[1] The criteria for determining whether an act of brokerage constitutes an act of brokerage under the former Real Estate Brokerage Act, and whether the “act of brokerage” includes not only the case where both parties of a transaction request a brokerage from both parties, but also the case where a transaction such as trading is mediated and mediated at the request of either party (affirmative)

[2] Whether the occurrence of a mutual aid accident at the time of the contract should not be determined in order for a mutual aid agreement concluded between the broker and the Korean Licensed Real Estate Agent Association to be effective (affirmative)

[3] Whether the Korea Licensed Real Estate Agent Association may set up against the parties to a transaction by cancelling or nullifying a mutual aid agreement based on the broker's fraud (negative in principle)

[4] The principle of interpreting insurance policies or terms and conditions

[5] In a case where the Korean Licensed Real Estate Agent Association provides that "the amount covered by the Association shall be limited to the amount covered by the Association" in the mutual aid agreement and the mutual aid agreement, the case holding that the said mutual aid agreement and the mutual aid agreement shall be interpreted as "the amount covered by the mutual aid agreement per case"

[6] The starting point for the statute of limitations of insurance claims

[7] The starting point of the statute of limitations for the claim of a mutual-aid where the claimant of a mutual-aid cannot ascertain the occurrence of the accident (=when the claimant of the mutual-aid knew or could have known the occurrence of the accident)

[1] Article 2 subparagraph 1 (see current Article 2 subparagraph 1 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, Jul. 29, 2005); Article 19 (1) (see current Article 30 (1) of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act) / [2] Article 19 (1) of the former Real Estate Agents Act (wholly amended by Act No. 7638, Jul. 29, 2005; see current Article 30 of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act; see current Article 42 of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions; see current Article 30 of the Real Estate Agents and Report of Real Estate Transactions Act; 50 of the Commercial Act / [2] Article 19 (1) of the former Real Estate Agents Act (wholly amended by Act No. 975, Jul. 29, 20, / [305] Article / [2 of the Commercial Act

[1] [2] Supreme Court Decision 94Da47261 decided Sep. 29, 1995 (Gong195Ha, 3600) / [1] Supreme Court Decision 2005Da32197 decided Oct. 7, 2005 (Gong2005Ha, 1772), Supreme Court Decision 2005Da6562 decided Mar. 10, 2006 (Gong2006Sang, 613) / [3] Supreme Court Decision 2010Da930305 decided Aug. 17, 2012 (Gong2012Ha, 1548 decided Feb. 8, 2002) / [2] Supreme Court Decision 2001Da39605 decided Apr. 28, 2015

Plaintiff

Korean Licensed Real Estate Agent Association (Attorney Kim Jong-hwan, Counsel for defendant-appellant)

Seoul Central District Court Decision 2010Na31319 Decided November 23, 2010

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the second ground for appeal

In light of the purport of the above Act that aims to protect the parties to a transaction, whether an act of brokerage provided by the former Real Estate Brokerage Act (wholly amended by Act No. 7638, Jul. 29, 2005; hereinafter the same shall apply) constitutes an act of brokerage shall not be decided by the subjective intent of the broker who acts as a broker to mediate or mediate the transaction for the parties to the transaction, and shall be determined by whether the broker’s act is objectively deemed an act of brokerage and mediation in light of social norms. Meanwhile, the act of brokerage includes not only the case where the broker is requested by both parties to the transaction, but also the case where the broker mediates or arranges the transaction of the object of brokerage, exchange, lease, or other acts of acquisition or modification of the right at the request of either party to the transaction (see Supreme Court Decision 94Da47261, Sept. 29, 195).

Examining the reasoning of the judgment below in light of the above legal principles, the judgment of the court below that the act of this case by the non-party constitutes an intermediary act is not erroneous in the misapprehension of legal principles as asserted in the grounds of appeal

2. As to the third ground for appeal

A. The former Real Estate Brokerage Act was enacted for the purpose of contributing to the protection of property rights of the people by guiding and fostering a real estate brokerage business in a sound manner and properly regulating real estate brokerage business (Article 1). In order for a broker to compensate for damage to property caused to a transaction party by intention or negligence while acting as a broker, the broker must enter into a guarantee insurance policy or a mutual aid agreement approved by the Minister of Construction and Transportation (hereinafter “instant mutual aid”) or make a deposit (Article 19(3) and Article 35-2). As such, even if the instant mutual aid is not an insurance business under the Insurance Business Act, it is similar to a mutual aid business under the Insurance Business Act, and it is also a guarantee insurance policy that a broker bears liability for damages to a transaction party due to his/her illegal act or default (see Supreme Court Decisions 94Da47261, Sep. 29, 195; 2000Da36281, Feb. 8, 2002).

