(영문) 광주지방법원 2016.8.3.선고 2015가단11507 판결

The defendant shall pay to the plaintiff 40,645,00 won with 5% interest per annum from September 7, 2014 to the service 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.

Reasons

1. Facts of premise;

A. On March 21, 2014, the Plaintiff-friendly C concluded a sales contract to purchase KRW 301,000,000 (hereinafter “the instant land”) with D as a broker of the Defendant, a licensed real estate agent, and D to purchase KRW 750m prior to Gwangju Seo-gu, Seo-gu (hereinafter “instant land”).

B. At the time of the instant transaction, C entered as “C and one other” in the buyer column of the contract, and D said as “one person”. The Defendant received a request from C to issue a certificate of personal seal impression with the purchaser as the Plaintiff, and requested D to do so. On March 26, 2014, D obtained a certificate of personal seal impression with the purchaser as the Plaintiff, and issued a certificate of personal seal impression and a certificate of personal seal impression to a certified judicial scrivener with no name affixed to the Plaintiff. On March 26, 2014, D issued a certificate of personal seal impression with respect to the instant land to the Defendant’s office, and issued a certificate of personal seal impression and a certificate of personal seal impression to a certified judicial scrivener with no name affixed to the Plaintiff. On March 26, 2014, the Gwangju District Court issued No. 62150 on March 26, 2014 as the receipt of the instant land on March 26, 2014.

D. The Plaintiff suffered losses due to the reclamation of garbage in the instant land, and filed a lawsuit for compensation for damage against D with the Gwangju District Court 2014Kadan48687 (hereinafter referred to as the “former Claim”), and D brought a lawsuit against D. E. On November 1, 2014, the Defendant: (a) found the Plaintiff’s legal representative in the instant previous Claim as the Plaintiff’s office; (b) demanded F, an employee, to withdraw the instant previous suit; (c) prepared a written confirmation that “I did not explain the fact that the waste was buried to the buyer; (d) issued a certificate of mutual aid with the Korea Licensed Real Estate Agent Association; and (c) remitted KRW 2,200,00 as the attorney’s fee necessary for the new lawsuit.

F. Accordingly, on November 12, 2014, the Plaintiff withdrawn the instant former suit and requested the Defendant to deliver a sales contract with the purchaser as the Plaintiff on the grounds that it is necessary for the Plaintiff to file a new lawsuit. However, even upon the Defendant’s request, D did not prepare a sales contract with the purchaser as the Plaintiff, and did not receive it.

[Reasons for Recognition] Unsatisfy, Gap evidence 1-2, 3, Gap evidence 18-2, Eul evidence 1-2, Eul evidence 1-2, Eul evidence 1-2, Eul evidence 2-1, 2-2, Eul evidence 4-9, witness C and Eul testimony 2. Claim for damages due to violation of duty to explain

A. The plaintiff's assertion

The Defendant, a licensed real estate agent, did not explain to the Plaintiff that garbage, etc. was buried in the instant land when mediating the sale and purchase of this case, thereby causing losses to the Plaintiff when constructing a new building on the instant land and selling garbage, etc., and thus, the Defendant is liable to compensate the Plaintiff for such losses.

B. Determination

1) The practicing licensed real estate agent has verified the state, etc. of the object of brokerage to the client.

· The defendant is liable for compensating the plaintiff for damages caused property damage caused by intention or negligence in the course of acting as a broker. In this case, it is examined whether the defendant has brokered the trade of this case to the plaintiff.

2) The Plaintiff asserts to the effect that C entered into the instant sales contract on behalf of the Plaintiff, so it is examined as to whether C entered into a delegation contract with the Defendant on behalf of the Plaintiff on behalf of the Plaintiff.

Article 114(1) of the Civil Act provides, "The expression of intention expressed by an agent for the principal within his/her authority shall take effect directly to the principal himself/herself," which, in principle, indicates that the act of representation is for the principal."

In light of the fact that C has prepared and submitted a written statement that "A signed a sales contract as the representative of the Plaintiff" among the witness's testimony as shown in the Plaintiff's argument, it is difficult for C to believe that "A signed the sales contract as the representative of the Plaintiff" in this court after the above testimony, and at the time of the sale of this case, C stated "C and one other" in the column of the buyer of the contract, and "C" in the statement that D is "one person" and "A" in the name of "one person" as mentioned above, but there is no evidence to prove that C signed the sales contract on behalf of the Plaintiff, such as informing the Defendant or D about "one person" or "her person", or written in the contract, etc., it is difficult to deem that C expressed that it is for the Plaintiff that it was acting as the representative of the Plaintiff. Therefore, it is difficult to deem that C delegated the Defendant to act on behalf of the Plaintiff.

