Plaintiff (Law Firm Han, Attorneys Oi-hun et al., Counsel for the plaintiff-appellant)

The head of Seocho-gu Seoul Metropolitan Government

January 30, 2008

1. The defendant's disposition of business suspension 45 days ( August 13, 2007 and September 26, 2007) against the plaintiff on August 6, 2007 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;

The following facts are not disputed between the parties, or can be acknowledged in full view of the purport of the entire pleadings in the descriptions of Gap evidence 1, Gap evidence 2-1, Gap evidence 4, Eul evidence 2, and 4.

A. The Plaintiff was running real estate brokerage business in the name of Seocho-gu Seoul Metropolitan Government (number 1 omitted) x 101 x △△△△△△△ Office. On October 17, 2006, the Plaintiff, jointly with the Nonparty operating ○○ Real Estate Brokerage Office around October 17, 2006, arranged the lease contract on Seocho-gu Seoul Seocho-gu (number 2 omitted) 319 (hereinafter “instant brokerage”).

B. On August 6, 2007, the Defendant rendered a disposition of business suspension 45 days (hereinafter “instant disposition”) on the ground that the Plaintiff, while mediating the instant case, failed to enter the details of the brokerage commission in the description of the object of brokerage in violation of Articles 25 and 26 of the Licensed Real Estate Agents Business Affairs and Report of Real Estate Transactions Act (hereinafter “Licensed Real Estate Agents Act”), and omitted the signature and seal without entering the details of the brokerage commission in the description of object of brokerage, and omitted the seal of the registration seal in the lease contract (hereinafter “instant disposition”).

2. The plaintiff's assertion and judgment

A. The plaintiff's assertion

(1) ① At the time of the instant brokerage, the Plaintiff: (a) the Plaintiff was the lessee’s side; (b) the Nonparty was acting as the lessor’s real estate brokerage office in contact; and (c) the Plaintiff was immediately called ○○ real estate brokerage office in contact during dental treatment; (d) the Nonparty prepared a description verifying the object of brokerage; and (e) the Plaintiff could not enter or sign and seal the description verifying the object of brokerage commission in the description verifying the object of brokerage; and (e) the Plaintiff prepared and issued a description verifying the object of brokerage commission fee and a description verifying the object of brokerage, on the following day of the instant brokerage, on the grounds that the Plaintiff did not enter the details of the brokerage commission fee calculation in the description verifying the object of brokerage, or did not sign and seal it; and (e) the instant disposition was unlawful on the ground that the Plaintiff did not sign or seal it as soon as he did not sign or seal it in violation of relevant Acts and subordinate statutes; and (e) the instant construction of relevant Acts and subordinate statutes cannot be deemed to have violated the relevant Acts and subordinate statutes and subordinate statutes, and subordinate statutes, and thus, the disposition of this case was unlawful.

(2) Even if all of the Plaintiff’s violations are recognized, the instant disposition is unlawful by deviating from or abusing discretionary power, since it took a disposition that significantly lacks proportionality between the purpose and means of the disposition, and did not sign and affix seals on the lease agreement.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

The following facts do not conflict between the parties, or can be acknowledged by comprehensively taking account of the overall purport of the pleadings as to the statements in Gap evidence 1, Gap evidence 4, and Eul evidence 1, and there is no other counter-proof evidence.

(1) The Plaintiff jointly arranged the instant brokerage with the Nonparty operating ○ Real Estate Brokerage Office. The instant brokerage commission and the actual cost amount and calculation column prepared at the time of the instant brokerage did not contain any indication, and only the Nonparty signed and sealed the brokerage column.

(2) At the time of the instant brokerage, the Plaintiff entered the name and location of the office in the Real Estate Lease Contract’s column, signed and sealed the name of the Plaintiff, and then supplemented the registration seal.

D. Determination

(1) The plaintiff's above A. (1) Judgment on the assertion in paragraph (1)

According to Article 25(1), (3), and (4) of the Licensed Real Estate Agents Act and Article 21(1)3 of the Enforcement Decree of the same Act, “a broker shall, upon request for brokerage, confirm and explain the relation of right of the object of brokerage, the matters subject to restrictions on use, the amount of brokerage commission and actual expenses, and the details of calculation, etc. before the brokerage is completed, and when a contract document is prepared after the brokerage is completed, the verified and explained matters shall be stated in the confirmation description of the object of brokerage and signed and sealed thereon.” However, on October 17, 2006, when the brokerage of this case is completed and the contract contract is prepared after the completion of the brokerage of this case, the Plaintiff did not state the amount of brokerage commission and actual expenses and the details of calculation, and signed and sealed it. Thus, even if the Plaintiff violated Article 25(1)3 and (4) of the Licensed Real Estate Agents Act, Article 21(1)3 of the Enforcement Decree of the same Act, the Plaintiff’s signature and sealed description shall not affect the details of the object of brokerage.