B. A mutual aid agreement entered into with a broker is formally similar to a mutual insurance contract which covers a broker's illegal act or default as an insured event, but it is usually aimed at the same effect as a guarantee contract with the nature of guarantee, and since a transaction party trusts in a mutual aid contract to engage in real estate transactions according to the broker's act of brokerage, the insured cannot obtain insurance claim even if an insurance accident occurs if an insurer cancels a mutual aid contract for the reason of a policyholder's fraud in the insurance contract for another person. However, in the case of the mutual aid, under the trust that the transaction party becomes liable for damages through the broker's act of brokerage or the mutual aid under the former Real Estate Brokerage Act after confirming the broker's subscription to the mutual aid contract, it is necessary to protect the trust of the transaction party if it has trusted the security function of the mutual aid contract with the broker's agent and trusted new interests. Therefore, even if the Defendant entered into a mutual aid contract with the principal obligor on the ground that the principal obligor knew the Defendant's intent while entering into the mutual aid contract, the judgment cannot be seen as null and void.

C. Examining the reasoning of the judgment below in light of the above legal principles and the evidence duly admitted, even if the non-party had intent to cause an accident in future at the time of each renewal of the instant mutual aid agreement, such circumstance alone alone alone is objectively and objectively confirmed as to the occurrence of the accident at the time of each renewal of the instant mutual aid agreement, and thus, the instant mutual aid agreement cannot be deemed null and void. In addition, even if the non-party did not notify the defendant that he had an intention to cause an accident in the future at the time of each renewal of the instant mutual aid agreement, as alleged by the defendant, it constitutes deception that the non-party did not notify the defendant that he had an intention to cause an accident in the future at the time of each renewal of the instant mutual aid agreement, it shall be deemed that the plaintiff had a new interest by concluding the instant mutual aid agreement with trust in the collateral function of the instant mutual aid agreement and thus, the defendant cannot assert and oppose such plaintiff

Although the reasoning of the court below is inadequate or inadequate, the conclusion of the court below's rejection of the defendant's assertion that the mutual aid contract of this case was invalidated under Article 17 of the mutual aid agreement of this case is not erroneous in the misapprehension of legal principles as to the invalidation of contract, as otherwise alleged in the ground of appeal.

3. Regarding ground of appeal No. 1

A. The procedure for determining the amount of an insurance accident or the amount of an insurance contract, which is a major part of an insurance contract, is determined by the contents of the insurance policy or the terms and conditions. The interpretation of an insurance policy or the terms and conditions shall be fairly and reasonably interpreted in light of the purpose and purpose of the insurance policy or the terms and conditions in accordance with the principle of trust and good faith, and shall be objectively and uniformly interpreted in consideration of the interests of the entire insurance organization based on an average customer’s understanding potential. In cases where the meaning of the relevant terms and conditions is not clear, such as where the terms and conditions can be objectively and objectively interpreted and their respective interpretations are reasonable, the general course and process of concluding the insurance contract, and in particular, where the insurance contract is enforced under the Acts and subordinate statutes, the legislative intent of protecting the interests of the customer and the transaction party through the insurance shall also be considered (see, e.g., Supreme Court Decisions 2008Da81633, May 28, 2009; 2009Da6030

B. Examining the reasoning of the lower judgment and the relevant provisions of the former Real Estate Brokerage Act, the following facts are revealed.

(1) As seen earlier, the instant mutual aid is prescribed under the former Real Estate Brokerage Act, which was enacted to enhance the public confidence of real estate brokers and contribute to the protection of property rights of the people, and has the nature of guarantee insurance to guarantee liability for compensation for property damage incurred to the transaction parties.

(2) The instant mutual aid agreement is carried out based on the mutual aid provision approved by the Minister of Construction and Transportation. Article 7(2) of the Defendant’s mutual aid agreement at the time of the conclusion of the instant mutual aid agreement (hereinafter “mutual aid agreement”). Article 8(1) provides that matters concerning the procedures and business handling necessary for mutual aid agreements, such as the amount of mutual aid, shall be prescribed as the established rules. Article 8(1) provides that liability for compensation, mutual aid fees, claims for mutual aid money, and payment of mutual aid money shall be separately prescribed. Furthermore, Article 16 provides that the Defendant’s payment of mutual aid money shall be prescribed as the established rules upon the request of the beneficiary with relevant evidential documents, and the matters necessary for the payment of mutual aid money shall be prescribed as such. Article 3 of the mutual aid agreement provides that “the “mutual aid money” refers to the actual amount paid to the beneficiary in the event of the accident, and “the amount of mutual aid money” refers to the maximum amount agreed between the parties to the mutual aid agreement to be paid by the Association upon the occurrence of the accident” (Article 5).

