Defendant 1 and two others

Defendants

Egynam

Seoul Central District Court Decision 2004 High Court Decision 3937 Decided April 8, 2005

All appeals by the Defendants are dismissed.

Article 38(1)5 and Article 15 subparag. 2 of the Real Estate Brokerage Act shall be corrected to “Article 38(2)5 and Article 15 subparag. 2 of the Real Estate Brokerage Act,” which are applicable to Defendant 1, as stated in Article 3 of the Act on the Punishment, etc. of Criminal Crimes against Defendant 1.

1. Summary of grounds for appeal;

A. Defendant 3 and Defendant 2

The sentence of the court below is too unreasonable because it is too unreasonable.

B. Defendant 1

(1) misunderstanding of legal principles

It is true that the defendant received KRW 17 million in return for the brokerage of an exchange contract as stated in the facts charged. However, the brokerage payment that the defendant received includes the lease deposit of KRW 150 million with respect to the second floor of Seoul (detailed address omitted), Seoul (Seoul) building for the second floor, which is the object of brokerage, including the right to claim the return of KRW 150 million and the compensation for the transfer of KRW 250 million with respect to the premium and the facility cost. Since the premium and the facility cost for commercial buildings are not included in the object of brokerage provided in Article 3 of the Real Estate Brokerage Act, even if the defendant received the brokerage payment for the premium and facility cost, they do not constitute brokerage commission under Article 20 (3) of the Real Estate Brokerage Act, the court below erred by misapprehending the legal principles on the commission under the Real Estate Brokerage Act, thereby finding the defendant guilty of the facts charged.

(2) The assertion of unreasonable sentencing

When the defendant is sentenced to a fine, considering the fact that the qualification of licensed real estate agent is lost for a certain period, the sentence of the court below is too unreasonable.

2. Determination

A. Determination on the assertion by Defendant 3 and Defendant 2

In light of all the sentencing conditions indicated in the instant case, including the background of the instant crime and the fact that the said Defendants’ amount of money acquired by the instant intermediary act is not much significant, the sentence against the Defendants is deemed appropriate. Therefore, the lower court’s judgment is justifiable and without merit.

B. Determination on Defendant 1’s assertion

(1) misunderstanding of legal principles

Article 3 [Scope of Objects of Brokerage] of the Real Estate Brokerage Act defines objects of brokerage as "land", "building and other fixtures on land", and Article 2 [Definitions] subparagraph 1 of the same Act provides that with respect to "mediations" under Article 3 of the same Act, "the act of arranging the sale, exchange, lease, and other acquisition, loss, and alteration of rights between the parties to the transaction" with respect to objects of brokerage under Article 3 of the same Act. Thus, it is reasonable to view that the "mar car page" which is the object of brokerage by the defendant constitutes "building" under the same Act, and all of the premium and facility expenses claimed by the defendant constitute "mar car" under Article 2 subparagraph 1 of the same Act.

According to the statement in the real estate sales contract (section 21) bound in the public trial record, the defendant may recognize the fact that the defendant arranged a contract for the exchange of all the rights (the above sales contract is expressed as a security deposit, premium, and facility cost) as a lessee with respect to the "Seoul (Seoul) 2 multi-story car page" operated by the non-indicted 2 and the "non-indicted 1, Gyeonggi-gun (Seng-gun (Seng-gun omitted)" which is owned by the non-indicted 1. Thus, the amount received by the defendant as the above brokerage act shall be deemed to be the commission under Article 15 (2) of the same Act.

Defendant’s assertion is without merit.

(2) The assertion of unreasonable sentencing

In light of the circumstances leading up to the crime of this case and the fact that the defendant was aware that the above excessive commission was illegal, and that the amount acquired by this was not certain, the court below's sentence against the defendant is appropriate. Thus, the court below's judgment is just, and the defendant's assertion on this part is without merit.

3. Conclusion

Therefore, in accordance with Article 364(4) of the Criminal Procedure Act, all appeals filed by the Defendants are dismissed. However, in light of the records, since Article 364(4) of the Criminal Procedure Act on the criminal facts against Defendant 1, who is a third party subject to the application of the law of the judgment below, is obvious that “Article 38(1)5 and Article 15 subparag. 2 of the Real Estate Brokerage Act” is a clerical error, it is so decided as per Disposition in accordance with Article 25(1) of the Rules on Criminal Procedure.

Judges Heungn (Presiding Judge)