3) Even if the above act of "C" is considered as an agent for the plaintiff, if the purchaser does not clearly indicate the name, address, etc. as "non-party 1 or a partner." On the contrary of the above case, if the plaintiff asserted that the purchaser is the purchaser of the sale in this case, but the plaintiff denies it, "her partner" can be viewed as "her partner," but the words of "non-party 1" can be widely defined as "her partner," and "non-party 1" can not be seen as clearly defined as the purchaser of the sale in this case, because the words of "non-party 1" can not be seen as the purchaser of the sale in this case, and if the contract can be determined only by the statement of "non-party 1" contract and "a partner", it is difficult to readily deny that the purchaser's right to claim the sale in this case is against others, and thus, it is difficult to view that the plaintiff's purchaser is a joint purchaser in this case's agreement with the plaintiff and the parties to the contract in this case.

4) On March 24, 2014, the Plaintiff indicated that C would transfer the instant land to the Defendant in the name of the Plaintiff. On March 24, 2014, the Plaintiff directly issued a certificate of personal seal impression issued by D to the broker office of the Defendant’s operation, and drafted Gap evidence No. 2 (real estate sales contract). As such, the Plaintiff and D alleged that D had concluded a sales contract and that the Plaintiff was acting as a broker for the Defendant. Accordingly, the Plaintiff alleged that the Plaintiff was acting as a broker for the Defendant. As such, the Plaintiff’s statement No. 18-2 stated in the evidence No. 18 was inconsistent with D’s testimony, and it is difficult to believe that D and the Defendant issued a certificate of personal seal impression and seal impression affixed to the Plaintiff. However, the registration of transfer under the name of C cannot be immediately concluded with D and D’s name and delivery of the documents required for the registration of transfer under the name of the Plaintiff, and it cannot be concluded between D and D’s name and D’s name.

5) Therefore, a person who has concluded a delegation contract with the defendant for the land of this case is only C and cannot be deemed the plaintiff. Thus, the defendant cannot be deemed to have a duty to compensate the plaintiff for damages caused by the violation of the duty to explain by the broker.

3. Claims for damages under the agreement;

A. The plaintiff and the defendant's assertion

On the other hand, the plaintiff asserts that the defendant agreed to compensate for damages and that the plaintiff is liable to compensate for damages under the agreement, while the defendant did not have made an agreement as above, and only prepared a written confirmation for the purpose of dealing with the mutual aid insurance.

B. Determination

(1) Preparation of certificates;

At the office of the Plaintiff’s legal representative of the instant prior suit, the Defendant knew of the fact that “the principal, at the time of brokerage, knew of the existence of wastes, such as large volume of wastes, such as garbage, etc., in the land subject to sale at the time of brokerage (see explanation from the seller), and without explanation to the buyer, I promised to recognize that there was an agent’s negligence on the subject matter of sale at the time of brokerage, and thereby, to assume all civil responsibilities. The fact that I prepared the instant confirmation document stating that “I shall return to the buyer is not a dispute between the parties.”

(2) Interpretation of the certificate

Where the content of a contract between the parties to the contract is written in writing, which is a disposal document, if the objective meaning of the text is clear, the existence and content of the expression shall be recognized, barring special circumstances. However, in cases where the objective meaning of the text is not clearly expressed, the contents of the text and the motive and background leading up to the conclusion of the contract, the purpose and genuine intent of the parties to the contract, transaction practices, etc. shall be comprehensively considered regardless of the parties’ internal intent, and the contents of the contract shall be reasonably interpreted in accordance with logical and empirical rules, social common sense, and common common sense and transaction norms so as to conform to social justice and equity ideology. In particular, if the contents of the contract claimed by one of the parties to the contract impose a significant responsibility on the other party or its ownership

If the essential part is infringed or restricted, the contents of the language and text should be more strictly interpreted (see, e.g., Supreme Court Decisions 93Da3103, Oct. 26, 1993; 2014Da14115, Jun. 26, 2014; 2015Da22095, Jan. 14, 2016). The confirmation document of this case is a document stating the defendant's statement recognizing that the title "non-performance of a licensed real estate agent's duty to explain" is "non-performance of a licensed real estate agent's duty to explain", and it is nothing more than that recognizing the responsibility for the violation of the duty to explain, and further, deeming that the defendant expressed his intent to compensate the plaintiff for damages, barring any special circumstances, is beyond the objective meaning of the language and text, and thus, cannot be interpreted as such.

