Constitutional Court: "Contract with Only Assistant Attending Under Real Estate Agent's Instruction... Legal"

Seoul Jongno-gu Constitutional Court Grand Bench / Photo by Moon Honam munonam@

[Asia Economy Reporter Kim Daehyun] The Constitutional Court has ruled that even if only a brokerage assistant without a certified real estate agent qualification was present and drafted the contract, it cannot be considered a legal violation if the contract was made under the direction of the certified real estate agent.

On the 10th, the Constitutional Court announced that it unanimously accepted the constitutional petition filed by certified real estate agent A and assistant B, who requested the cancellation of the non-prosecution disposition.

Previously, in 2019, certified real estate agent A made a preliminary contract to mediate a lease contract for an officetel for newlyweds. He was responsible for substantial brokerage tasks such as explaining contract terms and the transfer of the preliminary contract deposit. Assistant employee B recommended the officetel to the newlyweds.

However, on the scheduled contract date, A had an urgent schedule, so B attended on his behalf. Initially, A requested to change the contract date, but the landlord and tenant schedules did not align. Ultimately, B drafted the contract while receiving phone instructions from A.

The prosecution issued a non-prosecution disposition against them for violating the Certified Real Estate Agent Act. A non-prosecution disposition means that although the charges are acknowledged, the prosecutor decides not to bring the suspect to trial considering various circumstances.

The Constitutional Court decided to cancel the non-prosecution disposition. The court pointed out, "A directly explained important and essential matters such as the status of the brokerage property and contract conditions," and "there is little evidence to consider that A instructed or tacitly allowed B to perform substantial brokerage work." The court added, "B's act of showing and guiding the house corresponds to 'on-site guidance of the brokerage property' under the Certified Real Estate Agent Act and cannot be regarded as directly performing brokerage work."

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