[1] Whether Article 6 (5) of the former Real Estate Brokerage Act exempts a broker assistant from liability for damages (negative)

[2] In a case where the number of apartment buildings to be constructed in the future is specified and becomes an object of transaction, whether mediating the transaction thereof constitutes a brokerage of "building" under Article 3 subparagraph 2 of the former Real Estate Brokerage Act (affirmative)

[3] The starting point of the statute of limitations for the claim of mutual aid money under Article 35-2 of the former Real Estate Brokerage Act and Article 42 of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act (=the time when the claimant of mutual aid money knew or could have known the occurrence

[4] In a case where a client Gap sought payment of the mutual aid money from Eul Licensed Real Estate Agent Association, which is a mutual aid business operator, on the grounds of the broker's tort, the case affirming the judgment below which held that in light of the mutual aid agreement and the terms and conditions, Eul association bears damages for delay caused by delay of the duty to pay the mutual aid money after the lapse of 60 days from the date on which it was requested to

[1] Where a brokerage assistant employed by a real estate broker inflicts property damage on a transaction party intentionally or by negligence, the brokerage assistant is naturally liable for the damage suffered by the transaction party as a tort, and Article 6(5) of the former Real Estate Brokerage Act (wholly amended by Act No. 7638 of July 29, 2005) provides that the act of the brokerage assistant shall be deemed the act of the broker who employs the broker and thereby the broker shall also be held liable for the damage to the transaction party. Therefore, where the brokerage assistant inflicts property damage on the transaction party intentionally or by negligence, the broker who employs the brokerage assistant shall be held liable for the damage and the broker shall not be held liable for the damage.

[2] Among objects of brokerage under Article 3 subparagraph 2 of the former Real Estate Brokerage Act (wholly amended by Act No. 7638 of Jul. 29, 2005, "the Act on Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions"), "building" includes not only the existing building but also the specific building that will be constructed in the future. Therefore, in cases where the Dong and head of an apartment complex to be constructed in the future are specified as the object of transaction due to the specific unit number of the apartment complex, mediating transactions such as sale, sale, etc. even before the completion of the specific apartment, constitutes brokerage of "building".

[3] Article 35-2 of the former Real Estate Brokerage Act (wholly amended by Act No. 7638 of Jul. 29, 2005) and Article 42 of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act include mutual aid projects operated by the Real Estate Brokerage Association or the Licensed Real Estate Agent Association, which guarantee the liability for damages to the parties to a transaction due to the broker's illegal acts or nonperformance of obligations. Thus, in a case where it is impossible for the person who has the right to claim mutual aid to claim mutual aid to confirm the occurrence of the accident due to the reason that it is not objectively clear whether the accident occurred or not, the extinctive prescription of the right to claim mutual aid shall be interpreted to run from the time when the person who has the right to claim mutual aid knew or could have known the occurrence of the accident.

[4] In a case where the client Gap sought a payment of the mutual aid money against Eul Licensed Real Estate Agent Association, which is a mutual aid business operator, on the grounds of the broker's tort, the case affirming the judgment below that Eul association bears the liability for delay of the duty to pay the mutual aid money within 60 days after reviewing the authenticity of the documents claimed within 60 days from receipt of the claim for mutual aid money in light of the mutual aid provision and terms and conditions of the Eul association, and completing deliberation by the Deliberation Deliberation Deliberation Committee, and is liable for delay from the 60 days after the receipt of the claim for mutual aid money. The same applies to the case where the beneficiary claims mutual aid money through delivery of a copy of the complaint while filing the lawsuit. Thus, the de facto reason for the final determination of the amount of mutual aid money is not possible or it cannot be seen as an inevitable reason for refusing the payment of mutual aid money.

[1] Article 6 (5) (see Article 15 subparagraph 2 of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act) of the former Real Estate Brokerage Act (wholly amended by Act No. 7638 of July 29, 2005) / [2] Article 3 subparagraph 2 of the former Real Estate Agents Act (wholly amended by Act No. 7638 of July 29, 2005) (see Article 3 subparagraph 2 of the current Licensed Real Estate Agents and Report of Real Estate Transactions Act) / [3] Article 3 subparagraph 2 of the former Real Estate Brokerage Act (wholly amended by Act No. 7638 of July 29, 2005) (wholly amended by Act No. 7638 of July 29, 2005), Article 35-2 (Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act) of the Enforcement Decree of the Real Estate Agents Act (see Article 42 of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act)

[1] Supreme Court Decision 2006Da29945 decided Sep. 14, 2006 (Gong2006Ha, 1740) / [2] Supreme Court Decision 2004Do62 decided May 27, 2005 (Gong2005Ha, 1098)

Plaintiff 1 and one other (Attorney Lee Dong-dong, Counsel for the plaintiff-appellant)

Defendant 1 and one other (Attorney Gyeong-Gyeong et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2010Na123181 decided August 25, 2011

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

The grounds of appeal are examined.

1. As to Defendant 1’s ground of appeal

Where a real estate brokerage assistant employed by a real estate broker inflicts property damage on a transaction party intentionally or by negligence, the brokerage assistant is naturally liable for the damage suffered by the transaction party as a tort, and Article 6(5) of the former Real Estate Brokerage Act (wholly amended by Act No. 7638 of July 29, 2005; hereinafter “former Real Estate Brokerage Act”) provides that in this case, the act of the broker assistant shall be regarded as the act of the broker who employs him/her, and the broker shall also be held liable for the damage to the transaction party. Therefore, where the brokerage assistant inflicts property damage on the transaction party intentionally or by negligence, the broker who employs the broker assistant shall be held liable for the damage and the broker shall not be held liable for the damage (see Supreme Court Decision 2006Da2945, Sept. 14, 2006).

