2015 Ghana 500368 damages (ar)

A

1. B

2. The Korea Licensed Real Estate Agent Association;

June 16, 2016

August 11, 2016

1. The Defendants shall pay 38,00,000 won each of them and 15% interest per annum from January 17, 2015 to Defendant B, from March 17, 2015 to Defendant Korean Licensed Real Estate Agents Association, from March 17, 2015 to August 11, 2016, and from August 11, 2016 to full payment.

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

3. Of the litigation costs, 60% is borne by the Plaintiff, and the remainder is borne by the Defendants, respectively.

4. Paragraph 1 can be provisionally executed.

The defendants shall pay to each plaintiff 95 million won with 15% interest per annum from the day following the day of service of a copy of the complaint of this case to the day of complete payment.

1. Basic facts

A. The Plaintiff, the lessee of the instant real estate, the Defendant B, the broker, and the Defendant Korean Licensed Real Estate Agent Association (hereinafter the Defendant Association) are the mutual aid entity that entered into a mutual aid agreement with the Defendant B with the amount of the mutual aid amount as KRW 100 million from June 18, 201 to June 17, 2011.

B. On March 1, 2011, the Plaintiff entered into a lease agreement with Defendant B, setting a lease agreement at KRW 2 years from March 25, 2011, and KRW 95 million for lease deposit (hereinafter referred to as the “lease”). At that time, the Plaintiff paid the Nonparty Company KRW 95 million for the lease deposit and occupied the instant real estate.

C. The real estate in this case is indicated as ‘303', ‘No. 203', ‘No. 303', and the defendant Eul made a brokerage, guidance, confirmation and explanatory note of the object of brokerage, and the lease contract between the plaintiff and the non-party company. Based on the above, the plaintiff entered the move-in report and the fixed date into ‘303', but the indication in the public register of the building ledger and the real estate registry is ‘302'.

D. On or around March 2013, the Plaintiff and Nonparty Company renewed the instant real estate lease agreement, and the Plaintiff became aware of the difference in the current status of the instant real estate and the indication in the public record, as the public sale procedure for the “303” on the public record in which the instant real estate and the present position are opposite to the real estate and the present position was conducted on or around October 2013.

E. (1) On the ground that the Plaintiff had a move-in report and a fixed date indicated as “303”, the Plaintiff sought to recover KRW 95 million from the claim for the refund of the lease deposit in the public sale procedure with respect to “303 on the above public record,” but was refused to the effect that the Plaintiff was not a lessee who actually resides in the “303”. (2) As to the claim for the refund of the lease deposit of KRW 95 million against Nonparty Company, the Plaintiff filed an application for a decision to commence a compulsory auction on December 17, 2014 with Seoul East Eastern District Court D for a real estate auction with respect to “303 on the public record owned by Nonparty Company’s company’s ownership” and filed an application for a decision to commence a compulsory auction on April 29, 2015 to the effect that, on April 29, 2015, the Plaintiff did not receive any surplus payment on the repayment of the Plaintiff’s deposit and procedural expenses prior to the Plaintiff’s claim.

F. (1) At the time of the conclusion of the instant lease agreement with respect to the instant real estate, prior priority was established for the maximum debt amount of 6.5 billion won (the joint collateral list) of the Busan Mutual Savings Bank (the Busan Mutual Savings Bank (the Busan Savings Bank) at the time of the conclusion of the instant lease agreement. However, Defendant B was not able to verify or explain the conclusion of the instant lease agreement, and was based on the register as to “303 on the public record”. (2) At the time of the conclusion of the instant lease agreement, there was no collateral security right for the “303 on the public record,” and there was a set of E’s maximum debt amount of 50 million won on July 26, 201, and there was several creditors’ provisional seizure or seizure against the non-party company. As seen earlier, the Plaintiff could not recover the lease deposit in the public auction or auction procedure.

