(영문) 대구지방법원 2013.1.18.선고 2012가합7827 판결

1. The Defendants jointly and severally pay to the Plaintiff 66,00,000 won with 5% interest per annum from September 19, 2012 to January 18, 2013, and 20% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims against the defendants are dismissed.

3. One-third of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendants, respectively.

4. Paragraph 1 can be provisionally executed.

Purport of claim

The Defendants jointly and severally pay to the Plaintiff 110,000,000 won with 5% interest per annum from December 22, 2011 to the delivery date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment.

Reasons

1. Basic facts

(a) Actual status of operation of the licensed real estate agent office;

1) 피고 甲은 대구 중구 봉산동에서 '대방공인중개사'를 운영하고 있는 공인중개사이고, 그의 처인 ○○○과 乙, ■■■이 중개보조원으로 근무하였는데, 乙은 2010. 10. 14.부터 2012. 7. 3.까지 근무하였다.

2) Defendant A mainly performed external attendance, and ○○○, the wife, was in the office of the head of the office. In general, Defendant A and ○○ confirmed the copy of the register of the transactional real estate and analyzed the right, and, when Defendant A and ○○, delivered the contract signed and sealed by Defendant A to the intermediary assistant B, etc., informed the parties of the important matters to be explained to them, B, etc., the parties to the contract shall transfer such matters to the contract, affix their seals to the contract, and take charge of other duties to explain the parties to the contract at the site.

B. Conclusion, etc. of the instant lease agreement

1) On January 7, 2011, the Plaintiff: (a) called Defendant A’s office and requested B to act as a broker for the lease contract; (b) B reported the above fact to 000; and (c) contacted the Plaintiff after obtaining approval for the brokerage of the 402 multi-family house (13 households) on the 4th floor (13 households) of the west-gu, Daegu-gu, Seoul (hereinafter “the instant land and multi-family house”); and (d) accordingly, the Plaintiff’s △△△△△△△ (hereinafter “Plaintiff”) was the Plaintiff’s son’s introduction into B on February 7, 2011 and C during the lease contract period from February 7, 201 to February 22, 2011, B did not enter into the lease contract at the time of signing the lease contract (hereinafter “the lease contract”).

3) 한편 이 사건 임대차계약 체결 당시 이 사건 다가구주택에 관하여는 우리 새마을금고 명의의 근저당권설정등기(채권최고액 4억 9,400만 원)만이 마쳐져 있었으나, 이 사건 토지에 관하여는 위 근저당권 외에도 2순위로 ▼▼▼ 명의의 근저당권설정등기 (채권최고액 1억 3,000만 원)가 마쳐져 있었는데, 피고 甲과 ○○○은 위 토지에 설정된 근저당권설정등기를 간과하였다.

4) 이로 인하여 ○○○은 乙에게 아래과 같이 이 사건 토지에 관한 ▼▼▼ 명의 근저당권설정등기의 기재가 누락된 피고 甲 명의의 중개대상물 확인·설명서(갑 1호증의 2, 이하 '이 사건 확인 · 설명서'라 한다)를 교부하면서 위 근저당권에 관한 아무런 설명도 해주지 않았다.

A person shall be appointed.

5) At the low request, B did not provide any additional explanation on the legal relationship of the instant land and multi-family house except as indicated in the confirmation and explanatory note, while performing the affairs of mutual influence between the Plaintiff and C at the two B-dong offices located in Daegu-gu, Daegu-gu, and the affairs of issuing the confirmation and explanatory note in this case, and C did not present a certified copy of the register on the instant land, and Defendant A did not attend the said place.

6) In addition, at the time of issuance of the confirmation and explanatory statement of this case, multiple lease agreements (including the lease contract of this case) have already been entered into with respect to the instant multi-family house, as shown in the list of the attached leases, but B was merely informed by C, C, who had the entire lease deposit (one household) and the lease deposit, to the Plaintiff that the total amount of the lease deposit would be KRW 200 million, and did not provide any explanation as to the lease deposit and the contract term, etc. of other tenants who have already resided in the said multi-family house, and there was no indication as to the “actual relation or the right of any object that is not publicly notified” in the above confirmation and explanatory statement.

1) C, upon entering into the instant lease agreement, C, at the same time, agreed to deliver documents necessary for the registration of the establishment of chonsegwon (hereinafter “registration documents of this case”) to the Plaintiff. Accordingly, on February 22, 2011, the Plaintiff prepared for the remainder of the lease deposit amount of KRW 70 million and went to B to B’s inter-unclaimed brokerage office located in the Daegu-gu, Seo-gu, Seoul. However, C, C, did not prepare the registration documents of this case.

