부동산중개계약의 특질에 관한 연구

1. CONTENTS (1) RESEARCH OBJECTIVES This study intends to i) identify that the real estate brokerage contract (the "Brokerage Contract" has its own distinctive legal features which are different from those of other typical contracts under the Civil Law, ii) to remove the imperfections of its contract form, and thus iii) to enable the Brokerage Contract to become a specified typical contract under the Civil Law. (2) RESEARCH METHOD This study identifies the Brokerage Contract's legal features logically through theories, judicial precedents, quotes, analysis, corresponding regulations, and related preceding research and various reference books. (3) RESEARCH FINDINGS The Brokerage Contract is an agreement under which i) clients ask real estate brokers to arrange or mediate business between parties in order to sell, buy, exchange, and lease the properties specified under the law, and to acquire or change any other rights on the properties, and ii) clients promise to pay real estate brokerage commission in consideration of their completion of the brokerage service. These types of contracts include 'Open Listing Contracts', 'Exclusive Agency Listing Contracts', 'Exclusive Right to Sell Listing Contracts', 'Multiple Listing Contracts', and 'Net Listing Contracts'. Among these, 'Open Listing Contracts' are common in Korea. Considering the legal features of the Brokerage Contract, the Brokerage Contracts should be based on the Civil Law since the Brokerage Contract is an agreement between the clients and brokers and it falls under the civil brokerage contract. Since both parties are liable to pay costs or render service, the Brokerage Contracts are deemed to be i) 'Onerous Contracts', unless there is other special agreement about free of charge, and ii) 'Bilateral Contracts'. They are also deemed to be 'Consensual Contracts' because they are constituted upon the broker's approval after a client's request of brokerage business about the properties. In addition, the Brokerage Contracts are 'Informal Contracts' because they don't require any specific forms. There are some different views about the legal constitution of the Brokerage Contract. According to some views, the standard for legal interpretation of the Brokerage Contract should be found in typical contracts. According to other views, the Brokerage Contract is a mixed contract where several typical elements are mixed with each other. In addition, it is also interpreted as the contract which has both typical elements and untypical elements at the same time. These different views are due to the fact that there is no common laws and regulations about the Brokerage Contract under the Civil Law although it has its own distinctive features which are different from those of the typical contracts under the Civil Law. 2. RESULTS If we draw a legal principle from these various conflict theories, the Brokerage Contract should be interpreted not as a typical contract but as an independent contract. Therefore, it is impracticable to apply the existing typical contracts to the Brokerage Contract that has various legal relationships, or to infer any details of the Brokerage Contract from such typical contracts, and thus we need to acknowledge the independent features of the Brokerage Contract and seek any legal or systematic measures to make the Brokerage Contract a new independent typical contract.