2019 Ghana 100317 damages (ar)

Kim Purchase (tentative name)

Busan So-gu

Attorney Lee*

Attorney Kim Jong-*

Supplementary instruction (tentative name)

Busan Shipping Daegu

Attorney Kim*

June 24, 2020

September 9, 2020

1. The Defendant shall pay to the Plaintiff 67,00,000 won with 5% interest per annum from March 31, 2017 to January 30, 2019; 15% interest per annum from the next day to May 31, 2019; and 12% interest per annum from the next day to the date of full payment.

2. The plaintiff's primary claim and the remainder are dismissed, respectively.

3. The costs of lawsuit shall be borne by the defendant.

4. Paragraph 1 can be provisionally executed.

Main and Preliminary, the defendant shall pay to the plaintiff 67,00,000 won with 5% interest per annum from March 31, 2017 to the delivery date of a copy of the complaint of this case, and 15% interest per annum from the next day to the day of complete payment.

1. Basic facts

A. The Plaintiff purchased each of the instant sales tickets over 28 occasions through the Defendant’s brokerage, who works as a broker assistant for a licensed real estate agent’s gambling brokerage, for the purpose of acquiring gains from the premium market price by selling it on the other. From June 8, 2016 to March 31, 2017, the Plaintiff purchased each of the instant sales tickets over 28 occasions, as shown in the attached list, through the Defendant’s brokerage.

B. At the time of purchase of each purchase right of this case, the defendant did not notify the plaintiff of the purchase price of each purchase right of this case in the "purchase price of each purchase right of this case" column stated in the same list without notifying the plaintiff of the amount of premium stated in the same list, and notified the plaintiff of the price of each purchase right of this case by notifying the plaintiff of the price of each purchase right of this case. Accordingly, the defendant received from the plaintiff the payment of 67 million won in total of the premium, such as the statement in the "Difference" column of each purchase right of this case.

C. On May 30, 2016, the Plaintiff purchased part of the sales rights of this case through the Defendant, and thereafter purchased each of the sales rights of this case by means of remitting the amount to the account designated by the Defendant in advance without confirming the individual premium price of each of the sales rights of this case at the Internet or the real estate brokerage office, etc. after June 27, 2016. From August 201 to January 2017, the Plaintiff purchased each of the sales rights of this case by means of remitting it to the account designated by the Defendant without confirming the individual premium price of each of the sales rights of this case. From August 2016 to January 2017, the Plaintiff also worked as a brokerage assistant at the licensed real

【Non-contentious facts, Gap 2, 3, 6, 7, 9, 12 evidence, Eul 1, 2-3, 2-5, 2-7, 2-9 (including branch numbers if there are above numbers), the purport of the whole pleadings.

2. Summary of the plaintiff's assertion

The Plaintiff purchased each of the instant sales tickets through the Defendant’s brokerage, and paid KRW 577,20,000 as the purchase price. However, the Defendant did not notify the Plaintiff of the premium secured by the right to sell each of the instant sales tickets at the time of selling each of the instant sales tickets, and did not attach the premium of KRW 67,00,000 in total to the purchase price, thereby allowing the Plaintiff to purchase each of the instant sales tickets at the high price, thereby acquiring the premium of KRW 67,00,000 from the Plaintiff.

A. In the first place, the above act of the defendant constitutes a civil tort, and the defendant is obligated to pay damages to the plaintiff 67 million won and damages for delay.

(b) Preliminary:

1) First, by the end of August 2017, the Defendant agreed to pay to the Plaintiff KRW 50 million out of the amount of the premium that he/she took up by the end of August 2017. Therefore, the Defendant is liable to pay the Plaintiff the agreed amount of KRW 50 million and the delay damages therefor.

2) Second, the agreement between the Plaintiff and the Plaintiff on brokerage commission that the Defendant pays in excess of the brokerage commission stipulated in the Licensed Real Estate Agents Act is null and void. Therefore, the Defendant is liable to pay the Plaintiff the amount of KRW 67 million, which was paid as unjust enrichment, and delay damages therefor.

