민법상 “중개계약” 규정 신설에 관한 법정책적 소고

Abstract

The Republic of Korea has no provision on intermediation contracts in the civil act. Article 6 of the Provision of Commercial Act only defines the rights and duties of intermediation agencies in the country. Civil intermediation differentiated from commercial intermediation includes real estate brokerage, marriage brokerage, occupational brokerage, etc. And the national law regulates theses with special laws such as the Real Estate Agents Act, Marriage Brokers Business Management Act and Employment Security Act. But these acts tend to regulate in a public dimension, leaving much room for improvement in dealing with civil affairs. Especially with the IT advancement and trade liberalization, it has become urgently required to find an appropriate trade counterpart. In this situation, it is questionable if the extant regulates are enough to resolve disputes over intermediation contracts between potential transaction partners. Germany has already regulated such a intermediation contract in both civil and commercial acts. Swiss has also defined them in its liability law, the integrated system of civil and commercial acts. Korea also needs to establish general principles on intermediation contracts in the civil act. The government has made plenty of efforts to newly establish provisions on intermediation contracts in the civil code since 1999 and presented amendments and draft amendments, etc. Academia has also discussed on this theme actively. However, related legislation has been delayed for reasons as that brokers tend to be active only in a limited area, etc. This research reviewed the actual status of such brokerage transactions and viewed the legal nature of real estate and employment intermediation contracts as a delegation contract based on subcontracting. Also, since marriage brokerage has been paid, etc. regardless of successful marriage, it was regarded as different from those two. Considering that the civil act defines the act of delegation gratuitous, civil act amendments, etc. regulate intermediation contracts as gratuitous, in principle, and, if for value, special contracts. However, in the actual field, such intermediation contracts are usually for value. In this sense, such a reality will need to be reflected. As brokers’ right to claim payment bases on receiving payment thus, by holding a successful brokerage as a condition precedent, intermediation contracts need to be viewed as a bilateral contract for value realizing full payment upon the establishment of their conclusion. In this way, they should be differently understood from the pure delegation contract under the civil code. Since brokers’ right to claim payment becomes constituted upon the handling or completion of a certain transaction by a broker, sales, lease or employment contracts, etc., such intermediation contracts should be considered as a special delegation contract in the nature of subcontracting. In this perspective, this research explored methods to define intermediation contracts in the civil act and viewed that marriage brokerage-related matters need to be defined in another way based on other countries’ legislations such as Swiss.