부동산매매 등의 계약 해제와 부동산중개업자의 보수청구권에 대한 고찰 － 일본판례를 중심으로 －

Abstract

This paper focuses on the issues of precedent and doctrine as they relate to the broker's claim for a fee. After studying the precedent and doctrine in Japan, it will hopefully be easier to establish a meaningful and workable policy for Korea. Before a broker can claim a fee, the following three conditions must first be met First, the intermediation contract between a broker and a client needs to be completed. Second, the broker should provides the intermediation services for which the client contracted. And third, the broker's services are clearly seem to result in the completion of a real estate contract. In this paper, the focus will be on whether the broker's claim for a fee is maintained or forfeited whenever a completed contract is cancelled by one party's or both parties' default on an obligation. Even though this problem occurs often in Korea during the day to day practice of intermediation, it is nevertheless true that no judicial precedent has ever been set. It is also true that there have been very few studies of this issue, even though it is extremely complex and has tremendous legal implications. There could be several reasons why problem arises frequently in Korea. The following are offered as possibilities: Brokers don't want to go to court but would rather work it out. Financially, it's not worth it even if he wins the case. Furthermore, most brokers don't have a full knowledge of the law. For these reasons, this paper analyzes the Japanese judicial precedents into how those systems understand and deal with this issue. Specifically, if the completed contract is cancelled because of a default on an obligation through no fault of the broker, will the broker's claim for a fee be maintained and honored? If so, is the broker entitled to the entire fee or a partial one, and within what kind of time frame can he expect payment? The conclusions reached on this paper will not only provide guidance regarding the establishment of a Korean policy for intermediation, but also make a significant contribution to the academic understanding of such matters.