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A Study on Legal Matters of the Business Agreement on Real Estate Appraisal Work

  • Korea Real Estate Review
  • 2007, 17(2), pp.9-36
  • Publisher : korea real estate research institute
  • Research Area : Social Science > Law > Law of Special Parts > Law of Real Estate

Lee, Sun Young 1

1영산대학교

Candidate

ABSTRACT

After making the business agreement for the appraisal with appraisers on condition of the appraisal request of the collateral real estate, financial institutions demand that the appraisers observe the contents of the agreement, namely appraisal methods, abandonment of fee claims, particular instances of joint guaranteed liabilities, surveys of real estate leases, and so forth. The business agreement is a kind of contract, and by observing its contents, it is a legal matter related to requesting the appraisal. The financial institution has a claim for damages in case the appraiser contravenes the agreement, but the appraiser only has duty of observing contents of the agreement and dose not have a right of claim for the appraisal request. The business agreement is based on the principle of freedom of the contract. A legal act that violates the compulsory regulation becomes ineffective in the civil law. As the law takes administrative, civil, and penal sanctions against the appraiser who appraises illegally and unfairly, to allow such agreement may come under the unfair trade by an antitrust law, though it does not become as ineffective as violating the compulsory law. According to the interpretation of the Supreme Court rulings and a inspection guide of the Fair Trade Commission, the forced trade and the misuse of the position in trade which are types of unfair trade may have sufficient reasons for the unfair trade. Especially, by means of supplying a product, or a appraisal request, what a financial institute demands that an appraiser make the business agreement which he or she does not want may become a tie-in sale and a forced purchase under the antitrust law. Because not only a financial institution but also an appraisal requester could be protected under the law from the illegal and unfair appraisal, there is no reason for allowing a appraisal request by making business agreement separately and this cannot be a normal trade custom. Such unfair trade has to be revised by the Fair Trade Commission through its examination.

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