Plaintiff (Attorney Ansan-ho et al., Counsel for the plaintiff-appellant)

Hongcheon-gun (Attorney Park Jae-soo, Counsel for the plaintiff-appellant)

October 18, 2007

Chuncheon District Court Decision 2006Guhap1881 Decided May 31, 2007

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The defendant's revocation of the registration of establishment of real estate brokerage office against the plaintiff on October 18, 2006 shall be revoked.

2. Purport of appeal

The same shall apply to the order.

1. Details of the disposition;

A. Legal provisions

(1) According to Articles 28, 38(2)7, and 40 of the Real Estate Brokerage Act prior to the amendment by Act No. 7638 of July 29, 2005, where a broker assistant employed by a broker uses the name of a licensed real estate agent or any other similar name with respect to the brokerage business, the broker shall be punished by a fine, and there is also a provision to the same effect (Article 8, 49(1)2, and 50) of the Licensed Real Estate Agents Business and Report of Real Estate Transactions Act after the amendment (hereinafter referred to as “former Act and the amended Act”) (Article 8, 49(1)2, and 50).

(2) According to Article 7 subparag. 10 and Article 22(1)3 of the former Act, any person for whom one year has not passed since he/she was sentenced to a fine in violation of the former Act cannot be a broker. If a broker falls under the foregoing, the registration of establishment of a brokerage office shall be revoked. However, upon the amendment of the Act, the disqualified period has been changed from one year to three years (Article 10(1)11 and Article 38(1)3 of the former Act; Article 38(1)3 of the former Act; Article 10(1) of the former Act; Article 38(1) of the former Act provides that the former cancellation provision and the new cancellation provision under the former Act shall be enforced from six months after the date of its promulgation.

(3) Meanwhile, according to Article 12 of the Addenda to the new law at the time of the amendment as above, where the standard of administrative disposition on the violation prior to the enforcement of the new law has been strengthened more than the previous one, it shall be governed by the former Act, and where the former is less relaxed, it shall be governed by the new law.

B. Criminal punishment

(1) The Plaintiff, upon registering the establishment of a brokerage office in accordance with the former Act, employs the Nonparty as a brokerage assistant at the time of committing the crime following the registration of the establishment of the brokerage office, and operates the brokerage business under the trade name of the (title 1 omitted) licensed real estate agent office in the annual salary of Hongcheon-Eup, Hongcheon-gu, Hongcheon-gu, Seoul, and transferred the office after committing the crime to the Geumcheon-gu, Hongcheon-gu, Seoul.

(2) Despite the fact that the Nonparty was not a licensed real estate agent, the Nonparty committed the crime of delivering to customers by providing the name of “non-party representative director of (title 1 omitted) real estate agent office” while working at (title 1 omitted) real estate agent office from September 14, 2004 to November 2004 at the time of the enforcement of the former Act.

(3) The Plaintiff, as the Nonparty’s employer, was charged with violation of the former Act since the enforcement of the new Act with respect to the Nonparty’s act of using the title of licensed real estate agent, and was notified of the summary order issued on April 17, 2006 at the Chuncheon District Court, which was sentenced to a fine of KRW 500,000,00, and such summary order became final and conclusive on May 10, 2006 (hereinafter the crime of this case under the above summary order).

C. Disposition of this case

On October 18, 2006, the Defendant notified of the confirmation of the above summary order, and rendered the instant disposition revoking the registration of establishment of the Plaintiff’s brokerage office by applying the new cancellation provision on the ground that the Plaintiff was punished by a fine and three years have not elapsed since then.

【Evidence-Related Class A’s Evidence Nos. 1, 2, and 1 through 5(including paper numbers)

2. The plaintiff's assertion

The plaintiff asserts that the disposition of this case is unlawful for the following reasons and sought its revocation.

A. Since the Defendant presented only the applicable statutes and did not indicate specific violations while rendering the instant disposition, the instant disposition is an illegal disposition that lacks the presentation of reasons.

B. Since the instant crime was committed at the time of the enforcement of the former Act, the former revocation provision should apply to the instant disposition. Therefore, the instant disposition that applied the new revocation provision is unlawful.

C. The phrase “person who has been sentenced to a fine in violation of this Act” stipulated in the former cancellation provision and the new cancellation provision refers to the person who has committed a violation and refers to the person who has been punished pursuant to the joint penal provisions, such as the Plaintiff. Thus, the instant disposition is unlawful (if it is interpreted that the person who was punished by the joint penal provisions include the person who was punished, each of the above provisions is unconstitutional in violation of the principle of

3. Relevant statutes;

It is as shown in the attached Form.

