부동산중개계약의 성립에 관한 고찰

Abstract

This paper aims to provide the problems regarding the validity of establishing real estate brokerage contracts (hereafter REBC) and then to solve the legal complications on these. The first issue is regarding when exactly the brokerage contracts go into effect, and the second one is the validity of tacit agreements. In order to solve these two problems, the author examined first it was examined first that whether the REBC has any difference from delegation contracts, employment contracts or other subcontracts. There are many kinds of brokerage such as unilateral, bilateral, medium-used, instructed, multiple listing brokerages, etc. This paper explores not only each content of these brokerages but also various kinds of brokerage contracts such as Open Listing Contract, Exclusive Agency Listing Contract, Exclusive Right-to-Sell Listing Contract, Net Listing Contract. No conflict can be caused regarding the validity of establishing real estate brokerage contracts if an explicit BC brokerage contracts (hereafter BC) is made. However, in real brokering situation most realtors are asked brokerings verbally, thus problems occur quite often. It is the author’s intention to make it clear when exactly BC gets into effect in that case through concrete precedents leading cases. The problems regarding the validity of tacit agreements can occur from the relations between the realtors who are asked brokering from clients and the other party who are not asked during the performance of brokering. In this case what qualification would be necessary to complete REBC with the other party who are not asked to broker? This paper tried to recognize attempted to make it clear citing the specific judicial precedents. However, it was hardly for us to find any leading case related to these two problems in the real brokering situations even though these are the matters that can occur quite often in Korea. It is not certain whether it might be lack of realtors’ aggressive legal action against these problems or not. Furthermore, there are few studies on these matters yet. Therefore, the author tried to find our own solutions after researching how these matters are settled in Japan and Germany.