According to the reasoning of the lower judgment and the reasoning of the first instance judgment partially admitted by the lower court, the lower court acknowledged the facts as indicated in its reasoning after comprehensively taking account of the adopted evidence, and determined that Defendant 1, a brokerage assistant, was actually engaged in the brokerage of the sales contract on July 7, 2005 of the instant case. Therefore, the lower court, along with Defendant 1, a joint tortfeasor 1 of the lower judgment, is liable to compensate for the damages suffered by Plaintiff 1 due to a breach of duty of care not performing the duty of confirmation

In light of the above legal principles and records, we affirm this fact-finding and judgment of the court below, and there is no error in the misapprehension of legal principles as to the duty of care as a joint tortfeasor of a broker's occupational responsibility as a joint tortfeasor, thereby violating the law of logic and experience and failing to exhaust all necessary deliberations, and thereby failing to exhaust all necessary deliberations.

2. As to the grounds of appeal by Defendant Korean Licensed Real Estate Agent Association

A. As to the first ground for appeal

Among the objects of brokerage stipulated in Article 3 subparagraph 2 of the former Real Estate Brokerage Act, the term "building" includes not only the existing building but also the specific building to be constructed in the future. Therefore, in cases where the Dong and unit numbers of apartment buildings to be constructed in the future are specified as the object of transaction, it is reasonable to view that mediating transactions such as sale, purchase, sale, etc., even before the completion of the specific apartment constitutes brokerage of "building" (see Supreme Court Decision 2004Do62, May 27, 2005, etc.).

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the object of brokerage.

The precedent cited in the ground of appeal is not appropriate to be invoked in the instant case, unlike the instant case.

B. Regarding ground of appeal No. 2

Article 35-2 of the former Real Estate Brokerage Act and Article 42 of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act run by Defendant Korea Licensed Real Estate Agents Association (hereinafter “Defendant Association”) have the nature of guaranteeing liability for damages to the parties to a transaction due to the broker’s illegal acts or nonperformance of obligations. Thus, in cases where it is difficult for the party who has the right to claim a mutual-aid to confirm the occurrence of the mutual-aid accident due to the reason that it is objectively unclear whether the mutual-aid accident occurred or not, the extinctive prescription of the right to claim a mutual-aid amount should be interpreted to run from the time when the person who has the right to claim a mutual-aid knew or could have known of the occurrence of the mutual-aid accident (see Supreme Court Decision 2007Da5839, Dec. 13,

The lower court, citing the reasoning of the first instance judgment, acknowledged the facts as indicated in its holding, and determined that, in this case where the Plaintiff, a broker, seeks the payment of mutual-aid money against the Defendant Association, a mutual-aid business entity, due to the broker’s unlawful act, the extinctive prescription of the claim for mutual-aid money was run from that time, on the ground that the Plaintiff knew or could have known the occurrence of the accident only when it became impossible to acquire the ownership of the apartment purchased by the Plaintiffs because the judgment of loss was finalized not

In light of the aforementioned legal principles and records, the above determination by the court below is acceptable. In so doing, it did not err by exceeding the bounds of the principle of logic and experience and exceeding the bounds of the free evaluation of evidence, or by misapprehending the legal principles on the starting point of

The precedents cited in the grounds of appeal are inconsistent with the instant case and are inappropriate to be invoked in the instant case (see Supreme Court Decision 2010Da69209 decided Nov. 11, 2010).

C. Regarding ground of appeal No. 3

In the event that the Defendant Association is liable to pay mutual aid money, as in other monetary claims, it shall pay damages for delay of the payment. According to the Mutual Aid Regulations (No. 5) of the Defendant Association and the Terms and Conditions of Mutual Aid (No. 1) of the Mutual Aid Agreement (No. 5), the person who suffers property damage due to the mediation accident (hereinafter referred to as “beneficiary”) may directly claim the Defendant Association for the payment of mutual aid money by submitting documents proving the amount of damages (Article 26 of the Enforcement Decree of the Act on Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions, Article 19(1) of the Mutual Aid Agreement, Article 12(1) of the Mutual Aid Agreement), and the Defendant Association in receipt of the claim shall review the authenticity of the documents requested, and pay as mutual aid money the amount equivalent to the percentage of fault of the members who subscribed to mutual aid within the limit of the amount of mutual aid money after deliberation by the Compensation Deliberation Committee (Article 19(2) of the Mutual Aid Agreement, Article 12(2) of the Mutual Aid Agreement).

Therefore, barring any unavoidable reason, the Defendant Association is obligated to review the authenticity of the documents claimed within 60 days from receipt of a claim for the mutual aid fund and to pay the beneficiary the mutual aid fund after the deliberation by the Review Deliberation Committee is completed, and it is reasonable to deem that the beneficiary is liable for delay from the expiration of 60 days. The same applies to cases where a claim for the mutual aid fund is filed through delivery of a copy of the complaint while filing a lawsuit. The fact that the amount of the mutual aid fund is not finally determined after the lawsuit is pending does not constitute an inevitable cause that makes it impossible to pay the mutual aid fund or refuses the payment after the lapse of 60 days from

In the same purport, the court below is just in holding that the defendant association is liable to pay damages for delay caused by delay of the duty to pay the mutual aid amount 60 days after receiving the claim for the payment of the mutual aid amount through the delivery of a duplicate of the complaint of this case. The court below did not err by misapprehending the legal principles as to damages for delay caused by delay

3. Conclusion

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

Justices Yang Chang-soo (Presiding Justice)