Plaintiff (Attorney Lee Sung-sung, Counsel for the plaintiff-appellant)

Gunpo-Mayor

March 3, 2017

Suwon District Court Decision 2015Gudan33534 Decided September 30, 2016

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The defendant shall revoke the disposition to revoke the establishment of a brokerage office against the plaintiff on October 13, 2015.

1. Details of the disposition;

A. On December 24, 2009, the Plaintiff, as a licensed real estate agent, registered and operated a brokerage office with the trade name “○○○ Licensed Real Estate Agent Office” (hereinafter “instant brokerage office”) at the seat of Mapo-si ( Address 1 omitted).

B. On January 24, 2015, the Plaintiff arranged a lease contract for Nonparty 1 and Nonparty 2’s ( Address 2 omitted) in the instant brokerage office (hereinafter “instant lease contract”).

C. On April 23, 2015, the public official in charge of the Defendant visited the instant brokerage office (hereinafter “instant guidance and inspection”) and judged that the Plaintiff violated the Licensed Real Estate Agent Act, and on June 12, 2015, on the ground that the Plaintiff omitted signatures and seals in the confirmation and explanatory note of the object of brokerage regarding the instant lease agreement, the Plaintiff was subject to the disposition of business suspension (hereinafter “prior disposition”) for 45 days (from July 1, 2015 to August 14, 2015) pursuant to Article 39(1)7 of the Licensed Real Estate Agent Act.

D. When the Plaintiff was found to have placed a real estate advertisement on the Internet portal site during the period of suspension of business, the Defendant issued prior notice and received the submission of opinions, and on October 13, 2015, on the ground that the Plaintiff rendered brokerage services during the period of suspension of business, the Defendant issued a disposition to revoke the establishment of the brokerage office pursuant to Article 38(1)7 of the Licensed Real Estate Agents Act (hereinafter “instant disposition”).

[Reasons for Recognition] Facts without dispute, Gap evidence 1 through 6, Eul evidence 1, 3, 4, 5 (including each number; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The Plaintiff’s act of advertising an object of brokerage on the Internet portal site cannot be deemed as having rendered brokerage services during the period of suspension of business because it does not constitute an act of brokerage. Thus, the instant disposition is unlawful.

2) At the time of mediating the instant lease agreement, the Plaintiff, while signing and sealing the confirmation and explanatory note of the object of brokerage, was properly signed and sealed and delivered to the lessor and lessee. However, since the Plaintiff’s signature and sealing were omitted by mistake in the confirmation and explanatory note of the object of brokerage, which is a copy of the instant brokerage office, it does not violate Article 25(4) of the Licensed Real Estate Agent Act. Even if it is not so, the instant prior disposition was made by the Defendant’s retaliation, even though there was no infringement or risk of infringement due to the Plaintiff’s omission of signing and sealing, and abuse of discretion due to the Plaintiff’s abuse of discretion, is significant and apparent. Accordingly, the instant disposition based on the premise that the valid disposition of business suspension exists is unlawful.

3) Even if the defect in the prior disposition in this case is not significant and apparent and thus null and void, it would be harsh that the defect in the prior disposition in this case would result in the plaintiff who would suffer disadvantage due to the defect in dispute or binding force, and the result is not foreseeable to the plaintiff, and thus, the binding force on the prior disposition in this case cannot be recognized. Therefore, the plaintiff may still assert the illegality of the prior disposition in this case, and thus, the disposition in this case, which is based on the premise that a legitimate business suspension exists,

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

1) Whether a broker was engaged in brokerage business during the period of suspension of business

A) In light of the purport of the above law aimed at protecting a transaction party, the issue of whether a broker is a broker under the Licensed Real Estate Agent Act shall not be determined by the subjective intent of the broker who has the intention to mediate or mediate a transaction for the transaction party, but shall be determined by whether the broker's act is objectively acknowledged as an act of arranging or mediating a transaction in terms of social norms. On the other hand, the brokerage act includes not only the case where the broker has requested a brokerage from both parties of the transaction, but also the case where the broker mediates or arranges the transaction, exchange, lease of the object of brokerage, and other acts of acquiring or changing the right at the request of either party of the transaction (see Supreme Court Decision 94Da47261 delivered on September 29, 195, etc.).

B) In light of the following circumstances acknowledged by comprehensively taking account of the overall purport of the pleadings as to the instant case’s health team, Eul’s evidence Nos. 3, 4, and 5, in other words, the Plaintiff placed an advertisement of real estate on the Internet portal site at the request of a real estate transaction, etc. during the period of suspension of business, and such advertising act may be recognized as an act of arranging and arranging transactions under social norms, it is reasonable to deem that the Plaintiff’s act of advertising the object of brokerage on the Internet portal site constitutes an act of mediating regardless of whether the Plaintiff actually intended to act as a broker. Therefore, the Plaintiff rendered brokerage services during the period of suspension of business, and the Plaintiff’s assertion

2) Whether there exist grounds for the disposition prior to the instant disposition

