Whether Article 15 subparagraph 5 of the Real Estate Brokerage Act includes an agent, etc. who is granted the power of representation concerning the transaction from the owner of the object of brokerage, in addition to the owner of the object of brokerage, which provides that the broker is prohibited from making a direct transaction (affirmative)

The purpose of Article 15 Subparag. 5 of the Real Estate Brokerage Act prohibiting a broker, etc. from engaging in a transaction directly with a client or acting as an agent for both transaction parties. In light of the fact that a broker, etc. uses information, etc. which he/she has become aware of in the transaction to gain his/her own interest so that he/she does not harm the client’s interest by using such information, etc., it should be deemed that the “dealer” under the above provision of the Act includes not only the owner of the object of brokerage but also the agent, etc. entrusted with the management of the affairs related to the transaction for which the power of representation has been granted to the owner.

Article 15 subparagraph 5 of the Real Estate Brokerage Act

Attorney Kim Dong-hwan, Counsel for defendant

Defendant and Prosecutor

Seoul High Court Decision 89No1518 delivered on June 1, 1990

All appeals are dismissed.

1. Judgment on the first ground for appeal by defense counsel

If the evidence admitted by the court of first instance as cited by the court below is examined by comparing the records and records, the defendant is a broker who obtained permission for a brokerage business under the Real Estate Brokerage Act, and the defendant is requested to sell the real estate owned by the non-indicted Kim Jong-won from the non-indicted Woo, and it can be sufficiently recognized that he purchased the real estate jointly with the non-indicted Woo-hee (self 5,500,000 won, 6,000,000 won). The judgment below did not err by misapprehending the rules of evidence, such as the theory of lawsuit, and therefore there is no reason to discuss.

2. Determination on the ground of appeal No. 2

The court below held that since Article 15 subparagraph 5 of the Real Estate Brokerage Act prohibits a broker, etc. from engaging in a direct transaction with the client or acting as a broker for both trading parties, if such act is permitted, there may be cases where the broker, etc. may harm the client's interest by using the information, etc. he/she became aware of the transaction in order to secure his/her own interest, and thus preventing such act and protecting the client, the "trade client" under the above provision of the Act shall be deemed to include not only the owner of the object of brokerage but also the agent, etc. entrusted with the management of the affairs related to the agent or transaction for which the power of representation was granted to the owner, so long as the defendant made a direct transaction with the Kimwon who is the owner of the above real estate jointly with the stable, the judgment of the court below is just and acceptable, and there is no error in the misapprehension of legal principles as to Article 15 subparagraph 5 of the Real Estate Brokerage Act, and there is no error in the misapprehension of legal principles as to the judgment below.

3. Judgment on the grounds of appeal by the prosecutor

Since the selection of evidence and the recognition of facts belong to the exclusive authority of the fact-finding court unless they are contrary to the logical and empirical rules, and the relevant evidence is compared to the records and reviewed, the judgment of the court below which acquitted the facts charged for violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) shall not be deemed to have erred in the misapprehension of the rules of evidence and there is no proof of facts, and therefore there is no reason to discuss the facts.

4. Therefore, all appeals filed by the defendant and prosecutor are dismissed. It is so decided as per Disposition with the assent of all participating Justices.

Justices Lee Jae-sung (Presiding Justice)