Defendant 1 and one other

Defendants

Dried scrap metal

Attorney Kim Jong-soo

Chuncheon District Court Decision 2005Gohap378 Decided May 22, 2006

The defendants' appeal is dismissed.

1. Summary of grounds for appeal;

A. Error of mistake

(1) Defendants: Defendant 2 was present at the office every day and affixed a seal on the real estate sales contract, etc., and Defendant 1 was actually involved in running the real estate brokerage business, so it cannot be deemed that the name of the licensed real estate agent was lent.

(2) Defendant 1: The fact that Defendant’s name is the representative of the name of the Defendant does not constitute a similar name under the Real Estate Brokerage Act.

B. Unreasonable sentencing

Even if all of the facts charged in the instant case are found guilty, the sentence imposed by the lower court against the Defendants (Defendant 1: fine of KRW 4,000,000, and fine of KRW 2,000,000) is too unreasonable.

2. Determination

A. Judgment on the assertion of mistake of fact

(1) As to the assertion that a title lending was not made (Defendants)

Even if a licensed customs broker takes the form of carrying out his/her own business, but actually requires a licensed customs broker to carry out his/her own business under his/her name, such act constitutes "title, etc." under Article 12 of the Licensed Customs Brokers Act (see Supreme Court Decision 99Do1519, Jan. 18, 200). Such legal principles are applicable to the act of lending his/her certificate of qualification under Article 38 (2) 3 of the former Real Estate Brokerage Act (amended by Act No. 7638, Jul. 29, 2005; hereinafter "Real Estate Brokerage Act"), and if the court below duly examined and adopted evidence, the defendants were to have the real agent's right to engage in his/her own business under his/her own name and affixed his/her own name, and the real agent's name and affixed his/her seal to his/her own office's name and affixed his/her seal to the above office's office's name and thus, the defendant 2's office's name and affixed his/her seal to the above office's name.

(2) As to the assertion that it does not constitute a similar name (Defendant 1)

In full view of Article 4(4) of the Real Estate Brokerage Act and Article 5 of the former Enforcement Decree of the Real Estate Brokerage Act (amended by Presidential Decree No. 18312 of March 17, 2004), the person entitled to the registration of establishment of a real estate brokerage office shall be limited to licensed real estate agents or corporations. Article 9(2) of the Business Affairs of the Specialized Licensed Real Estate Agents and Report of Real Estate Transactions Act provide that "no person, other than a licensed real estate agent (excluding licensed real estate agents) or a juristic person, shall apply for the registration of establishment of a brokerage office under paragraph (1)." The term "title similar to that of a licensed real estate agent" can be interpreted as "title that may cause confusion as a person who has acquired a licensed real estate agent's license." Thus, since the name "real estate representative" recorded and used by Defendant 1 in his name is sufficient to cause confusion as a person who has acquired a licensed real estate agent's license, the above name constitutes a name similar to that of the licensed real estate agent.

B. Determination on the assertion of unfair sentencing

Considering the motive and method of committing the instant crime, the Defendants’ age, character and conduct, intelligence and environment, family relationship, and circumstances after committing the instant crime, etc., the sentence imposed by the lower court against the Defendants is deemed appropriate. Therefore, the Defendants’ above assertion is without merit.

3. Conclusion

Therefore, the defendants' appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act, since all of the appeals by the defendants are without merit. It is so decided as per Disposition.

Judges Kim fixed-chul (Presiding Judge)