2014 Gohap945 Agreements

A

B Educational Association

March 23, 2016

July 6, 2016

1. The defendant shall pay to the plaintiff 105,250,000 won with 15% interest per annum from October 29, 2014 to the day of full payment.

2. The costs of the lawsuit are assessed against the defendant.

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Basic facts

A. Building permission, etc. on July 9, 2008 for the instant building

1) On November 15, 2006, the Defendant completed the registration of ownership transfer for the reason of sale on October 25, 2006, respectively, as to the whole share of the land and buildings listed in the separate sheet (hereinafter referred to as "land of this case", "building of this case", "where the land and buildings are collectively referred to as "real estate of this case").

2) At the time, the instant building, which had a neighborhood living facility of 1,470.97m2 at the time, was equipped with mechanical parking facilities capable of parking a total of 13 vehicles. The Defendant obtained the permission from the head of Gangseo-gu Seoul Metropolitan Government on July 9, 2008 for the alteration of the purpose of use and large-scale repair of the instant building (hereinafter referred to as the “first building permission”) on the instant building from the head of Gangseo-gu Seoul Metropolitan Government on July 9, 2008. The main contents are ① the alteration of the purpose of use from the first to the fifth to the fifth above ground of the instant building, ② large-scale repair such as the construction of an elevator, ③ the installation of an attached parking lot capable of parking a total of 15 vehicles after the removal of the existing mechanical parking facilities.

3) After the first building permit, the Defendant conducted construction works in a convalescent hospital with respect to the instant real estate, and removed mechanical parking facilities in accordance with the details of the first building permit. However, as the financial standing has gradually aggravated, the Defendant suspended the said construction work.

B. Conclusion of a "real estate consulting contract" between the plaintiff and the defendant

On February 27, 2014, the defendant entered into a "real estate consulting contract" (hereinafter "the consulting contract of this case") with the plaintiff on the real estate of this case, and the main contents thereof are as follows.

A contractor D (Defendant; hereinafter referred to as "A") and A (hereinafter referred to as "B") of the Gangseo-gu Seoul Metropolitan Government Association E Building (the instant building) shall enter into this contract with the intent to agree on the basic matters concerning the overall affairs and to perform them in good faith in promoting the sale of the building in Gangseo-gu Seoul Metropolitan Government. The purpose of this contract is to: (a) the purpose of this contract is to carry out, inter alia, the affairs assigned to B (the instant real estate) on the basis of mutual trust and good faith between "A" and "B (the instant real estate)" that sell the indicated real estate (the instant real estate) and "B" that vicariously carry out the affairs of selling the indicated real estate. ① The term "B" shall carry out the following affairs; 2. Consultation and advice related to the sale of the indicated real estate (the sale of the foregoing real estate) and this service contract; ② The term "A" shall be valid from the date of the expiration of the contract period of sale to the date of the sale and purchase agreement (the expiration of the contract period of sale and purchase).

C. Conclusion of a sales contract for the instant real estate between the Defendant and F

On March 13, 2014, the Defendant entered into a real estate sales contract (hereinafter referred to as the “instant sales contract”) with F, a doctor, who had been operating a convalescent hospital, with the content that the Defendant sells F, the instant real estate to F, the sum total of KRW 2,605,00,000 (2,55,000,000, the remainder amount of KRW 2,355,000,000). The main content of the instant sales contract is as follows.

1.The use of “B” (F) is a convalescent (medical facilities). 5. If for any reason no change in the purpose of use is made, “B” may terminate the contract. 6. A structural review report and a structural safety diagnosis certificate shall be provided to “B” and shall be provided to “B” and shall not be problematic for change in the purpose of use.

D. Payment of money to the plaintiff by the defendant

1) On March 14, 2014, the Defendant received the down payment of KRW 250,000,000 as stipulated in the instant sales contract from F, and paid KRW 5,000,000 to the Plaintiff on the same day.