G. The Plaintiff is also residing in the instant real estate even though it is difficult to conclude the argument. However, the Plaintiff merely did not commence the auction procedure due to the situation of the Busan Savings Bank, which is a mortgaged mortgage on the instant real estate, and the Nonparty Company did not repay the secured debt amounting to 6.5 billion won with the maximum debt amount, and

[Ground of recognition] 1, 4-1, 2, 2-1, 3, 5-9, 4, 5-5, 5-1, 2-2, 5-2, 1-2, 1-2, 2-2, and 2-1, 3, 3, 5-5 through 9, 4, 5-2, 5-2, 1-2, 1-2, 1-2, 2-2, 3-2

2. Occurrence of liability for damages;

A. Relevant statutes applicable at the time of entering into the instant lease agreement

(1) According to Article 25 of the former Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act (Act No. 9596, hereinafter referred to as the “former Licensed Real Estate Agent Act”), a broker shall verify the state, location, relationship of rights, etc. of the object of brokerage and explain faithfully and correctly to the brokerage client, and present evidentiary materials, such as land cadastre and certified copy of the register, etc. (Paragraph (1). If necessary for confirmation and explanation, the broker may request the client, the client, etc. of the object of brokerage to provide data on the state of the object of brokerage (Paragraph (2).), and shall prepare the confirmation and explanation in writing and deliver them to the transaction party (

(2) According to Article 21 of the former Enforcement Decree of the Licensed Real Estate Agents Act, matters to be confirmed and explained by a broker shall include basic matters concerning the object of brokerage, such as the type, location, lot number, land category, area, purpose, structure, and year of construction of the object of brokerage (Paragraph (1) 1). If the client, lessee, etc. fails to comply with the request for materials concerning the state of the object of brokerage under Article 25(2) of the former Licensed Real Estate Agents Act, the broker shall explain such fact to the purchaser, lessee, etc., and shall state such fact in the confirmation and explanatory note of the object of brokerage (Paragraph (2)).

(3) The method of preparing a product subject to brokerage (attached Form 20) of the former Enforcement Rule of the Licensed Real Estate Agents Act (attached Form 20) shall contain the data presented by the broker in the process of confirmation and explanation in the item of the "Confirmation and Explanation Data", and the "matters requested for data concerning the status of the product subject to brokerage" shall include the matters requested by the lessor to sell (lease) and the matters requested to submit the relevant data and the matters requested to submit the relevant data and whether the submission thereof is not complied with, and the "mark of the product subject to brokerage" shall be confirmed and stated by the certified copy of land cadastre and the certified copy of the building management ledger.

(4) Meanwhile, according to Article 5(4) of the former Rules on the entry, management, etc. of the building ledger (Ordinance No. 191 of the Ministry of Land, Transport and Maritime Affairs), the current status of the building ledger is included in the building ledger. According to Article 11(3)4, a person, not the owner, who requested the brokerage, etc. of the building in the building ledger, may file an application for issuance or inspection of the building ledger

B. Whether the defendant B was negligent

In light of the above relevant laws and regulations, considering the following circumstances, the facts as seen earlier and the evidence revealed as follows, and the fact-finding results on the head of Songpa-gu Office of this court, Defendant B, while mediating the instant lease agreement between the Plaintiff and the Nonparty Company, has different indications on the building ledger and the registry (hereinafter referred to as "302") and on the present state (hereinafter referred to as "303") attached to the entrance, etc., but it should be deemed that Defendant B was negligent in failing to properly perform the duty of confirmation and explanation of the leased object as the broker under the above-mentioned laws and regulations.

In other words, the confirmation and explanatory note of the object of brokerage prepared by Defendant B at the time of mediating the instant lease agreement between the Plaintiff and the Nonparty Company is stated as follows: (a) the confirmation and explanatory documents are attached only to the certified copy of the register and the certificate of mutual aid; (b) the building management ledger is not solid; and (c) visit the site.

