209Da4572 Consulting services costs

△, Inc.

Seoul

Representative Director Kim 1

○ ○

Seoul

Seoul Eastern District Court Decision 2008Na3130 Decided December 3, 2008

November 10, 201

The judgment of the court below is reversed, and the case is remanded to the Seoul Eastern District Court Panel Division.

The grounds of appeal are examined.

1. Supreme Court precedents concerning the validity of an agreement on remuneration for the act of brokering real estate by an unqualified broker;

"Business brokerage business" subject to the regulation of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act (hereinafter "Licensed Real Estate Agents Act") refers to "business of arranging the transaction, exchange, lease, and other rights between the parties to the transaction with respect to the object of brokerage such as real estate at another person's request and receiving a certain remuneration (Article 2 subparagraphs 1 and 3 of the Licensed Real Estate Agents Act). Whether an act constitutes brokerage business shall not be determined by the subjective intention of the actor, but by whether an act is objectively deemed to be an act for mediation and brokerage in light of social norms, from the objective view of the act, and it shall not be deemed that the person who conducts such brokerage business for real estate provides the so-called real estate consulting services, etc. in addition, it shall not be deemed that the act of mediating real estate is not an act of arranging real estate under the regulation of the Licensed Real Estate Agents Act (see, e.g., Supreme Court Decisions 2005Da32197, Oct. 7, 2005; 2015Do1675, Jan. 27, 20015>

Meanwhile, real estate brokerage business may run only after the registration of establishment of a brokerage office is completed (Article 9(1) and (2) of the Licensed Real Estate Agents Act). A person who runs a brokerage business without the registration of establishment of a brokerage office in violation of this provision is not only subject to criminal punishment (Article 48 subparag. 1 of the Licensed Real Estate Agents Act), but also an agreement on remuneration, such as fees that he/she receives in connection with the brokerage of real estate, etc. (see Supreme Court Decision 2008Da75119, Dec. 23, 2010).

2. Judgment of the court below contrary to the Supreme Court precedents

In accordance with the evidence of the judgment below, the court below acknowledged that the plaintiff company's business purpose is only the real estate consulting business, but does not include the real estate brokerage business, ② the plaintiff company is not qualified as a broker prescribed by the Licensed Real Estate Agents Act, and was involved in the conclusion of the instant lease without the registration of establishment of a brokerage office, ③ the service contract of this case clearly stated that it is not a real estate brokerage contract, ③ the service contract of this case is not a real estate brokerage contract, and determined that it is difficult to view the service contract of this case as a brokerage contract subject to the Licensed Real Estate Agents Act, and determined that the contract of this case is not a brokerage contract subject to the Licensed Real Estate Agents Act

However, according to the records, it is clear that the plaintiff company engaged in the act of arranging the plaintiff company because it could sufficiently know the fact that the plaintiff company continued to engage in and repeatedly in the conclusion of the lease contract of another person as an intermediary in the form similar to this case as an object of business, and the contract of this case entered into between the plaintiff and the defendant merely based on the judgment of the court below is not an intermediary contract subject to the regulation of the Licensed Real Estate Agent Act, and it is deemed that the contract of this case entered into between the plaintiff and the defendant does not correspond to the brokerage contract subject to the regulation of the Licensed Real Estate Agent Act

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Dai-hee

Justices Kim Gi-hwan

Justices Min Il-young

Justices Lee In-bok et al.