see, e.g., Supreme Court Decision 2011Da77870, Feb. 23, 2012). Article 30 of the Licensed Real Estate Agent Act provides that “If a practicing licensed real estate agent causes property damage to a transaction party due to intentional or negligent conduct in brokerage, the practicing licensed real estate agent shall be liable for such damage. Before commencement of the business, the practicing licensed real estate agent shall subscribe to or deposit the guarantee insurance or the mutual aid under Article 42 as prescribed by the Presidential Decree.” In general, real estate transactions are conducted in accordance with the broker’s brokerage act in trust of the mutual aid agreement. Considering the purpose and nature of the mutual aid program, the purport of Article 30 of the Licensed Real Estate Agent Act, trust of the transaction party’s mutual aid agreement and the need to ensure stability in real estate transactions, it is difficult to recognize that the licensed real estate agent is not subject to the Defendant Association’s indemnity agreement or indemnity agreement.

B) Determination as to the assertion of employer liability exemption

Even if Defendant B is not liable for employer, Defendant B’s licensed real estate agent

In accordance with Articles 30(1) and 15(2) of the Act, the Defendant Association is liable to compensate the Plaintiff pursuant to the provision of Article 30(1) and 15(2) of the Act, and this part of the allegation is without merit without further review. In addition, as examined in the following sub-paragraph (d), the Plaintiff was negligent in entering into the instant lease agreement. However, even though the evidence submitted by the Defendant Association revealed that if the Plaintiff had paid due attention, the act of F would not have been lawfully performed within its official authority, it would be significantly in breach of the duty of care required by the general public by believing that the act of F would not have been lawfully performed within its official authority, and therefore, it is insufficient to recognize that the Plaintiff was gross negligence, and there is no other evidence to acknowledge that the Plaintiff was gross negligence. Therefore, it is difficult to deem that the Defendant B was exempted from the employer’s liability, and therefore, this part of the allegation in this part of the Defendant

D. Limitation on liability for damages

Although a practicing licensed real estate agent has a duty to investigate and confirm whether a person who intends to sell, such as good faith and good faith, is a genuine right holder, it does not necessarily mean that the party to a transaction, who has entrusted brokerage, entirely belongs to the broker responsible for the investigation and verification of the transaction relationship that the principal bears by himself/herself, and the transaction party is out of his/her responsibility. Therefore, in determining the scope of compensation for damages incurred to the brokerage client by failing to perform the duty of investigation and verification as to whether the principal is a genuine right holder in the course of arranging real estate transactions, if he/she neglected to investigate and confirm the transaction relationship with the brokerage client in order to determine the scope of compensation for damages caused by failure to perform the duty of investigation and verification as to whether the principal is a genuine right holder, it shall be deemed that the principal is negligent in investigating and verifying the transaction relationship and that the occurrence and expansion of damages caused by such act, and it shall be deemed reasonable to offset the damages by negligence in light of the basic principle of the damage compensation system (see, e.g., Supreme Court Decisions 20126Do32666

The following circumstances revealed in full view of the purport of the entire pleadings, namely, (i) the Plaintiff concluded the instant lease agreement with the Plaintiff reliance only on F’s speech that the Plaintiff was delegated by G with the authority to lease the instant building while G, who is the owner of the instant building, was not present; (ii) the Plaintiff transferred the down payment, remainder lease deposit, monthly management expenses, etc. of the instant lease agreement to F or K accounts, not G, not G; (iii) the instant lease agreement was concluded around April 20, 2018 without undergoing any verification process against G or Defendant B while transferring the brokerage fee to F, which is merely a broker assistant, and (iii) the instant lease agreement was drafted around April 20, 2018, and it is reasonable to recognize that F and Defendant B obtained the Plaintiff’s signature as the building of this case and the Plaintiff’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son and agent’s son’s son’s son’s son’s son’s son and son’s son’s son.

E. Sub-committee

The Defendants jointly and severally are obliged to pay the Plaintiff damages amounting to KRW 21,882,00 [21,882,00,000 + (33,00,000 won - KRW 1740,000 which the Plaintiff received from G) x 70%] from July 7, 2019 (60 days after the date following May 3, 2019 when the Defendant Association received the written complaint of this case from G), which is the day when the complaint of this case was served to Codefendant F of the first instance court, to dispute the existence and scope of the obligation, and to pay damages at each rate of 12% per annum as prescribed by the Civil Act until April 6, 2021, which is the date the judgment of this court is rendered, and from the next day until the day of full payment.

3. Conclusion

Therefore, the Plaintiff’s claim against the Defendants shall be accepted within the scope of the above recognition, and the remainder of the claim shall be dismissed as it is without merit. Since the part against the Defendants ordering payment in excess of the above recognition amount in the judgment of the first instance court which partially altered the conclusion is unfair, it shall be revoked, and each claim against the Defendants corresponding to the revoked part shall be dismissed, and all remaining appeals by the Defendants shall be dismissed. It is so decided as per Disposition.

Judge Lee Jong-young

Judges Shin Sung-sung

Judges Park Jong-sik

1) The Plaintiff concluded the instant lease agreement under the name of the Plaintiff’s husband and wife. However, in the receipt for the payment of down payment (Evidence No. 2) for the conclusion of the instant lease agreement, the Plaintiff stated the name of the Plaintiff in the lessee’s column, and paid brokerage commission, lease deposit, etc. to F and K as mentioned later, the Plaintiff is the party to the instant lease agreement, and thus, the Plaintiff has the right to claim damages against the Defendants.