2) On April 29, 2014, the Plaintiff filed a lawsuit against the Defendant for the agreed payment amounting to the Youngju District Court Branch 2014Gaso3514, and the content thereof was that “the Defendant is obligated to pay the Plaintiff KRW 25,000,000 upon entering into the instant sales contract according to the instant consulting agreement (i.e., the down payment amount of KRW 250,000,000, X10,000, out of which is set forth in the instant sales contract) but paid only KRW 5,00,000 among them, and thus, the Plaintiff was obligated to pay the remainder KRW 20,000,000 and its delay damages.”

3) On July 21, 2014, the above court rendered a judgment in favor of the Plaintiff that “the Defendant paid the Plaintiff the amount of KRW 20,000,000 and the amount calculated at the rate of KRW 20% per annum from May 10, 2014 to the date of full payment,” and the above judgment became final and conclusive on August 8, 2014.

4) On September 11, 2014, the Defendant received the remainder of KRW 2,355,000,000 as stipulated in the instant sales contract from F, and completed the registration of ownership transfer with respect to the instant real estate to F. Meanwhile, the Defendant paid KRW 20,000,000 to the Plaintiff on the same day.

E. Permission, etc. to construct the instant building on November 25, 2014

1) On October 4, 2013, Seoul Special Metropolitan City amended the "Standards for Establishment of Facilities and Establishment of Annexed Parking Lots" (hereinafter referred to as the "Standards for Establishment of this case"). According to the revised standards for establishment, in the case of "medical facilities other than mental hospitals, convalescent hospitals, and isolation hospitals", only one unit per facility area of 100m2, and one annexed parking lot per 200m2, including convalescent hospitals (excluding large school dormitories), and in the case of "other buildings (excluding large school dormitories)", one annexed parking lot per facility area of which should be secured.

2) On November 25, 2014, F obtained permission from the head of Gangseo-gu Seoul Metropolitan Government to change the purpose of use of the instant building from the existing "medical facilities (a hospital)" to the "medical facilities (a convalescent hospital" (hereinafter referred to as "second building permission"). The main contents thereof include "(i) the change of the purpose of use from the first floor to the fifth floor above the instant building to the "medical facilities (a convalescent hospital)", and ② the change of the scale of the attached main hall in accordance with the revised standards, which had been the 15th unit 15th unit 7th unit 2).

3) On October 14, 2015, F proceeds from construction of a convalescent hospital and completed construction of the instant building, and up to now, F uses all the remainder, excluding part of the first floor, of the instant building, as a convalescent hospital.

F. Punishment of fines for violating the Licensed Real Estate Agents Act

On December 22, 2015, the Plaintiff issued a summary order of KRW 500,00 as to the suspected violation of the Licensed Real Estate Agents Act that “the Plaintiff entered into the instant consulting contract with the Defendant without registering the opening of the office among the competent offices, and the Defendant and F arranged the conclusion of the instant sales contract.” As to the suspected violation of the Licensed Real Estate Agents Act, the said summary order was finalized on January 7, 2016.

[Ground of recognition] Facts that there is no dispute or do not clearly dispute, Gap evidence Nos. 1 through 5, 7, 18 through 20, Eul evidence Nos. 1, 2, 4, 6 through 9, 11 (including each number, if any, hereinafter the same shall apply), witness F's testimony, and the whole purport of pleading

2. The parties' assertion

A. Summary of the plaintiff's assertion

In order to allow the Plaintiff to use the instant building as a convalescent hospital pursuant to the instant consulting contract, the Plaintiff faithfully provided consulting services, such as obtaining secondary building permission, and made the Defendant sell the instant real estate to F. Therefore, as stipulated in the instant consulting contract, the Defendant is obligated to pay to the Plaintiff 130,250,000 won (= KRW 25,000,000,000,000,000, which was calculated by deducting the fixed payment of KRW 25,000,00,000 from the sales price of the instant real estate, as stipulated in the instant consulting agreement.

B. Summary of the defendant's assertion

1) The Plaintiff merely arranged the instant sales contract between the Defendant and F with respect to the instant real estate, and did not provide consulting services to the Defendant by presenting the best way to use the instant real estate or a solution to all issues.

2) Since the Defendant had already obtained a building permit necessary for the establishment of a convalescent hospital for the instant real estate in around 2008, there was no reason to obtain consultation with the Plaintiff regarding the convalescent hospital. Even if the Plaintiff provided consulting services, this was limited to the extent incidental to the Plaintiff’s act of brokerage, and is only F that is not the other party to the provision of services.