A) Article 25(3) of the Licensed Real Estate Agents Act provides that "when a practicing licensed real estate agent prepares a contract document after the completion of brokerage, he/she shall prepare matters to be verified and explained in writing to the parties to the transaction, deliver it, and preserve a copy thereof for a period prescribed by Presidential Decree." Article 25(4) of the Licensed Real Estate Agents Act provides that "a practicing licensed real estate agent shall affix his/her signature and seal to the confirmation and explanatory note under paragraph (3)." Article 21(3) of the Enforcement Decree of the Licensed Real Estate Agents Act provides that "a practicing licensed real estate agent shall deliver a copy thereof to the parties to the transaction by stating the matters prescribed in each subparagraph of paragraph (1) in the confirmation and explanatory note of the object of brokerage prescribed by Ordinance of the Ministry of Land, Infrastructure and Transport and preserve it for three years." In addition, Article 16 of the Enforcement Rule of the Licensed Real Estate Agents Act provides for the form of confirmation and explanatory note of the object of brokerage in accordance with the delegation under Article 21(3) of the Enforcement Decree

In addition, Article 39(1) of the Licensed Real Estate Agents Act provides that "where a practicing licensed real estate agent falls under any of the following subparagraphs, he/she may order the suspension of business for a specified period not exceeding six months," and subparagraph 6 of Article 25 provides that "where a practicing licensed real estate agent fails to preserve the confirmation and explanatory note of the object of brokerage in violation of Article 25(3)," and subparagraph 7 of Article 25(4) provides that "where he/she fails to sign and seal on the confirmation and explanatory note of the object of brokerage in violation of Article 25(4)."

Meanwhile, Article 25(4) of the Licensed Real Estate Agents Act provides that a practicing licensed real estate agent shall sign and affix a seal on the confirmation and explanatory note of the object of brokerage to prevent disputes between the parties to the transaction contract and ensure the fair brokerage of the broker, thereby having the broker sign and affix a registered seal on the transaction contract, etc. to secure the direct performance and official identity of the broker (see Supreme Court Decision 2007Du7987, Feb. 12, 2009).

In light of the language and purport of Article 25(3) and (4) of the Licensed Real Estate Agents Act, and the relationship with Article 39(1)6 and 7 of the Licensed Real Estate Agents Act, etc., the Licensed Real Estate Agents Act provides that when a practicing licensed real estate agent completes the brokerage of the object of brokerage and enters into a transaction contract between the parties, the Licensed Real Estate Agents Act shall state the confirmation and explanation form of the object of brokerage prepared by Article 16 of the Enforcement Decree of the Licensed Real Estate Agents Act, and shall sign and seal the confirmation and explanation form of the object of brokerage provided by Article 21(1) of the Enforcement Decree of the Licensed Real Estate Agents Act, and shall deliver them to the parties to the transaction, and shall keep a copy thereof for three years.

Therefore, in order for a practicing licensed real estate agent to place his/her signature and seal on the original copy of the confirmation and explanatory note of the object of brokerage delivered to the parties to the transaction, and to place his/her business suspension on the grounds of a practicing licensed real estate agent’s breach of the above duty to affix his/her signature and seal, the practicing licensed real estate agent must prove that his/her signature and seal is omitted in the “original” of the confirmation

B) In light of the above legal principles, as to whether the Plaintiff omitted the signature and seal on the original copy of the confirmation and explanatory note of the object of brokerage delivered by the Plaintiff to the parties to the instant lease agreement, the fact that the Plaintiff omitted the Plaintiff’s signature and seal from the brokerage column of the printed matter of the confirmation and explanatory note related to the instant lease agreement (hereinafter “printed matter”) which was kept in the instant brokerage office at the time of the instant guidance and inspection.

However, comprehensively taking account of the overall purport of the arguments in Gap evidence Nos. 8, 9, 10 and Eul evidence Nos. 1, the plaintiff completed the brokerage of the lease contract of this case and printed out three copies of the form as stipulated in Article 16 of the Enforcement Rule of the Licensed Real Estate Agent Act, and then delivered one copy of the confirmation and explanation to the lessor and lessee (hereinafter the above "the original document of this case"), and stored the copy of this case in the brokerage office of this case, and the remaining one copy of the confirmation and explanation of the object of brokerage delivered to the lessor and lessee at the time of the guidance and inspection of this case. The defendant did not confirm the original copy of this case at the time of the guidance and inspection of this case, or confirm whether the parties to this lease contract of this case signed and sealed the plaintiff's original copy of this case. According to the above facts, the plaintiff's signature and seal of this case were omitted, and it cannot be deemed that the signature and seal of this case were omitted and affixed to the plaintiff's original copy of this case.

C) Therefore, the instant prior disposition is unlawful because there is no ground for disposition.