(2) Determination as to the Plaintiff’s assertion in paragraph (1) and (2)

According to Articles 26(2) and 25(4) of the Licensed Real Estate Agents Act, “a broker shall sign and affix his/her seal on a contract document when a broker completes brokerage and prepares a contract document.” Meanwhile, as seen earlier, the Plaintiff only signed the instant lease contract and affixed his/her seal thereto.

However, if a party to a juristic act or an actor requires signatures, seals, or seals at the same time in performing a juristic act, the statutory form of the legal text is prescribed as “signing and sealing” or “signing and sealing” (Article 208(1), Article 321(3) of the Civil Procedure Act, Article 157(3) of the Criminal Procedure Act, Article 510 of the Civil Act, Article 13 of the Bills of Exchange and Promissory Notes Act). Articles 26(2) and 25(4) of the Licensed Real Estate Agents Act provide that “signing and sealing” shall be deemed as “signing and sealing” and Article 26(2) and Article 25(4) of the Licensed Real Estate Agents Act shall be deemed as “signing and sealing” and require a broker to sign and seal a transaction contract or a confirmation and explanatory statement shall be deemed as constituting “signing and sealing” or “signing and sealing a licensed real estate agent’s signature and seal” if a dispute related to brokerage contract arises. In light of the meaning of Article 25(2) of the Act.

Therefore, if the Plaintiff signed the instant lease agreement, it cannot be deemed that the Plaintiff violated the provisions of Articles 26(2) and 25(4) of the Licensed Real Estate Agent Act.

(3) Determination on the assertion of abuse of discretionary authority

㈎ 앞에서 본 바와 같이 이 사건 임대차계약서에 공인중개사의 등록인장을 누락한 처분사유는 공인중개사법 제26조 제2항 , 제25조 제4항 의 규정을 위반하였다고 볼 수는 없고, 중개대상물확인설명서에 중개수수료 및 그 산출내역 미기재와 서명·날인 미기재의 처분사유는 공인중개사법 제25조 제1항 제3호 , 제4항 , 같은 법 시행령 제21조 제1항 제3호 의 규정을 위반하였다고 할 것인데, 중개대상물확인설명서에 중개수수료 및 그 산출내역 미기재와 서명·날인 미기재 부분에 대하여는 공인중개사법 시행규칙 제25조 제1항 및 [별표 2] 제6호, 제8호에 각 업무정지 3월에 처하도록 규정하고 있고, 한편, 같은 법 시행규칙 제25조 제2항 은 ‘등록관청은 위반행위의 동기·결과 및 횟수 등을 참작하여 제1항 의 규정에 따른 업무정지기간의 2분의 1의 범위 안에서 가중 또는 감경할 수 있다’고 규정하고 있다.

㈏ 이 사건에 관하여 보건대, 원고는 이 사건 임대차계약을 소외인과 공동으로 중개하였는데 이 사건 중개 당시 작성된 중개대상물확인설명서(갑2호증의 1)에는 공동중개인인 소외인의 서명·날인은 있는 점, 원고의 중개의뢰인인 임차인도 이 사건 중개대상물의 권리관계, 이용제한사항 등에 대하여 확인하고 중개대상물확인설명서에 서명한 점, 원고는 이 사건 임대차계약서를 작성할 당시 그 현장에서 직접 중개행위를 하고 있었던 점 등 변론에 나타난 제반 사정을 참작하여 이 사건 처분으로 인하여 달성하려는 공익적 목적과 원고가 받을 불이익의 정도를 비교·형량하여 보면, 원고에 대하여 45일의 업무정지를 명한 이 사건 처분은 과도한 것으로서 재량권을 일탈·남용하였다고 보여진다.

㈐ 따라서 이 사건 처분은 위법하다 할 것이다.

3. Conclusion

Therefore, the plaintiff's claim seeking the cancellation of the disposition of this case is reasonable, and it is so decided as per Disposition with the assent of all Justices.

Judges Kim Yong-ho (Presiding Judge)