[1] The meaning of "mediation business" under the former Real Estate Brokerage Act and the standard for determining whether the act constitutes brokerage

[2] The case holding that since land survey, land division, and debt repayment do not constitute an act of brokerage under the former Real Estate Brokerage Act, the money which a real estate broker received in relation to this does not constitute the commission of a broker who is prohibited from giving or receiving excess by Article 15 subparagraph 2 of the same Act

[1] Articles 38(2)5 and 15 subparag. 2 of the former Real Estate Brokerage Act (amended by Act No. 7638 of Jul. 29, 2005) prohibit a real estate broker from receiving money or goods, such as commission and actual expenses, from a client in excess of the limit prescribed in Article 20(3) of the same Act with respect to his/her brokerage business, and punish the real estate broker against such acts. The term "mediation business" refers to the brokerage business as to the transaction, exchange, lease, and other acquisition, loss, and change of rights between the transaction parties with respect to the object of brokerage. Whether an act constitutes brokerage business refers to the brokerage business as to the transaction, exchange, lease, and other rights between the transaction parties. In light of the purport of the legal provisions for the protection of the transaction parties, it should be determined by whether the broker's act is objectively deemed as brokerage business and whether it is an act for brokerage under social norms.

[2] The case holding that since land surveys, land division, and repayment of debt do not constitute an act of brokerage under the former Real Estate Brokerage Act, the money which a real estate broker received in relation thereto does not constitute the commission of a broker prohibited from giving or receiving excess by Article 15 subparagraph 2 of the same Act

[1] Article 15 subparagraph 2 of the former Real Estate Brokerage Act (amended by the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act, Act No. 7638 of July 29, 2005) (see Article 33 subparagraph 3 of the current Licensed Real Estate Agents and Report of Real Estate Transactions Act), Article 20 (3) (see Article 32 (3) of the current Licensed Real Estate Agents and Report of Real Estate Transactions Act) / [2] Article 15 subparagraph 2 of the former Real Estate Brokerage Act (amended by the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act, Act No. 7638 of July 29, 2005) (see Article 3 subparagraph 3 of the current Licensed Real Estate Agents and Report of Real Estate Transactions Act) and Article 20 (3) (see Article 32 (3) of the current Licensed Real Estate Agents and Report of Real Estate Transactions Act)

[1] Supreme Court Decision 98Do1914 delivered on July 23, 1999 (Gong1999Ha, 1822), Supreme Court Decision 2004Do5271 Delivered on November 12, 2004, Supreme Court Decision 2005Da65562 Delivered on March 10, 2006 (Gong2006Sang, 613), Supreme Court Decision 2005Da5008 Delivered on February 8, 2007 (Gong2007Sang, 427), Supreme Court Decision 2005Da40853 Delivered on April 12, 2007

Defendant

Escopia

Attorney Kim Jong-han

The defendant shall be innocent.

1. Summary of the facts charged in this case

A real estate broker may not collect brokerage commission in excess of the statutory brokerage commission under the circumstances, such as the case, donation, etc., on September 1, 2005, the Defendant acquired brokerage commission in excess of the maximum amount of the statutory brokerage commission (495,000 won) from Non-Indicted 1 to Non-Indicted 2, while selling 33,060 square meters out of 61,48 square meters of forest land owned by Non-Indicted 1 to Non-Indicted 2 in the office of licensed real estate agents (trade name omitted) located in Seo-gu, Seo-gu, Daejeon, Seo-gu (number number, name of building, name of building, and omitted number) in the office of the Defendant’s operation.

2. Determination:

In this regard, the defendant and his defense counsel asserts that the amount of eight million won received by the defendant from the seller is not an intermediary fee prohibited by the Real Estate Brokerage Act, which is the amount received in return for performing services such as repayment of debts and division of land concerning the forest of this case.

According to the records of this case, the defendant was requested by the non-indicted 1's father of the non-indicted 1, who was entrusted by the non-indicted 3 on August 2005 to sell 10,00 won among the forest land (number omitted) in the Gandong-gun, Chungcheongnam-do (hereinafter "the forest of this case"). At the time, the forest of this case was established by the non-indicted 4 corporation in the name of the non-indicted 4 corporation, and the seizure was made by the head of Young-dong Gun, and the voluntary auction was commenced at the request of the non-indicted 4 corporation. The defendant was responsible for the debt repayment with the non-indicted 3, the establishment registration of the right to collateral security and superficies, the registration of the seizure of the forest of this case, the cancellation of the registration of the decision to commence the voluntary auction, and the non-indicted 3 shall pay 8,000,000 won to the defendant through service charges and trade brokerage fees for the forest of this case. Accordingly, the defendant can recognize the part of the forest of this case as the sale registration of this case.

In light of Articles 38(2)5 and 15 subparag. 2 of the former Real Estate Brokerage Act (amended by Act No. 7638 of Jul. 29, 2005 and the Specialized Act on Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions; hereinafter “former Act”), a real estate broker prohibits a real estate broker from receiving money, such as commission and actual expenses, in excess of the limit prescribed in Article 20(3) of the same Act from a client in connection with the brokerage business, and is punished for violating this Act. The term “mediation business” refers to the brokerage business related to the transaction, exchange, lease, and other acquisition or change of rights between the parties to the transaction with respect to the object of brokerage. On the other hand, whether an act constitutes brokerage business is not determined by its name, but by determining whether an act of a broker is objectively deemed to be an act of brokerage and mediation in light of the purpose of the legal provisions aimed at the protection of the parties to the transaction, and should be determined by whether it constitutes an act of brokerage (see, e.g., Supreme Court Decision 2004Do514.

However, such acts as land surveying, land division, debt repayment, etc. do not constitute acts for arranging land sale and purchase transactions, and therefore, the limit of brokerage commission under the former Act does not apply to such acts.

In light of these circumstances, it is reasonable to view that the amount of eight million won which the defendant received after performing the duties such as the sales contract and the division of land of the forest of this case includes not only the brokerage commission under the sales contract but also the commission for the duties such as division of land. As such, it cannot be determined that the amount of the money comprehensively received falls under the brokerage commission under the brokerage commission under the sales contract subject to the regulation of the former Act, and therefore, it cannot be concluded that the defendant received the brokerage commission exceeding the limit prescribed by the former Act, and there is no evidence to acknowledge it in the record

3. Conclusion

Thus, the facts charged in this case constitute a case where there is no proof of crime, and thus, it is acquitted under the latter part of Article 325 of the

Judges Oi-hee