4. Determination on the legality of the disposition

A. As to the first argument

According to each of the above evidence, the plaintiff's act of using similar names of licensed real estate agents of the non-party becomes final and conclusive upon being notified of a summary order of KRW 50,000,000 under Articles 38 (2) 7, 28, and 40 of the former Act. The defendant was notified of the confirmation of the above summary order and notified the plaintiff around September 8, 2006 that "where there is an opinion to revoke the registration of real estate brokerage office pursuant to Articles 38 (1) 3 and 10 (1) 11 of the former Act on the ground that the summary order of KRW 50,000 has become final and conclusive due to the violation of the former Act, the defendant sent a written notice stating that "where there is an opinion to revoke the registration of real estate brokerage office, it shall be deemed that the plaintiff is entitled to deliver the opinion". Further, on September 27, 2006, the written disposition of this case constitutes a violation of Article 10 of the new Act on the ground that the disposition of this case is unlawful.

B. On the second argument

(1) Even in cases where the relevant statute is amended, unless otherwise specified in the transitional provision, an administrative disposition shall be based on the amended law that enters into force at the time of the disposition and the standards set thereon. Even in cases where the amended law provides a more unfavorable legal effect than the previous one while its existing facts or legal relations are subject to the application of the amended law, if such facts or legal relations are not already terminated before the enforcement of the amended law, it shall not be deemed a retroactive legislation prohibited under the Constitution. In relation to the application of such amended law, if the people’s trust in the existence of the preceding statute is recognized to have greater protection value than the public interest demand for the application of the amended law, the application may be restricted to protect the people’s trust (see, e.g., Supreme Court Decision 2001Du274, Oct. 12, 201).

(2) Since the new law was enforced at the time of the instant disposition, the new law should be applied to the instant disposition. Furthermore, according to Articles 10(1)1 and 38(1)3 of the new law, which are the basis of the instant disposition, the registration of a brokerage office is cancelled for “a person who was sentenced to a fine due to violating this Act” (i.e., a person who was sentenced to a fine for violating this Act). Thus, in order to make the above disposition of cancellation, a person who was sentenced to a fine for violating the new law (or the former law) is insufficient and accordingly, a fine should be imposed. As seen above, since the sentence of a fine was made after the enforcement of the new law, the fact or legal relationship for the instant disposition was not established at the time of the enforcement of the new law, so that the disposition of cancellation can only be deemed to have been made by the new law, and even if the Plaintiff trust in the existence of the former cancellation provision at the time of the crime of this case, it cannot be deemed that the Plaintiff’s new law requires the protection and application of public interest.

(3) On the other hand, among the provisions of the new law, the transitional provisions on the criteria for administrative disposition due to the violation at the time of the enforcement of the former Act are examined. Although Article 12 of the Addenda to the new law provides that "where the criteria for administrative disposition against the violation prior to the enforcement of this Act are strengthened than the previous one, it shall be governed by the previous provisions of the Real Estate Brokerage Act, and where the previous provisions are mitigated than the previous one, it shall be governed by the previous provisions of this Act." However, in the case of the disposition of this case conducted before one year has not passed since the sentence of a fine was imposed, it shall be governed by either the former cancellation provisions and the new cancellation provisions, it shall not be deemed that

(4) Therefore, the Plaintiff’s assertion that the former cancellation provision shall apply is without merit (in the case of the instant disposition that was made before one year has not passed since the fine was sentenced, even if the former cancellation provision was applied, it is possible to revoke the registration. As such, the disposition to revoke the establishment of the real estate brokerage office against the Plaintiff is justifiable as a result, and the new cancellation provision is merely an error in the applicable provisions).

C. On the third argument

It is clear that the phrase “a person who was sentenced to a fine in violation of this Act and for whom three years have not passed since he was sentenced to a fine in violation of this Act” as stipulated in Article 10(1)11 of the new Act includes also a broker who was sentenced to a fine in accordance with the joint penal provisions of Article 50 of the new

In addition, the above joint penal provisions, in the case of an individual or a corporation as a broker, not only punish the employees who are the principal agents of the business, but also punish the brokers who are the principal agents of the business in addition to punishing the employees, etc. who are the brokers. In this case, even if the brokers are not strict liability, the brokers are presumed to have the negligence, and the burden of proof is also imposed on the brokers to prevent the invalidation of the joint penal provisions (see, e.g., Supreme Court Decisions 2001Do5595, Jan. 25, 2002; 92Do1395, Aug. 18, 192). Therefore, the grounds for punishing the brokers shall be the negligence in the appointment and supervision of the employees, etc., and the brokers may assert the immunity on the grounds that they did not have any fault in the appointment and supervision, so the above joint penal provisions cannot be deemed as unconstitutional provisions contrary to the principle of self-responsibility.

In the end, the third argument of the plaintiff is without merit.

5. Conclusion

Therefore, the plaintiff's claim shall be dismissed, and the judgment of the court of first instance with different conclusions is unfair, so the plaintiff's claim shall be dismissed, and it is so decided as per Disposition.

Judges Kim Jong-soo (Presiding Judge) Kim Jong-sik Kim Yong-sik

1) Rather, in a case where a cancellation of registration is made under the former Act, the grounds for disqualification have occurred for three years from the time when the registration was revoked under Articles 7(7) and 22(1)3 of the former Act, and the revocation of registration under the former Act is more unfavorable to the Plaintiff than by the new Act.