The obligation and prohibition of personal information required for an international marriage broker under the Marriage Brokerage Business Management Act / International marriage brokerage contract is concluded between a domestic user and a foreign local enterprise or broker, and an international marriage broker is regarded as only arranging or arranging a contract in appearance. However, if an international marriage broker acts as a party to the contract and only is a foreign company, etc. in the form of a contract in order to avoid obligations or prohibitions under the same Act, whether the international marriage broker shall be regarded as a party to the contract (affirmative)

The purpose of the Marriage Brokers Business Act is to guide and manage the marriage brokerage business in a sound manner and prevent damage to users of the marriage brokerage business, thereby contributing to the formation of a sound marriage culture by protecting such users (Article 1). The Marriage Brokers Business Act provides that in order to achieve the above legislative purpose, the Act prohibits an international marriage broker from bearing the duty of providing personal information to users or from doing certain acts. In other words, an international marriage broker shall, upon obtaining personal information from a user who has entered into a marriage brokerage contract and the other party to marriage brokerage and obtaining certification from a notary public of the relevant country, provide the other party and users with such information in writing (main sentence of Article 10-2(1)), and an international marriage broker shall introduce two or more other parties to whom he/she is under 18 years of age is under, or introduce two or more other parties to users or, at the same time, place two or more other parties to whom he/she is under the same time, or from allowing two or more users to enter into the same place concurrently or concurrently for the purpose of marriage brokerage (Article 12-2).

On the other hand, who is a party to a contract, shall be reasonably determined based on the parties’ intent and the nature, contents, purpose, circumstances of the contract, and specific circumstances before and after the conclusion of the contract. As such, international marriage brokerage contracts are concluded between a domestic user and a foreign local enterprise or broker, and international marriage brokers shall be deemed to have been formed between a foreign user and a foreign local enterprise or broker, even in cases where an international marriage broker is deemed to have arranged or arranged a contract in external form, while an international marriage broker acts as a substantive party to a contract, but if only the international marriage broker is a foreign company in the form of

Articles 1, 10-2 (1), and 12-2 of the Marriage Brokers Business Management Act, Article 26 (2) 4 of the Marriage Brokers Business Management Act (Amended by Act No. 14700, Mar. 21, 2017)

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Domin, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

Defendant

Prosecutor

Suwon District Court Decision 2016No3931 decided January 18, 2017

The judgment of the court below is reversed, and the case is remanded to Suwon District Court.

The grounds of appeal are examined.

1. The purpose of the Marriage Brokers Business Management Act (hereinafter “Marriage Business Act”) is to guide and manage the marriage brokerage business in a sound manner and prevent damage to users of the marriage brokerage business, thereby contributing to creating a healthy marriage culture by protecting such users (Article 1). The Marriage Brokers Business Act provides that, in order to achieve the above legislative purpose, the Act prohibits an international marriage broker from bearing the obligation of providing personal information on users or from doing certain acts. In other words, an international marriage broker shall, upon obtaining personal information from a user who has entered into the marriage brokerage contract and the other party in the marriage brokerage, provide the other party and users with such information in writing after obtaining certification (the main sentence of Article 10-2(1)), and an international marriage broker shall place two or more other parties at the same time to introduce a person under 18 years of age, or introduce two or more other parties to users at the same time or in two or more other parties at the same place simultaneously or in order (Article 12-2).

On the other hand, who is a party to a contract, shall be reasonably determined based on the parties’ intent and the nature, contents, purpose, circumstances of the contract, and specific circumstances before and after the conclusion of the contract (see Supreme Court Decision 94Da4912, Sept. 29, 195, etc.). Thus, even in cases where an international marriage brokerage contract is concluded between a domestic user and a foreign local enterprise or broker, and an international marriage broker is deemed to have been formed between a domestic user and a foreign local enterprise or broker, the international marriage broker shall be deemed to have actually acted as a party to the contract in case where the international marriage broker only acted as a foreign company in the form of a contract in order to avoid obligations or prohibitions under the Marriage Brokerage Business Act.

2. The summary of the facts charged of the instant case is that the Defendant, an international marriage broker engaged in the international marriage brokerage business in the name of “○○ International Marriage”, provided personal information to the user who entered into an international marriage brokerage contract and his/her other party. However, the Defendant did not provide personal information pursuant to relevant Acts and subordinate statutes, such as the marriage experience, health status, occupation, sexual violence, domestic violence, child abuse, sexual traffic, sexual traffic arranging and coercion, and criminal records corresponding to imprisonment without prison labor or heavier punishment for the last ten years, at the female guest room located in the Chinese west-si (location omitted) around July 30, 2013.

