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대법원 1997. 10. 10. 선고 97도2109 판결

[변호사법위반][공1997.11.15.(46),3550]

Main Issues

[1] Whether a violation of the Attorney-at-Law Act is established in a case where part of the money received as a solicitation for a public official is used as a lawyer's appointment fee or a debt repayment (affirmative)

[2] Whether the appellate court takes a measure that does not include part of the detention days before the court of first instance rendered a judgment in the original sentence

Summary of Judgment

[1] As long as an amount was received under the pretext of solicitation for a public official in charge of investigation rather than a lawyer's appointment fee or a repayment of debt to creditors, it constitutes Article 90 subparagraph 1 of the Attorney-at-law Act even if part of the amount was used as an attorney's appointment fee or a payment of debt.

[2] When the appellate court reverses the judgment of the court of first instance and issues a new sentence, even if the part of the detention days before the judgment of the court of first instance was not included in the original sentence, it is a matter belonging to the discretion of the court of final judgment, and there is no violation of the interpretation and application of Article 57 of the Criminal Act

[Reference Provisions]

[1] Article 90 subparagraph 1 of the Attorney-at-Law Act / [2] Article 57 of the Criminal Act

Reference Cases

[1] Supreme Court Decision 89Do608 delivered on October 24, 1989 (Gong1989, 1827), Supreme Court Decision 94Do2119 delivered on May 31, 1996 (Gong1996Ha, 2078) / [2] Supreme Court Decision 82Do2528 delivered on November 22, 1983 (Gong1984, 134), Supreme Court Decision 86Do1669 delivered on October 28, 198 (Gong1986, 3158), Supreme Court Decision 91Do353 delivered on April 26, 191 (Gong191, 1566) (Gong15666), Supreme Court Decision 290Do295394 delivered on November 26, 1993 (Gong1991, 295)

Defendant

Defendant

Appellant

Defendant

Judgment of the lower court

Gwangju District Court Decision 97No899 delivered on July 31, 1997

Text

The appeal is dismissed. 50 days out of detention days after the appeal shall be included in the original sentence.

Reasons

The grounds of appeal are examined.

1. Examining the adopted evidence of the first instance court as cited by the court below in light of the records, it can be sufficiently recognized that the defendant received a sum of KRW 33,00,000 from the victim's Cho Young-chul under the pretext of solicitation of the public officials investigating the criminal case against the non-indicted 1, and that the defendant received a sum of KRW 2,00,000 from the victim's Cho Jong-chul-si in return for the substitute act in the judgment, and thus, the court below's decision that found the defendant guilty of the facts charged against each of the violation of the Attorney-at-Law Act is just, and there is no error of law

2. The issue is that the defendant's 33,00,000 won out of the above 33,000,000 won which the defendant received from the above Cho Young-chul constitutes the penalty provisions of Article 90 subparagraph 1 of the Attorney-at-Law Act even if the defendant used part of the above amount to the above 33,00,000 won as the attorney's fee for the above non-indicted 1, and the 15,000,00 won is also paid as the deposit money for his creditor's repayment of his obligation to the non-indicted 1, the above amount is not the violation of the Attorney-at-Law Act, and it does not constitute the violation of the attorney-at-law Act. However, since the defendant received the above amount under the pretext of solicitation of the public official in charge of investigation not as the attorney's fee or the repayment of obligation to the creditors, it constitutes the penalty provisions of Article 90 subparagraph 1 of the Attorney-at-law Act even if the defendant actually used it in the above room (see Supreme Court Decision 2009Do419698, Oct. 16, 19, 19, 19, 196.

3. Although the court below reversed the judgment of the court of first instance and rendered a new sentence, even if part of the number of detention days before the judgment of the court of first instance was not included in the original sentence, it constitutes the discretionary discretion of the court of judgment, and there is no violation of law regarding interpretation and application of Article 57 of the Criminal Act (see Supreme Court Decision 93Do2505 delivered on November 26, 1993).

4. In this case where a sentence of less than 10 years has been imposed, the argument that the amount of punishment is too unreasonable cannot be a legitimate ground for appeal. All of the arguments are without merit.

Therefore, the appeal shall be dismissed, and part of the number of detention days after the appeal shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices.

Justices Chocheon-sung (Presiding Justice)