Attorney Disciplinary ProcedureCase

(12-1 KCCR 753, 99Hun-Ka9, June 29, 2000)

In this case, the Constitutional Court invalidated related provi-sions in the Attorneys-At-Law Act that require an attorney disci-plined by the Attorney Disciplinary Committee of the Korean BarAssociation to appeal directly the Supreme Court, without having an opportunity to appeal to the Administrative Court or the High Court,on the ground that they infringe the right to trial by judge, the rightto equality, and other basic rights.

A. Background of the Case

According to related provisions in the Attorneys-At-Law Act, theAttorney Disciplinary Committee of the Korean Bar Association candiscipline an attorney upon a finding of reason for such discipline.The disciplined can file an objection to the discipline to the AttorneyDisciplinary Committee of the Ministry of Justice. On the other hand,he or she can appeal the decision of the Attorney Disciplinary Com-mittee of the Ministry of Justice directly to the Supreme Court if theground of the appeal is that the decision violated the Constitution,statutes, regulations, or rules.

Attorney A was disciplined on a penalty of 3 million won by theAttorney Disciplinary Committee of the Korean Bar Association forcohabitating with a woman other than his spouse and thereby dam-aging the integrity of the profession, and for failing to pay the annualfees to the regional bar association that he belonged to. He filed anobjection with the Attorney Disciplinary Committee of the Ministry ofJustice but the objection was dismissed. He then sought cancella-tion of the penalty by filing judicial review of administrative action in the Seoul Administrative Court. The Seoul Administrative Courtfound that its jurisdiction over the case depended on the constitu-tionality of the above statutory provisions and requested constitution-al reviewsua sponte.

B. Summary of the Decision

The Constitutional Court invalidated the statutory provision uponthe following unanimous decision:

Generally, an objection to administrative action can be receivedby a fact-finding court in the Administrative Court or the HighCourt. Only the objection to the attorney discipline does not gothrough factual review. It is transferred directly from the Attorney Disciplinary Committee of the Ministry of Justice to legal review at the Supreme Court, and therefore limited to an appeal on the groundthat the decision violates laws and regulations. Therefore, the attor-ney objecting to the disciplinary action is not given the full oppor- tunity for fact-finding by a judge.

The Constitution in Article 27(1) states all people have rights toreceive a trial pursuant to statutes before a judge selected pursuantto the Constitution and statutes. It guarantees all a right to receivea trial conducted in accordance with the substance and proceduredefined by constitutional statutes, and by a judge, who is appointedin accordance with the qualifications and procedures set forth by theConstitution and statutes and guaranteed material and personal inde-pendence. A guarantee of a right to receive a trial by a judgemeans a guarantee of a right to have a judge determine the factsand interpret and apply laws. If such right is insufficiently guaran- teed, the essential content of the constitutionally guaranteed right totrial is infringed. In other words, the right to receive a trial by ajudge, guaranteed as a basic right by the Constitution, means a rightto have a judge determine the facts and 'interpretation and applica-tion of laws' by that judge to the facts of the concrete case. Theinstant statutory provision deprives one of an opportunity of fact-finding by a judge and therefore infringes on the constitutionallyguaranteed right to receive a trial by a judge.

Doctors, certified public accountants, tax accountants, architects, and other professionals can appeal their disciplinary actions for can-cellation to the Administrative Court. They therefore go to theSupreme Court after having obtained factual review at the Adminis-trative Court and the High Court. An attorney may be a specialoccupation, but it is unreasonable discrimination to require only himor her to appeal directly to the Supreme Court without granting afactual review by a judge.