3) As above, the instant consulting contract is merely a brokerage contract, and the Plaintiff, who is disqualified as a licensed real estate agent and without registering the establishment of a brokerage office, concluded the instant consulting contract that contains an agreement on the payment of brokerage commission exceeding 0.9% of the maximum brokerage commission prescribed in Article 20 of the Enforcement Rule of the Licensed Real Estate Agents Act. Therefore, the instant consulting contract is not in violation of the mandatory law, but is null and void against the principle of good faith and equity. Furthermore, the Defendant already paid KRW 25,000,000 exceeding the maximum statutory brokerage commission amount of KRW 23,445,00 (2,605,000,000 in the purchase price of the instant real estate x 0,000,000, which is the maximum statutory brokerage commission amount of KRW 25,000,000, which is over. Therefore, the Defendant

3. Determination

A. Nature of the instant consulting contract

1) The following facts and circumstances are acknowledged when adding the purport of the entire arguments to the underlying facts and macroscopic evidence as seen earlier.

A) The instant consulting contract stipulates that its name is “real estate consulting contract”. However, Article 2(1)1 of the instant consulting contract provides that “consulting business consultation and other necessary consultation and consultation related to this service contract” as the Plaintiff’s business.

B) In the case of an ordinary real estate brokerage contract, the seller of the pertinent real estate that is provided with brokerage services does not have any particular duty other than the duty of payment of brokerage commission to the broker. However, Article 2(2) of the instant consulting contract provides that “the duty of providing drawings necessary for the sale of the pertinent land and the duty of providing the area table,” and “other duties required by the Plaintiff in connection with this service contract,” etc. as the duties of the Defendant, who

C) Article 4(2) of the instant consulting contract provides that the term of service of the instant consulting contract shall be six months from the date of the instant contract, and Article 4(4) provides that “The instant consulting contract shall have effect even if this contract is terminated in the course of sale, until the time of the buyer’s registration transfer.” As such, the instant consulting contract includes the characteristics of the instant real estate consulting contract, which is a continuous contractual relationship, even during the effective period.

D) In the case of an ordinary real estate brokerage contract, if the sales contract is concluded, the broker shall pay the agreed fee in lump sum from the seller and the buyer accordingly. However, Article 3 of the consulting contract of this case shall be divided into 10% of the down payment under the real estate sales contract at the time of the conclusion of the real estate sales contract with respect to the time of payment of the commission, and the remainder, if the contract is completed before the registration, shall be paid. This is different from the usual real estate brokerage contract.

E) According to Article 3(1) of the instant consulting contract, the Plaintiff is entitled to receive any balance under the instant consulting contract only when the instant real estate is sold and the transfer of the registration is completed. However, according to Article 3(5) of the terms and conditions of the instant agreement, if the instant building does not change the purpose of use into a convalescent hospital, the purchaser of the instant real estate may terminate the instant sales contract at any time. In full view of the terms and conditions of the instant consulting contract and the details, developments, purpose, etc. of the instant sales contract, the Plaintiff, through the instant sales contract, shall allow F to conduct a convalescent hospital business by using the instant real estate, is entitled to receive fees under the instant consulting contract. Ultimately, the Plaintiff is obliged to pay a certain risk as to whether to change the purpose of use thereof.

F) The Plaintiff was a high-class technician in the field of construction, such as design and construction, who holds a certificate of architectural engineer, and served in a construction company or architectural office from around 2003 to the date. Furthermore, as examined in the following B, the Plaintiff actually provided certain consulting services regarding the change of use to a convalescent hospital for the instant building in the course of real estate sale.

2) In full view of these points, it is reasonable to view the instant consulting agreement as an ordinary real estate brokerage contract, as alleged by the Defendant, and at least the elements of “real estate consulting contract” are included therein.

