不動産仲介契約의 契約責任에 관한 硏究

부동산 중개계약의 법적 구조와 계약책임을 연구했다.

The present study purposed to explain principles related to the legal structure of real estate listing(brokerage) contracts and, based on them, to discuss contract liability. Thus, the structure of this paper is as follows. First, with regard to the legal structure of real estate listing contracts, we analyze the history of real estate listing contracts, legislation cases in several countries, and the legislation process in Korea. Moreover, we examine the legal principles of real estate listing contracts based on relevant theories and judicial precedents, and formulate the legal principles of real estate listing contracts.

Next, this study considers contract liabilities in real estate brokers and real estate brokerage clients, dividing them into liability for non‐performance under contract and that as the violation of obligation by law, and analyzes contract liabilities focused on liabilities for damages. Lastly, we analyze legal issues related to real estate listing contracts centering on various contents observed in the amendment of the Civil Code.

In this study, we also clarify the characteristics and legal structure of real estate listing contracts and make a comparative analysis of foreign legislation cases for real estate listing contracts, concentrating on liabilities for damages as contract liabilities in real estate listing contracts. Aiming to save victims of various types of non‐performance in real estate listing contracts, this study analyzes irrational regulations on the protection of brokerage clients and real estate brokers’ excessive liabilities for damages, identifies problems in them, and delimits compensation for damages.

That is, the legal principles of liabilities for damages as contract liabilities are the main subjects of this study. Accordingly, Chapter II of this paper studies the legal structure of real estate listing contracts to see the unique features of the contracts through analyzing the history and legislation cases of real estate listing contracts in Korea including Korean traditional brokerage contracts and examining theories and judicial precedents related to the legal principles of real estate listing contracts.

Chapter III is a study on contract liabilities in real estate listing contracts, defining the scope and limitations of compensation for damages through examining each party’s duties and responsibilities based on the bilateralism of real estate listing contracts. Chapter IV analyzes the contents of written opinions on brokerage contracts in the amendment of the Civil Code concerning legal issues related to real estate listing contracts, criticizes them, and suggests how to improve them.

Chapter V summarizes the discussion and draws conclusions, suggesting the establishment of legal principles for contract liabilities in the parties of real estate listing contracts, namely, real estate broker and real estate brokerage clients and methods of settling sound real estate listing contracts for the protection of contract parties based on contract liabilities. Through this study, we found that the contract parties of a real estate listing contract, namely, the real estate broker and the brokerage client are in a bilateral relation with each other and the contract is an onerous contract in principle.

Thus, it was concluded that in a real estate listing contract the contract parties have compensatory contract liabilities to each other by the principles of the contract law. That is, if either of the contract parties neglects the fulfillment of its obligation under the contract or violates any incidental duty, it should assume contract liabilities. The violation of such contract liabilities produces liabilities for damages. Accordingly, the two parties of a real estate listing contract must assume liabilities for damages as contract liabilities in case they as the subjects of the contract violate the contract.

Up to now, according to market practices, heavy contract liabilities have been placed only on real estate brokers and compensations for damages have been claimed. However, the results of this study show that brokerage clients commissioning the transaction of real estate have obligations and liabilities equivalent to real estate brokers’. Particularly in real estate listing contracts, which are onerous contracts in principle, both real estate brokers and brokerage clients are given rights and duties corresponding to their roles.

That is, real estate brokers can claim brokerages, expenses or actual costs corresponding to the success of brokerage, difficulty and specialty of brokerage activities, differences in cost, the period of activity, etc. In addition, brokerage clients can claim against real estate brokers brokerage activities and the fulfillment of various obligations. From the results of this study were drawn conclusions as follows. First, a real estate listing contract is a bilateral contract. Thus, it raises the question of the right of plea for concurrent accomplishment.

The real estate broker’s obligation to examine and explain about the object of brokerage is in a bilateral relation with the brokerage client’s obligation to pay the reward and acknowledge the relation in the fulfillment, so they are in the relation of concurrent accomplishment. Accordingly, the real estate broker who has not received the brokerage may not fulfill the obligation to examine and explain about the object of brokerage. On the other hand, because a real estate listing contract is an onerous contract, the brokerage client must not hinder the establishment of the right to claim repair in the real estate broker who holds the right to claim repair.

What is more, each party has a liability for reparation in case the party terminates the brokerage contract when the opposite party is in a disadvantageous position and causes a loss to the opposite party. Because the real estate broker has to pay the expenses of surveying and investigation through brokerage activities, col