2) Nevertheless, B paid the remainder in light of the market price of the above multi-family house in the instant multi-family house as well as the right to lease on a deposit basis (on March 30, 201) in the name of our community credit cooperatives. Therefore, even if B pays the remainder in light of the market price of the above multi-family house, it is not a matter at all. In addition, the Plaintiff offered that C would promptly receive the registration document of this case from C and complete the registration of lease on a deposit basis, and the Plaintiff paid

3) After that, B requested the author to deliver the registration document of this case several times by telephone. However, on February 28, 2011, B delayed the registration document of this case to C, C, who was not bad, and delivered the registration document of this case to B after completing the registration of creation of a deposit for lease on a deposit basis (the deposit 60 million won) in the name of C, △△△, and B delivered it to B on March 4, 2011. The registration of creation of a deposit for lease on a deposit basis of this case was completed on March 14, 2011. After that, B transferred the registration document of this case to B, who was not a certified judicial scrivener on March 14, 2011.

4) However, our community credit cooperatives, the mortgagee of the right to collateral security, filed an application for the auction of the real estate in relation to the instant land and multi-family house (Seoul District Court Branch Branch Decision 2012 other Branch District Court Decision 973, Feb. 1, 2012). The Plaintiff reported a claim amounting to the deposit deposit in the above auction procedure, but the said auction court prepared a distribution schedule with the following details on September 19, 2012, and the Plaintiff was excluded from the said distribution.

A person shall be appointed.

(d) Conclusion, etc. of mutual aid agreements.

1) On May 2010, Defendant A entered into a mutual aid agreement with the Defendant Korean Licensed Real Estate Agent Association (hereinafter referred to as the “Defendant Association”) with the content that the Defendant Association compensates for the damage within the limit of KRW 100 million in the event that the damage on property was caused to the parties to a transaction by intention or negligence while acting as a real estate intermediary for a period from May 14, 2010 to May 13, 2011.

2) The main contents of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act (hereinafter “Licensed Real Estate Agents Act”) related to the instant case are as shown in the attached statutes.

【Ground of recognition】 The fact that there is no dispute, Gap 1-8 evidence, Eul 1-2 evidence (including each number), Eul 1-2 evidence, Eul 2 testimony, and the purport of the whole pleadings

2. Determination

(a) Occurrence of liability for damages;

1) In mediating a lease contract for a part of a multi-family house, the broker is obligated to provide the lessee with data on the legal relationship, etc. of the multi-family house necessary to determine whether the lessee is able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to be able to properly returned the lease deposit after the lease contract is terminated. Therefore, the lessee is not obligated to verify and explain the legal relationship, etc. of the object of brokerage indicated on the real estate register. If the lessee intentionally or negligently fails to comply with a request for data on the lease deposit, time and termination date of the lease, etc. of other tenants, and the lessee is liable to compensate the lessee for damages caused by his/her intentional act in violation of Article 216(2)15 of the Licensed Real Estate Agent Act (see, 2016).

2) 살피건대, 위 인정사실에 의하여 알 수 있는 다음과 같은 사정 즉, ① 乙은 공인중개사인 피고 甲의 중개보조원인 점, ② 공인중개사인 피고 甲은 임차인인 원고에게 이 사건 토지 및 다가구주택의 권리관계에 관하여 설명한 적이 없고, 이 사건 확인·설명서를 교부하는 현장에 있지도 않았으며, 특히 이 사건 토지의 근저당권설정관계는 제대로 파악하지도 못하였던 점, ③ 중개보조원인 乙은 000으로부터 받은 이 사건 확인·설명서를 원고에게 교부해 주었을 뿐이고, 이 사건 토지에 관한의 근저당권이나, 이 사건 다가구주택에 거주하던 다른 임차인들의 각 임대차보증금 액수, 임대차계약의 시기와 종기 등에 관한 사항을 설명하지 않았고, 그 근거자료를 제시하지도 않은 점, ④ 乙이 원고에게 교부한 이 사건 확인 · 설명서상 '실제 권리관계 또는 공시되지 아니한 물건의 권리 사항'란에는 다른 임차인의 임차상황에 관하여 아무런 기재도 없는 점, ⑤ 丙가 당초 약정과 달리 이 사건 등기 서류를 준비해오지 않았음에도 乙은 원고에게 아무런 문제가 없을 것이라며 잔금 지급을 권유하였고, 나아가 신속하게 전세권설정등기를 마쳐주겠다는 약속까지 한 점, ⑥ 원고는 이 사건 전세권설정등기에 필요한 등기수수료 등 명목으로 법무사가 아닌 乙에게 100만 원을 송금해준 점, ⑦ 그런데 丙는 이 사건 등기 서류의 제공을 지체하면서 ☆☆☆ 명의의 전세권설정등기(전세금 6,000만 원)를 마쳐준 점, ⑧ 피고 甲이 미고지한 ▼▼▼의 근저당권, 임대차관계를 제대로 설명하지 않은 임차인들, 乙의 권유에 따른 원고의 잔금지급 후 丙가 마친 ☆☆☆ 명의의 전세권 등으로 인하여 원고는 이 사건 임의경매절차에서 전혀 배당을 받지 못하게 된 점 등에 비추어 보면, 피고 甲에게는 이 사건 임대차계약을 중개함에 있어 이 사건 토지 및 다가구주택의 권리관계에 대한 확인 · 설명의무를 성실하게 이행하지 아니하고 잔금의 지급을 무리하게 권유하는 등의 과실이 있고, 이로 인하여 원고는 임대차보증금 전액을 회수하지 못하게 되는 손해를 입었으므로, 피고 甲은 원고의 위 손해를 배상할 책임이 있다.