(3) In addition, as to the above mutual aid provision, the defendant's mutual aid agreement at that time (hereinafter "mutual aid agreement of this case") provides that "where a real estate broker, who is a real estate broker, causes property damage to a transaction party by intention or negligence, the defendant shall be liable for damage under the Real Estate Brokerage Act, and shall compensate for the damage suffered by the transaction party in accordance with the terms and conditions as stated in the certificate of mutual aid (Article 1), "I, within the limit of the amount of mutual aid coverage (Article 2 (1))," and "I, within the limit of the amount of mutual aid coverage, the scope of damage covered by the Association" (Article 2 (2)), and "I, in the course of a mutual aid agreement, shall be the amount equivalent to the percentage of the contracting party's fault among the amount of property damage inflicted on the transaction party in performing a mutual aid act as a broker of real estate (Article 13). In addition, if several accidents occur within the mutual aid agreement period, there is no special provision that restricts mutual aid.

C. As such, it is difficult to interpret the provision of this case or the provision of the mutual aid to the effect that “the amount to be compensated by the Defendant shall be limited to the subscription amount,” and it does not necessarily mean that “the total amount to be compensated by the Defendant for all accidents occurred during the mutual aid period shall be limited to the subscription amount.” However, in understanding the above provision by connecting the provision in Articles 1 and 2 with a usual and natural meaning from the standpoint of a real estate broker or a transaction partner, a real estate broker or a beneficiary, who is a mutual aid contract with the phrase of this case, with the phrase of Articles 1 and 2 of the mutual aid agreement, it is sufficient to interpret to the effect that “where a real estate broker, a real estate broker, intentionally or negligently, causes property damage to a transaction party, he/she shall be liable for damages under the former Real Estate Brokerage Act, and such amount shall be limited to the subscription amount.” In light of the nature of the mutual aid in this case, the interpretation of the provision of this case, and the provision of the mutual aid in this case, it is necessary to interpret the above profits of the former Real Estate Brokerage Act.

Therefore, examining the above circumstances in light of the legal principles as seen earlier regarding the interpretation of the insurance contract and the terms and conditions, it is reasonable to interpret the mutual aid agreement of this case and the mutual aid agreement of this case as “limit on compensation per accident occurred within the effective period of the mutual aid agreement” (see Supreme Court Decision 2007Da3949, Apr. 10, 2008, etc.).

D. Although the reasoning of the judgment below is somewhat inappropriate or inadequate, the meaning of the provision that the defendant's amount of compensation for loss should be limited to the amount of the insured's subscription to the mutual aid agreement in this case is set at the limit of compensation per case, according to the opinion of the previous Supreme Court, and there is no error of law by misunderstanding the legal principles on physical liability and mutual aid system, as otherwise alleged in the ground of appeal.

4. As to the fourth ground for appeal

Inasmuch as the statute of limitations of a insurance claim is only abstract right before the occurrence of an insurance accident, and its right can be exercised from the time when the insurance accident occurred, barring any special circumstance, barring any special circumstance, the statute of limitations of a insurance claim should be interpreted to run from the time when the insurance accident occurred. However, even where it is objectively unclear whether the insurance accident occurred or not, and thus it is impossible for the claimant to know of the occurrence of the insurance accident without negligence, the statute of limitations of the insurance claim should be interpreted to run from the time when the insurance accident occurred, not only because it is too harsh to the claimant, but also accords with the social justice and equity principle, but also to the reason for the existence of the statute of limitations system. Therefore, if it is impossible to ascertain the occurrence of the insurance accident from the objective perspective, the statute of limitations of the insurance claim should be interpreted to run from the time when the claimant knew or could have known the occurrence of the insurance accident (see Supreme Court Decision 200Da3168, Apr. 27, 2001).

Examining the reasoning of the lower judgment in light of the aforementioned legal principles, the lower court did not err by misapprehending the legal doctrine on extinctive prescription, as alleged in the ground of appeal, since the Plaintiff knew or could have known the occurrence of a mutual aid accident when the Plaintiff’s damage was realized as a result of receiving a claim for the delivery of a building from the building owner around 2008.

5. Ground of appeal No. 5

If the victim's negligence is acknowledged in a lawsuit claiming damages, the court shall take such factors into account in determining the liability for damages and the amount thereof, and even if the obligor does not assert the victim's negligence, the court shall examine and determine it ex officio if it is recognized by the litigation materials. However, it is not permissible to assert that the person who intentionally committed the tort by using the victim's negligence reduces his/her liability on the ground of the victim's negligence (see, e.g., Supreme Court Decisions 2005Da32197, Oct. 7, 2005; 2010Da104539, Mar. 10, 2011).

Examining the reasoning of the judgment below in light of the above legal principles, it did not err by misapprehending the legal principles on offsetting negligence, as otherwise alleged in the ground of appeal by the court below, in this case where the defendant seeks mutual aid money under the mutual aid agreement of this case on the ground of the non-party's intentional tort.

6. Conclusion

Therefore, the appeal is 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 Shin Young-chul (Presiding Justice)