[2] In cases where a certified judicial scrivener lends his/her certificate of registration to another person or borrows his/her certificate of registration from a certified judicial scrivener before the enforcement of the Certified Judicial Scriveners Act amended by Act No. 15151 on December 12, 2017, whether only money and valuables and other profits acquired by such act after the enforcement of the amended Certified Judicial Scriveners Act shall be subject to confiscation or collection under Article 72(2) of the amended Certified Judicial Scriveners Act (affirmative)

Furthermore, if an employee of a certified judicial scrivener office handles and processes the relevant affairs in the name of a certified judicial scrivener without actually under the direction and supervision of a certified judicial scrivener, not only the entire affairs but also affairs of a certain portion, even if the certified judicial scrivener performs normal activities concerning the remaining affairs, the violation of Article 72(1) of the Certified Judicial Scriveners Act may be established against the relevant employee and the certified

[2] Article 72(2) of the Certified Judicial Scriveners Act (amended by Act No. 15151, Dec. 12, 2017; hereinafter “Certified Judicial Scriveners Act”) provides that “Money and valuables or other benefits acquired by a certified judicial scrivener or a person who borrows a certificate of registration of a certified judicial scrivener shall be confiscated, and if it is impossible to confiscate it, the equivalent amount shall be collected.” Article 2 of the Addenda provides that “The amended provisions of Article 72(2) shall apply to cases where a certified judicial scrivener first lends the certificate of registration of a certified judicial scrivener after this Act enters into force.”

In light of the principle of prohibition of retroactive effect of penal provisions under Article 72(2) of the amended Certified Judicial Scriveners Act, Article 2 of the Addenda, the former part of Article 13(1) of the Constitution, and Article 1(1) of the Criminal Act, where a certified judicial scrivener lends a certificate of registration to another person, or where a certified judicial scrivener has continued prior to the enforcement of the amended Certified Judicial Scriveners Act, only money and valuables and other profits acquired by acts after the amended Certified Judicial Scriveners Act enters into force shall be deemed as subject to confiscation or collection under Article 72(2) of the amended

A. As to the Defendants’ non-existence of a violation of the Certified Judicial Scriveners Act

1) Article 21(2) of the Certified Judicial Scriveners Act provides that another person shall lend a certified judicial scrivener registration certificate itself even though he/she knows that he/she intends to engage in a certified judicial scrivener by using a certified judicial scrivener registration certificate (see Supreme Court Decision 2002Do1226, May 10, 2002). Here, “act performed as a certified judicial scrivener” includes not only the act of pretending to be performed by a disqualified person as a certified judicial scrivener after borrowing the name of the certified judicial scrivener, but also the act of pretending to be done as a certified judicial scrivener himself/herself, and instead of giving a certain amount to a certified judicial scrivener, the certified judicial scrivener does not participate in the number of cases or duties of the unqualified person but all of his/her duties on his/her account (see Supreme Court Decision 2006Do2518, Dec. 7, 2006).

Furthermore, if an employee of a certified judicial scrivener office handles and processes the relevant affairs in the name of a certified judicial scrivener without actually under the direction and supervision of a certified judicial scrivener, not only the entire affairs but also affairs of a certain portion, even if the certified judicial scrivener performs normal activities concerning the remaining affairs, the violation of Article 72(1) of the Certified Judicial Scriveners Act may be established against the relevant employee and the certified

2) On the grounds indicated in its reasoning, the lower court maintained the first instance judgment that determined that Defendant 2 lent the registration certificate of a certified judicial scrivener from January 2014 to April 9, 2018, and Defendant 1 performed the duties of a certified judicial scrivener on his/her account by lending the registration certificate of a certified judicial scrivener from Defendant 2 to Defendant 2, and that Defendant 1 performed the duties of a certified judicial scrivener on his/her account.

3) Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the establishment of an unspecified charge and a crime of violation

B. As to Defendant 1’s remaining grounds of appeal

The argument that there was an error in mistake of facts in the determination of sentencing by the lower court constitutes an allegation of unfair sentencing. However, under Article 383 Subparag. 4 of the Criminal Procedure Act, an appeal on the ground of unfair sentencing is allowed only in cases where death penalty, life imprisonment, or imprisonment with or without prison labor for not less than ten years is imposed. In this case where Defendant 1 was sentenced to more minor punishment, the argument that the punishment is too unreasonable does not constitute a legitimate ground for appeal.

2. Ex officio determination on the collection portion

A. Article 72(2) of the Certified Judicial Scriveners Act (amended by Act No. 15151, Dec. 12, 2017; hereinafter “Certified Judicial Scriveners Act”) provides that “Money and valuables or other benefits acquired by a certified judicial scrivener or a person who borrows a certificate of registration of a certified judicial scrivener shall be confiscated, and if it is impossible to confiscate it, the equivalent value thereof shall be collected.” Article 2 of the Addenda provides that “The amended provisions of Article 72(2) shall apply to cases where a certified judicial scrivener first lends the certificate of registration of a certified judicial scrivener after this Act enters into force.”

In light of the principle of prohibition of retroactive effect of penal provisions under Article 72(2) of the amended Certified Judicial Scriveners Act, Article 2 of the Addenda, the former part of Article 13(1) of the Constitution, and Article 1(1) of the Criminal Act, where a certified judicial scrivener lends a certificate of registration to another person, or where a certified judicial scrivener has continued prior to the enforcement of the amended Certified Judicial Scriveners Act, only money and valuables and other profits acquired by acts after the amended Certified Judicial Scriveners Act enters into force shall be deemed as subject to confiscation or collection under Article 72(2) of the amended

B. The first instance court found the Defendants guilty of violating the Certified Judicial Scriveners Act, and, pursuant to Article 72(2) of the amended Certified Judicial Scriveners Act, 41,538,100 won, which Defendant 2 acquired from January 2014 to April 9, 2018, was additionally collected from Defendant 2, and KRW 1,243,071,374, which Defendant 1 acquired from Defendant 1, respectively, from Defendant 1, and the lower court maintained as it is.

C. However, since the facts charged in the instant case include a crime before December 12, 2017, prior to the enforcement of the amended Certified Judicial Scriveners Act, the lower court should have deliberated and determined whether the amount of collection can be calculated by examining the part to which Article 72(2) of the amended Certified Judicial Scriveners Act applies, or whether the amount of collection can be collected pursuant to other Acts and subordinate statutes for the portion to which other Acts and subordinate statutes are not applicable.

D. Nevertheless, the lower court erred by misapprehending the legal doctrine on the scope of application under Article 72(2) of the amended Certified Judicial Scriveners Act, which additionally collected from the Defendants pursuant to Article 72(2) of the Certified Judicial Scriveners Act, which entirely amended the profits acquired by committing a crime as stated in the facts charged, thereby failing to exhaust all necessary deliberations,

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Noh Tae-tae (Presiding Justice)