3) Meanwhile, the Defendant Association concluded the instant mutual aid agreement with Defendant A within the limit of KRW 100 million in order to guarantee liability for damages that may arise from the act of real estate brokerage, and the fact that Defendant A and B failed to perform their duty of care as a broker or an assistant, and thus, they are liable for damages to the Plaintiff. Thus, the Defendant Association is jointly and severally liable for damages incurred by the Plaintiff in relation to the instant mutual aid agreement with Defendant A pursuant to the instant mutual aid agreement, barring any special circumstance.

4) Furthermore, the Plaintiff claimed for the payment of damages for delay as to the above damages from December 22, 2011. However, in a case where there is time interval between the illegal act and the time of the occurrence of damages, damages for damages for tort damages should be deemed to have accrued from the initial date of the occurrence of damages (see, e.g., Supreme Court Decision 2010Da76368, Jul. 28, 2011). In the instant case, the Plaintiff paid the remainder of the lease deposit to the Plaintiff on February 22, 2011, or the Plaintiff paid the remainder of the lease deposit to the Plaintiff on February 28, 201, or on the sole basis of the fact that the registration of the establishment of a right to lease on a deposit basis with regard to subparagraph 202 of this case was completed, the Plaintiff cannot be deemed to have actually and finally caused damages for which the Plaintiff could not recover the lease deposit from the Plaintiff, and the Plaintiff’s claim for delay in the auction procedure of the voluntary auction procedure of this case.

B. Limitation of liability for damages

However, the plaintiff knew that the house in this case is part of a multi-family house, not an aggregate building, and can sufficiently be aware that there are many tenants who already reside after entering into a lease agreement with C, with regard to other units of houses similar to the house in this case, according to the form of the multi-family house in this case, and it does not enter into a contract after hearing only the explanation of the right to collateral security, etc. of intermediary assistants under the circumstances where prior priority mortgage and right to lease on a deposit basis has already been established, but it does not actively request a broker or lessor to provide explanation about the existence and amount of the right to collateral security, etc. of the right to collateral security of the apartment house in this case and to verify it. It is necessary to determine the possibility of return of the right to collateral security by ascertaining the market price of the multi-family house in this case and the amount of the priority lease deposit and the financial standing of the lessor in this case and determine the possibility of concluding the lease contract based on this. However, the plaintiff neglected to do so and paid the remainder amount of the lease contract in this case by 60%.

C. Sub-committee

Therefore, the Defendants are jointly and severally liable to pay to the Plaintiff KRW 66 million (i.e., KRW 110 million) and damages for delay at each rate of KRW 20 million per annum under the Civil Act from September 19, 2012, which is deemed reasonable for the Defendants to dispute on the existence and scope of their obligations from September 19, 2012, where the dividend table was prepared due to the sale of multi-family housing in this case, until January 18, 2013, and from the next day to the date of full payment.

3. Conclusion

Therefore, the plaintiff's claim against the defendants is justified within the scope of the above recognition, and the remaining claims are without merit, and they are dismissed. It is so decided as per Disposition.

Judges

The presiding judge and the judge in order;

Judges South-Name

Judges' heavy defects

Note tin

1) The Plaintiff’s remaining payment date appears to be a clerical error in February 22, 201, but the same shall also apply even if it was December 22, 2012.

참조조문

-공인중개사의 업무 및 부동산 거래신고에 관한 법률

-민법

-소송촉진 등에 관한 특례법

참조판례

-대법원 2011. 7. 28. 선고 2010다76368 판결

-대법원 2012. 1. 26. 선고 2011다63857 판결

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