[Defendant asserts that the instant consulting contract is merely a real estate brokerage contract, on the ground that the Plaintiff’s duty is expressed as “sale agency consulting service for sale in lots,” or that “real estate sales commission for expenses to be paid to the Plaintiff,” and that the instant consulting contract is merely a real estate brokerage contract. However, in light of the various circumstances as seen above, the instant consulting contract cannot be deemed as a real estate brokerage contract solely on the sole basis that the Defendant asserts. Meanwhile, as seen earlier, the fact that the Plaintiff was issued a summary order as a violation of the Licensed Real Estate Agents Act in relation to the instant consulting contract and the conclusion of the sales contract is that the contents of the instant consulting contract can be compatible with a separate contract. Thus, the fact that the instant summary order was issued cannot be readily concluded that all of the contents of the instant consulting contract becomes a real estate brokerage contract.”

B. Whether the Plaintiff provided consulting services

1) Generally, the term "real estate consulting" means offering advice and resolution methods on a plan to efficiently use real estate and all related issues. On the other hand, the term "mediation" subject to the regulation of the Licensed Real Estate Agent Act refers to "act of mediating sale, exchange, lease and other acts of arranging the acquisition, loss and transfer of rights between the parties to a transaction concerning the object of brokerage, such as real estate, in return for a certain remuneration at another person's request (Article 2 subparagraph 1 of the Licensed Real Estate Agents Act). Whether an act constitutes brokerage is not determined by the principal intention of the actor, but by whether such act is objectively deemed as an act of arranging and arranging transactions in light of social norms (see, e.g., Supreme Court Decisions 2005Da32197, Oct. 7, 2005; 2005Do6851, Jan. 13, 2006; 2006Do7594, Jan. 11, 2007).

2) On July 9, 2008, the Defendant obtained permission to change the purpose of the instant building into a “medical facility (a hospital)”; the Defendant’s removal of existing mechanical parking facilities in the course of the construction of a convalescent hospital with the removal of the existing mechanical parking facilities; the fact that F obtained permission to change the purpose of the instant building into a “medical facility (a convalescent hospital”)” on November 25, 2014 after purchasing the instant real estate from the Defendant is as examined earlier. Meanwhile, the following facts or circumstances are recognized if the Defendant added the overall purport of the pleadings in the witness F’s testimony to the effect that:

A) The Defendant suspended the construction of the instant real estate in a convalescent hospital with the aggravation of financial standing. The Defendant appears to have sold the instant real estate to the person who wishes to use the instant real estate as a convalescent hospital, which was the most favorable and reasonable measure in terms of cost recovery, etc.

B) Under such circumstances, the Plaintiff performed the following duties to change the purpose of the instant building into “medical facilities (convalescent)” after the conclusion of the instant consulting contract. In other words, the Plaintiff failed to obtain the design drawings for the instant building from the Defendant at the time of the conclusion of the instant consulting contract, and produced a new design drawings and fire-fighting drawings premised on the operation of the instant building as a convalescent hospital through G architect office, and (2) newly prepared the treatment facilities of the instant building in relation to the treatment facilities of the sewage and fire-fighting facilities, which are the basic facilities for operating the convalescent hospital, including the “treatment facilities of the instant building,” the “fire-fighting facility installation plan,” and the “statement for fire-fighting pressure water supply system installation plan,” and (3) obtained the second construction permit in the future of F by applying for the permission for change

C) In addition, from February 2014 to the date of the closing of argument in the instant case, the Plaintiff provided F with necessary advice, etc. on the change of the purpose of use of the instant building by means of telephone conversations with F more than 10 times or with F more than 100 times. Furthermore, on March 11, 2014, the Plaintiff sent e-mail between F and the Defendant-related parties at any time to share materials, etc. necessary for the change of the purpose of use of the instant building, such as newly preparing and transmitting the parking lot drawing of the instant building to F, etc.

D) In particular, at the time of the conclusion of the instant sales contract, the existing mechanical parking facilities for the use of the instant building were removed. However, after verifying the instant installation standards at the time, the Plaintiff newly prepared a design drawing to secure only seven annexed parking lots which are the 15 annexed parking lots set forth in the first construction permit, which are one half of the annexed parking lots set forth in the first construction permit. Accordingly, F, a purchaser of the instant real estate, could change the use of the instant building to a convalescent hospital without separately securing a site for the annexed parking lot other than the instant land.