(3) Family judgment

A) We examine whether the instant written confirmation is a disposal document that expressed the intent to compensate the Plaintiff for damages, and examine whether there exists such declaration of intent as stated therein. (b) As long as the authenticity of a disposal document is recognized, the court should recognize the existence and content of the declaration of intent in accordance with the content of the document. However, if there is clear and acceptable counter-proof that denies the content of the document, the court may recognize facts different from the content of the document (see, e.g., Supreme Court Decisions 2006Da27055, Sept. 14, 2006; 2011Da105867, Apr. 26, 2012).

C) On November 11, 2014, the following day, the Plaintiff stated that “F, who is an attorney of the Plaintiff’s prior suit, will be liable for all damages and treated as a mutual aid insurance” and requested F, who is an employee of the Plaintiff’s legal representative, to withdraw the prior suit of this case against D, to deliver a certificate of mutual aid, and the Defendant demanded F, who issued a certificate of confirmation that F was negligent in acting as a broker, demanded the Plaintiff to prepare and deliver the instant certificate, and remitted the amount of KRW 2,20,00 to the Plaintiff’s account as attorney’s fees for new litigation. On November 12, 2014, 2014, the Plaintiff’s withdrawal of the prior suit of this case was stated as “C and one other,” and thereafter, F demanded the Defendant to prepare a sales contract of this case to be “C and one,” which is the purchaser’s refusal of the contract of this case, but the Defendant did not issue the contract to the Plaintiff as the date for pleading as the Plaintiff’s witness’s testimony.

D) In addition, according to the following circumstances acknowledged by the purport of the above facts and the entire pleadings, it is difficult to view that the Defendant expressed its intent to compensate the Plaintiff for damages caused by the violation of the duty to explain.

① If the Defendant wishes to compensate the Plaintiff, it is necessary to secure executory power by expressing the intent to set the amount of compensation and pay it as compensation for damages, by preparing a notarial deed recognizing compulsory execution, etc., and it does not need to institute a lawsuit.

② It is a matter of course to demand that a lawsuit be filed against himself/herself and pay the attorney fees required therefor.

③ If the Defendant recognized liability for damages and demanded to file a lawsuit against himself/herself, the certificate of mutual aid need not be issued.

④ If the Plaintiff prepared the instant confirmation document to file a claim for damages against the Defendant, it is sufficient for the Plaintiff to submit the instant confirmation document as evidence, and there is no need for a sales contract separately stating the Plaintiff’s personal information in the buyer column.

⑤ The Plaintiff stated that, with the knowledge of the fact that the Korea Licensed Real Estate Agent Association would compensate the Plaintiff for the damages caused by the Plaintiff’s breach of its duty to explain, the Plaintiff consumed only the Si-day without having received a sales contract as the purchaser (the Plaintiff’s written statement on February 24, 2016 at the fifth date for pleading). According to this, the Defendant, without having expressed his/her intent to compensate for the damages caused by his/her own property contribution, did not appear to have prepared the said written confirmation recognizing his/her liability for the claim for mutual-aid under the mistake that the damages would have no financial disadvantage if treated as the accident.

E) In light of the above facts and circumstances, it is reasonable to deem that the instant written confirmation was prepared for the purpose of providing the Plaintiff with evidentiary documents necessary for the Defendant to file a lawsuit against the Korean Licensed Real Estate Agent Association claiming mutual-aid funds. It is difficult to view that the Defendant written a disposition document stating his intent to compensate the Plaintiff for damages caused by the violation of the duty to explain. Thus, there is a clear and acceptable counter-proof that denies the contents of the instant written confirmation. Thus, it is insufficient to acknowledge the fact of the Plaintiff’s assertion solely with the descriptions of No. 6 (the instant confirmation document and Eul evidence No. 6) and No. 19-1 and No. 2, and there is no other evidence to acknowledge it.

(4) Sub-determination

Therefore, the plaintiff's assertion that compensation for damages should be made under the agreement is without merit.

4. Conclusion

Therefore, all of the plaintiff's claims are dismissed as it is without merit. It is so decided as per Disposition.