사적자치와 공법적 제어의 조화

Abstract

In principle, everyone is guaranteed freedom of contract. In principle, the contents of a real estate sales contract can also be freely determined by agreement between the seller and the buyer without state control. However, even if the contract is based on the civil law to which private autonomy is applied, there are some cases which could be also a subject to public law. For example, in accordance with ACT on report on real estate transaction (ARRET), the sales price of a real estate sales contract must be reported to the authority within 30 days from the date of conclusion of the sales contract. This is a kind of reporting obligation. Recently, it is common to conclude a provisional contract before concluding a real estate sales contract in Korea. Regarding this situation, namely provisional contract, there is a controversial case, in which a licensed real estate agent was fined for violating the reporting obligation. This is understood to be due to differences in perception of how to understand provisional contracts. In the controversial case, the authority judged the starting point of transaction in a report as the date of deposit of the provisional contract, not the date of conclusion of the main contract. The ARRET does not define the date of conclusion of a sales contract or provides a guideline for interpretation. The date of conclusion of the contract means the date on which the contract is actually concluded, not the date of written contract or the date on which the contract is drafted. Based on this date, the report must be made within the period. Regarding the date, there are several problems in the disposition of fine by the authority. First, fine for negligence are imposed for delay of reporting obligation, and the amount of fine actually imposed is due to false reports. Second, various contracts called provisional contracts cannot be identified as the same contract as the main contract. Third, there are cases in which reporting is impossible at the time an agreement on the sales contract is established. Imposing a fine for negligence is a kind of an intrusive administrative disposition that imposes certain obligations. Therefore, the legal basis for disposition must be clear, and extended or inferential interpretations are not permitted. Furthermore, the authority should judge more carefully whether the fundamental rights of the constitution are not violated or whether the legal basis for the disposition is clear when taking an intrusive administrative disposition against a private person.