The case holding that the real estate broker has the duty to investigate and confirm whether the transferor is the prospective purchaser by demanding the presentation of contract or asking the rebuilding promotion committee for the brokerage of the exchange contract on the apartment before completion of construction.

The case holding that since the real estate broker has a high possibility of dispute as to who the owner is prior to the completion of the above apartment in mediating an apartment exchange contract, it is obligated to request the presentation of construction contract or contract for work, or to ask to the reconstruction promotion committee to investigate and confirm whether the transferor is the purchaser of the above apartment, and if he/she becomes aware of the fact that the purchaser of the above apartment is not the transferor, he/she should give the transferee an opportunity to examine whether to enter into an exchange contract by notifying the transferee of the fact.

Articles 16 and 17 of the former Real Estate Brokerage Act (amended by Act No. 5957 of March 31, 1999); Article 681 of the Civil Act

Park Young-chul (Attorney Kim Young-young, Counsel for the plaintiff-appellant)

Defendant (Law Firm Shin & Yang, Attorneys Park Jong-chul et al., Counsel for defendant-appellant)

Seoul High Court Decision 2000Na52730 delivered on September 28, 2001

All appeals are dismissed. The costs of appeal are assessed against each party.

We examine the grounds of appeal.

1. The lower court acknowledged the following facts by comprehensively taking account of the adopted evidence.

A. Jinjin Construction Co., Ltd. received a contract from 16 persons, such as Nonparty Beds, for construction costs of up to KRW 1.9 billion, and constructed a quung apartment, which is a major complex building, on the ground of 905-2 of Yangcheon-gu Seoul Metropolitan Government, Yangcheon-gu, 5.905.

B. On June 1996, he sold 1001 apartment units to Kim Yong-ho, the representative director of the Jinjin Construction, and entrusted the sale of 100 million won or more in cash with other co-owners.

C. According to the trade name of international licensed real estate agents, Kim Yong-sik did not mention the defendant who runs the real estate brokerage business of real estate transaction, but rather asked the defendant to introduce and request the person who will purchase the above apartment house 1001.

D. The Defendant, without confirming the right of Kim Yong-ho, believed only the horses of Kim Yong-ho, and asked the Plaintiff that Kim Yong-ho did not know about the owners of the above apartment 1001, and introduced that he exchanged the above apartment 1001 and the coffee specialty of the Plaintiff’s management with Kim Yong-ho.

E. On June 28, 1996, the Plaintiff evaluated the value of KRW 1001,00,000 as the value of the above apartment as the Defendant’s introduction, and transferred from Kim Yong-ho, instead of taking over the above apartment value of KRW 180,000,00,000, the Plaintiff concluded an exchange contract with Kim Yong-ho to evaluate the right to lease and the right to operate the above apartment value of KRW 90,000,000,000,000, and to transfer the appraised value to Kim Yong-ho and pay the difference of KRW 90,000,000,000,000 to Kim Yong-ho.

F. While the registration of ownership transfer of the above apartment on December 19, 196 was delayed due to the delay in the completion inspection on the above apartment, the reason that the circumstance of the company became difficult due to the company's failure to pay the money entrusted by the captain, such as the pressure on the payment of the money due to the failure in the construction of the company's management and the demand for the payment of the sales amount entrusted by the captain, Kim Yong- Yong-dong sold the above apartment unit KRW 1001,120,000 won through employees of the company for the purpose of temporary escape, and completed the registration of ownership transfer on January 9, 1997.

2. First, we examine the Plaintiff’s ground of appeal.

The plaintiff asserted that, although the defendant conspired with Kim Yong-ho and did not receive a request from the owner owner to sell the above apartment No. 1001, the plaintiff concluded an exchange contract with the plaintiff that believed that the above apartment No. 1001 was owned by Kim Yong-ho, or that the defendant actively participated in the act of breach of trust in Kim Yong-ho, the defendant is jointly and severally liable for damages suffered by the plaintiff due to the above act of deception or breach of trust. However, the court below rejected the plaintiff's above assertion on the ground that there was no evidence to support that the defendant merely acted as the broker of the exchange contract between the plaintiff and Kim Yong-ho and the plaintiff, and that there was no deception or actively participating in the act of breach of trust in Kim Yong-ho, in collusion with Kim Yong-ho.

Examining the reasoning of the judgment below in comparison with the records, the above judgment of the court below is just and there is no violation of the rules of evidence as otherwise alleged in the ground of appeal.

In addition, the court below, as a real estate broker, has a high possibility of dispute as to who is the owner since the above apartment was completed at the time of mediating the exchange contract under 1001, the defendant is obligated to request Kim Yong-ho to present the construction contract or the rebuilding promotion committee to examine whether or not Kim Yong-ho is the purchaser of the above apartment house 1001, or other purchaser of the apartment. As a result, if the plaintiff becomes aware of the fact that the purchaser of the above apartment 1001 was double, he shall confirm the intention of double walling about the exchange contract, and even if Kim Yong-ho is not the true owner of the above apartment 1001, he shall give the plaintiff an opportunity to consider whether to conclude the exchange contract of this case. Thus, the court below should have determined that the plaintiff is not liable for damages by investigating the above exchange contract with the owner of the above apartment 1001, and the plaintiff's negligence is not attributable to the conclusion of the rebuilding contract of this case as well as the plaintiff's negligence, and thus, it should be found that the plaintiff's negligence is not attributable to the plaintiff's damages.

3. Next, we examine the defendant's grounds for appeal.

The court below acknowledged the defendant's liability for damages by judging that there was a proximate causal relationship between the negligence and the plaintiff's damage as stated in the above reasoning, and recognized the defendant's liability for damages. Even if Kim Yong-ho was actually entrusted with the right to dispose of the apartment of this case, as a result, the exchange contract of this case was concluded against the actual intention of the ship, and thus, the plaintiff was unable to perform his/her duty while the plaintiff fulfilled his/her duty. The plaintiff's damage of this case was caused by the defendant's introduction that introduced the above apartment of this case before the completion of the contract in a situation where it is extremely difficult to receive money, etc. paid as an exchange contract in the case of another person's possession, as an owner of Kim Yong-ho without any problem, and then the circumstance was not only derived from the sale of the apartment of Kim Yong-ho, that is, from the fact that such circumstance was not a mere fact that there was a danger that the intermediary act of this case was destroyed at the time of the mediation of this case, and there was a proximate causal relation between the defendant's negligence and the plaintiff's damage.

4. Therefore, all appeals are dismissed, and the costs of appeal are assessed against each party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jae- Jae (Presiding Justice)