(2) According to the above confirmation and explanatory note of the object of brokerage, Defendant B, at the time, visited the real estate site of this case, confirmed a certified copy of the registry (the "303," which is indicated on the real name), prepared and delivered a certified copy of the registry, based on which the confirmation and explanatory note was made, but ② did not confirm the building management ledger, such as the current status of the building, etc. (the defendant, except the owner, did not peruse the current status of the building). However, as seen above, it is argued in the related Acts and subordinate statutes to the effect that the rental broker may not read the building management ledger, such as the current status of the building, etc.; if the broker refuses to comply, he/she may explain the request to the broker; and if the broker refuses to comply with the request for brokerage, he/she may also apply for inspection of the current status of the building

(3) According to the fact-finding results with respect to the head of Songpa-gu Office of this Court, between the "303 on the public record entered after the indication of the real estate in this case and the present situation", there is a difference in the size of the building ledger, such as the present situation of the building (see attached Form 3 floor plan), and the direction of the present hall (in this case), and the direction of the present hall (in this case), not only the shape or structure is changed, but also the shape of the main room (or the main room from the present room) is not called, and in particular, the real estate in this case is in the form of "1", and therefore the "303 on the public record" is in the form of "1," so it is difficult to keep the difference.

(4) In light of the above contents in the building register, including the current building status, if Defendant B visited the site by comparing the building register with the actual condition of the instant real estate as a broker, such as the present condition of the building, etc., the fact that the present status of the instant real estate and the public record were different, or that the present indication was changed by the present situation (the Defendants failed to discover the present situation and public record, which are the previous owners of the instant real estate, or in the auction procedure conducted by creditors G, and thus, they cannot be found, and thus, Defendant B did not have any negligence. However, Defendant B did not confirm the present status and public record of the instant real estate. However, even if there was no evidence that the present situation and public record were not discovered in the previous auction procedure despite having conducted a survey and appraisal on the present condition of the instant real estate, it was difficult to accept the present status and public record of the said real estate, as seen earlier, even if there was no such difference.

(5) In concluding a housing lease contract, it is essential for the lessee to fully satisfy the requirements, such as possession, move-in report, and fixed date, which are to verify whether the relationship of the right to claim the return of the lease deposit has been established prior to the lease deposit when the contract is terminated in the future, and to secure the preferential right to claim the return of the lease deposit. In addition, whether the current state of the target real estate and the indication in the public record are consistent with such requirements and, in particular, for multi-household houses such as the instant real estate, it is more directly related to such requirements and, therefore, it is not considered that the housing lease broker has neglected the need to verify not only the register but also the building

(6) In light of the above need to verify the above data, the fact that Defendant B did not confirm the building ledger, such as the current status of the building on the instant real estate, and the difference between the present status of the object of brokerage and the indication in the public record, is unreasonable as it did not lead to negligence in performing brokerage as a broker.

C. Occurrence of liability for damages

(1) Due to the negligence of Defendant B’s act of brokerage as above, while the Plaintiff actually occupied the instant real estate, the move-in report and the indication of the fixed date on the move-in report were 303, and as a result, the Plaintiff was unable to recover KRW 95 million due to the failure to obtain preferential payment right to return the lease deposit even in any of the “303” on the instant real estate and the public record, so Defendant B is liable to compensate the Plaintiff for the above damages pursuant to Article 30(1) of the former Licensed Real Estate Agents Act, and the Defendant Association is obliged to pay the Plaintiff the mutual aid amount equivalent to the above damages according to the mutual aid agreement between the Defendant B and the Plaintiff.

(2) As to this, the Defendants asserted to the effect that ① the damages suffered by the Plaintiff are not attributable to Defendant B’s brokerage, but due to the renewal of the instant lease agreement at will of the Plaintiff, ② the damages were not realized since the Plaintiff has already resided in the instant real estate, or ③ the Plaintiff has continuously resided in the instant real estate, and thus, the benefits from the use thereof are returned, and this is the simultaneous performance relationship with the obligation to return the lease deposit, and thus, no damages for delay has occurred until the time of surrender

First of all, the Plaintiff’s renewal of the instant lease agreement is done on the premise that the Plaintiff secured the right to preferential reimbursement of the leased deposit at the time of concluding the initial lease agreement by Defendant B’s brokerage act. Therefore, the Defendants’ assertion that the Plaintiff’s damage, which the Plaintiff was unable to recover the leased deposit, was due to the Plaintiff’s arbitrary renewal of the lease is without merit.

