2020Guhap54982 Revocation of business suspension

February 4, 2021

on March 16, 2021

1. The Defendant’s disposition of business suspension against the Plaintiff on February 14, 2020 shall be revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A. On November 18, 2015, the Plaintiff completed the registration of establishment of a brokerage office with the trade name “X Licensed Real Estate Agent Office” and completed the registration of employment of a brokerage assistant to C on November 25, 2015.

B. On August 24, 2019, C entered into a sales contract with D and E as to the buyer**Gu*dong********* apartment 00,00 (hereinafter “instant apartment”). The sales contract is written as the broker by the real estate agent who operates the Plaintiff and the “YY real estate brokerage office”.

C. The Defendant violated the duty of prohibition of direct transaction with the client under Article 33 subparag. 6 of the former Licensed Real Estate Agents Act (amended by Act No. 16489, Aug. 20, 2019; hereinafter the same), on February 14, 2020, Article 39(1)11 of the former Licensed Real Estate Agents Act; Enforcement Rule of the former Licensed Real Estate Agents Act

On January 12, 2021, based on Article 25(1) [Attachment 2] of the Act on the Protection of Land, Infrastructure and Transport (amended by Ordinance of the Ministry of Land, Infrastructure and Transport No. 805) (hereinafter referred to as the "disposition of this case") of the suspension of business for the plaintiff (from February 21, 2020 to May 20, 202).

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The instant disposition shall be revoked on the grounds that it is unlawful for the following reasons.

1) Since the instant disposition was not specifically presented at the time of the instant disposition, there is a defect in violation of Article 23 of the Administrative Procedures Act.

2) Since D and E, the purchaser of the instant apartment, merely requested I to act as a broker, they did not request the Plaintiff or C to act as a broker, there is no ground for the instant disposition.

B. Determination

1) Whether the disposition violates the duty to present the reason

A) Article 23(1) of the Administrative Procedures Act provides that an administrative agency shall present the basis and reasons for a disposition, and the purport thereof is to exclude arbitrary decisions of the administrative agency and allow the parties to properly cope with the administrative remedy procedure. Therefore, in a case where it is sufficiently recognizable that the parties to the disposition were made at the time of the disposition, and where it is deemed that there was no particular hindrance to moving into the administrative remedy procedure due to objection, it cannot be said that the disposition is unlawful due to such failure, even though the grounds and reasons for the disposition are not specified in the written disposition (see, e.g., Supreme Court Decision 2011Du18571, Nov. 14, 2013).

B) On December 24, 2019, the Defendant: (a) confirmed that the seller of the instant apartment as a broker assistant in the process of a close investigation of actual transaction under the Real Estate Transaction Management System Act was in violation of the Plaintiff’s obligation to prohibit direct transaction; (b) around that time, the Defendant asked the Plaintiff in writing about whether the seller arranged the instant apartment owned by C, whether the broker, the client, the reason why the broker arranged, the employment time of C, the receipt of brokerage fees, etc.; and (c) on January 9, 2020, the Plaintiff submitted a written confirmation (statement) stating the Defendant’s answer to the relevant question; and (d) the notice of disposition in the instant case contains “the fact that constitutes the cause of the disposition” as “the agent directly traded with the client * Article 33 (Prohibited Conduct) of the Licensed Real Estate Agent Act; and (e) there was no legal basis and content of the instant disposition; and (e) there was no reason to deem that the Defendant violated the duty to investigate and remedy the content of the instant apartment.

C) Therefore, the Plaintiff’s assertion on this part is without merit.

(ii) the existence of the reasons for the action

A) Article 33 subparag. 6 of the former Licensed Real Estate Agent Act provides that "the practicing licensed real estate agent, etc. shall not conduct direct transactions with the client or act as an agent for both the transaction parties." In order to apply this provision, the broker should first be premised on the fact that the broker has received the request for brokerage from the client, and the direct transaction prohibited under the above provision refers to the case where the broker becomes a direct partner of the act concerning the alteration of acquisition or loss of rights, such as sale, exchange, lease, etc. requested by the client among the clients (see, e.g., Supreme Court Decision 2005Do4494, Oct. 14, 2005). The purport of Article 33 subparag. 6 of the former Licensed Real Estate Agent Agent Act prohibiting a practicing licensed real estate agent, etc. from engaging in direct transactions with the client, which prevents the client from doing so and protecting the client by preventing such act (see, e.g., Supreme Court Decision 2017Da25677, Feb. 3, 2017).

B) Through the 'written confirmation of the above fact-finding (statement)', 'Additional Reasons and supporting documents submitted by the Plaintiff to the Defendant, the Plaintiff stated that the Plaintiff mediated the sale and purchase of the apartment of this case with the buyer's intermediary upon receiving a request for brokerage of the sale of the apartment of this case from C. It is recognized that the Licensed Real Estate Agent I entered into the contract after confirming the apartment of this case on August 24, 2019 upon receiving a request for purchase from the buyer D and E in relation to the detailed investigation of the above real transaction report. The apartment of this case was shown in X-real estate.'

C) Comprehensively taking account of the following circumstances acknowledged by the above facts and the purport of the entire pleadings, the Plaintiff cannot be deemed to have engaged in direct transactions with the client in violation of Article 33 subparag. 6 of the former Licensed Real Estate Agents Act, and the instant disposition is not recognized as the grounds for such disposition, so it shall be revoked as illegal. The Plaintiff’s allegation in this part has

(1) The buyer of the instant apartment, D and E requested a brokerage to a licensed real estate agent, and the plaintiff or his brokerage assistant, did not receive a brokerage request for the purchase of the instant apartment from the above buyer. Therefore, the above buyer is not a client of the Plaintiff. Therefore, it is difficult to view that the Plaintiff’s transaction is likely to harm the interests of the broker by using the information, etc. known to the Plaintiff solely on the ground that the Plaintiff and the broker for the purchase and sale of the instant apartment together with the real estate agent I received a brokerage request from C, and thus, it is difficult to deem that it is a case where

(2) The seller of the instant apartment is not the Plaintiff but C, a broker assistant of the Plaintiff. Article 15(2) of the former Licensed Real Estate Agent Act provides that “The act of the broker assistant shall be deemed to be the act of the practicing licensed real estate agent who employs the broker assistant.” However, insofar as the sale of the instant apartment does not constitute the act of the broker assistant, even under the above provision, the Plaintiff cannot be deemed to have directly traded with the said buyer as the party to the instant apartment.

3. Conclusion

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