A. The meaning of “mediation” under Article 19(1) of the Real Estate Brokerage Act

(b) Purport of the mutual aid system under Article 35-2 of the Real Estate Brokerage Act, and whether it is null and void because Article 659 of the Commercial Act provides that the mutual aid fund shall be paid to the broker for an accident caused by the broker’s intentional intent in the mutual aid terms and conditions

A. Article 19(1) of the Real Estate Brokerage Act provides that a broker shall be liable for damages to a transaction party caused property by intention or negligence in the course of acting as a broker. In light of the purpose of the above provision that is to protect the transaction party, the issue of whether the broker constitutes an act of brokerage shall not be determined by the subjective intent of the broker who acts as a broker for the transaction party, but shall be determined by whether the broker's act is objectively deemed as an act of brokerage and good offices in terms of social norms, and shall be determined by whether the broker's act is objectively deemed as an act of brokerage and good offices in terms of social norms. Meanwhile, the broker's act of brokerage includes not only the case where the broker receives a request for brokerage from both parties to the transaction, but also the case where the broker mediates or arranges the transaction, exchange, lease, and other acts of acquisition or modification of rights at the request of either party

B. Based on Article 19(2)(3) of the former Real Estate Brokerage Act (amended by Act No. 4628 of Dec. 27, 1993), and Article 35-2 of the Real Estate Brokerage Act, the mutual aid system operated by the Korean Real Estate Brokerage Association shall be deemed to be a system with the nature of guarantee insurance to guarantee the broker’s liability for damages to the parties involved in the transaction due to his/her tort or nonperformance of obligation. Thus, the mutual aid agreement stipulates that the mutual aid agreement shall be paid even in the event of an accident caused by the broker’s intentional act as the party involved in the mutual aid, and thus, it does not violate the essence of the mutual aid system, or violates the purport of Article 659 of the Commercial Act that provides the insurer’s exemption from liability in the event of an accident caused by intention or gross negligence.

A. Article 19(1) of the Real Estate Brokerage Act; Article 35-2 of the Real Estate Brokerage Act; Article 19(2) of the former Real Estate Brokerage Act (amended by Act No. 4628, Dec. 27, 1993); Article 659 of the Commercial Act

Attorney Lee Won-il et al., Counsel for the plaintiff-appellant

[Defendant-Appellee] Korea Real Estate Brokerage Association et al., Counsel for defendant-appellee

Seoul Civil District Court Decision 94Na17665 delivered on August 26, 1994

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The defendant's attorney's grounds of appeal are examined.

1. On the first ground for appeal

Article 19(1) of the Real Estate Brokerage Act provides that when a broker inflicts property damage on a transaction party by intention or negligence while acting as a broker, the broker shall be liable for such damage. In light of the purpose of the above provision for the protection of the transaction party, the issue of whether the broker constitutes an act of brokerage shall not be determined by the broker's subjective intent to mediate or mediate transactions on behalf of the transaction party, but shall be determined by whether the broker's act is objectively regarded as an act of brokerage and mediation under social norms. Meanwhile, the act of brokerage includes not only the case where the broker receives a request for brokerage from both parties of the transaction, but also the case where the broker mediates or arranges the transaction, exchange, lease, or other act of acquisition, loss or modification of rights at the request of either party of the transaction.

As determined by the court below, if the non-party, who is a real estate broker, purchased the above site because he had not received a request from the owner of the land at the time of the original adjudication, and he has received a request from the plaintiff to purchase it. If the seller is the above site owner, and he is the buyer's agent and prepares a sales contract with the plaintiff's agent and delivers the purchase price to the above owner, then it constitutes a case where the "in the course of the broker's act of brokerage" under Article 19 (1) of the Real Estate Brokerage Act causes property damage to the transaction party, and there is no error of law in the misapprehension of legal principles as to the Real Estate Brokerage Act, such as theory.

2. On the second ground for appeal

According to the reasoning of the judgment below, Article 19(2) of the Real Estate Brokerage Act (amended by Act No. 4628, Dec. 27, 1993; Article 19(2) of the same Act provides that a broker shall subscribe or deposit to a guarantee insurance or a mutual aid under Article 35-2 as prescribed by the Presidential Decree in order to guarantee liability for damages under paragraph (1) of the same Article. Unlike general liability insurance, a guarantee insurance which is allowed to subscribe and selectively subscribe to a guarantee insurance is a new type of insurance system which guarantees the performance of the principal obligation and guarantees the liability of the obligor, which combines the type of insurance with the type of insurance that covers a large number of economic agents, such guarantee insurance accident is caused by tort or default, and such tort or default, etc. is premised on the policyholder's intentional or gross negligence, so it is not justified that Article 659 of the Commercial Act provides for the insurer's exemption from liability for damages, and it is also inconsistent with the purport of Article 35-2 of the Commercial Act.

3. Therefore, the appeal is dismissed and all 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 Chocheon-sung (Presiding Justice)