3. Determination

A. As to the main claim

Article 33(1)4 of the Licensed Real Estate Agents Act prohibits a broker, etc. from interfering with the judgement of the client by false words or other means concerning important matters relating to the transaction of the relevant object of brokerage. In light of the fact that Article 49(1)10 of the same Act provides that a broker, etc. shall punish a person who violates such provision, the act of the broker, etc. selling real estate at a large price compared to each other and acquiring the difference shall constitute a tort under civil law (see, e.g., Supreme Court Decision 91Da25963, Dec. 24, 191).

In this case, without notifying the plaintiff at the time of the purchase of each right to sell each of the instant parcels, the defendant notified the plaintiff of the price attached with the premium to be acquired by him as to each of the instant right to sell each of the instant parcels, and the plaintiff paid additional premium of KRW 67 million in addition to the brokerage commission. However, according to the above basic facts, the plaintiff acquired each of the instant parcels of units for the purpose of acquiring the right to sell each of the instant parcels of units with the aim of acquiring the premium profits by resaleing each of the instant units of units of units, and then selling them as brokerage assistant at the real estate agent office where the defendant works for the defendant to sell them, with a certain amount of premium attached to each of the instant units of units of units of units of units of units. In addition, the plaintiff's assertion that the plaintiff purchased the units of units of units of units of this case without confirming the purchase price of the units of units of units or the Internet office's purchase price without any specific causation between the plaintiff and the defendant's purchase price of each of the instant units of units of units of this case.

B. As to the conjunctive claim

1) First argument

The statement of Gap evidence No. 5 alone is insufficient to recognize that the defendant agreed to pay 50 million won to the plaintiff as alleged by the plaintiff, and there is no other evidence to acknowledge it. Therefore, the plaintiff's first assertion is without merit.

2) Second argument

Article 33(1)3 of the Licensed Real Estate Agents Act prohibits a licensed real estate agent, including brokerage assistants, from receiving money or goods in excess of the prescribed remuneration or actual expenses under Article 32 of the same Act. Such provisions on brokerage commission constitute so-called mandatory regulations that restrict judicial effect on the part exceeding the prescribed limit among the brokerage commission agreement, and thus, an agreement on real estate brokerage commission exceeding the limit prescribed by the Licensed Real Estate Agents Act is null and void within the extent exceeding the prescribed limit (see, e.g., Supreme Court en banc Decision 2005Da32159, Dec. 20, 2007).

According to the above facts, the defendant as a brokerage assistant, is among the right to sell each of the instant sales in lots to the plaintiff.

In mediating the purchase of this case, the total amount of KRW 67 million is paid in addition to that of KRW 1 million as a brokerage commission. Thus, the above total amount of KRW 67 million is an actual brokerage commission acquired in mediating the purchase of this case in addition to the brokerage commission. Thus, the defendant's offering of the purchase of this case's each of the purchase of this case's each of the purchase of this case's sales of this case's sales of each of the purchase of this case's sales of each of the purchase of this case's sales of each of the purchase of this case's sales

Therefore, the defendant is obligated to pay the plaintiff the above 67 million won and damages for delay with unjust enrichment.

C. Sub-committee

Therefore, as the Defendant seeks from March 31, 2017, which was the final payment date, to the Plaintiff, the Defendant is obligated to pay 5% interest per annum from March 31, 2017 to January 30, 2019, which was clearly recorded that the delivery date of a copy of the complaint in this case, as the Plaintiff seeks, to the Plaintiff, 67 million won as unjust enrichment, and 5% interest per annum as prescribed by the Civil Act, from January 30, 2019, the next day, and the statutory interest rate under the main sentence of Article 3(1) of the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings, as amended by Presidential Decree No. 29768, May 21, 2019; 15% per annum until May 31, 2019; and 12% per annum from the next day to the day of full payment (the statutory interest rate under the main sentence of Article 3(1) of the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings).

Since only damages for delay calculated at the rate of 12% per annum from June 1, 2019 to the date of full payment is recognized, the exceeding part of the Plaintiff’s claim is without merit).

4. Conclusion

Therefore, the plaintiff's primary claim is dismissed as it is without merit, and the conjunctive claim is accepted within the scope of the above recognition, and the remainder of the conjunctive claim is dismissed as it is without merit.

Judges Cho Jae-hee