Next, we examine the defendants' assertion that the plaintiff's damage was not realized.

According to the above facts, the plaintiff had already been ordered to pay the rent deposit of KRW 95 million to the non-party company in 2014 and secured enforcement title for the right to receive the refund of the rent deposit of KRW 95 million. However, the plaintiff has not been paid until two years have passed since it had already been ordered to pay the rent deposit of the non-party company in 2014; ② the public auction or auction procedure with regard to '303' in the public record has been completed in around 2015 after the collection of the Plaintiff's deposit was avoided; ③ the real estate in this case has not yet commenced an auction procedure; ③ the real estate in this case has not yet been yet commenced, and the maximum debt amount of KRW 6.5 billion in the market value is set prior to the claim for the refund of the rent deposit of the non-party company and the non-party company has not repaid the leased debt. Accordingly, in full view of this, the possibility of the possibility of the plaintiff to recover the rent deposit in this case's real estate after changing the status of the real estate in this case and the public record, thereby preventing the plaintiff from securing the amount of damages.

Finally, as long as the benefits derived from the Plaintiff’s residing in the instant real estate do not receive a refund of the lease deposit, there is no obligation to return the Plaintiff’s claim of this case, and since the Plaintiff’s claim of this case is not a claim for the refund of the lease deposit, it does not constitute a legal principle that the claim for return of the profits accruing from the instant real estate is in the simultaneous performance relationship with the claim for damages, or that no damages for delay shall accrue until the time when the claim for return of the profits accruing from the use of the instant real estate is clarified. However, as seen below, the part of the profits accruing from the

3. Limitation on liability for damages.

However, the Plaintiff also needs to confirm the current status of the object of lease as a party to the contract, and the discrepancy on the current status of the real estate in the public record has been transferred to the lessor of this case without finding any difference from the previous owner's time, and the lease contract of this case has been discovered after the renewal thereof between the parties concerned, the current status of the real estate and the indication on the public record have been found after the renewal thereof, not the case where the subsequent change has occurred, and even if the Plaintiff continuously resides in the real estate of this case against his will due to the Plaintiff's failure to recover the lease deposit, the Plaintiff's use of the real estate of this case has been guaranteed until the designated city, and the scope of the Defendants' liability from the perspective of fairness is limited to

(1) The Defendants asserted to the effect that even though they provided an opportunity for directors with "303" registered in the Plaintiff’s account, the Plaintiff’s refusal to take account of the fact that the Plaintiff was unable to prevent the occurrence of damages. However, it cannot be said that the Plaintiff had acquired preferential payment right to the claim for return of the lease deposit which was not already acquired because of the delayed change in the possession relationship. Therefore, this part of the Defendants’ assertion does not

4. Conclusion

As damages for Defendant B, the Defendant Association is obligated to pay damages for delay at each rate of KRW 38,00,000 for each of the mutual aid funds (i.e., KRW 95,000 x 40%) and 15% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from January 17, 2015, the day following the delivery of a copy of the complaint of this case, as requested by the Plaintiff, and the Defendant Association from March 17, 2015, which is 60 days after the date when the Plaintiff requested the payment of mutual aid funds through the delivery of a copy of the complaint of this case, until August 11, 2016, when the existence or scope of each of the obligations is 5% per annum from the date when the judgment is rendered, and from the next day until the day when the full payment is made. The Plaintiff’s claim against the Defendants is reasonable within the scope of recognition as above. It is so decided as per Disposition.

Judges Suh Jeong-hee

A person shall be appointed.

A person shall be appointed.