E) At the time of the conclusion of the instant sales contract, the witness F entered into the instant sales contract with the Defendant’s request that the financial resources are not good at the time of the conclusion of the instant sales contract, and without properly examining whether the use of the instant building for the operation of the convalescent hospital is possible, the instant sales contract was concluded and the down payment of KRW 250,000 was paid in preference to the Defendant. In such a situation, D, the Defendant, at the time of entering into the instant sales contract, stated that the instant building should be changed into the convalescent hospital upon receiving consultation from the Plaintiff. The Plaintiff examined the facility standards and design drawings necessary for changing the use of the instant building into the convalescent hospital, tried to prepare the draft of the facilities arrangement, etc. in compliance with the witness’s request, and provided advice or services on all matters concerning the construction of the convalescent hospital, such as providing advice on the issue of securing the parking lot, which was simply exceeding the general real estate brokerage level.

2) In full view of the above facts and circumstances, it is reasonable to deem that the Defendant suspended the construction of a convalescent hospital with respect to the instant real estate due to the aggravation of financial standing, and that the series of advisory services or services provided by the Plaintiff, which goes beyond simply an act of arranging and arranging the transaction of the instant real estate, provided the specific measures to ensure the efficient use of the instant real estate and advice on all related issues, and thus, provided consulting services.

[Defendant asserts that only the Plaintiff provided consultation, etc. to F, who is the purchaser of the instant real estate, and that the Defendant did not provide consulting services to the Defendant. However, as seen earlier, the instant consulting contract was premised on the instant sales contract, and the instant sales contract was an important matter of the contract. Furthermore, since the Defendant intended to sell the instant real estate to F, even if the Plaintiff provided consultation, it would have been in the position to again deliver the instant real estate to F, the purchaser, and even if the Plaintiff was provided with advice, it would have been in the position to transfer the instant real estate to F, the Plaintiff would have received necessary consultation from the Plaintiff, and even if the Plaintiff did not directly provide the Defendant with services under the instant consulting contract, it cannot be deemed that the Plaintiff did not provide the service under the instant consulting contract.

C. Determination on the Defendant’s assertion on invalidity of the instant consulting agreement

1) Under the premise that the instant consulting contract is an ordinary real estate brokerage contract, the Defendant asserts to the effect that the instant consulting contract providing for the payment of fees exceeding the statutory fees as stipulated in the Enforcement Rule of the Licensed Real Estate Agents Act, or the Plaintiff’s claim for the instant agreed amount based thereon is null and void as it violates the mandatory law. However, as seen earlier, the instant consulting contract cannot be deemed an ordinary real estate brokerage contract as alleged by the Defendant, as it is alleged by the Defendant, only as an ordinary real estate brokerage contract. The Defendant’s assertion on

2) Furthermore, the Defendant asserts that the agreement amount stipulated in the instant consulting agreement is null and void against the principle of trust and good faith and the principle of equity, because it was unfairly excessive when compared with the sales amount of KRW 23,445,00 (=2,605,000,000 x 0.9%) calculated at 0.9%, which is the maximum brokerage commission. However, even if the agreement amount stipulated in the instant consulting agreement is somewhat excessive or compared with the maximum brokerage commission amount, it is difficult to view the instant consulting agreement or the said claim as contrary to the principle of trust and good faith and the principle of equity, and there is no other evidence to acknowledge it otherwise.

D. Sub-committee

Ultimately, the Defendant is obligated to pay to the Plaintiff the amount of KRW 105,250,00 [130,250,000 (2,605,000 (2,600,000 won for the instant real estate purchase price x 5%) and damages for delay calculated at the rate of 15% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from October 29, 2014 to the date of delivery of a copy of the instant complaint] on the record, which is clear that the day following the day of delivery of a copy of the instant complaint.

4. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.

Judges New Jinization of Judges

Judges Interprehion

Judges Su Young-young

1) It is calculated in accordance with the pre-approval criteria (1,470.97 square meters of the facility area of the building of this case ± 100 square meters of the facility area of this case ± 15 square meters of the facility area of the building of this case ± 200 square meters of the facility area of the building of this case ± 7 square meters of the facility area of this case ±

A person shall be appointed.