For this reason, the lower court upheld the first instance judgment that acquitted the Defendant on the ground that there is insufficient evidence to acknowledge that the Defendant was a party who entered into a marriage brokerage contract with Nonindicted Party 1, and dismissed the prosecutor’s appeal.

3. However, we cannot accept the judgment of the court below for the following reasons.

A. The reasoning of the lower judgment and the evidence duly admitted reveal the following facts and circumstances.

1) The Defendant is an international marriage broker mediating international marriage in the name of ○○ International Marriage. In the course of counseling for international marriage with Nonindicted Party 1, the Defendant was unable to enter into a contract with Nonindicted Party 1, who was demanded by Nonindicted Party 1 to introduce several women at one time, and was willing to introduce Nonindicted Party 3 to China.

2) On July 3, 2013, Nonindicted Party 1 received “International Marriage Contract”, which was concluded by the Defendant on July 18, 2013, from the Defendant, to deposit the down payment of KRW 4 million into the Defendant’s account. Nonindicted Party 1 received from the Defendant “International Marriage Contract” (it does not include the nominal owner of the contract, but does not include the down payment of KRW 4 million, KRW 1.5 million, KRW 1.5 million, KRW 1,500,000, KRW 6.1 million, and KRW 6.5 million, KRW 1 million,000,000,000,000, in total, within one week after Chinese entry into the Republic of Korea and China, and KRW 5,00,000,000,000,000,000,000,000,000).

3) On July 30, 2013, Non-Indicted 1 viewed Non-Indicted 4’s interpretation, the Defendant’s former domicile in China, as the interpretation of Non-Indicted 4, and on the day Non-Indicted 3 was delivered a new contract or a new international marriage clause. The contract only contains the name and the place of business of Non-Indicted 3 as “the time of Chinese empty space,” and there is no signature and seal, and both of the contract and the terms and conditions are in Korean.

4) In addition, the above contract serves as “business operator Nonindicted 3” and “member Nonindicted 1”, and Nonindicted 1 took his name and resident registration number, mobile phone number, and affixed a signature to the said contract, but there is no data from which Nonindicted 1 knew whether Nonindicted 3’s “member” is a business operator.

5) In addition to Nonindicted 3’s day on which Nonindicted 1 viewed the opposite contractual party in China as above, Nonindicted 1 did not negotiate or consult with Nonindicted 3 before that day, and continued the whole process by either signing a contract and receiving the expenses incurred therefrom, receiving the opposite contractual party’s interpretation, and filing a marriage report, either with the Defendant or with the Defendant’s help.

6) In connection with the instant marriage brokerage, Nonindicted Party 1 deposited KRW 10,000,00 in the Defendant’s account on July 3, 2013 and KRW 695,700,000, and KRW 3,758,600 on October 2, 2013, and KRW 10,004,300 on December 2, 2013. Of the said money, Nonindicted Party 1 deposited KRW 4 million in the name of Nonindicted Party 3, which was drafted on July 30, 2013, but there was no objective financial data that can be deemed that the said money deposited to the Defendant was delivered to Nonindicted Party 3, or any data that could be known of the relationship between the Defendant and Nonindicted Party 3.

7) As of December 2, 2013, Nonindicted Party 1 reported the marriage with Nonindicted Party 2, a Chinese female, but Nonindicted Party 2 did not enter the Republic of Korea, and thereafter Nonindicted Party 1 demanded the Defendant to confirm the invalidity of the marriage and further promote a re-convening line, which all the Defendant accepted.

8) The Defendant, in the event of success in international marriage brokerage at an investigative agency, may obtain a profit of KRW 2 million. However, by participating in the instant marriage brokerage contract, he/she stated that he/she obtained a profit of KRW 1 million.

B. As above, the “attached document” to the effect that the Defendant guarantees the instant marriage brokerage contract was prepared in advance prior to the preparation of the contract between Nonindicted 1 and Nonindicted 3; Nonindicted 1 did not negotiate or consult with respect to the contents of the contract; the full amount of the expenses under the instant marriage brokerage contract, including down payment, paid to the Defendant; the Defendant appears to have led the entire process leading the conclusion and implementation of the instant marriage brokerage contract; the Defendant’s attitude in which the marriage between Nonindicted 1 and Nonindicted 2 actually returned to the country; and the Defendant’s attitude in which the marriage between Nonindicted 1 and Nonindicted 2 was de facto returned to the country; and most of all, it is reasonable to view the Defendant as the Defendant and Nonindicted 1, a user of the instant marriage brokerage contract, as a broker in China, regardless of the fact that the contracting party, who requested the brokerage, was aware of the Defendant from the beginning as the contracting party, as the first party to the international marriage contract, regardless of what is indicated as the Chinese broker.

C. Nevertheless, the lower court erred by misapprehending the legal doctrine on the confirmation of parties to the instant marriage brokerage contract, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

4. The lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)