3) Whether the preceding disposition of this case is invalid

A) In order for a defective administrative disposition to be null and void as a matter of course, it must be objectively obvious that the defects were seriously in violation of the important parts of the relevant laws and regulations. When determining whether the defects were significant and obvious, the purpose, meaning, functions, etc. of the relevant laws and regulations should be examined from a teleological perspective, and at the same time, reasonable consideration should be made on the characteristics of the specific case itself. In a case where an administrative agency takes an administrative disposition with respect to a certain legal relation or factual relations by applying a certain provision of a certain Act, the legal principles as to the legal relations or factual relations are clearly stated and there is no room for dispute over the interpretation thereof, and even if there is room for dispute over the interpretation because the legal principles as to the legal relations or factual relations are not clearly revealed, it is merely erroneous that the administrative agency erred the fact of the disposition, and thus, it cannot be said that the defect is evident (see, e.g., Supreme Court Decision 2009Du2825, Sept. 24, 2009).

B) In light of the following circumstances, which are acknowledged in light of the health team, the contents of the relevant laws and regulations, and the purport of the entire pleadings, the evidence submitted by the Plaintiff alone is insufficient to deem the preceding disposition null and void because the absence of the grounds for the preceding disposition is significant and apparent, and there is no other evidence to acknowledge it otherwise. Therefore, the Plaintiff’s assertion on this part

(1) Article 25(3) of the Licensed Real Estate Agents Act separates the original and copy of the confirmation and explanatory note of the object of brokerage, while Article 25(4) of the same Act provides that “the confirmation and explanatory note under the provisions of paragraph (3)” with respect to the duty to sign and seal the real estate agent’s signature is “the confirmation and explanatory note under the provisions of paragraph (3)” and does not explicitly distinguish the original and copy from the original and copy, and the literal meaning

(2) If Article 39(1)6 of the Licensed Real Estate Agents Act provides that "it is not possible to deliver or preserve a confirmation and explanatory note of the object of brokerage in violation of Article 25(3)" with respect to the duty to confirm, issue, or preserve the object of brokerage, which is a reason for the suspension of business of the practicing licensed real estate agent, and does not distinguish between the original and the copy of the confirmation and explanatory note of the object of brokerage, it is sufficient to determine that "the confirmation and explanatory note under Article 25(4)" includes not only the original but also the copy in the application of Article 25(4).

(3) Upon the amendment of the Licensed Real Estate Agent Act by Act No. 9596 on April 1, 2009, the phrase “signing and sealing” was clearly defined as “signing and sealing” to prevent disputes between the parties to a transaction contract and to standardize the broker’s brokerage business, and thus, the signature and sealing on the confirmation and explanatory statement that the practicing licensed real estate agent should keep was more strictly required. At the time of the prior disposition of this case, there were no explicit precedents or established precedents regarding the meaning of “verification and explanatory statement under the provisions of paragraph (3)” under Article 25(4) of the Licensed Real Estate Agent Act.

(4) The evidence submitted by the Plaintiff alone that the Defendant did not sign and affix seals on the copy of the confirmation and explanatory note of the object of brokerage alone is insufficient to deem that the Defendant rendered the so-called “regulatory Regulations” against the Plaintiff even though he knew that it does not constitute a reason for business suspension under Article 39(1)7 of the Licensed Real Estate Agents Act, and there is no other evidence to acknowledge it.

4) Whether the prior disposition of this case is binding on the instant disposition

A) In a case where two or more dispositions are continually conducted, when one of the preceding dispositions and subsequent dispositions completes the legal effects of one of them, the defect is succeeded to the preceding dispositions, and thus, even if the preceding dispositions and subsequent dispositions are not able to dispute the validity of the preceding dispositions due to the defect in the preceding dispositions and they cannot dispute the validity of the preceding dispositions, while in a case where the preceding dispositions and subsequent dispositions are aimed at a separate legal effect independently from each other, the validity of the preceding dispositions cannot be asserted on the ground of the defect in the preceding dispositions unless the defect in the preceding dispositions and it is obvious that the defect in the preceding dispositions are significant and obvious, and thus, in a case where the preceding dispositions and subsequent dispositions are carried out for the purpose of distinguishing the effects of the preceding dispositions independently, the absence of the preceding dispositions and the binding force of the preceding dispositions exceed the tolerance limit, and in a case where the results are not predicted to the parties concerned, the binding force of the subsequent dispositions in light of the ideology of the Constitution guaranteeing the right to trial (see, e.g., Supreme Court Decision 2004Nu538, 194.).

B) As to the instant case, it seems reasonable to view that the Plaintiff was aware that the Plaintiff would not engage in brokerage services during the period of suspension of business because the Plaintiff received prior notice on the grounds that the Plaintiff did not sign and affix seals on the confirmation and explanatory note of the object of brokerage regarding the instant lease agreement, and received prior notice during the period of suspension of business. Nevertheless, in light of the fact that the Plaintiff received a request to sell and sell real estate during the period of suspension of business and placed a real estate sales advertisement on the Internet portal site, etc., the Plaintiff’s non-existence or binding power of the instant prior disposition would be harsh than that of the Plaintiff who would suffer disadvantage due to such a request, and it is difficult to view that the outcome would not be deemed as cases where the Plaintiff could not be predicted, and there is no other evidence to acknowledge otherwise, and therefore, it is reasonable to deem that the binding force of the instant prior disposition is recognized. Accordingly, the Plaintiff’s assertion

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Kim Jong-hee (Presiding Judge)